Sallee v. State

• Decision Date: 27 March 2003
• Docket Number: No. 55A05-0201-CR-26.,55A05-0201-CR-26.
• Parties: Sherry Pierce SALLEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

785 N.E.2d 645

Sherry Pierce SALLEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 55A05-0201-CR-26.

Court of Appeals of Indiana.

March 27, 2003.

William Van Der Pol, Jr. Martinsville, IN, Attorney for Appellant.

Stephen R. Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

HOFFMAN, Senior Judge.

Defendant-Appellant Sherry Pierce Sallee ("Pierce") appeals her convictions of criminal deviate conduct, a Class A felony, and criminal confinement, a Class D felony. We affirm.

Pierce raises four issues for our review, which we renumber and restate as:

I. Whether the trial court abused its discretion in not allowing Pierce to present evidence of the victim's sexual history.

II. Whether the trial court erred in ordering the sentences to be served consecutively.

III. Whether the sentence was manifestly unreasonable.

IV. Whether the trial court committed reversible error in denying Pierce's request to suppress evidence seized during a warrantless search of Pierce's purse.

The facts most favorable to the verdicts reveal that on April 9, 2001, the victim, an eighteen-year-old female, left her apartment to go to a nearby BigFoot service station. Pierce and her then-boyfriend, Edward Sallee ("Sallee"), approached the victim, and Sallee offered the victim twenty dollars if she would give them a ride to their house.¹ The victim agreed to give them a ride, but she refused payment.

Sallee got into the back seat of the victim's car, and Pierce rode in the front seat. The victim drove the car until her passengers told her to pull over at a gravel road. The victim put the car in neutral, and Sallee grabbed her from behind and attempted to pull her into the backseat with Pierce's help. The victim screamed and kicked and managed to hit the car horn with her foot before Sallee pulled her into the backseat with him. Pierce got into the driver's seat and drove away. The victim huddled in the back and told her passengers to take her money or her car but to drop her off. Pierce told the victim to be quiet, or she would kill her.

Concerned that the victim would be able to see where they were going, Sallee put a t-shirt over the victim's head and fastened it with duct tape around her neck. The t-shirt only partially blocked the victim's vision. Both Pierce and Sallee told the victim that if she did not do everything right, they would kill her.

Pierce then drove to a wooded area and stopped at a black and white house surrounded by trees. Pierce and Sallee took the victim into the house and sat her on a bed. They told the victim to keep her eyes shut, removed the t-shirt, and placed duct tape over the victim's eyes.

Over the course of the next hours, Pierce and Sallee forced the victim to perform or submit to various sexual acts. The victim was forced to perform oral sex on both Pierce and Sallee; both Pierce and Sallee performed oral sex on the victim; Sallee penetrated the victim's vagina with his penis; and Pierce used a sexual device to penetrate the victim's vagina. In addition to the sexual acts, Pierce and Sallee forced the victim to smoke and snort what they called "crank," which made the victim sick at her stomach. The victim complied with all of their demands because she was afraid for her life; numerous times, Pierce and Sallee told the victim that if she saw anything or if she told anyone, they would kill her.

Pierce and Sallee returned the victim's clothes to her and when she was dressed, put her in the backseat of her car. They dropped her off at the side of the road and told her that her car would be in the local Wal-Mart parking lot. They then drove away. The victim removed the duct tape from her eyes and flagged down a passing car driven by her roommate, A.B. When the victim told A.B. that she had been raped, A.B. took her to the police department to speak with police and then to the hospital, where doctors performed a physical examination.

A security tape at the Wal-Mart revealed that after the victim's car had been driven into the lot, two unidentified individuals had departed the car and entered a small pickup truck. The pickup truck had been parked in the back part of the lot. The investigating officers were unable to ascertain who the truck belonged to, but they did observe that the truck was painted in a camouflage pattern.

Pierce and Sallee were arrested approximately one month after the incident. Pierce was charged with criminal deviate conduct, a Class A felony; sexual battery, a Class C felony; and criminal confinement, a Class D felony. Following a jury trial, Pierce was convicted on each of the charges and later sentenced to a total of fifty-three years.² She now appeals.

I.

Pierce contends that the trial court erred in excluding her proffered evidence regarding the victim's prior sexual history. Pierce asserts that the trial court's ruling deprived her of a fair trial.

The trial court has broad discretion in ruling on the admission of evidence. Jackson v. State, 697 N.E.2d 53, 54 (Ind. 1998). A trial court's ruling on the admissibility of evidence will be disturbed on review only upon a showing of an abuse of discretion. Id. An abuse of discretion occurs when the trial court's ruling is clearly against the logic, facts, and circumstances presented. Platt v. State, 589 N.E.2d 222, 229 (Ind.1992). In determining the admissibility of evidence, this court will only consider the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Brand v. State, 766 N.E.2d 772, 778 (Ind.Ct.App.2002), trans. denied.

The admission of evidence pertaining to a victim's past sexual conduct is governed by Indiana Evidence Rule 412. This rule provides that, with very few exceptions, evidence of a victim's past sexual conduct may not be admitted. The rule states the exceptions to the general rule as (1) evidence of the victim's past sexual conduct with the defendant; (2) evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded; (3) evidence that the victim's pregnancy at the time of trial was not caused by the defendant; or (4) evidence of conviction for a crime to impeach under Rule 609. In addition to these enumerated exceptions, a common-law exception has survived the 1994 adoption of the Indiana Rules of Evidence. See Graham v. State, 736 N.E.2d 822, 825 (Ind.Ct.App.2000),

trans. denied. This exception provides that evidence of a prior accusation of rape is admissible if: (1) the victim has admitted that her prior accusation of rape is false; or (2) the victim's prior accusation is demonstrably false. Id.

Pierce sought to introduce evidence to counteract alleged assertions by the State that the victim was sexually naïve and to attack her credibility.³ She proffered evidence that the victim first engaged in sexual intercourse at the age of fourteen. She also wished to introduce evidence that the victim stated in a pre-trial deposition that her "guess" was that she had last had intercourse with her sometimes boyfriend "a couple of months" prior to this incident, while her boyfriend stated in his deposition that sexual intercourse between the two had most likely occurred within days before the incident. This evidence does not fit into any of the exceptions listed in Evid.R. 412. Pierce contends, however, that the evidence impacted her Sixth Amendment right to present evidence.

Evid.R. 412 "is intended to prevent the victim from being put on trial, to protect the victim against surprise, harassment, and unnecessary invasion of privacy, and, importantly, to remove obstacles to reporting sex crimes." State v. Walton, 715 N.E.2d 824, 826 (Ind.1999) (quoting Williams v. State, 681 N.E.2d 195, 200 (Ind.1997)). Evid.R. 412 "appears to be a stylistic revision of Indiana's Rape Shield Act, and so brings only slight change to Indiana law." Miller, 12 Indiana Practice § 412.101, p. 542 (1995 ed.) (citing Ind. Code § 35-37-4-4). To the extent there is a difference between the two, the rule controls. Graham, 736 N.E.2d at 824-25. The Rape Shield Act has repeatedly been found constitutional on its face so long as it does not violate a defendant's right to cross-examination. Id. at 826-27.

The constitutionality of an act or rule "as applied to preclude particular exculpatory evidence remains subject to examination on a case by case basis." Steward v. State, 636 N.E.2d 143, 148 (Ind.Ct. App.1994), aff'd, 652 N.E.2d 490 (Ind. 1995). The trial court's exclusion of evidence must not prevent the defendant "from conducting a full, adequate, and effective cross-examination." Id. Thus, this court has held that "the validity of precluding particular exculpatory evidence should be determined on a case-by-case basis to assure that no violation of the right to cross-examination has occurred." Clark v. State, 728 N.E.2d 880, 887 (Ind.Ct.App. 2000), trans. denied.

Here, the State emphasizes that Evid.R. 412(b) requires that a defendant, absent a showing of good cause, must file a written motion at least ten days before trial describing any evidence of past sexual conduct that she proposes to offer. Pierce did not give such notice or make a showing of good cause to the trial court. In addition, she does not address the issue of notice in either her initial or her reply brief. It appears that her failure to do so is based upon a belief that the requirements of Evid.R. 412(b) only apply when a defendant is proposing to offer evidence pertaining to one of the exceptions listed in Evid.R. 412(a).

Unlike Ind.Code § 35-37-4-4(c), which requires special procedures only when the defendant proposes to offer evidence pertaining to the exceptions listed in a prior subsection, Evid.R. 412(b) requires the defendant to give written notice any time the defendant proposes to offer evidence under "this rule."⁴ We read "this rule" as referring to...