Shanks v. State

• Citation: 640 N.E.2d 734
• Decision Date: 28 September 1994
• Docket Number: No. 80A02-9212-CR-593,80A02-9212-CR-593
• Parties: Kenneth L. SHANKS, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Court of Appeals of Indiana

Page 734

640 N.E.2d 734

Kenneth L. SHANKS, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 80A02-9212-CR-593.

Court of Appeals of Indiana,

Second District.

Sept. 28, 1994.

Thomas R. Lett, Tipton, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Indianapolis, for appellee.

SULLIVAN, Judge.

Once again, we must determine whether reversal is required due to the admission of depraved sexual instinct evidence in the wake of Lannan v. State (1992) Ind., 600 N.E.2d 1334. This case offers a new twist, however, because the defendant was tried to the court and not to a jury.

The facts most favorable to the trial court's judgment reveal that Shanks has three daughters: J.S., M.S., and L.S. In late 1990 or early 1991, J.S. told a school counselor that Shanks had been molesting her. She reported that he had touched and fondled her breasts on September 8, 1988, and that he had fondled her genitalia in mid-June of 1989.

Shanks was charged with two counts of child molesting for fondling J.S., ¹ both Class D Felonies. At Shanks' bench trial, J.S. testified, over objection, about other, uncharged acts of molestation by Shanks. Shanks' other daughters also testified, over objection, about specific instances of Shanks' molestation of them. The trial court found Shanks guilty of both counts and sentenced him to two three-year terms of imprisonment, to be served concurrently but consecutively to the sentence he had received in a separate proceeding for his conviction for molesting L.S. ² Evidence of prior bad acts, including acts tending to show a depraved sexual instinct, is inadmissible. Lannan, supra at 1339. It is beyond dispute that the evidence of Shanks' uncharged acts of molestation was error. ³ However, where evidentiary error has occurred, reversal is not required if it is apparent that the fact-finder did not rely upon the improper evidence in reaching the verdict. Pinkston v. State (1982) Ind., 436 N.E.2d 306, 308. In determining whether the improper evidence was relied upon, the reviewing court should consider the probable impact of the evidence upon the fact-finder. Lannan, supra, 600 N.E.2d at 1341. Where the trial is a bench trial, under the proper circumstances, a reviewing court may conclude that the improper evidence did not have significant impact upon the judge and was not relied upon. Pinkston, supra at 308. A reviewing court may reach the same conclusion where there was other overwhelming evidence of guilt, regardless of whether the trial was to a judge or a jury. See Lannan, supra at 1341.

I. BENCH TRIAL

When a defendant is tried without a jury, it may be presumed that the judge will disregard inadmissible and irrelevant evidence in determining whether the defendant committed the charged crime. Pinkston, supra at 308; King v. State (1973) 2d Dist., 155 Ind.App. 361, 292 N.E.2d 843. "[H]arm arising from evidentiary error is lessened if not totally annulled when the trial is by the court sitting without a jury." King, supra at 846. The question remains whether we may indulge in this "judicial-temperance" presumption where a Lannan error has occurred. We hold that the presumption does not apply in this case because the evidence was used for an improper purpose, the evidence was admissible at the time of trial, and the evidence was admitted over a special objection.

A. Improper Purpose

"Bad acts" evidence is generally inadmissible because it is highly prejudicial and invites the jury to convict the defendant merely because he is a bad person. Hardin v. State (1993) Ind., 611 N.E.2d 123, 127. The evidence conveys the impression that the defendant is a " 'bad' man who should be punished whether or not" the evidence against him establishes his guilt. Thompson v. State (1993) 4th Dist. Ind.App., 612 N.E.2d 1094, 1098, trans. denied. We agree with Judge Friedlander's dissent that a judge will not fall prey to this type of prejudice and convict the defendant merely because he is a bad man. "[A] trial judge, unlike a lay jury, can be presumed to retain his impartiality...." Pier v. State (1983) 3d Dist. Ind.App., 446 N.E.2d 985, 988 (no reversible error where defendant was tried to trial court in manacles and handcuffs). "It can be presumed that a trial judge is not swayed by evidence which is considered prejudicial before a jury." Misenheimer v. State (1978) 268 Ind. 274, 374 N.E.2d 523, 528. If this were the only reason that evidence of depraved sexual instinct is now inadmissible, we might be persuaded that reversal is not required. However, there is another reason that this evidence is inadmissible precluding the operation of the judicial-temperance presumption.

While evidence of prior offenses is admissible for a few specifically enumerated purposes, ⁴ it is not admissible to show that the defendant had a propensity to commit criminal acts and therefore, committed the charged crime. Lannan, supra, 600 N.E.2d at 1339. Prior to Lannan, evidence of a depraved sexual instinct was an exception to the propensity rule and was admissible to " 'connect an accused with a crime....' " Kerlin v. State (1970) 255 Ind. 420, 265 N.E.2d 22, 25. We can conclude only that by abolishing the depraved sexual instinct exception, our Supreme Court has held that evidence of a depraved sexual instinct can no longer be used to prove that the defendant committed the crime charged. ⁵ Like other "bad acts" evidence, evidence of depraved sexual instinct simply is irrelevant to the defendant's guilt or lack thereof. In so holding, we note that our Fourth District has stated that evidence of depraved sexual instinct is "wholly irrelevant, but damaging, inadmissible evidence of prior bad acts." Moran v. State (1992) 4th Dist. Ind.App., 604 N.E.2d 1258, trans. denied. ⁶

The evidence was not admitted for any of the permissible purposes. See supra note 4. Rather, it was admitted to prove that Shanks acted in conformity with a depraved sexual instinct. In overruling Shanks' objection, the trial judge stated, "I don't think this falls under the common scheme or plan exception. However it will be admitted under the depraved sexual instinct exception." Record at 66. Where evidence is inadmissible simply because it will inflame the prejudice of the jury, it is appropriate to presume a judge will not likewise be affected. However, where evidence is admitted expressly for a prohibited purpose, we cannot presume the judge did not consider it for the impermissible purpose.

B. Admissible at Trial

The judicial-temperance presumption is also inapplicable in this case because the contested evidence was admissible at the time of trial. In most cases employing the presumption, the evidence is inadmissible, but comes in anyway, usually because no objection is posed. ⁷ Where inadmissible evidence comes in without intervention of the judge, he or she may be presumed to know that the evidence is in-fact inadmissible and should be disregarded. However, there is no reason to presume the judge would disregard evidence that was admissible at the time and, therefore, presumably relevant. As Judge Friedlander states, quoting King, supra, 292 N.E.2d at 846-47, the basis for the presumption is that the judge knows the "intricacies and refinements of the rules of evidence ... [and] is thus able to separate the wheat from the chaff...." Dissenting slip. op. at 5. But where those rules change after the trial, we cannot honestly suppose that the judge applied the correct, albeit non-existent, rule. Accordingly, we hold that where heretofore admissible evidence becomes inadmissible, the presumption does not apply.

C. Specific Objection

Finally, the judicial-temperance presumption is inapplicable because the evidence was admitted over a specific objection. The dissent relies upon King, supra, to apply the presumption thus affirming the conviction. Although the citation is understandable due to the widespread misuse of King, the reliance is misplaced. King, which is a review of a general objection to an evidentiary harpoon, ⁸ was decided in 1973. Three years later, our Supreme Court limited King to its facts, holding that the judicial-temperance presumption only applies where the contested evidence is admitted over a general objection, and cannot be used where the defendant has made a specific objection. ⁹ Fletcher v. State (1976) 264 Ind. 132, 340 N.E.2d 771. Where a judge has overruled a specific objection, it clear that the judge believes the evidence to be admissible and relevant. Accordingly, it defies logic to presume that he did not rely upon the evidence in reaching his determination as to guilt. In Fletcher, the defendant made a specific objection to evidence of a prior conviction for purposes of impeachment based upon the Ashton rule. ¹⁰ 340 N.E.2d at 773. Our Supreme Court stated, "It is a curious ratiocinative process which presumes that the trial court will disregard that which it holds admissible over specific objection." Id.

The upshot of Fletcher, then, is that the judicial-temperance presumption is limited to situations in which there has been no objection at all or merely a general objection. However, "a general objection without stating grounds therefor, preserves nothing for appeal and will not be reviewed." Johnson v. State (1978) 2d Dist., 177 Ind.App. 501, 380 N.E.2d 566, 569. Nevertheless, where the evidence itself plainly discloses the basis for the objection, a reviewing court may reach the merits of a general objection. King, supra, 292 N.E.2d at 845. ¹¹ While King and its progeny have been the basis for virtually every decision in which the presumption has been applied, only one case has ever mentioned the Fletcher limitation. See Altman v. State (1984) Ind., 466 N.E.2d 716, 719. This leads to the inescapable conclusion that most cases resorting to the presumption improperly have applied it to evidence admitted over specific objection. In fact, this court stated, "In a trial to the court, the admission of...