Sink v. State
| Decision Date | 06 January 1993 |
| Docket Number | No. 71A03-9203-CR-76,71A03-9203-CR-76 |
| Citation | 605 N.E.2d 270 |
| Parties | Kevin Donald SINK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Anthony V. Luber, South Bend, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-plaintiff.
Kevin Sink was charged and convicted of child molesting, a Class B felony, on evidence that he performed cunnilingus on a nine year old girl in whose home he was living.
During the trial and over defense objection three witnesses were permitted to testify to having observed the defendant on a different occasion engaging in inappropriate sexually oriented conduct with the same little girl.
The state's final instruction No. 4, which was given by the court over defendant's objection, advised the jury:
Testimony regarding sexual misconduct of the defendant other than the acts charged in this Information may be considered by you as manifesting the defendant's predilection to engage in sexual contact with children.
At the time of trial this evidence was admissible and the instruction was appropriate under the so-called "depraved sexual instinct exception" to the rule generally precluding the admission of evidence of an accused's other criminal conduct.
Since then, however, our supreme court in Lannan v. State (1992) Ind., 600 N.E.2d 1334 abolished the depraved sexual instinct exception in favor of the position of Fed.R.Evid. 404(b). In so doing, it expressly observed that the general exclusionary rule being adopted "renders inadmissible character evidence offered solely to show the accused's propensity to commit the crime with which he is charged." 600 N.E.2d at 1336.
The Lannan court did not state that abolition of the old exception was to operate only prospectively. Its holding therefore applies to all cases pending on direct review or not yet final. Griffith v. Kentucky (1987) 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649; Pirnat v. State (1992) Ind., 600 N.E.2d 1342; Wilson v. State (1987) Ind., 514 N.E.2d 282; See also Rowley v. State (1985) Ind., 483 N.E.2d 1078.
It is possible that the evidence objected to concerning the uncharged conduct of Sink with the same prosecuting witness might have been admissible on other grounds. On the other hand, the final instruction to the jury on predilection is squarely within the prohibition established by Lannan.
...
To continue reading
Request your trial
-
Stout v. State
...at trial). And, cf. Vanover v. State (1992), Ind.App., 605 N.E.2d 218 (Objection made anticipating abolishment of rule); Sink v. State (1993), Ind.App., 605 N.E.2d 270 and Moran v. State (1992), Ind.App., 604 N.E.2d 1258 (Proper objections made to preserve Stout concedes, at least with resp......
-
Ried v. State
...Ind., 607 N.E.2d 973 (opinion on rehearing) (Pirnat II ); Pirnat v. State (1992), Ind., 600 N.E.2d 1342 (Pirnat I ); Sink v. State (1993), Ind.App., 605 N.E.2d 270; Vanover v. State (1992), Ind.App., 605 N.E.2d 218; Moran v. State (1992), Ind.App., 604 N.E.2d The case before us was pending ......
-
Shanks v. State
...Dist. Ind.App., 605 N.E.2d 218, 220. Accord Pirnat v. State (1993) 5th Dist. Ind.App., 612 N.E.2d 153, on remand; Sink v. State, (1993) 3d Dist. Ind.App., 605 N.E.2d 270, 271 trans. denied. The judgment is reversed and the cause is remanded for further proceedings consistent herewith. SHARP......
-
Thompson v. State
...Lannan and Pirnat decisions, this court was constrained to reverse child molesting convictions and order new trials in Sink v. State (1993), Ind.App., 605 N.E.2d 270, Vanover, supra, and Moran v. State (1992), Ind.App., 604 N.E.2d 1258, reh. denied. Today, we add this case to the In Lannan,......