Stout v. State

• Decision Date: 26 April 1993
• Docket Number: No. 48A02-9210-CR-509,48A02-9210-CR-509
• Citation: 612 N.E.2d 1076
• Parties: Clarence C. STOUT, a/k/a Larry Clinton Cornell, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1
• Court: Indiana Appellate Court

Page 1076

612 N.E.2d 1076

Clarence C. STOUT, a/k/a Larry Clinton Cornell, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-9210-CR-509. ¹

Court of Appeals of Indiana,

First District.

April 26, 1993.

Transfer Denied June 23, 1993.

John Pinnow Greenwood, for appellant-defendant.

Pamela Carter, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Clarence C. Stout appeals his conviction of child molesting, a class A felony.

We affirm.

Stout argues in this appeal:

(1) that the trial court erred in admitting evidence of the rape of a sixteen-year-old girl by Stout;

(2) that the trial court erred in permitting the victim's counselor to explain why the victim might add to her account of the charged crime;

(3) that the introduction of evidence of uncharged offenses under the depraved sexual instinct exception was fundamental error;

(4) that the conviction of class A felony child molesting is not supported by sufficient evidence on the element of the threat of deadly force;

(5) that the fifty-year sentence imposed was manifestly unreasonable, cruel and unusual punishment and in violation of article one, Sec. 18 of the Indiana Constitution; and

(6) the trial court erred in denying the defense motion to strike statements made by the probation officer in the presentence report and a victim impact statement from the victim's mother.

We address the first and third issues together.

I.

Stout maintains the trial court committed reversible error by permitting the introduction of evidence he had previously raped a first cousin. This evidence, along with testimony that Stout had molested this particular cousin on two occasions before she turned sixteen, and testimony from a series of other family members whom Stout had molested in the past, was admitted pursuant to the depraved sexual instinct exception to the general rule forbidding admission of uncharged offenses or bad acts. Stout argues, first, that a prior rape would not have been admissible under the exception, citing Stwalley v. State (1989), Ind., 534 N.E.2d 229 and Reichard v. State (1987), Ind., 510 N.E.2d 163; and, second, that, with the abolition of the exception by the Indiana Supreme Court in Lannan v. State (1992), Ind., 600 N.E.2d 1334, the admission of the evidence of the rape and other acts of child molesting constitutes reversible error.

Neither Stwalley nor Reichard involves the introduction of evidence of a prior rape in a prosecution for child molesting. Reichard involved the introduction of evidence of a second rape in a trial for rape. Although Stwalley, which followed Reichard, came to the court with convictions of both rape and child molesting, the offenses arose from the same act of intercourse, causing the court to vacate the child molesting conviction upon double jeopardy principles. That the Stwalley court did not intend to decide the propriety of evidence of an earlier rape in a child molesting prosecution is apparent from the court's statement that it need not consider whether the court erred in permitting a prior rape conviction to be used as evidence of child molesting. 534 N.E.2d at 231.

The trial court admitted the evidence of the rape by Stout of his cousin based upon the precedent of Lawrence v. State (1984), Ind., 464 N.E.2d 923, in which the Indiana Supreme Court held that evidence of a rape twenty-two years earlier was admissible as evidence of child molesting. In Lawrence, the court observed that the acts of rape and child molesting were similar in character in that both involved sexual aggression, accomplished either by intimidation, force, threat or engendering fear. The rule of Lawrence continued to be the law until Lannan abolished the exception altogether. See Foster v. State (1988), Ind., 526 N.E.2d 696 (Upholding impeachment by use of prior conviction for assault and battery with intent to commit rape in prosecution for child molesting); Stewart v. State (1990), Ind., 555 N.E.2d 121 (Citing Lawrence as authority for admission of evidence of oral and anal intercourse in prosecution for criminal deviate conduct and confinement); Knisley v. State (1985), Ind.App., 474 N.E.2d 513, 517, trans. denied.

Although Stout objected to the admission of the uncharged rape as evidence of a depraved sexual instinct, at no time did he object to the evidence of any of the prior bad acts or offenses on the ground that the justifications for the depraved sexual instinct exception were no longer valid or that the rule should be abolished for other reasons. The Lannan decision may be retroactively applied only to those cases pending on appeal at the time of the decision in which the issue has been properly preserved. Pirnat v. State (1992), Ind., 600 N.E.2d 1342, on rehearing, (1993), Ind., 607 N.E.2d 973, 973-74; Ried v. State, (1993), Ind.App., 610 N.E.2d 275, 281-82 (Barteau J. dissenting). Accord Coleman v. State (1990), Ind., 558 N.E.2d 1059, cert. denied, --- U.S. ----, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (Booth/ Gathers decisions of U.S. Supreme Court apply to direct appeal of a trial occurring before those cases were decided so long as the appellant has preserved a victim impact issue by objection 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 error).

Stout concedes, at least with respect to the evidence of prior offenses other than the rape, that he voiced no specific objection at trial. He argues, however, that the admission of this evidence constitutes fundamental error which will survive the procedural default occasioned by his failure to object. Although the Indiana Supreme Court has not yet spoken on this issue, one district of this court has held that the admission of prior offenses as evidence of child molesting is not fundamental error. Ried, 610 N.E.2d at 282. This result is consistent with Indiana Supreme Court and Court of Appeals decisions which have held generally that the admission of evidence of other offenses does not deprive a defendant of fundamental due process. Lewis v. State (1987), Ind., 511 N.E.2d 1054; Greentree v. State (1976), 265 Ind. 47, 351 N.E.2d 25; Dorsey v. State (1977), 171 Ind.App. 408, 357 N.E.2d 280. Accordingly, we follow the lead of the fourth district and hold that any error in the admission of prior offenses evidence was not fundamental.

II.

Stout argues the trial court erroneously permitted a counselor of the victim to effectively vouch for the veracity of the victim. The counselor was asked first whether she had an opinion as to why she would get bits and pieces of an incident from children who have suffered a traumatic event and to state that opinion. Stout made no objection. The witness testified:

... Like in normal circumstances if we are afraid or nervous about something, we may be scared that we're gonna look stupid or somebody might not like us, there's a tendency for people to avoid or ... you know, stay away or withdraw. They're afraid and they're anxious about something. When you're traumatized by something, it's possible to intensify that where you want to block it out completely or that you only deal with what you have to deal with and you may leave out bits and pieces. You may forget about things altogether. It may be too painful to talk about. You may not have the words or the understanding of how to deal with it or to talk about it. But in a trauma, I think that it's not uncommon to see a detachment from the event and even forget or ... you know, not remember specific things related to the event. It's not uncommon to want to forget to want to, you know, make it not happen.

A few questions later, the witness was asked whether she had an opinion

as to ... based upon the facts that I've given you, ..., regarding a hearing in 1985 where this person who at that time was eleven years of age ... and that person came into Court on July seven, 1992, and that same person ... and testified at a hearing and added to what was said in 1985? Would you have an opinion as to why a person ... an individual under those circumstances would do that?

Over Stout's objection that "that is for the finder of the fact, that being the jury to decide and resolve," the witness testified

[o]ne possible reason or my opinion might be that the person was threatened or told not to tell and was scared to tell. That the person might be very embarrassed about the facts or that the person may be so traumatized that they totally ... they repressed or denied important aspects of the traumatic event until a later date. When you are dealing with a lot of emotional or physical stress or demands, you deal with what you have to deal with as you can deal with it. And you can't deal with everything all at once. You deal with stress and trauma gradually as in a process, bit by bit, not all at once.

In child molesting cases, adult witnesses are prohibited from making direct assertions as to their belief in the child's testimony, as such vouching invades the province of the jury to determine the weight to place on the child's testimony. Stewart v. State (1990), Ind., 555 N.E.2d 121, 125. We observe that at no time did the adult witness here state her belief that the victim was telling the truth. At best, the testimony can be said to show the victim's purported memory loss to be a credible explanation for the revelation of details not previously disclosed. Expert testimony that an individual's subsequent behavior is consistent or inconsistent with that observed from other victims is a type of evidence which is admissible. Henson v. State (1989), Ind., 535 N.E.2d 1189. Assuming then that Stout objected on the ground that the question called for the impermissible form of vouching, the trial court properly overruled...