Wood v. State, 03A04-8808-CR-262

Citation534 N.E.2d 1146
Case DateMarch 16, 1989
CourtCourt of Appeals of Indiana

Page 1146

534 N.E.2d 1146
Danny Ray WOOD, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 03A04-8808-CR-262.
Court of Appeals of Indiana,
Fourth District.
March 16, 1989.

Page 1147

J.J. Paul, III, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Presiding Judge.

Defendant-Appellant Danny Ray Wood (Wood) appeals his conviction for two counts of child molesting.

We reverse.

Because we reverse, we address only the issue of whether the trial court, based on the rape shield statute, properly excluded exhibits and testimony indicating someone other than Wood committed the molestations.

In April, 1987, C.B., an eight year old female, informed her grandmother Wood had been "messing with her." Wood, the boyfriend of C.B.'s mother, frequently resided with the family. Upon questioning by family members, caseworkers for the Welfare Department, and a police officer, C.B. indicated Wood frequently rubbed his fingers on her "straddle" (i.e. vaginal area) and breasts and rubbed his penis on various parts of her body. C.B. defined the events in terms of houses where the family had lived rather than dates. Eventually, C.B. and the police officer arrived at Christmas Eve 1985 and April 1986 as dates of molestation.

Wood was charged by information with two counts of child molesting, both class C felonies. After a jury trial, Wood was convicted of both counts and sentenced to consecutive terms of eight years with four of the eight years suspended on count two. He now appeals.

Further facts as necessary appear below.

IND.CODE 35-37-4-4, the Indiana rape shield statute, provides:

Sec. 4. (a) In a prosecution for a sex crime as defined in IC 35-42-4:

(1) evidence of the victim's past sexual conduct;

(2) evidence of the past sexual conduct of a witness other than the accused;

(3) opinion evidence of the victim's past sexual conduct;

(4) opinion evidence of the past sexual conduct of a witness other than the accused;

(5) reputation evidence of the victim's past sexual conduct; and

(6) reputation evidence of the past sexual conduct of a witness other than the accused;

may not be admitted, nor may reference be made to this evidence in the presence of the jury, except as provided in this chapter.

(b) Notwithstanding subsection (a), evidence: ...

(2) which in a specific instance of sexual activity shows that some person other than the defendant committed the act upon which the prosecution is founded; ...

may be introduced if the judge finds, under the procedure provided in subsection (c) of this section, that it is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(c) If the defendant or the state proposes to offer evidence described in subsection (b) of this section, the following procedure must be followed:

(1) The defendant or the state shall file a written motion not less than ten (10) days before trial stating that it has an offer of proof concerning evidence described in subsection (b) and its relevancy to the case. This motion shall be accompanied by an affidavit in which the offer of proof is stated.

(2) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, and at the hearing allow the questioning of the victim or witness regarding the offer of proof made by the defendant or the state.

At the conclusion of the hearing, if the court finds that evidence proposed to be

Page 1148

offered by the defendant or the state regarding the sexual conduct of the victim or witness is admissible under subsection (b) of this section, the court shall make an order stating what evidence may be introduced by the defendant or the state and the nature of the questions to be permitted. The defendant or the state may then offer evidence under the order of the court.

On January 26, 1987, Wood filed a motion for a pre-trial ruling as to the admissibility of evidence otherwise excluded by the rape shield statute and for a hearing thereon. At the hearing, which took place on January 30, 1987, the trial judge took the issue under advisement. Thereafter, the State filed a motion in limine, which was granted by the trial court pursuant to I.C. 35-37-4-4. The order in limine barred evidence of C.B.'s past sexual conduct, evidence of the past sexual conduct of a witness other than the accused, and any opinion or reputation evidence regarding the above witnesses. Trial commenced on February 10, 1987. 1

Several times throughout the trial Wood attempted to elicit testimony and present exhibits indicating someone else committed the molestations. However, the trial court refused to admit the evidence based on its order in limine. Wood now contends the trial court misapplied the rape shield statute through its order in limine, thereby denying him the opportunity to effectively cross-examine witnesses and present his defense.

Wood points to several specific occurrences at trial. For example, at one point, Helen Jackson, a welfare caseworker, was questioned by the State on direct examination regarding telephone conversations with Darlene, C.B.'s mother. The following colloquy took place:

Q. What were [sic ] the nature of those calls?

A. she...

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2 cases
  • Saylor v. State, 67A01-9002-CR-48
    • United States
    • Indiana Court of Appeals of Indiana
    • 6 septembre 1990
    ...cross-examination. Lagenour v. State (1978), 268 Ind. 441, 444-45, 376 N.E.2d 475, 478. Saylor cites Wood v. State (1989), Ind.App., 534 N.E.2d 1146, trans. denied, in support of his contention that he was denied the right to effective cross-examination. In Wood, the complaining witness app......
  • Kielblock v. State, 29A02-9208-CR-392
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 janvier 1994
    ...inquiry into their past sexual conduct and to prevent the victims from feeling that they are on trial. Wood v. State (1989), Ind.App., 534 N.E.2d 1146. "On this basis, our courts have approved the exclusion of evidence of prior molestation by a different person under the rape shield statute......

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