Zawacki v. State, 35A02-0012-CR-771.

• Decision Date: 10 August 2001
• Docket Number: No. 35A02-0012-CR-771.,35A02-0012-CR-771.
• Citation: 753 N.E.2d 100
• Parties: Richard A. ZAWACKI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

753 N.E.2d 100

Richard A. ZAWACKI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 35A02-0012-CR-771.

Court of Appeals of Indiana.

August 10, 2001.

William E. Daily, Danville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge

Appellant-defendant Richard A. Zawacki appeals his conviction for Sexual Misconduct with a Minor,¹ a class C felony. Specifically, he contends that reversal is warranted because the trial court erred in excluding certain evidence on cross-examination regarding the female victim's purported interest in having a sexual relationship with Zawacki's daughter after the victim had denied such an interest.

FACTS

The facts most favorable to the verdict are that on June 15, 2000, fifteen-year-old S.H. went to K.Z.'s house to visit with her. K.Z.'s father, Zawacki, was home at the time, as were other members of K.Z.'s family. At one point, Zawacki called S.H. into another room. Zawacki was seated next to his computer and he showed S.H. some pornographic photographs on the screen. Zawacki then produced three sexual devices and displayed them to S.H.

Later that evening, Zawacki offered to drive S.H. back to her house. Zawacki did not permit his daughter to go with them. While traveling toward S.H.'s home, Zawacki grabbed S.H.'s breasts and moved S.H.'s hand to his crotch area. Although Zawacki warned S.H. not to tell anyone, she reported the incident to her mother approximately one week later.

Thereafter, the State charged Zawacki with one count of sexual misconduct with a minor. Prior to trial, the State filed a motion in limine requesting that Zawacki be prohibited at trial from making any statements or offering any opinions or evidence of reputation relating to "the past sexual conduct" of the victim or witnesses other than the accused. Record at 37. In response, Zawacki filed a "Motion For Offer Of Proof," requesting permission to offer a number of letters into evidence that S.H. had written to K.Z., demonstrating that S.H. was sexually attracted to K.Z. Zawacki also desired to offer evidence that S.H. had asked Zawacki and his wife if they would permit her to have a lesbian relationship with K.Z. R. at 41. That motion further asserted that the Zawackis had denied S.H.'s request and, therefore, S.H. falsely accused Zawacki of committing the charged offense because she was biased against him. Thus, Zawacki maintained that such evidence was relevant and admissible. The trial court granted the State's motion in limine and S.H. denied, on cross-examination, that she had asked the Zawacki's permission to engage in a sexual relationship with K.Z. Thereafter, Zawacki attempted to introduce the letters into evidence that S.H. had written to K.Z., which purportedly demonstrated S.H.'s sexual feelings for K.Z. The trial judge excluded this evidence and also ruled that Zawacki could not testify that he had refused S.H.'s request for permission to engage in a lesbian relationship with K.Z. Following the jury trial that concluded on October 11, 2000, Zawacki was found guilty as charged. He now appeals.

DISCUSSION AND DECISION

Before addressing the issue that Zawacki presents today, we note that the decision to admit or exclude evidence is within the trial court's sound discretion and is afforded great deference on appeal. Bacher v. State, 686 N.E.2d 791, 793 (Ind. 1997). The admission or exclusion of evidence will not generally be reversed on appeal absent a manifest abuse of discretion that results in a denial of a fair trial. See Becker v. State, 695 N.E.2d 968, 973 (Ind.Ct.App.1998)

. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Myers v. State 718 N.E.2d 783, 789 (Ind. Ct.App.1999),

trans. denied. Moreover, this court will find an abuse of discretion when the trial court controls the scope ofcross-examination to the extent that a restriction substantially affects the defendant's rights. Nasser v. State, 646 N.E.2d 673, 681 (Ind.Ct.App.1995). Evidence of bias, prejudice, or ulterior motives on the part of a witness is relevant at trial, as it may discredit the witness or affect the weight of the witness's testimony. Ind.Evidence Rule 616; Sigler v. State, 733 N.E.2d 509, 511 (Ind.Ct.App.2000),

trans. denied.

Turning to the circumstances presented in the instant case, we first note that the State posited its motion in limine in accordance with the provisions of our Rape Shield Law.² In relevant part, this statute provides that:

(a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted, except:

(1) evidence of the victim's or of a witness'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.

I.C. § 35-37-4-4; Evid.R. 412. The purpose of the Rape Shield Law is to encourage the reporting of sexual assaults and to prevent victims from feeling as though they are on trial for their sexual histories. Hook v. State, 705 N.E.2d 219, 221 (Ind.Ct. App.1999), trans. denied. This court will not engraft additional exceptions to the rape shield prohibition against inquiry into the past sexual activities of a victim. Little v. State, 650 N.E.2d 343, 345 (Ind.Ct. App.1995).

The State leads us to several reported cases in support of its contention that the evidence offered by Zawacki in response to S.H.'s denial that she ever desired to have a sexual relationship with K.Z. was properly excluded. In each of those cases, however, we note that evidence of a prior sexual relationship was involved. See Hook, 705 N.E.2d at 220-21 (Ind.Ct.App. 1999)

(excluding evidence of a teenage victim's past sexual conduct offered by the defendant to counter the innocent picture of the victim portrayed by the State); Caley v. State, 650 N.E.2d 54, 55-56 (Ind.Ct. App.1995),

trans. denied (excluding evidence of a teenage victim's sexual relationship with a person other than the defendant).

Here, the evidence that Zawacki sought to offer at trial does not concern any actual prior sexual activity or conduct on S.H.'s part. The letters contain only written matter, and the request by S.H. to Zawacki only amounted to verbal conduct. The content of the letters and the request directed to the Zawackis by S.H. regarding a possible relationship with their daughter are demonstrative of S.H.'s intentions. The evidence that Zawacki sought to present to the jury was intended to impeach S.H.'s credibility by demonstrating bias, prejudice or an ulterior motive as to her claim against Zawacki. We cannot say that this was an instance where Zawacki sought to introduce this evidence solely for the purpose of prejudicing S.H. in the eyes of the jury. See Carter v. State, 505 N.E.2d 798, 800 (Ind.1987)

(denial of appellant's attempt to question State's witness regarding her duties as an employee of a "relaxation center" was proper where the only possible reason for such line of questioning was to prejudice the witness). Simply put, the evidence that Zawacki sought to offer did not fall within the confines of our Rape Shield Law. Rather, Zawacki sought to use this evidence in order to show bias on the...