depraved sexual instinct exception in Indiana

1989Lawrence v. State (1984), Ind., 464 N.E.2d 923 ; Allbritten v. State (1974), 262 Ind. 452 , 317 N.E.2d 854 .

1988As the sole issue in this direct appeal, defendant contends the trial court erroneously admitted evidence of defendant's prior Michigan conviction. 1 Defendant argues that the prior conviction, appearing to be equivalent to the offense of rape, was not sufficiently similar to the crimes charged to allow its introduction into evidence under the depraved sexual instinct rule as applied in Lawrence v. State (1984), Ind., 464 N.E.2d 923 .

1994Moreover, in Pirnat v. State (1992), 600 N.E.2d 1342 , reh'g denied (1993), 607 N.E.2d 973 (per curiam), after remand (1993), Ind. App., 612 N.E.2d 153 , reh'g denied, decided the same day as Lannan, we said: We have today in Lannan v. State, 600 N.E.2d 1334 (1992), revisited the depraved sexual instinct exception and announced a *577 new rule concerning the admissibility of prior bad acts in sex offense cases.

1993It means only that such evidence will no longer be admitted to show action in conformity with a particular character trait." According to Pirnat v. State (1992), Ind., 600 N.E.2d 1342 , rek. denied, decided on the same day as Lonnaon, supra, Orr is entitled to application of Lan-nan as his case was pending on direct appeal at the time of the Lannan decision.

1993Stout 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.

1991Stwalley v. State (1989), Ind., 534 N.E.2d 229 ." The uncharged acts being offered need not be identical to the acts charged; it is sufficient if the same sexual instinet is involved.

1992Stephens, supra citing Grey v. State (1980), 273 Ind. 439, 446 , 404 N.E.2d 1348, 1352 .

1992Stephens, supra citing Grey v. State (1980), 273 Ind. 439, 446 , 404 N.E.2d 1348, 1352 .

1991Letica argues that evidence of a prior rape conviction does not fit under the depraved sexual instinct rule, citing Reichard v. State (1987), Ind., 510 N.E.2d 163 , and Lehiy v. State (1987), 509 N.E.2d 1116 .

1989Lehiy v. State (1986), Ind.App., 501 N.E.2d 451 , aff'd, 509 N.E.2d 1116 (Ind.1987).

1988In explanation of the basis for the depraved sexual instinct rule, this court stated: The basis for this exception is that in prosecutions for depraved acts "... the prosecuting witness is not likely to be believed, since the evidence 'standing alone and entirely unconnected with anything which led to or brought it about, would appear ... unnatural or improbable in itself"" Pieper v. State, (1975) 262 Ind. 580, 585 , 321 N.E.2d 196, 199 , quoting State v. Robbins, (1943) 221 Ind. 125 , 46 N.E.2d 691, 695 .

1988In explanation of the basis for the depraved sexual instinct rule, this court stated: The basis for this exception is that in prosecutions for depraved acts "... the prosecuting witness is not likely to be believed, since the evidence 'standing alone and entirely unconnected with anything which led to or brought it about, would appear ... unnatural or improbable in itself"" Pieper v. State, (1975) 262 Ind. 580, 585 , 321 N.E.2d 196, 199 , quoting State v. Robbins, (1943) 221 Ind. 125 , 46 N.E.2d 691, 695 .

1988In explanation of the basis for the depraved sexual instinct rule, this court stated: The basis for this exception is that in prosecutions for depraved acts "... the prosecuting witness is not likely to be believed, since the evidence 'standing alone and entirely unconnected with anything which led to or brought it about, would appear ... unnatural or improbable in itself"" Pieper v. State, (1975) 262 Ind. 580, 585 , 321 N.E.2d 196, 199 , quoting State v. Robbins, (1943) 221 Ind. 125 , 46 N.E.2d 691, 695 .

1988In explanation of the basis for the depraved sexual instinct rule, this court stated: The basis for this exception is that in prosecutions for depraved acts "... the prosecuting witness is not likely to be believed, since the evidence 'standing alone and entirely unconnected with anything which led to or brought it about, would appear ... unnatural or improbable in itself"" Pieper v. State, (1975) 262 Ind. 580, 585 , 321 N.E.2d 196, 199 , quoting State v. Robbins, (1943) 221 Ind. 125 , 46 N.E.2d 691, 695 .

1987Brackens, 480 N.E.2d at 539 ; McKim v. State (1985), Ind., 476 N.E.24 503, 505.

1986Brackens v. State (1985), Ind., 480 N.E.2d 536 ; McKim v. State (1985), Ind., 476 N.E.2d 503 ; Jarrett v. State (1984), Ind., 465 N.E.2d 1097 .

2011Id. at 736-37 .

2011The Court of Appeals in Shanks found three reasons the judicial-temperance presumption was overcome: (1) the trial court expressly stated a prohibited purpose for admitting the evidence; (2) the type of evidence was admissible at the time of trial but was held inadmissible while defendant’s appeal was pending; and (3) the trial court admitted the evidence over a specific objection. 640 N.E.2d at 737-739 .

1997Cossel v. State, 675 N.E.2d 355 (Ind.Ct.App.1996).

1995Pursuant to that rule, evidence of an accused's extrancous bad acts is no longer admissible to prove a depraved sexual in-stincet, but "such evidence may be admissible despite its tendency to show bad character or criminal propensity, if it makes the existence of an element of the crime charged more probable than it would be without such evidence." Id. (quoting Bedgood v. State (1985), Ind., 477 N.E.2d 869, 872-73 ; emphasis in original).

1995Pursuant to that rule, evidence of an accused's extraneous bad acts is no longer admissible to prove a depraved sexual instinct, but "such evidence may be admissible despite its tendency to show bad character or criminal propensity, if it makes the existence of an element of the crime charged more probable than it would be without such evidence." Id. (quoting Bedgood v. State (1985), Ind., 477 N.E.2d 869, 872-73 ; emphasis in original).

1994Moreover, in Pirnat v. State (1992), 600 N.E.2d 1342 , reh'g denied (1993), 607 N.E.2d 973 (per curiam), after remand (1993), Ind. App., 612 N.E.2d 153 , reh'g denied, decided the same day as Lannan, we said: We have today in Lannan v. State, 600 N.E.2d 1334 (1992), revisited the depraved sexual instinct exception and announced a *577 new rule concerning the admissibility of prior bad acts in sex offense cases.

1993Stout v. State (1993), Ind.App., 612 N.E.2d 1076, 1079 , trans. denied; see also Clausen v. State, Ind., 622 N.E.2d 925 at 927-928 (1993); Shackelford v. State, (1993), Ind.App., 622 N.E.2d 1340 at 1343 .

1993The defendant’s motion sought reconsideration of the depraved sexual instinct rule and was supported by a detailed and thorough memorandum referring the trial court to various articles and treatises by social scientists, pursuant to the invitation in Hogg v. State (1991), Ind., 581 N.E.2d 430 (Dickson, J., concurring in the denial of transfer).

1993The defendant's motion sought reconsideration of the depraved sexual instinct rule and was supported by a detailed and thorough memorandum referring the trial court to various articles and treatises by social scientists, pursuant to the invitation in Hogg v. State (1991), Ind., 581 N.E.2d 430 (Dickson, J., concurring in the denial of transfer).

1993Stout argues, first, that a prior rape would not have been admissible under the exception, citing Stwalley v. State (1989), Ind., 584 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 Lonnan 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.

1992Appellant's brief at 9. [3] This application is in sharp contrast to the Supreme Court's decision in Modesitt v. State (1991), Ind., 578 N.E.2d 649 , in which the Court abolished the Patterson exception to the hearsay rule.

1992Appellant's brief at 9. .This application is in sharp contrast to the Supreme Court’s decision in Modesitt v. State (1991), Ind., 578 N.E.2d 649 , in which the Court abolished the Patterson exception to the hearsay rule.

1992Approximately twenty other states have or have had such exceptions. 3 Some, such as Missouri and Kansas, explicitly recognize a depraved sexual instinct exception, State v. Lachterman, 812 S.W.2d 759 (Mo.Ct.App.1991), cert. denied, - U.S. -, 112 S.Ct. 1666 , 118 L.Ed.2d 387 (1992), or allow evi dence of prior bad acts to prove defendant's "lustful disposition or nature." State v. Whiting, 173 Kan. 711 , 252 P.2d 884 (1953).

1992Approximately twenty other states have or have had such exceptions. [3] Some, such as Missouri and Kansas, explicitly recognize a depraved sexual instinct exception, State v. Lachterman, 812 S.W.2d 759 (Mo. Ct. App. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1666 , 118 L.Ed.2d 387 (1992), or allow evidence *1336 of prior bad acts to prove defendant's "lustful disposition or nature." State v. Whiting, 173 Kan. 711 , 252 P.2d 884 (1953).

1992Settle v. State (1988), Ind. 526 N.E.2d 974 .

1992Approximately twenty other states have or have had such exceptions. 3 Some, such as Missouri and Kansas, explicitly recognize a depraved sexual instinct exception, State v. Lachterman, 812 S.W.2d 759 (Mo.Ct.App.1991), cert. denied, - U.S. -, 112 S.Ct. 1666 , 118 L.Ed.2d 387 (1992), or allow evi dence of prior bad acts to prove defendant's "lustful disposition or nature." State v. Whiting, 173 Kan. 711 , 252 P.2d 884 (1953).

1992Approximately twenty other states have or have had such exceptions. [3] Some, such as Missouri and Kansas, explicitly recognize a depraved sexual instinct exception, State v. Lachterman, 812 S.W.2d 759 (Mo. Ct. App. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1666 , 118 L.Ed.2d 387 (1992), or allow evidence *1336 of prior bad acts to prove defendant's "lustful disposition or nature." State v. Whiting, 173 Kan. 711 , 252 P.2d 884 (1953).