Defendant-appellant Kash Vanover (Vanover) appeals from his conviction for child molesting, claiming the trial court erred when it admitted evidence of prior uncharged allegations of molestations under the depraved sexual instinct rule.
The facts most favorable to the jury's verdict reveal that on September 15, 1990, the fifteen year old victim was visiting the home of her great-grandmother. Vanover, the victim's great-uncle, also lived in the home. When the victim went to bed, Vanover
At trial, the victim testified that when she was fourteen, Vanover had attempted to grab her breast. The victim's mother testified that when she was between the ages of eleven and twelve, Vanover had also fondled her vagina. Vanover was convicted and received a one and one-half year sentence.
Vanover raises several issues for our consideration, but because we reverse, we need only address one:
PARTIES' CONTENTIONS — Vanover claims the trial court should not have admitted evidence of prior incidents with the victim and her mother under
CONCLUSION — The Supreme Court's decision applies to Vanover's case, and he must be retried.
Our Supreme Court has recently abolished the depraved sexual instinct rule which would have allowed the admission of the disputed evidence. Lannan v. State (1992), Ind., 600 N.E.2d 1334.
We first consider whether the Supreme Court intended its decision in Lannan to be applied retroactively. Our consideration of the retroactivity of Lannan, however, is necessarily limited to its retroactive application to pending cases, and is unrelated to the issue of whether Lannan would be applied retroactively on collateral review of previously decided cases. See Daniels v. State (1990), Ind., 561 N.E.2d 487.
The issue is clouded by certain statements in the Lannan opinion. After observing that its decision echoed the reasoning of Justice DeBruler's dissent in Kerlin v. State (1970), 255 Ind. 420, 265 N.E.2d 22, the Court in Lannan continued: "Twenty-two years later, Justice DeBruler has carried the day. His reasoning tracks the language of Federal Rule of Evidence 404(b), which we hereby adopt in its entirety, effective from this day forward." Lannan, supra at 1339 (footnote omitted) (emphasis supplied).
While this language might suggest that the abolition of the depraved sexual instinct rule was to be given only prospective application, the Court went on to apply Rule 404(b) to the facts in Lannan and concluded that evidence was improperly admitted, Id. at 1341, which constituted a retroactive application of its new rule.
Any doubt that might exist as to the retroactive application of the Lannan decision was settled by another opinion issued on the same day by the Supreme Court. In Pirnat v. State (1992), Ind., 600 N.E.2d 1342, the Court stated:
Pirnat, supra (emphasis supplied).
Based on the Supreme Court's command in Pirnat, we therefore must apply Lannan to Vanover's appeal, as it was pending when the new rule was announced. While the State hopes the Supreme Court will reconsider its decision in Pirnat, we must apply the law as it stands. Vanover and Pirnat are in precisely the same position, and we can discern no difference in circumstances between them that would justify disparate treatment of their cases.
Following the analysis used in Lannan, we cannot say that the evidence of Vanover's prior sexual misconduct with the victim and her mother, record at 292, 351, was admissible under Federal Rule of Evidence 404(b). The State contends that the evidence of Vanover's touching of the victim a year earlier and the incident with her mother more than twenty years before trial was evidence of Vanover's intent to arouse himself during the present crime. Like Chief Justice Shepard in Lannan, we believe such an argument is an attempt to force "a square peg in a round hole." Lannan, supra at 1341. We must therefore conclude that the trial court erred when it allowed the testimony.
When assessing the probable impact of the improperly admitted evidence in Lannan, the Supreme Court had this to say:
Lannan, supra at 1341.
Comparing the evidence presented here to that considered in Lannan, we cannot come to a similar conclusion. There was no incriminating declaration made by Vanover. Also, there was no corroborating testimony from third parties. In fact, the only corroborating testimony from a third party supported Vanover. Vanover's son testified that he saw Vanover in the victim's bedroom on the night in question and that Vanover merely turned off a radio in the room and patted the victim on the head. Record at 442. Our assessment of the probable impact of the improperly admitted testimony leads us to conclude that reversal is required.
Judgment reversed and remanded for a new trial.
SULLIVAN, J., concurs.
HOFFMAN, J., dissents with separate opinion.
HOFFMAN, Judge, dissenting.
I dissent. The majority's opinion is illogical and irrational. Lannan v. State (1992), 600 N.E.2d 1334, expressly states that the adoption of Federal Rule of Evidence 404(b) is "effective from this day forward." 600 N.E.2d at 1339. (Emphasis supplied.) This language does not merely suggest prospective application as the majority contends, it requires prospective application. See Gray v. State (1991), Ind., 579 N.E.2d 605, 608. Furthermore, contrary to the majority's statement in footnote 3, the Supreme Court's application of the new rule in Lannan is no different from the court's application of the new rule in Modesitt v. State (1991), Ind., 578 N.E.2d 649. The new rules not only took effect in Lannan and Modesitt, they also applied to the facts of the cases. If we were to adopt
In support of its opinion, the majority cites Pirnat v. State (filed October 16, 1992), Ind., 600 N.E.2d 1342, a case the Supreme Court handed down on the same day as Lannan. However, Pirnat was pending on transfer in the Supreme Court at the same time as Lannan; therefore, it is distinguishable from the case at bar. As discussed above, the Lannan court clearly set out the prospective nature of its opinion, and as the instant case was tried prior to the effective date of Lannan, the new rule does not apply.