David E. Killian v. State of Indiana

FILED
Jun 03 2020, 9:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Travis Neff Myriam Serrano
Warsaw, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David E. Killian, June 3, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2628
v. Appeal from the
Kosciusko Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff David C. Cates, Judge
Trial Court Cause No.
43D01-1807-F4-672
Vaidik, Judge.
Case Summary
[1] Under Indiana Rule of Evidence 412(b)(1)(A), the court in a criminal case
involving alleged sexual misconduct may admit “evidence of specific instances
of a victim’s or witness’s sexual behavior, if offered to prove that someone other
than the defendant was the source of semen, injury, or other physical
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evidence.” Here, David E. Killian Sr. was charged with sexually abusing his
teenaged granddaughter, and the State presented evidence that he had
impregnated her in 2017. Killian wanted to present evidence that his son—his
granddaughter’s father—was convicted of sexual misconduct with a minor in
1994, arguing that the conviction for a similar crime establishes that his son
could have been the “source” of the pregnancy. But Rule 412(b)(1)(A) does not
allow for this speculation. It allows only evidence of sexual behavior that—
itself—could have been the source of some physical evidence. Because the son’s
sexual misconduct with a minor over twenty years ago obviously could not
have been the source of the pregnancy, the trial court properly excluded the
evidence. We therefore affirm Killian’s convictions.
Facts and Procedural History
[2] Killian is the grandfather of K.M. and the father of K.M.’s father, David Killian
Jr. (“Father”). In August 2017, when K.M. was fourteen years old, she told
Father that Killian had been sexually abusing her. According to K.M., the
abuse occurred numerous times over four to five months and included sexual
intercourse, oral sex, and fondling. Father reported K.M.’s allegations to police,
and they opened an investigation. During the investigation, K.M. discovered
she was pregnant. In January 2018, K.M. gave birth to a daughter, S.M. After
S.M. was born, DNA samples from S.M., K.M., and Killian were tested, and
the results showed that Killian’s “probability of paternity is 99.9999 percent.”
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Tr. p. 95. The State then charged Killian with three counts of sexual
misconduct with a minor, one as a Level 4 felony and two as a Level 5 felony.
[3] Shortly before trial, Killian moved to admit evidence under Evidence Rule 412.
The court held a hearing on the motion on the first day of trial. Killian said he
wanted to introduce evidence that Father was convicted of sexual misconduct
with a minor in 1994. He explained that evidence that a person who is
“genetically similar” to him has a prior conviction for “exactly what’s been
charged here . . . goes to the defense’s theory of the case that someone other
than the Defendant could be the source of the semen which caused the
pregnancy which caused the DNA test.” Id. at 10-11. The State objected, and
the court denied Killian’s motion. The jury found Killian guilty as charged, and
the court sentenced him to seventeen years in the Department of Correction.
[4] Killian now appeals.
Discussion and Decision
[5] Killian contends that the trial court should have allowed him to introduce
evidence of Father’s 1994 conviction for sexual misconduct with a minor under
Evidence Rule 412. The admission of evidence is a matter of discretion for the
trial court, so we review such decisions only for an abuse of discretion. Beasley v.
State, 46 N.E.3d 1232, 1235 (Ind. 2016).
[6] Evidence Rule 412, which was amended in 2014 to correspond to the federal
rule, provides, in relevant part:
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(a) Prohibited Uses. The following evidence is not admissible
in a civil or criminal proceeding involving alleged sexual
misconduct:
(1) evidence offered to prove that a victim or witness
engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s or witness’s
sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following
evidence in a criminal case:
(A) evidence of specific instances of a victim’s or
witness’s sexual behavior, if offered to prove that
someone other than the defendant was the source of
semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s or
witness’s sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the
prosecutor; and
(C) evidence whose exclusion would violate the
defendant’s constitutional rights.1
1
Federal Rule of Evidence 412 includes very similar language:
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Killian argues that Father’s conviction was admissible under subsection
(b)(1)(A), which allows “evidence of specific instances of a victim’s or witness’s
sexual behavior, if offered to prove that someone other than the defendant was
the source of semen, injury, or other physical evidence.” Specifically, he asserts
that the conviction is evidence of a “specific instance” of sexual behavior by
Father and that it “provides that someone other than David Killian Sr. was the
source of the semen that impregnated K.M.” Appellant’s Br. p. 16. We
disagree.
[7] The problem with Killian’s argument is that Rule 412(b)(1)(A) only allows
evidence of other sexual behavior that—itself—could have “produced” some
physical evidence that is presented in the case. Pribie v. State, 46 N.E.3d 1241,
1248 (Ind. Ct. App. 2015), trans. denied; see also United States v. Torres, 937 F.2d
1469, 1473-74 (9th Cir. 1991) (holding that evidence of sexual contact in
August 1988 was not admissible under Federal Rule of Evidence 412 because
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove
that someone other than the defendant was the source of semen, injury, or other
physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
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that contact could not have been the source of semen found in underwear in
February 1988); United States v. Azure, 845 F.2d 1503, 1505-06 (8th Cir. 1988)
(holding that other sexual behavior was not admissible as an alternative source
of a laceration under Federal Rule of Evidence 412 because there was no
evidence that the behavior “occurred during the time the laceration was
received”). The physical evidence at issue here is K.M.’s pregnancy (followed
by the birth of S.M. and the DNA testing). Obviously, Father’s sexual
misconduct with a minor in the early 1990s could not have been the source of
(i.e., could not have “produced”) K.M.’s pregnancy in 2017. And Killian had
no evidence that Father had ever had sex with K.M., let alone in 2017. He
simply wanted the jury to speculate that because Father engaged in sexual
misconduct with a different person in the past, he did so with his daughter over
twenty years later. That is not the purpose of Rule 412(b)(1)(A). Accordingly,
the trial court did not abuse its discretion by excluding the evidence.
[8] Affirmed.
May, J., and Robb, J., concur.
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