Killian v. State, No. 19A-CR-2628, __ N.E.3d __ (Ind. Ct. App., Jun. 3, 2020).

Vaidik, J.

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 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.

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… 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.

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 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.

Affirmed.

May, J., and Robb, J., concur.

 

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