                                                                                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

      Court of Appeals of Indiana | Opinion 19A-CR-2628 | June 3, 2020                             Page 1 of 6
      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.”




      Court of Appeals of Indiana | Opinion 19A-CR-2628 | June 3, 2020          Page 2 of 6
      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:

      Court of Appeals of Indiana | Opinion 19A-CR-2628 | June 3, 2020           Page 3 of 6
           (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:



Court of Appeals of Indiana | Opinion 19A-CR-2628 | June 3, 2020                     Page 4 of 6
      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.

      Court of Appeals of Indiana | Opinion 19A-CR-2628 | June 3, 2020                                    Page 5 of 6
      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.




      Court of Appeals of Indiana | Opinion 19A-CR-2628 | June 3, 2020          Page 6 of 6
