APPEAL FROM THE MORGAN SUPERIOR COURT, The Honorable G. Thomas Gray, Judge, No. S 85 S 104.
Shepard, C.j., and DeBRULER, Givan and Pivarnik, JJ., concur.
Defendant brings this direct appeal, following jury trial and conviction of criminal confinement with a deadly weapon[Footnote 1], and asserts the following issues:
1. admissibility of prior conviction evidence,
2. sufficiency of credible evidence generally,
3. sufficiency of consent evidence,
4. sufficiency of deadly weapon evidence.
This case arises from a series of events occurring over a period of three days during which defendant and an adult female, M. A., engaged in sexual activities while the latter was handcuffed, chained, or otherwise restrained. Defendant was tried on charges of rape and confinement with a deadly weapon. The primary factual issue at trial was whether M. A. consented. The jury acquitted defendant on the charge of rape.
Issue 1 - Prior Conviction Evidence
After taking the witness stand in his own defense, defendant was questioned regarding a prior conviction for confinement. Defendant contends that the trial court erred in overruling his timely objection.
This Court has recognized that in rape cases where consent is the only issue, evidence suggesting a prior rape with a different victim is inadmissible as probative evidence that the defendant committed the charged crime. Malone v. State (1982), Ind., 441 N.E.2d 1339; Meeks v. State (1968), 249 Ind. 659, 234 N.E.2d 629. The State has argued that the prior conviction is admissible as impeachment evidence under Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, which recognized Ind. Code § 34-1-14-14 as permitting impeachment by showing prior convictions for crimes which would have rendered a witness incompetent. Among such crimes is kidnapping. The parties disagree regarding whether defendant's prior conviction of confinement should be accorded the same significance as the crime of kidnapping.
This issue was well addressed by Judge Neal in Lessig v. State (1986), Ind.App., 489 N.E.2d 978, 982:
[W]e conclude that criminal confinement is the very essence of kidnapping, and that the current crime of "criminal confinement" in fact embodies the 1972 crime of "kidnapping." Not only are their elements extremely similar, but the same moral turpitude involved in the crime of kidnapping resulting in it being ...