# Shanks v. State

> Indiana Court of Appeals · September 28, 1994 · 640 N.E.2d 734

URL: https://www.frixlaw.com/law-library/cases/9713323

## Case

- **Full name:** Kenneth L. SHANKS, Appellant-Defendant, v. STATE of Indiana, Appellee
- **Court:** Indiana Court of Appeals
- **Decided:** September 28, 1994
- **Citations:** 640 N.E.2d 734; 1994 Ind. App. LEXIS 1335; 1994 WL 531377
- **Precedential status:** Published
- **Opinion:** Dissent by Friedlander
- **Judges:** Sullivan, Sharpnack, Friedlander
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713323

## How later opinions describe it (automated extraction)

- noting that, in a trial without a jury, it may be presumed that the judge will disregard inadmissible and irrelevant evidence

## Opinion text

FRIEDLANDER, Judge,
dissenting.
I respectfully dissent. The majority’s decision detours by presuming reversible error when a trial judge acts as a trier of fact while allowing a harmless error analysis when a jury hears prejudicial evidence.
While I agree that the evidence of Shanks’s prior acts is inadmissible under Lannan v. State (1992), Ind., 600 N.E.2d 1334 , the admission of such evidence does not necessarily require the reversal of his convictions. As the court in Lannan concluded: “In determining whether the introduction of this evidence warrants reversal, we must assess the probable impact of the evidence upon the jury.” Lannan, supra at 1341 (emphasis supplied).
*740 Because Shanks was convicted after a bench trial, no jury was affected by the inadmissible evidence. As was observed in Roop v. State (1991), Ind.App., 571 N.E.2d 568 , trans. denied: “Generally, harm from evidentiary error is lessened if not completely annulled when the trial is by the court sitting without a jury.” Id. at 570 . The rationale for the general rule was explained in King v. State (1973), 155 Ind.App. 361 , 292 N.E.2d 843 :
“What might very well constitute prejudicial error in the form of testimony given before a jury does not necessarily constitute prejudicial error in a trial to the court. It must be remembered that a trial judge is presumed to know the intricacies and refinements of the rules of evidence and that he sifts the evidence and weighs it in the light of his legal experience and expertise. He is thus able to separate the wheat from the chaff, ignoring the extraneous, the incompetent and the irrelevant and it is only when his judgment has apparently or obviously been infected by erroneously admitted evidence that we will set it aside.”
Id. at 366-67 , 292 N.E.2d at 846-47 .
In Lannan , Chief Justice Shepard examined the depraved sexual instinct exception to the general exclusionary rule, and observed that such evidence was highly probative. Lannan, supra, at 1336-37 . He went on to analyze the general rule: “This exclusionary rule renders inadmissible character evidence offered solely to show the accused’s propensity to commit the crime with which he was charged. The rationale behind this general rule, sometimes termed ‘the propensity rule,’ is that the prejudicial effect of such evidence outweighs any probative value.” Id. at 1337 (emphasis supplied).
Thus, propensity evidence is not disfavored because it has no probative value, but rather is excluded because of its tendency to prejudice the jury. As the supreme court explained in Hardin v. State (1993), Ind., 611 N.E.2d 123, 127 , such evidence is prejudicial because it tempts the jury to convict the defendant solely because of his bad character. In Hardin , our supreme court observed:
“The notion that the State may not punish a person for his character is one of the foundations of our system of jurisprudence. Evidence of misconduct other than that with which one is charged (‘uncharged misconduct’) will naturally give rise to the inference that the defendant is of bad character. This, in turn, poses the danger that the jury will convict the defendant solely on this inference.”
Id. at 127 , quoting Penley v. State (1987), Ind., 506 N.E.2d 806, 808 .
A trial judge, however, is not similarly tempted by such evidence. It is common for a trial judge to be exposed to information about a defendant that would be extremely prejudicial in the eyes of a jury. See Lasley v. State (1987), Ind., 510 N.E.2d 1340 (fact that trial judge presided over defendant’s previous child molesting trial did not establish the existence of bias or prejudice).
Nothing in the record suggests that the trial judge convicted Shanks because of his bad character. The victim’s testimony was unequivocal and sufficient to sustain Shanks’s conviction. As was noted in King, supra, a trial judge is able to ignore extraneous, incompetent and irrelevant evidence. Further, if a defendant’s appearance before a certain trial judge in prior actions does not establish prejudice, Lasley, supra; Brim v. State (1984), Ind., 471 N.E.2d 672 , we should conclude that the trial court’s awareness of Shanks’s other molestations prejudiced the trial judge against him. This conclusion is also consistent with the treatment of evidence of extraneous offenses admitted during the federal bench trials. See United States v. Impson (5th Cir., 1977), 562 F.2d 970 ; United States v. Menk (7th Cir., 1968), 406 F.2d 124 .
The trial judge’s consideration of Shanks’s prior actions should not automatically require reversal, as the majority seems to suggest. Our supreme court has explicitly held that the admission of evidence of a defendant’s depraved sexual instinct does not constitute fundamental error. Ried v. State (1993), Ind., 615 N.E.2d 893 . It is therefore not evidence which would deprive a defendant of a fair trial. As the supreme court in Lannan *741 specifically determined that depraved sexual instinct evidence is highly probative, and as it is extremely unlikely that the trial judge was tempted to convict Shanks because of his bad character, I do not believe reversal is necessitated under Laman.
Since depraved sexual instinct evidence is highly probative, such evidence has “wheat”, to borrow the metaphor used in King . As a trial judge is trained to ignore the temptation to convict a defendant because of his bad character, the “chaff’, we should conclude the admission of Shanks’s prior acts here does not require reversal, just as the supreme court concluded in Lannan .
I agree with the modification of Shanks’s sentence, but I vote to affirm his convictions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713323. Public record. Not legal advice.