dissenting.
I respectfully dissent.
The majority relies on Reichard v. State (1987), Ind., 510 N.E.2d 163, for the proposition that rape of an adult woman is not depraved sexual conduct. The supreme court in Reichard derived this proposition from the decision in Lehiy v. State (1986), Ind.App., 501 N.E.2d 451. The factual situations in Reichard and Lehiy were strikingly similar. Both cases involved a rape prosecution wherein evidence of prior rapes was introduced by the trial court under the depraved sexual instinct exception. The trial court was reversed on appeal, however, based on the premise that because the crime of rape does not involve depraved sexual conduct, the exception did not apply.
In Lehiy, supra, the court held "the evidence of prior criminal sexual conduct was not admissible to show depraved sexual instinct in a case where only rape was being prosecuted." Id. at 456 (emphasis added). This holding was based on several cases where evidence of prior criminal sexual conduct was admitted in prosecutions involving incest, sodomy and child molest ing. Most significant to the case at bar are Lawrence v. State (1984), Ind., 464 N.E.2d 923 (evidence of prior rape admissible in prosecution for child molesting); Allbritten v. State (1974), 262 Ind. 452, 317 N.E.2d 854 (police officer's testimony regarding prior rape victim's identification of defendant admissible in prosecution for rape of a four-and-a-half-year-old); Knisley v. State (1985), Ind.App., 474 N.E.2d 513 (evidence of prior incest and prior rape admissible in child molesting prosecution).
According to Lehiy, supra, and the cases cited therein, the inquiry is not, as the majority asserts, whether the prior acts evidenced a depraved sexual instinct. Rather, the focus of the depraved sexual instinet exception is on whether the charge being prosecuted involves a depraved sexual instinct. The purpose of the exception is to bolster the credibility of the prosecuting witness in a situation where the accusations or the acts standing alone seem improbable. Id.
In the case before us, the charge being prosecuted is child molesting which, as is well established, involves a depraved sexual instinct. Accordingly, evidence of Am-burn's prior criminal sexual conduct is admissible in this prosecution under the depraved sexual instinct exception. To the extent the majority interprets Reichard to bring about a contrary result, I dissent. I would affirm the trial court's admission of the testimony.