dissenting.
I respectfully dissent.
In support of reversal, the majority cites Sink v. State (1998), Ind.App., 605 N.E.2d 270, a case in which this Court reversed a child molesting conviction on the basis of Lannan v. State (1992), Ind., 600 N.E.2d 1334, because the trial court had admitted evidence of prior deviate sexual conduct and instructed the jury to consider same as "manifesting the defendant's predilection to engage in sexual contact with children." Sink at 271. Although the instant case involved a similar instruction, that alone does not necessitate reversal. The Sink court emphasized the fact that proof of the charged offense came solely from the testimony of the victim. Id. Here, the victim's brother and a physician corroborated her testimony; therefore, her credibility was not as critical to conviction as the credibility of the victim in Sink. I would affirm the judgment of the trial court.
I am also writing to ask our Supreme Court to re-consider the ruling in Pirnat v. State (1992), Ind., 600 N.E.2d 1342. The Pirnat court held that Lannan applies to all cases which were pending on direct appeal at the time Lannan was decided. However, such a holding changes the rules after the game has been played. At the time of the trial in this case, it was proper for a court to admit evidence of prior acts of sexual misconduct for the purpose of showing a depraved sexual instinct on the part of the accused. The Pirnat decision requires attorneys to anticipate drastic changes in the rules of evidence and present their cases accordingly. This is clearly an unrealistic and unworkable requirement. Moreover, as I noted in a previous dissenting opinion, Pirnat was pending on transfer in the Supreme Court at the same time as Lannan; therefore, it is distinguishable from the case at bar which was merely pending on direct appeal. Vanover v. State (1992), Ind. App., 605 N.E.2d 218, 221 (dissenting opinion). Again, I would affirm the judgment of the trial court.