dissenting.
I respectfully dissent. If evidence of a depraved sexual instinct is to be admissible in certain offenses as an exception to the rule excluding evidence of prior crimes (and the cases uniformly acknowledge that such an exception exists), then evidence of a prior forcible rape should be admissible in a prosecution for forcible rape.
It seems elementary that if evidence of a depraved sexual instinet is to be relevant to the issues on trial, then both the offense being prosecuted and the prior offense offered as evidence must demonstrate or be reflective of such instincts. If they are, then the classic rationale for admissibility is to show the defendant capable of conduct which the jury might otherwise believe to be too improbable to be true. See State v. Robbins (1943), 221 Ind. 125, 46 N.E.2d 691.
In Austin v. State (1974), 262 Ind. 529, 319 N.E.2d 130, cert. denied 421 U.S. 1012, 95 S.Ct. 2417, 44 L.Ed.2d 680, the court held in a prosecution for rape and sodomy that evidence the accused previously forcibly raped and sodomized another woman was properly admitted, although in Meeks v. State (1968), 249 Ind. 659, 234 N.E.2d 629 the court had excluded evidence of a prior rape where the act of intercourse was admitted and the issue for trial was whether the woman had consented. (Where the only issue is consent, the court has continued to follow Meeks. Brown v. State (1984), Ind., 459 N.E.2d 376.)
On the other hand, where the accused has denied commission of the sexual offense for which he is on trial, the court has found no error in admitting evidence of a prior forcible rape even though it does not go to establish a common scheme or plan as it did in Watkins v. State (1984), Ind., 460 N.E.2d 514. Lawrence v. State (1984), Ind., 464 N.E.2d 923 (prosecution for child molesting, evidence of prior rape admissible); Allbritten v. State (1974), 262 Ind. 452, 317 N.E.2d 854 (prosecution for rape and kidnapping a child, evidence of prior rape admissible); cf. Knisley v. State (1985), Ind.App., 474 N.E.2d 518.
Admittedly, the Indiana decisions have not been very careful in attempting to identify or distinguish how the rule of admissibility applies concerning the various offenses and activities in question. Perhaps in large part this is because the cases themselves tend to consider multiple acts and offenses in this area. I think it is a mistake, however, to conclude that forcible rape has been inadvertently included within the definition of "depraved sexual instinct" offenses.
First of all, if our courts really felt evidence of rape as opposed to sodomy, child molestation, ete. should not be allowed, then that distinction would have found its *458way into print at least in a footnote or separate opinion.
More importantly, however, it appears to me that common sense and experience say that forcible rape is such an offense. "Depraved" is ordinarily taken to mean "without moral sense or rectitude." Forcible rape fits not only that definition but the idea it is attempting to reach. See, e.g., State v. Robbins, supra.
I would find no error in admitting the evidence in question.
Moreover, Lehiy fails on his other two issues. He challenges the admission of polygraph evidence although he admittedly stipulated to admissibility. Without reference to the terms of the stipulation (which he does not set forth in his argument) he argues the stipulation was voided when the date of the examination and the operator of the polygraph were changed from those originally agreed to. He does not assert nor does the record reflect that he made any objection to these changes when they were made. He has, therefore, waived consideration of the issue.
Also, the evidence was sufficient to sustain the conviction. The judgment should be affirmed.