dissenting.
In order to gain the benefit of Lannan v. State (1992) Ind., 600 N.E.2d 1334, the majority would, by hindsight, seem to require an objection so specific as to virtually anticipate the precise holding of that case. I do not view the law to require such fool-proof clairvoyance. See Ried v. State, (1998) 4th Dist.Ind.App., 610 N.E.2d 275, 281-82 (Barteau, J., dissenting).
At trial, the evidence of Stout's prior rape of TA. was admitted under the depraved sexual instinet rule. Stout's specific objection was that the evidence is "inadmissible as a collateral crime.... [I] would also contend that this particular instance ... does not fall within that category [of depraved sexual instinct] ... [because] ... the basic premise of it being that he was charged with child molesting and intercourse with a person over the age of sixteen is not child molesting...." Ree-ord at 482-433. It is clear from the trial court's ruling upon the objection that any rape, whether of an adult woman or otherwise, would have been admitted because "the rape of male upon female is to satisfy the sexual appetite of the defendant who commits the rape. So I would say that the rape would be relevant in terms of satisfying depraved sexual instinets." Record at 486. The law is otherwise. Stwalley v. State (1989) Ind., 584 N.E.2d 229.
Stout's objection did assert that the prior rape did not tend to demonstrate a depraved sexual instinct. However, it was also premised upon the claim that the act was a collateral offense, evidence of which is excluded by the general rule against evidence of prior unrelated criminal acts. Absent the depraved sexual instinct exception which was abolished by Lonnan, the general prohibition is applicable. Accordingly, the objection as made at trial was proper and the error was therefore properly preserved.
In the context of the objection as made, Stout should not be held to an unreasonable burden of anticipation with respect to the pronouncements of Lannan and Pirnat v. State (1992) Ind., 600 N.E.2d 1342. Furthermore, the cumulative prejudicial effect of testimony concerning many other prior acts cannot be ignored.4 This evidence was not admitted in order to show a common scheme or plan, i.e., that some, or most, of the prior victims had been threatened as was the victim here. Instruction No. 19 specifically advised the jury and limited their consideration as follows:
"Evidence has been introduced that the defendant was involved in crimes other than that charged in the information. This evidence has been received solely on the issue of the defendant's sexual propensities. This evidence is to be considered by you only for the limited purpose for which it was received." (Emphasis supplied) Record at 108.
The conviction should be reversed and the cause remanded for a new trial.
. The prior unrelated acts played a prominent role with regard to inappropriate comments contained in the pre-sentence report and with respect to the fifty-year enhanced sentence imposed.