ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin C. Tankersley Jeffrey A. Modisett
Winamac, Indiana Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
SUPREME COURT OF INDIANA
LOUIS J. BAKER )
Appellant (Defendant Below), )
v. ) in the Supreme Court
STATE OF INDIANA, ) 66A04-9812-CR-585
) in the Court of Appeals
Appellee (Plaintiff Below). )
APPEAL FROM THE PULASKI CIRCUIT COURT
The Honorable Michael A. Shurn, Judge
Cause No. 66C01-9808-CF-024
July 17, 2001
SHEPARD, Chief Justice.
Appellant Louis J. Baker was found guilty of five crimes related to
the sexual assault of Tammy McCann inside her mobile home in Winamac. On
direct appeal, the Court of Appeals affirmed his convictions for rape,
residential entry, battery, and being an habitual offender. It held his
conviction for sexual battery merged. Baker v. State, No. 66A04-9812-CR-
585, slip op. at 3, 10 (Ind. Ct. App. 2000).
With regard to his conviction for rape, Baker says the Court of
Appeals erroneously held that he failed to preserve his claim that the
trial court wrongly excluded evidence about his prior sexual conduct with
McCann. (Appellant’s Petition To Transfer at 1-2.) We agree, and grant
transfer to so hold. The convictions are otherwise affirmed.
I. Facts and Procedural History
The evidence favorable to the verdict revealed that in the early
morning hours of August 9, 1998, Baker climbed through a window into
McCann’s home and found her asleep on a couch. He told her he came in
through the unlocked front door. The pair had known each other for several
years, and Baker had been to her home a number of times. He had even
stayed overnight on occasion. The pair talked in the kitchen, for some
thirty minutes about Baker’s problems with his girlfriend. McCann did not
want him to drive because he had been drinking, and told him he could spend
McCann walked back toward her bedroom to retrieve a can of soda. As
she walked, she realized Baker had actually entered her home through a
window and she became frightened “because I figured that he had broke in .
. . . ” (R. at 1130.)
After she picked up the soda from the bedroom floor, she discovered
that Baker had followed her. He forced her onto the bed and raped her.
Afterwards, he apologized and left.
Later that day, McCann and her husband reported the incident to the
police. The State eventually charged Baker with rape, burglary,
residential entry, sexual battery, and battery. It also alleged he was
an habitual offender. After a four-day trial, a jury found Baker
guilty on all charges except burglary. The trial court sentenced him to
ten years in prison for the four convictions, and added thirty years for
being an habitual offender.
On appeal, Baker raised five issues:
1. Whether the trial court erred by allowing the prosecutor’s
investigator to testify;
2. Whether the trial court erred by allowing the prosecutor’s
investigator to read a transcript of his interview with Baker to the
3. Whether evidence of Baker’s criminal record was erroneously
4. Whether Baker’s testimony about a prior sexual relationship with
the victim was improperly excluded; and
5. Whether Baker’s convictions for rape and sexual battery should be
The Court of Appeals ruled against Baker on the first three issues,
and we summarily affirm them on these points. Ind. Appellate Rule 58(A).
We proceed to examine the fourth issue. Our resolution of that question
may render the fifth issue moot.
II. Prior Sexual History Evidence
On October 7, 1998, before the trial began, Baker’s attorney, Kevin C.
Tankersley, filed a “Notice of Past Sexual Conduct – Rule 412” which stated
that “evidence will be presented detailing a prior sexual relationship
between the victim and the Defendant.” (R. at 339.) Two days later,
the prosecutor filed an objection, arguing that the proposed evidence was
vague, irrelevant to the rape allegation, and unverifiable. She also said
the probative nature of this evidence was outweighed by its prejudicial
nature, and it would embarrass the victim. She further claimed that the
Rape Shield Statute was designed to protect victims of sex crimes from a
general inquiry into their sexual past.
On October 9, 1998, Baker’s attorney filed in open court a “Supplement
to Defendant’s Notice of Past Sexual Conduct” and asserted the defendant
had “a prior sexual relationship” with the victim. (R. at 367.) He
claimed Baker had “multiple prior sexual contacts” and an “on-going affair”
with the victim. (Id.) On October 12th, the State filed a motion in
limine seeking to keep the jury from hearing any evidence of the victim’s
past sexual conduct. At a pretrial hearing on October 14th, Baker
testified he had sexual relations with the victim about twenty times,
beginning May 5, 1998. (R. at 960-66.) McCann testified she never had
consensual sex with Baker. (R. at 971-73.) The trial court granted the
prosecutor’s motion in limine.
On the day Baker was scheduled to testify at trial, his attorney filed
“Defendant’s Offer of Evidence Under Indiana Evidence Rule 412(a)(1)”. The
document asserted the defendant and the victim had “some twenty acts of
consensual sexual intercourse in the months preceding the date of this
alleged offense.” (R. at 551.) It asked the court “to make a specific
ruling either revoking its grant of the State’s Motion in Limine or
affirming that ruling.” (Id.)
While Baker was on the stand, the following exchange occurred:
[Prosecutor] Calabrese: He’s getting awful close to the testimony that
has already been ordered by this Court to be non-admissible. I just
wanted to . . .
Mr. Tankersley: What testimony?
The Court: You’re not going to get into their prior sexual
Mr. Tankersley: Oh, no. I’m not going anywhere near that.
The Court: Okay.
Mr. Tankersley: But I mean – he’s going to testify that he knows her.
Ms. Calabrese: Well, I know but any inference that they can draw from
there, including the stuff, you’re getting into the stuff that has
already been taken out of this.
Mr. Tankersley: No, I’m not. He’s not going to get into anything
The Court: Okay.
(R. at 1604) (emphasis added).
In the end, neither Baker nor any other witness testified about any
prior sexual history between Baker and McCann.
After the Court of Appeals issued its opinion, Baker’s attorney filed
a “Motion to Correct the Record of Proceedings” under Ind. Appellate Rule
7.2(C)(2). Baker asserted the record did not “truly disclose what occurred
in the trial court because the transcript of proceedings does not include a
discussion between Defense counsel and the trial judge wherein the
Defendant’s written offer of proof was discussed and the trial court
reaffirmed that the evidence would not be admissible at trial.” (Supp. R.
In an affidavit filed with this motion, Tankersley said he filed his
written offer in the court’s office while the judge was present and told
the judge he was filing it to preserve the prior sexual conduct issue for
appellate review. He said he asked if the judge planned to change his mind
and allow the evidence and the judge replied that he believed the evidence
was more prejudicial than probative and would not allow the jury to hear
it. Tankersley took that statement as a re-affirmation of the pretrial
In a hearing held February 29, 2000, on the motion to correct the
record, the prosecutor countered that she was unaware of the foregoing
events. She also pointed out that the defendant had several opportunities
to make an offer of proof. At this hearing, Tankersley argued the
important issue was whether the trial court considered Baker’s “Offer of
Evidence Under Indiana Evidence Rule 412(a)(1),” and whether or not the
trial court re-affirmed its pretrial ruling. The trial court replied:
We may have had a casual conversation. I honestly don’t remember, you
know, exactly what was said. I – I suppose my proper recollection is
that, that I took this as your effort to preserve the issue since it
was not going to be brought up in front of the jury.
(Supp. R. at 36.)
Later in the hearing the trial judge said:
I will say I assumed that it was your effort to preserve the issue
which I had already spoken to on, on the motion in limine. So, I
never [went] further beyond ruled on (sic) that because I felt it was
your effort to preserve the, the issue, and so I didn’t make any
effort to rule on it in open court.
(Supp. R. at 40.)
The prosecutor argued that there was never any offer of proof when
she, the trial court and the defendant’s attorney were all present. The
defense argued that the sidebar colloquy, which occurred upon a prosecution
objection, was an affirmation of the trial court’s earlier decision to keep
the issue of prior sexual conduct from the jury. Following this hearing,
on February 29, 2000, the trial court entered an order stating, “[T]he
Court remembers receiving the Defendant’s Offer of Evidence Under Indiana
Rule of Evidence 412(a)(1) and having made the same of record, outside the
presence of the jury and off the record.” (Supp. R. at 20.)
III. This Offer to Prove Was Good Enough
Indiana Evidence Rule 103(c) states that “[i]n jury cases,
proceedings shall be conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any means, such
as making statements or offers of proof or asking questions in the hearing
of the jury.” To comply with Evid. R. 103(c), practitioners use motions in
limine, which seek “a protective order against questions or statements so
as to keep prejudicial matters from the jury until the court has ruled at
trial upon the admissibility of such matters.” Robert L. Miller, Jr.,
Courtroom Handbook on Indiana Evidence 12 (2001 ed.); Norton v. State, 273
Ind. 635, 650, 408 N.E.2d 514, 525 (1980).
After a court has ruled on the admissibility of the evidence in
To preserve a claim of error in a ruling excluding evidence, the
proponent of the evidence must make the substance of the evidence
known to the trial court by a proper offer of proof, unless the
substance of the evidence was apparent from the context in which the
questions were asked.
Miller, supra at 10 (citing Ind. Evid. R. 103(a)(2)). This technique gives
the trial court “an opportunity to rule on its admissibility at that
time.” Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999)(quoting Tyra v.
State, 506 N.E.2d 1100, 1103 (Ind. 1987)). According to a leading
authority on evidence issues:
Prior to the offer of proof, the judge might not have appreciated the
relevance of the line of inquiry. However, the primary, formal reason
is to preserve the issue for appeal by including the proposed answer
and expected proof in the official record of trial. In case of appeal
from the judge’s ruling, the appellate court can better understand the
scope and effect of the question and proposed answer to decide whether
the judge’s ruling sustaining an objection was error, whether the
error was prejudicial, and what final disposition to make on appeal.
1 McCormick on Evidence § 51, 217 (John W. Strong et al., 5th ed. 1999).
Another authority notes that an offer of proof will “reduce
uncertainty as to the nature of the excluded evidence to a tolerable and
acceptable level; by doing so, the offer of proof serves to improve the
reliability of the appellate court’s guesses and estimates concerning the
probability that the trial court’s error was either prejudicial or
harmless.” 1 Wigmore, Evidence § 20a, 865 (Tillers rev. 1983)(emphasis in
original). Professor Wigmore’s successors also point out that the
requirement of an offer to prove limits the “offers of nonexistent evidence
with the hope of establishing a basis for appeal when they expect that the
trial court will make an erroneous ruling that the (nonexistent) evidence
will not be admitted.” Id. at 866.
At least for these reasons, Indiana practice on preservation of error
about exclusion of evidence requires the proponent, out of the hearing of
the jury, to propose certain questions and give the court a chance to rule,
and make an offer of proof. When this procedure is not followed, as
explained in Mitchem v. State, 503 N.E.2d 889 (Ind. 1987), any claim of
error is not available for appellate review:
The proper remedy would have been to call [the] witness, and if
objections to his testimony were lodged and sustained, an offer to
prove could have been made by Appellant . . . It is well established
that without the witness being called and questioned, and without an
objection to his testimony being sustained, no offer to prove could
have been made.
Id. at 893. Failure to follow this practice forfeits appellate review even
when the trial court earlier granted a motion in limine. Bieghler v.
State, 481 N.E.2d 78, 93 (Ind. 1985)(citing Smith v. State, 426 N.E.2d 364
The rule requiring an offer to prove serves a number of useful
purposes, but there is such a thing as being too rigid about format. In
the recent case of Vehorn v. State, 717 N.E.2d 869 (Ind. 1999), we
concluded that the defense had come close enough. In Vehorn, the defendant
challenged the admissibility of a witness’ testimony at a pretrial
evidentiary hearing by objecting to the testimony as hearsay. Id. at 872.
The trial court heard argument and denied the defendant’s motion to exclude
the testimony. During the hearing, the trial court told both counsel that
if there is “a close call” on the admissibility of the evidence and an
objection is sustained, “I don’t want the Jurors to have heard that . . .
.” Id. At trial the defense did not object to the witness’ testimony. Id.
On appeal, the State argued that by failing to object at trial, the
defense had waived any error. Id. However, this Court held:
While the prudent lawyer will always provide a contemporaneous
objection at trial so as to preserve an issue for appeal, there are
occasional exceptions to this general rule. This case provides one of
them. During the pretrial hearing, the judge provided explicit
assurance that an objection as to [the witness’] hearsay testimony
was preserved for appeal when it told defense counsel that “even if
you don’t object, the Court will find . . . that your objections to
this type of evidence have been timely made.”
Id. at 872-73. The trial court had effectively forbidden any objection in
front of the jury, so we found the issue preserved. Id. at 873.
There are some obvious distinctions between Vehorn and Baker’s case.
Vehorn involved the failure to make an objection at trial while Baker’s
attorney failed to make an oral offer to prove at trial. In both cases,
however, the issue originated with a motion in limine and the key question
in both involves the preservation of the issue for appeal. The issues
(hearsay in Vehorn and prior sexual history here) were addressed during
pretrial. Id. at 872, (R. at 960-73). In Baker’s case, a sidebar
discussion of the issue occurred immediately before the witness was to
testify and the court made its position plain. (R. at 1604.)
In Vehorn, the pretrial record showed the trial judge wanted to avoid
an objection in front of the jury. Vehorn,717 N.E.2d at 872. In Baker’s
case, the sidebar conversation showed the court’s similar intent, that any
sexual history between the defendant and the victim should not be aired in
front of the jury.
The trial judge’s own recollection that he made no “effort to rule on
it in open court,” (Supp. R. at 40), because the defendant had already
taken reasonable steps to preserve the issue further indicates the court
had considered the matter and intended to enforce his earlier ruling.
Finally, the trial court indicated he recalled receiving the defendant’s
offer of evidence. (Supp. R. at 20.)
The primary reasons for requiring an offer to prove were satisfied.
The sidebar colloquy shows the trial court was aware of the evidence of
sexual history and at least implicitly re-affirmed his decision to exclude
it. Given the clear-cut nature of the proposed testimony (he asserts a
sexual relationship; she denies it), we find the issue sufficiently
preserved for appeal.
IV. Effect of the Exclusion
The Court of Appeals correctly observed that Evidence Rule 412(a)(1)
contains an explicit exception for “evidence of the victim’s . . . past
sexual conduct with the defendant” and that excluding it would be
Where the charge was rape and the defense was consent and only the
two parties were present, we find ourselves unable to say that prohibiting
Baker from offering evidence of a recent and regular sexual relationship
did not affect his substantial rights. See Ind. Trial Rule 61.
We therefore reverse the rape conviction and remand for a new trial.
Should Baker be found guilty of rape upon retrial, the trial court will
need to consider whether the sexual battery conviction should be merged
Baker’s convictions for residential entry, sexual battery,
misdemeanor battery, and the habitual offender finding are otherwise
affirmed. If the State elects not to retry the rape charge, the trial
court may conduct a new sentencing on these four counts.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
Count I, rape, class B felony, Ind. Code Ann. § 35-42-4-1(a)(1) (West
Supp. 2000); Count II, burglary, class B felony, Ind. Code Ann. § 35-43-2-
1 (West 1998); Count III, residential entry, class D felony, Ind. Code Ann.
§ 35-43-2-1.5 (West 1998); Count IV, sexual battery, class D felony, Ind.
Code Ann. § 35-42-4-8(a)(1) (West Supp. 2000); Count V, battery, class A
misdemeanor, Ind. Code Ann. § 35-42-2-1 (West 1998).
Ind. Code Ann. § 35-50-2-8 (West 1998).
In addition to the felony convictions Baker received in this case, he
had been convicted of resisting law enforcement, a class D felony, in 1990
and burglary, a class C felony in 1995. (R. at 641.)
Indiana Evidence Rule 412 (a) reads: “In a prosecution for a sex crime,
evidence of the past sexual conduct of a victim or witness may not be
admitted, except: (1) evidence of the victim’s or of a witness’s past
sexual conduct with the defendant . . . . ”
Ind. Code Ann. § 35-37-4-4 (West 1998).
 Whether Baker’s allegations are true, of course, bears only a little on
whether he was entitled to tell this story to the jury and not at all on
whether he has preserved the issue for appeal.