Grandfather’s sexual misconduct with a minor conviction upheld

A man who sexually abused his granddaughter and tried to allege that her father could have been the “source” of her resultant pregnancy had his convictions upheld by the Indiana Court of Appeals.

In David E Killian v. State of Indiana, 19A-CR-02628, grandfather David Killian was convicted sexual misconduct with a minor after impregnating his teenaged granddaughter in 2017. 

Shortly before his trial, Killian wanted to present evidence that his son was convicted of sexual misconduct with a minor in 1994, arguing that the conviction for a similar crime establishes that his son could have been the “source” of the pregnancy. He further alleged that that evidence that a person who is “genetically similar” to him has a prior conviction for “exactly what’s been charged here . . . goes to the defense’s theory of the case that someone other than the Defendant could be the source of the semen which caused the pregnancy which caused the DNA test.”

The motion was denied and Killian was found guilty and sentenced to 17 years in the Department of Correction. In his appeal, Killian argued that the trial court should have allowed him to introduce evidence of his son’s 1994 conviction for sexual misconduct with a minor under Evidence Rule 412(b)(1)(A).

Under 412(b)(1)(A), the court in a criminal case involving alleged sexual misconduct may admit “evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.”

“The problem with Killian’s argument is that Rule 412(b)(1)(A) only allows evidence of other sexual behavior that — itself — could have ‘produced’ some physical evidence that is presented in the case,” Judge Nancy Vaidik wrote for the affirming appellate court.

“Obviously, Father’s sexual misconduct with a minor in the early 1990s could not have been the source of (i.e., could not have ‘produced’) K.M.’s pregnancy in 2017. And Killian had no evidence that Father had ever had sex with K.M., let alone in 2017. He simply wanted the jury to speculate that because Father engaged in sexual misconduct with a different person in the past, he did so with his daughter over twenty years later. That is not the purpose of Rule 412(b)(1)(A).”