MEMORANDUM DECISION
Weissmann, Judge.
[1] Thomas Francum appeals his conviction for Class C felony child molesting by fondling. Francum claims the trial court improperly limited his ability to reveal to the jury that his victim, A.S., was named as the perpetrator in an Indiana Department of Child Services (DCS) investigation into sexual contact between A.S. and another child. During the investigation, A.S. had revealed that Francum molested him years earlier—a disclosure that ultimately led to Francums child molesting conviction. Finding the trial court did not abuse its discretion in limiting Francums references to the DCS investigation, we affirm.
Facts
[2] In 2019, when A.S. was 12 years old, DCS investigated a report that A.S. had molested a younger child. During the interview with the DCS case worker, A.S. reported that Francum, who was related by marriage to A.S., had touched or stroked A.S.’s penis four or five times some years earlier. The molestations ended when A.S. was 9 or 10 years old and no longer had contact with Francum.
[3] The State charged Francum with child molesting, both as a Class C felony and a Level 4 felony. During a pre-trial hearing, Francum informed the court that he intended to ask A.S. on cross-examination if A.S. first reported the molestations by Francum while DCS was investigating “another violation in which [A.S.] was the perpetrator.” Tr. Vol. II, p. 64. The State objected, contending that such evidence was inadmissible because Francum had failed to timely move under Indiana Evidence Rule 412(a) for permission to introduce evidence of A.S.’s unrelated sexual conduct.
[4] The trial court ruled that Francums counsel could ask A.S. whether he was the subject of an unrelated DCS investigation when A.S. first reported Francums misconduct. But the court prohibited Francum from cross-examining A.S. or other witnesses about the nature of the unrelated DCS investigation or the alleged sexual misconduct between A.S. and the younger child. The court also barred Francum from referring to A.S. as the “perpetrator” or “alleged perpetrator.” Id. at 86-87.
[5] After a three-day trial, the jury returned verdicts of guilty as to Class C felony child molesting but not guilty as to Level 4 felony child molesting. Francum appeals that conviction.
Discussion and Decision
[6] Francum raises three issues on appeal, all related to his efforts to introduce evidence of the DCS investigation. He first claims the trial court mistakenly relied on Evidence Rule 412 to preclude him from referencing the substance of the DCS investigation during cross-examination of A.S. and other State witnesses. Francum also argues that he was denied his right under both the federal and state constitutions to present a defense through the restrictions on his cross-examination. Francums final claim is that the trial court erred in requiring him to refer to A.S. as “the subject of an investigation” by DCS rather than the “perpetrator” or “alleged perpetrator.”
[7] The decision to exclude evidence is within the trial courts sound discretion and will be reversed only for an abuse of discretion. Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct. App. 2015). When the defendant claims the trial courts evidentiary ruling infringed constitutional rights, we review the constitutional claim de novo. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).
I. Evidence about DCSs Investigation Was Properly Excluded
[8] Francum claims that the challenged evidence does not fall under Evidence Rule 412 or, if it does, that an exception within that rule applies. Rule 412 provides, in pertinent part:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or (2) evidence offered to prove a victims or witnesss sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
* * *
(C) evidence whose exclusion would violate the defendants constitutional rights.
A. The DCS Investigation Evidence Was Inadmissible Under Indiana Evidence Rule 412(a)
[9] Francum argues that Evidence Rule 412(a) is inapplicable because he did not offer the DCS investigation evidence to prove that A.S. “engaged in other sexual behavior” or to prove A.S.’s “sexual predisposition.” According to Francum, he offered the evidence to prove that A.S. accused him of child molesting to deflect attention from A.S.’s own alleged sexual misconduct. Francum asserts that he was not trying to prove that A.S. was the actual perpetrator—only that A.S. was under investigation for being the alleged perpetrator.
[10] Francum is parsing words. By offering evidence that A.S. was under investigation for sexual misconduct, Francum was presenting evidence that A.S. allegedly had “engaged in other sexual behavior.” This is exactly the type of evidence that Rule 412(a) explicitly prohibits.
[11] “Evidence Rule 412 ‘is intended to prevent the victim’ of a sexual assault ‘from being put on trial ․ and, importantly, to remove obstacles to reporting sex crimes.’ ” Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct. App. 2010) (citing Williams v. State, 681 N.E.2d 195, 200 (Ind. 1997)). Rule 412 “reflects the insight of Indianas Rape Shield Statute, see Ind. Code § 35-37-4-4, that ‘inquiry into a victims prior sexual activity is sufficiently problematic that it should not be permitted to become a focus of the defense.’ ” Id.
[12] Absent an exception, the Rape Shield Statute generally prohibits admission of—or even reference to—certain evidence in a child molesting prosecution including the following: (1) evidence of the victims past sexual conduct; (2) evidence of the past sexual conduct of a witness other than the accused; (3) opinion evidence of the victims past sexual conduct; and (4) opinion evidence of the past sexual conduct of a witness other than the accused. Ind. Code § 35-37-4-4(a)(1)-(4). Rule 412 has been viewed as a “stylistic revision” of the Rape Shield Statute and mostly consistent with it. Sallee v. State, 785 N.E.2d 645, 651 (Ind. Ct. App. 2003) (citing Miller, 12 Indiana Practice § 412.101, p. 542 (1995 ed.)). If any differences between the Rape Shield Statute and Rule 412 exist, the rule controls. Id.
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[13] Whatever Francums actual or purported intent in seeking to cross-examine A.S. and other State witnesses about the substance of the DCS investigation, this cross-examination would show the jury, at the least, that A.S. allegedly engaged in other sexual behavior with someone other than Francum. Accordingly, Rule 412(a) prohibited admission of the challenged evidence. See id. at 650-51 (finding Rule 412(a) excluded evidence of victims sexual history, which defendant sought to introduce to refute the suggestion that the victim was sexually naive); Conrad, 938 N.E.2d at 852 (affirming exclusion of evidence of victims sexual history that defendant sought to introduce to impeach victims testimony). The trial court did not abuse its discretion in limiting Francums use of the DCS investigation evidence.
B. Excluding the DCS Investigation Evidence Did Not Violate Francums Constitutional Rights
[14] Given the inadmissibility of the DCS investigation evidence under Rule 412(a), we turn to Francums claim that the evidences exclusion violated his constitutional rights and was therefore improper. See Evid. R. 412(b)(1)(C) (providing that evidence otherwise excluded by Rule 412(a) may be admissible if the exclusion would violate the defendants constitutional rights). Without the ability to cross-examine A.S. and other States witnesses about A.S.’s role as the accused sexual perpetrator in the DCS investigation, Francum claims he was deprived of his right to confront his accuser under Article I, section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution.
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1. States Waiver Claim
[15] The State argues that Francum has waived this issue. Evidence Rule 412 establishes a specific procedure to be followed when evidence is offered under its authority. The party intending to offer evidence under Rule 412(b) “must ․ file a motion that specifically describes the evidence and states the purpose for which it is to be offered” at least 10 days before trial unless the court, for good cause, extends the period. Evid. R. 412(c)(1)(A)-(B). This party also must serve the motion on all parties and “notify the victim or, when appropriate, the victims guardian or representative.” Evid. R. 412(c)(1)(C)-(D).
[16] Before admitting evidence under Rule 412, the trial court “must conduct an in camera hearing and give the victim and parties a right to attend and be heard.” Evid. R. 412(c)(2). “Unless the court orders otherwise, the motion, related materials, and the record of the hearing is confidential and excluded from public access.” Id.
[17] Francum did not strictly comply with the procedure set forth in Rule 412. For instance, he did not file a pretrial motion seeking admission of the evidence. Instead, he raised the issue at the pretrial hearing. This hearing, however, was conducted April 13, 2023, eleven days before the trial. Thus, Francum presented the issue to the court within the time limits set by the rule. Under these circumstances, we proceed to address the merits of Francums Rule 412 arguments, despite his deviations from the rules requirements. See People for Cmty., Inc. v. City of Fort Wayne Neighborhood Code Compliance, 198 N.E.3d 19, 23 n.3 (Ind. Ct. App. 2022) (noting our preference to consider the merits of an argument when possible).
2. No Exception Applies
[18] Francum has failed to show that the exception in Rule 412(b)(1)(C) applies. His constitutional rights to confront witnesses and to present a defense were not improperly impinged by the exclusion of the DCS investigation evidence.
[19] Both the state and federal constitutions guarantee a defendants right to confront the witnesses against him. Ind. Const., art. 1, § 13; U.S. Const. amend VI. This right is not absolute. Pierce v. State, 29 N.E.3d 1258, 1268 (Ind. 2015). Instead, it is subject to reasonable limitations, consistent with due process, that trial judges are entrusted to impose. Id.
[20] The Sixth Amendments Confrontation Clause “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Article 1, Section 13 also provides a right to cross-examination, as well as the right to meet the witness face to face. Wilder v. State, 716 N.E.2d 403, 406 (Ind. 1999). Exclusion of evidence under Rule 412 does not violate a defendants constitutional right to confront witnesses or present a defense unless it deprives the defendant of full, adequate, and effective cross-examination. Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009); see Hill v. State, 137 N.E.3d 926, 935 (Ind. Ct. App. 2019) (noting that essential purpose of Sixth Amendment Confrontation Clause is to ensure the defendant has the chance to cross-examine witnesses against him).
[21] Here, the trial courts ruling merely limited Francums ability to cross-examine A.S. about the specific nature of DCSs investigation of a report that A.S. was the alleged perpetrator of sexual acts on another child. The trial courts ruling did not prevent Francum from questioning A.S. as to whether he was the subject of a DCS investigation unrelated to Francum, and Francum, in fact, did so. Francum also cross-examined A.S. about his motivation to lie about Francum. Francum has failed to show how the challenged limitation deprived him of full, adequate, and effective cross-examination.
C. Identification of A.S. as “Perpetrator”
[22] Francums final claim is that the trial court erred by barring him from describing A.S. as “perpetrator” or “alleged perpetrator” while cross-examining A.S. about the DCS investigation. The trial court instead allowed Francum to identify A.S. as “the subject of” the DCS investigation. Tr. Vol. II, p. 86. Francum claims the trial court erroneously based its decision on Evidence Rule 412(a), which Francum contends is inapplicable to the “perpetrator/alleged perpetrator” debate. According to Francum, Indiana Evidence Rule 403 controlled instead and did not bar use of the terms. We reject both arguments.
[23] Francums request to name A.S. as a “perpetrator” or “alleged perpetrator” was simply a back door means of suggesting to the jury that DCS investigated A.S. for sexual misconduct. Those labels effectively reference A.S.’s “other sexual conduct” in contravention of Rule 412(a).
[24] And even under Evidence Rule 403, Francum does not prevail. Evidence that would be admissible under a Rule 412(b) exception is still subject to exclusion under Indiana Evidence Rule 403. Williams, 681 N.E.2d at 200-01. Evidence Rule 403 allows a court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” But Francum specifically informed the trial court that whether A.S. committed the sexual misconduct for which A.S. was investigated was irrelevant to Francums prosecution.
[25] The probative value of the evidence that A.S. was the “perpetrator” or “alleged perpetrator” is substantially outweighed by the impact that it would have had on the issues and the jury. Francum was on trial, not A.S. The mere fact that DCS used these charged terms in its own reports does not mean that Francum was entitled to use the same terms in his unrelated trial. See, e.g., Bean v. State, 15 N.E.3d 12, 19-20 (Ind. Ct. App. 2014) (ruling that DCS employees testimony showing allegations had been “substantiated” constituted an opinion on the truth of the allegations that violated Indiana Evidence Rule 704(b)).
[26] Given that Francum could introduce evidence that A.S. was “the subject of” the DCS investigation unrelated to Francum, evidence that A.S. was the “perpetrator” or “alleged perpetrator” named in that investigation had little probative value in Francums prosecution for molesting A.S. The prejudicial nature of painting the victim as a sex offender, however, was great because it amplified the chance that A.S.’s alleged sexual misconduct would become the focus in Francums unrelated prosecution. See Smith v. State, 140 N.E.3d 363, 372 (Ind. Ct. App. 2020) (finding the prejudicial impact of evidence of rape victims post-assault sexual history greatly outweighed any probative value to the defendants defense because the evidence increased the possibility that the victims sexuality would be put on trial). The trial court did not abuse its discretion in refusing to allow Francum to use the terms “perpetrator” or “alleged perpetrator” when referring to A.S.
[27] As Francum has established no error in the trial courts limitations on his use of the DCS investigation evidence, we affirm the trial courts judgment.
FOOTNOTES
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. In arguing that the challenged evidence does not fall under Rule 412(a), Francum relies solely on Zawacki v. State, 753 N.E.2d 100 (Ind. Ct. App. 2001). Zawacki involved a defense claim that the victim had asked for, and was denied, the defendants permission to have a same-sex, sexual relationship with the defendants daughter. After the victim testified on cross-examination that she had never made such a request, the defendant sought to introduce evidence to impeach the victims credibility by demonstrating bias, prejudice, or an ulterior motive in the victims accusations of sexual misconduct by the defendant. A panel of this Court found the exclusion of such evidence to be reversible error because “the evidence did not fall within the confines of our Rape Shield Law” and, instead “[the defendant] sought to use this evidence in order to show [the victims] bias.” Id. at 102.But Zawacki was decided under a prior version of Evidence Rule 412. Since then, the rule has been expanded to generally prohibit evidence offered to prove the victims “other sexual behavior” or “sexual predisposition.” See Evid. R. 412(a). Francum reads Zawacki as ruling that evidence of bias is not prohibited by either the Rape Shield Statute or by Rule 412. Without citation to any post-Zawacki authority, Francum essentially is asking this Court to rule that Zawacki—an opinion issued before Rule 412 was amended to exclude evidence offered to prove the victims “other sexual behavior” or “sexual predisposition”—effectively carved out an exception to the future amendment. We reject Francums interpretation.
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. Article 1, Section 13 of the Indiana Constitution specifies that “[i]n all criminal prosecutions, the accused shall have the right ․ to meet the witnesses face to face ․” Meanwhile, the Sixth Amendment to the United States Constitution specifies that “in all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI.
Memorandum Decision by Judge Weissmann
Judges Mathias and Tavitas concur.
Mathias, J., and Tavitas, J., concur.