Indiana Law Review The Continuing Complexity of Indiana Rule of Evidence 404(b) Jeffrey O. Cooper* Introduction Of the numerous provisions in the Indiana Rules of Evidence, few have proved as complicated in application as Rule 404(b). The rule—^which provides generally that evidence of crimes, wrongs, or acts other than the conduct that is the subject of the particular case is not admissible as proof of the actor's character, but is admissible for other purposes'—has produced challenging cases in each ofthe years since the Indiana Rules ofEvidence went into effect in 1 994. This past year was no exception, as decisions ofthe Indiana Supreme Court and the Indiana Court of Appeals confronted the numerous problems of application raised by the rule.^ Because the rule remains the subject ofconfusion eight years after the adoption of the Indiana Rules of Evidence, and more than twenty-five years after the adoption ofa parallel provision in the Federal Rules ofEvidence, this Article will focus not on the full range of issues addressed by the courts under the Indiana Rules of Evidence during the survey period, but rather will focus on the past year's Rule 404(b) cases. I. The Substantive Requirements of Rule 404(b) Rule 404(b), at its heart, has three substantive requirements. First, the rule's reference to "other crimes, wrongs, or acts" means that the proffered evidence must involve a crime, wrong, or act that is not itself the subject of the case in which the evidence is sought to be introduced. Second, the rule excludes evidence of such acts if offered solely as character evidence to show action in conformity with that character in the events giving rise to the case. In other words, the evidence must not be used to support the "forbidden inference" that, because an individual has engaged in wrongdoing on occasions other than those at issue in the particular case, she must have done so on the occasion pertinent to the case as well.^ If the evidence is offered for another purpose, however, it * Associate Professor of Law, Indiana University School of Law—Indianapolis. 1. Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. IND. R. EviD. 404(b). 2. The survey period for this Article is the year beginning October 1 , 2000 and terminating September 30, 2001. 3. See Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997). 1416 INDIANA LAW REVIEW [Vol. 35:1415 may be admitted. Finally, because ofthe danger that the jury will indulge in the forbidden inference even ifthe evidence is offered for a proper purpose, the court must engage in a careful Rule 403 balancing to ensure that the probative value of the Rule 404(b) evidence is not substantially outweighed by the danger of unfair prejudice. Each one of these requirements raises difficulties in application. A. What Are "Other Crimes, Wrongs, or Acts? " L "Crimes, Wrongs, orActs. "—Rule 404(b) implicates evidence of"crimes, wrongs, or acts."* Ifthe evidence in question does not specifically reference an act, the Indiana Supreme Court has held that Rule 404(b) does not apply. Thus, a witness's statement that she feared the defendant was not barred by Rule 404(b), even though thejury reasonably could infer from the witness's testimony that the defendant had engaged in acts that engendered her fear.^ In addition, it is not enough that there be evidence of a particular act; the act must also be wrongful in some sense.^ The Indiana Court ofAppeals reiterated both ofthese points during the past year. In Allen v. Stated during the defendant's trial on a charge of burglary, the prosecution sought to introduce evidence that, during questioning by the police, the defendant offered to purchase drugs as a confidential informant and that "[h]e'd done these things in the past."* The court initially determined that the reference to "these things" plausibly could be interpreted to mean that the defendant had previously acted as a confidential informant, not that the defendant had previously made drug purchases.^ Evidence ofhaving acted as an informant, however, would not be barred by Rule 404(b), because there was nothing wrongful about the act.'° And while evidence of having previously acted as a confidential informant might support an inference that the defendant had previously engaged in misconduct, Rule 404(b) did not bar evidence that merely raised such an inference." The line thus seems to be drawn clearly: if direct evidence of an act by the defendant is presented. Rule 404(b) is implicated, whereas if the evidence presented requires an inference to support the conclusion that the defendant engaged in an act, the Rule does not apply. One recent decision ofthe Indiana Supreme Court, however, introduced a note of uncertainty. In McCarthy v. •S/a/e,^^ the defendant, a high school teacher, was charged with sexual misconduct 4. IND. R. EVID. 404(b). 5. See Haak v. State, 695 N.E.2cl 944, 947 (Ind. 1998). 6. See Allen v. State, 743 N.E.2d 1222 (Ind. Ct. App. 2001). 7. Id. 8. /£/. atl232. 9. Mat 1232 n.l3. 10. Id. at 1232. 11. Id 12. 749 N.E.2d 528 (Ind. 200 1 ). 2002] EVIDENCE 1417 with a minor based on allegations that he had molested two of his students. At trial, the prosecution presented evidence that the defendant had played "strip perdiddle," a sexual game with two other underage girls. '^ The trial court admitted the evidence over the defendant's objection that the evidence was improper under Rule 404(b)."* The supreme court, concluding that the trial court's decision was correct, questioned whether the evidence ofthe defendant's participation in "strip perdiddle" even constituted evidence ofother acts within the meaning of the Rule. '^ The court's objection is difficult to fathom. Playing a game that involves removing one's clothes unquestionably constitutes conduct and thus would seem to fit within the Rule. The most likely basis for the court's objection is that the conduct at issue in McCarthy was not sufficiently wrongful to fall under the Rule. Again, though, the uncertainty that the court suggests seems unfounded. The inclusion of "wrongs, or acts" in Rule 404(b) suggests that an act need not be criminal to fall within Rule 404(b). '^ And while an adult male teacher who plays a non-contact stripping game with minor females over whom he has authority may not be engaged in criminal conduct, his act certainly is wrongful in the ordinary sense of the word. In any event, the court did not ultimately resolve the issue, resting its decision on other grounds, '^ hence it would seem best not to make too much of this aspect of the opinion. 2. "Other. "—Courts commonly refer to Rule 404(b) as addressing evidence of "prior" acts.'* In many instances, this may simply be because, as a factual matter, the events discussed under Rule 404(b) in the particular cases occurred prior to the events underlying those cases. Repeated use of the word "prior," however, may suggest, at least implicitly, that the rule requires that the acts in question have occurred before the events giving rise to the case. The rule contains no such requirement, as a case from this past year demonstrates. In Murray v. State,^^ the Indiana Supreme Court considered under Rule 404(b) evidence of uncharged conduct that occurred concurrently with the conduct that was the subject ofthe criminal charge. The defendant, charged with attempted murder following the shooting of an acquaintance, claimed that the shooting had been accidental.^® To rebut this claim, and as evidence that the defendant had intended tci^hoot the victim, the prosecution offered evidence that the defendant did not have a license for the handgun used in the shooting. The 13. Mat 535. 14. /c/. at 536. 15. Mat 536-37. 1 6. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence 2 1 6 (2d ed. 1 999). 1 7. See infra notes 23-24 and accompanying text. 18. See Dickens v. State, 754 N.E.2d 1, 4 (Ind. 2001) ("Rule 404(b) protects against convictions based on past actions . . . rather than facts relevant to the matter at issue."); Grain v. State, 736N.E.2d 1223, 1234-35 (Ind. 2000); Allen v. State, 743 N.E.2d 1222, 1232 (Ind. Ct. App. 2001); Atwell v. State, 738 N.E.2d 332, 336 (Ind. Ct. App. 2000). 19. 742 N.E.2d 932 (Ind. 2001). 20. Mat 933. 1418 INDIANA LAW REVIEW [Vol. 35:1415 court, noting that carrying a handgun without a license was a crime, concluded that the evidence was admissible under Rule 404(b) as evidence of an other act relevant to the defendant's intent to engage in the charged conduct: when a person unlawfully in possession ofa firearm "openly brandishes" the weapon, "a factfinder could conclude that the person was highly motivated by a specific intent for doing so."^' B, Purposefor Offering the Evidence Rule 404(b) bars evidence ofother crimes, wrongs, or acts only when offered for the purpose of showing the actor's character as a means of highlighting that the actor behaved in a manner consistent with that character on the occasion at issue in the particular case. Ifthe evidence is offered for a purpose other than as support for this "forbidden inference," the evidence may be admitted. Because evidence admitted for a proper purpose may be misapplied by thejury in support of the forbidden inference, however, the court is obliged to ensure that the true purpose for offering the evidence is a proper one. The Indiana Supreme Court and Indiana Court of Appeals have proved receptive to arguments that evidence ofother acts is being offered for a purpose other than as character evidence, with one significant exception. Following Wickizer v, State^^ the courts carefully scrutinize other-acts evidence that is offered to show intent. For the most part, though, the cases in this past year demonstrate that reversal on the ground that evidence is offered for an improper purpose under Rule 404(b) is unusual, as is reversal on the ground that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. 1. Routine Application.—Many of the instances in which evidence is admitted under Rule 404(b) are routine: the evidence plainly relates to an aspect of the case other than the defendant's character. In McCarthy v. Stated for example, the defendant, accused of sexual misconduct with a minor, disclaimed 21. Id. 11. 626 N.E.2d 795 (Ind. 1993). 23. 749 N.E.2d 528 (Ind. 2001 ). The McCarthy decision is more notable for the fact that it applies harmless error analysis to a deprivation ofthe defendant's right to cross-examine witnesses, as guaranteed by the Sixth Amendment of the U.S. Constitution and article 1, section 13 of the Indiana Constitution. Id. at 534. In rejecting the defendant's argument that deprivation ofthe right to cross-examine witnesses should be considered Qrror perse, the court discarded court ofappeals precedent that had supported the defendant's position. Id. at 533-34 (overturning Tucker v. State, 728 N.E.2d 261 , 262 (Ind. Ct App. 2000), trans, denied; Kleinrichert v. State, 530 N.E.2d 32 1 , 322 (Ind.Ct. App. 1 988); Higginbothamv. State, 427 N.E.2d 896, 901 (Ind. Ct. App. \9%\\ overruled on other grounds by Micinski v. State, 487 N.E.2d 150 (Ind. 1986); Pfefferkom v. State, 413 N.E.2d 1088, 1090 (Ind. Ct. App. 1980); Haeger v. State, 390 N.E.2d 239, 241 (Ind Ct. App. 1 979)). The court noted that the U.S. Supreme Court had previously determined that harmless error analysis should be used to assess the impact ofviolations ofthe right to impeach for bias. Id. at 534 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). 2002] EVIDENCE 1419 knowledge ofthe game in which he had allegedly indulged with the minor victim before molesting her. To demonstrate that the defendant did in fact have knowledge of the game, the prosecution introduced evidence from two minor witnesses who testified that the defendant had played the game with them as well. The supreme court held that this use of the evidence to show knowledge was proper.^'* Prior acts of violence by the defendant against the victim of the charged offense are often admitted to show motive, the idea being that the prior acts demonstrate a hostile relationship between the defendant and the victim, a relationship that in turn explains the charged conduct. This use of the evidence avoids the forbidden inference by focusing not on the defendant's propensity for violence broadly but rather on the particulars ofthe defendant's relationship with the victim. In Wrinkles v. State,^^ for example, the trial court admitted (without objection from defendant's counsel) evidence that, two months prior to murdering his wife and two others, the defendant had pointed a gun at his wife.^^ On collateral review, the Indiana Supreme Court concluded that the failure to object did not deprive the defendant of effective assistance of counsel, because the evidence was properly admissible to show motive.^^ Cases in which evidence is excluded can be equally clear-cut. In Buchanan V. State^^ a child-molesting case, the trial court admitted over the defendant's objection photographs and drawings seized from his home ofchildren in various states of undress, accepting the prosecution's argument that the materials constituted evidence ofthe defendant's plan to molest young children. The court of appeals made short work of the argument. To constitute proper evidence of plan, the court asserted, the charged offense and the evidence ofother acts "*must ... be so related in character, time, and place ofcommission as to establish sorhe plan which embraced both the prior and subsequent criminal activity and the charged crime. '"^^ Under this test, the drawings and photographs did not constitute evidence of an overarching plan. 2. Intent.—An effort to show intent is a proper purpose for introducing 24. A/cCflr%, 749N.E.2dat536. 25. 749 N.E.2d 1 179 (Ind. 2001). Wrinkles is most noteworthy for its conclusion that criminal defendants may not be required to wear stun belts in the courtroom. Id. at 1 195. The court acknowledged the need for defendants to wear restraints in limited circumstances, but concluded that, unlike shackles and other forms of restraint, stun belts generated a fear in the minds of their wearers that had the potential to chill defendants from participating fully in their own defense. See id. at 1194-96. Justice Boehm, concurring in the result, opined that stun belts should not be categorically barred, reasoning that, because they were less visible than shackles and thus were less likely to be observed by the jury, some defendants might prefer them. See id. at 1205 (Boehm, J., concurring). 26. See id atn96&n.7. 27. ld.2X\\91. 28. 742 N.E.2d 1018 (Ind. Ct. App. 2001). 29. Id. at 1022 (quoting Lannan v. State, 600 N.E.2d 1334, 1339 (Ind. 1992)). Lannan, it should be noted, predated the adoption of the Indiana Rules of Evidence. 1420 INDIANA LAW REVIEW [Vol. 35:1415 evidence of other acts under Rule 404(b). Permitting evidence of other acts to be introduced to show intent in criminal cases is problematic, however, in that evidence tending to show intent is almost always relevant in such cases. Moreover, the intent argument, which the rule recognizes as proper, is not far removed in operation from the forbidden inference based on character. Each is in a sense a propensity argument; the intent argument is simply more narrowly focused on a particular aspect ofthe defendant's state ofmind, rather than on his general character. Recognizing this reality, in the 1 993 case of Wickizer v. State^^ the Indiana Supreme Court held that evidence ofother acts may not be offered to show intent unless the defendant specifically denies intent. A mere denial of involvement in the offense does not amount to a denial of intent; rather, the defendant must argue that, whatever conduct he may have engaged in, he did not possess the necessary mens rea for the offense.^' In many instances, it is readily apparent that the defendant has made the requisite denial, thus opening the door to other- act evidence probative of intent. In Grain v. State^^ for example, the defendant, charged with murder of his wife, claimed that her death was accidental.^^ This claim allowed the prosecution to introduce evidence ofseveral prior batteries by the defendant against his wife as evidence of the requisite intent.^^ And in Murray v. State^^ when the defendant, charged with attempted murder, claimed that he shot the victim by accident, the Indiana Supreme Court held that the prosecution could properly introduce evidence that the defendant's possession of the firearm was illegal, on the theory that one in possession of an illegal firearm would not casually flaunt it but would reveal it only if there were intent 30. 626 N.E.2d 795 (Ind. 1993). 31. The federal courts of appeals, applying the parallel federal rule, are divided in their approaches as to whether the defendant must controvert intent before evidence of other acts may be introduced pursuant to Rule 404(b). A number follow an approach similar to that of Wickizer. See United States v. Karas, 950 F.2d 3 1 , 3 7 ( 1 st Cir. 1 99 1 ); United States v. Colon, 880 F.2d 650, 656-57 (2d Cir. 1989); United States v. Walton, 602 F.2d 1 176, 1 180-81 (4th Cir. 1979); United States v. Silva, 580 F.2d 144, 148 (5th Cir. 1978). Other circuits take the position that, where the crime is a specific intent crime^ evidence ofother acts may be used to demonstrate intent even ifthe defendant did not specifically place intent at issue. See United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994); United States v. Hadley, 918 F.2d 848, 851-52 (9th Cir. 1990); United States V. Weddell, 890 F.2d 1 06, 1 07-08 (8th Cir. 1 989); United States v. Mazzanti, 888 F.2d 1 1 65, 1 1 70- 71 (7th Cir. 1989), cert, denied, 495 U.S. 930 (1990); United States v. Soundingsides, 820 F.2d 1232, 1237-38 (10th Cir. 1987); United States v. Williams, 816 F.2d 1527, 1531 (1 1th Cir. 1987); United States v. Hamilton, 684 F.2d 380, 384 (6th Cir), cert, denied, 459 U.S. 976 (1982). The position ofthe D.C. Circuit appears still to be unresolved, although in admitting other-acts evidence to demonstrate intent, the court in one case did note that the defendant had squarely placed his intent at issue. See United States v. Watson, 894 F.2d 1345, 1349 (D.C Cir. 1990). 32. 736 N.E.2d 1223 (Ind. 2000). 33. Id at 1235. 34. Id at 1235-36. 35. 742 N.E.2d 932 (Ind. 2001). 2002] EVIDENCE 1421 to use it.^^ Although the Wickizer rule is now well established, it sometimes proves troublesome in application. A recent decision of the Indiana Court of Appeals suggests that it can be difficult to determine whether a defendant has placed his intent in issue. In Weme v. Slate,^^ the defendant was charged with molesting a six-year-old child who lived nearby. According to the child-victim, the defendant had touched her several times "on her shorts" in the pelvic area.^^ The defendant's attorney asserted in his opening statement, without explaining the significance of the assertion, that the case "was an over the clothing type touching case."^^ Based on this argument, the trial court concluded that the defendant had denied intent and therefore had opened the door to evidence of a prior incident of molestation.'*^ A divided panel ofthe court ofappeals disagreed. Writing for the majority, Judge Mathias noted that the defendant's opening statement did not explicitly assert that the alleged touching had been inadvertent or accidental; rather, it simply "sought early on to minimize the seriousness of the charge and thus the unfavorable light in which some jurors may have viewed" the defendant."*' Dissenting, Judge Bailey noted that the defendant "did not deny that the touching took place"; rather, the emphasis on the fact that the alleged touching occurred over the victim's clothes "suggest[ed] inadvertence."^^ The split is perhaps understandable, given the lack of clarity in the defense counsel's argument; the interpretations of both the majority and the dissent seem plausible. The Weme decision therefore is somewhat troubling; however, perhaps because ofthe fact- specific nature of the split in the appellate panel, the Indiana Supreme Court denied transfer."*^ 3. Other Purposes.—Although Rule 404(b) lists a number of purposes for which other-acts evidence may be admissible, it is important to remember that the list set forth in the Rule is not exclusive.'*^ Indiana courts are receptive to other-acts evidence offered for purposes other than those listed in the Rule, provided they are satisfied that the proffered purpose is not simply a stand-in for the forbidden inference. Thus, in Dickens v. State^^ a murder prosecution, the fact that the defendant was observed in possession ofa handgun two days before 36. Mat 933. 37. 750N.E.2ci420(Ind. Ct. App. 2001). 38. /