Fisher v. State

• Decision Date: 20 October 1994
• Docket Number: No. 79A02-9309-CR-493,79A02-9309-CR-493
• Citation: 641 N.E.2d 105
• Parties: Benjamin FISHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 105

641 N.E.2d 105

Benjamin FISHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A02-9309-CR-493.

Court of Appeals of Indiana Second District.

Oct. 20, 1994.

Ralph L. Robinson, Daniel D. Houston, Lafayette, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

KIRSCH, Judge.

Appellant-defendant Benjamin Fisher appeals his conviction of two counts of Child Molesting, ¹ Class C felonies. His sole claim of error is that the trial court impermissibly admitted evidence of his prior uncharged sexual misconduct.

We reverse.

FACTS

At trial, Fisher's nine-year-old granddaughter testified that Fisher touched and rubbed her vagina on two occasions: once while the victim was in Fisher's truck and once while she watched television with Fisher in her home. Fisher testified in his own defense that he would occasionally rub the victim's chest and stomach because she had requested he do so during her recuperation from open heart surgery. Fisher claimed on direct examination in his case-in-chief that any improper touching he might have done was unintentional and accidental. On cross-examination, Fisher testified that he never molested the victim, or any other child, at any time in his life.

On rebuttal, Fisher's 32-year-old daughter, who is also the victim's mother, testified that Fisher molested her when she was between four and nine years old. Fisher's daughter claimed that the early molestations commenced when she was four years old. They involved Fisher rubbing her chest and vagina. Fisher began having sexual intercourse with her when she was six years old. These incidents occurred in Fisher's truck and in the family home. The investigating police officer also testified that Fisher admitted molesting his daughters when they were young.

Fisher objected to the State's rebuttal evidence on the ground that evidence of prior uncharged sexual misconduct is inadmissible under Lannan v. State (1992), Ind., 600 N.E.2d 1334. The trial court admitted the testimony over Fisher's objection. The court also gave the jury the following final instruction:

"Evidence has been introduced that the defendant was involved in crimes other than those charged in the information. This evidence has been received solely on the issue of the defendant's intent or absence of mistake. This evidence is to be considered by you only for the limited purpose for which it was received."

Record at 525-26.

DISCUSSION AND DECISION

To be considered relevant in Indiana, evidence must logically tend to prove or disprove a material issue of fact. Bolin v. State (1994), Ind.App., 634 N.E.2d 546, 548. Evidence which tends to prove a material fact is admissible, even if the tendency to provide such proof is slight. Id. The permissible material facts for which prior misconduct evidence may be offered to prove are set forth in Fed.R.Evid. 404(b), as adopted by our supreme court in Lannan, 600 N.E.2d 1334. Under that rule:

"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, opportunity, 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 pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." ²

In adopting Rule 404(b), the court in Lannan abrogated the previously authorized depraved sexual instinct exception which allowed the admission of character evidence in the prosecution of certain sex offenses. Rather than admitting evidence of prior bad acts to establish that a sex crime defendant acted in conformity with a previously exhibited depraved sexual instinct, such evidence can now be admitted only when it is offered for a purpose other than to prove that the defendant acted in conformity with some character trait. Lannan, 600 N.E.2d at 1339. The evidence becomes admissible not because it ceases to show the defendant's bad character or criminal propensity, but because it makes the existence of an element of the crime charged more probable than it would be without such evidence, despite its tendency to show bad character or criminal propensity. Id.

In evaluating the admissibility of evidence under Rule 404(b), the Seventh Circuit employs a four-part test which this court recently cited with approval in Pirnat v. State (1993), Ind.App., 612 N.E.2d 153, 155. The test requires that the evidence:

"(1) be directed toward proving a matter in issue other than the defendant's propensity to commit the crime charged, (2) show that the prior act is similar enough and close enough in time to be relevant to the matter in issue, (3) be such that a reasonable jury could find that the act occurred and that the defendant committed the act, and (4) meet the requirement of Rule 403 that the evidence's probative value not be substantially outweighed by the danger of unfair prejudice. United States v. Monzon, 869 F.2d 338, 344 (7th Cir.), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989)."

United States v. Schweihs (7th Cir.1992), 971 F.2d 1302, 1311; see also Pirnat, 612 N.E.2d at 155 (citing United States v. Hudson (7th Cir.1989), 884 F.2d 1016, 1018-19, cert. denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990)).

In the present case, the State offered the prior bad act evidence to prove intent, a proper purpose under Rule 404(b). ³ Our supreme court elaborated on the intent exception contained in Rule 404(b) in Wickizer v. State (1993), Ind., 626 N.E.2d 795, a case also involving charges of child molestation. There, the court declared that the intent exception in Rule 404(b) ⁴ would be narrowly construed in accordance with the following:

"The intent exception in Evid.R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State's witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant's intent at the time of the charged offense. The trial court must then determine whether to admit or exclude such evidence depending upon whether 'its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.' Evid.R. 403."

Id. at 799. Thus, the defendant must first place intent "at issue" before prior bad act evidence relevant to intent is admissible. Thomas v. State (1993), Ind.App., 612 N.E.2d 604, 607, trans. denied; Schweihs, 971 F.2d at 1311.

As in Wickizer, the relevant intent here is "with intent to arouse or to satisfy the sexual desires of either the child or the older person." IC 35-42-4-3(b). Unlike the defendant in Wickizer, however, Fisher took the stand and professed an intent contrary to the one constituting an element of the crime. On direct examination, Fisher claimed that if any improper touching occurred, it was accidental and unintentional. The State offered the evidence of Fisher's prior misconduct on rebuttal, after Fisher made his declaration of contrary intent on direct examination. Presentation of the evidence in such a manner complies with the dictates of both Wickizer and Lannan.

Minimal connection with a proper purpose for admitting the previous sexual misconduct does not alone make the evidence admissible. Wickizer further limits the admissibility of prior misconduct evidence by requiring that it be "genuinely relevant to prove the defendant's intent at the time of the charged offense." 626 N.E.2d at 799. Determination of genuine relevance necessarily includes consideration of the second prong of the four-part test: the evidence of Fisher's prior misconduct must be similar enough and close enough in time to be genuinely relevant to prove Fisher's intent at the time of the charged offenses. See Schweihs, 971 F.2d at 1311; Pirnat, 612 N.E.2d at 155. Remoteness and similarity must be considered together because the two concepts are so closely related; the remoteness of a prior crime takes on increased significance as the similarity between the prior crime and the charged offense increases. Thus, a prior bad act, despite its remoteness, may still be relevant if it is strikingly similar to the charged offense. Conversely, less similarity may be required where the prior act is closer in time to the charged incident.

The evidence at issue here fails on both counts. With respect to remoteness, the State urged at trial and on appeal that the remoteness of a prior bad act goes to its weight, not its admissibility. See Lawrence v. State (1984), Ind., 464 N.E.2d 923; Harp v. State (1988), Ind.App., 518 N.E.2d 497. With the abrogation of the depraved sexual instinct exception, the State's premise fails. See Stout v. State (1993), Ind.App., 612 N.E.2d 1076, 1078-79, trans. denied. Remoteness is to be considered in determining relevance, and ultimately, admissibility. Schweihs, 971 F.2d at 1311; Pirnat, 612 N.E.2d at 155.

Here, the evidence is too remote to be genuinely relevant. The prior bad acts occurred at least twenty-three years prior to the charged offenses. As such, the evidence is not probative of Fisher's intent at the time of the charged offense.

In oral argument, the State cited State v. Sneeden (1993), 108 N.C.App. 506, 424 S.E.2d 449, as support for admitting the challenged evidence. In Sneeden, the court upheld...