Gibbs v. State

Citation538 N.E.2d 937
Decision Date30 May 1989
Docket NumberNo. 48S00-8703-CR-338,48S00-8703-CR-338
CourtSupreme Court of Indiana
PartiesThomas GIBBS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

William D. McCarty, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Thomas Gibbs stood trial for nineteen burglaries. The deputy prosecutor filed five witness lists with 116 names; the longest witness list had no addresses. He resisted giving further information. He provided addresses only on the morning of trial. Even then he refused to inform the defense which witnesses had information about which offense. It turned out that most of the witnesses had no information about the crimes being tried. The deputy prosecutor called them anyway--66 of them testified over a period of fifteen days, producing more than 3,000 pages of transcript. Sixty-five of the 66 could not identify the defendant.

Gibbs was found guilty by the jury of nineteen counts of burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.), and nineteen counts of theft, a class D felony, Ind.Code Sec. 35-43-4-2(a) (Burns 1985 Repl.). The jury also determined that Gibbs was an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.). We affirm four convictions and the habitual offender finding, penalties totaling 54 years, and order a new trial on the remaining counts.

At trial Debbie White testified that she began living with Gibbs in early 1983. During the course of the year, White said that Gibbs brought various items into the house. When a police investigation of a series of Anderson burglaries focused on Gibbs, he asked her to move the items out of the house. The police stopped White and her nephew as they drove away a truckload of the goods. White consented to a search of the truck and the house; the police found property from over fifty burglaries.

After presenting evidence on the charged crimes, the deputy prosecutor sought to bolster the State's case with evidence on the uncharged crimes. The trial court expressed skepticism about admitting the evidence but eventually acquiesced to the prosecutor's request.

Gibbs argues that the 39 uncharged burglaries should not have been admitted into evidence. He maintains the State never connected the uncharged crimes to him. The uncharged crimes, he claims, raised the possibility that the jury convicted him solely because of his bad character. The State responds that the evidence was admissible to prove identity, motive, and intent. The only issue at trial, however, was identity.

Our analysis proceeds in three parts. First, we will state the general rule on the admissibility of uncharged conduct and examine the exceptions to the rule. Second, we will consider the standard a trial court should use to judge whether the defendant committed the extrinsic offense. Third and finally, we will apply these rules and judge whether the probative value of the extrinsic evidence outweighs its prejudicial impact.

I. Admissibility of Evidence on Extrinsic Offenses

Evidence concerning crimes extrinsic to the one for which a defendant is on trial is generally inadmissible for three reasons. First, the government may not punish people for their character, and evidence of extrinsic offenses 1 poses the danger that the jury will convict the defendant because his "general character is bad or ... he has a tendency to commit certain crimes." Williams v. State (1986), Ind., 489 N.E.2d 53, 55. Second, indiscriminate admission of extrinsic offenses compels a defendant to meet accusations without notice. Third, extrinsic offenses raise collateral issues that confuse the jury and divert attention away from the charged crimes.

This Court has developed a number of exceptions to this general rule under the rubric "common scheme or plan." The exceptions allow admission of evidence on extrinsic offenses when necessary to promote some legitimate inference about a particular issue. Because the admission of extrinsic offenses can taint the fairness of the trial, the exceptions must be cautiously applied. Penley v. State (1987), Ind., 506 N.E.2d 806.

Our cases recognize two branches of the "common scheme or plan" exception. Id. at 809. The first branch permits proof of an extrinsic offense as evidence of a preconceived plan that includes the charged crime. In other words, the extrinsic offense is part of the res gestae of a larger criminal plan that included the charged offense. To be admissible under this branch of the exception, this Court requires that "[t]he crimes must ... be so related in character, time and place of commission as to establish some plan which embraced both the prior and subsequent criminal activity and the charged crime." Malone v. State (1982), Ind., 441 N.E.2d 1339, 1347.

The second branch allows for the admission of extrinsic offenses to prove intent, motive, purpose, or identity by showing the defendant committed other offenses with a similar modus operandi. Penley, 506 N.E.2d at 808-09.

This Court requires a lesser degree of similarity between the charged crime and the extrinsic offense when the evidence is introduced to prove state of mind than when it is introduced to prove identity. See Williams v. State (1985), Ind., 481 N.E.2d 1319. As long as the motive or intent is the same then the extrinsic offense is admissible, even if there are differences in the manner in which the two offenses are committed. For example, the government may prove that the defendant knew he was passing counterfeit securities by eliciting testimony that the defendant had knowingly purchased counterfeit currency on a prior occasion. Peters v. United States, 376 F.2d 839 (5th Cir.1967). Although the crimes were to some extent dissimilar, the extrinsic offense was relevant to establish the defendant's state of mind.

When an extrinsic offense is offered to prove identity, however, the modus operandi must be unusual and distinctive. Justice Pivarnik described the test to apply when an extrinsic offense is offered to prove identity: "[T]his Court requires a strong showing that the different criminal actions were so similarly conducted that the method of conduct can be considered akin to the accused's 'signature.' " Malone, 441 N.E.2d at 1346. The mere repetition of similar crimes is not enough to qualify for an exception to the general rule. Id. at 1346.

II. Evidence Connecting Defendant to Extrinsic Offenses

Evidence of extrinsic offenses to prove identity is relevant only if the defendant in fact committed the extrinsic offenses. If the defendant is known to have committed an extrinsic offense with a unique modus operandi, then the extrinsic offense is admissible to prove the identity of a criminal who committed a charged crime with that same, unique modus operandi. Without evidence connecting the extrinsic offense to the defendant, such evidence would impugn the defendant's character without being probative of identity.

The necessity of proving the defendant committed the extrinsic offense is a threshold. It is preliminary to determining whether the evidence is probative of any issue in the case and whether its probative value outweighs its prejudicial effect.

The question turns on what standard a trial court should use to judge whether the defendant committed the extrinsic offense. Frequently, the State establishes the defendant committed the extrinsic offense through an eyewitness. E.g., Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. This Court has also relied on circumstantial evidence to show that the defendant committed the extrinsic offenses. See Foust v. State (1981), Ind., 428 N.E.2d 776 (defendant brought into apartment television stolen during extrinsic offense).

Before making this threshold decision concerning evidence on the extrinsic offenses, Judge Spencer asked the prosecutor whether the State could connect Gibbs to the extrinsic burglary. The State connected Gibbs to the extrinsic burglaries through his girlfriend's testimony. She said Gibbs brought the stolen property from the extrinsic burglaries into the house. The probative value of this testimony, of course, was the same as that of her testimony concerning the charged offenses. This evidence was similar to the testimony approved in Foust. Judge Spencer properly found that White's testimony was sufficient to establish Gibbs as the perpetrator of the extrinsic burglaries.

III. Probative Value and Prejudice of Extrinsic Offenses

Although the evidence sufficiently established that Gibbs committed the extrinsic offenses, the question remains as to whether the prosecutor made a strong enough showing of similarity required to admit the extrinsic offenses to prove identity. We must also judge whether the probative value of the extrinsic burglaries on the issue of identity outweighs its prejudicial impact on the defendant's character.

The State argues that the burglaries were committed with a markedly similar modus operandi. The State maintains that they all occurred in the early evening, with the point of entry in an obscure place, and with alternative escape routes. The perpetrator ransacked the bedrooms and took pillowcases. The State claims the extrinsic burglaries establish Gibbs' identity as the burglar and prove his motive and intent. Because Gibbs' defense was that he was not the burglar, we will only address the use of the extrinsic burglaries to prove identity.

A. Charged Burglaries. Because relating the facts of each charged burglary would be a substantial and unproductive undertaking, we select a few for comparison.

On March 19, 1983, between 8 p.m. and midnight, a burglar broke into Margaret Steger's home. The intruder entered by breaking the glass in the back door, reaching in, and unlocking the door. The burglar ransacked the bedroom and took a pillowcase. The...

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