Penley v. State

Decision Date15 April 1987
Docket NumberNo. 1282S469,1282S469
PartiesDanny N. PENLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Terrence W. Richmond, Public Defender, Richmond, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

This case requires that we examine the circumstances under which the State may use evidence that a defendant has engaged in unrelated misconduct to prove that he is guilty of the crime for which he is on trial.

Danny Penley was convicted after trial by jury of rape, a class B felony, Ind.Code Sec. 35-42-4-1 (1985 Burns Repl.), and burglary, a class B felony, Ind.Code 35-43-2-1 (1985 Burns Repl.). As a part of its evidence against Penley, the State presented testimony about assaults on five other women occurring at various times over a three-year period. Some of these incidents qualified for admission under recognized exceptions and others did not. Admission of the latter requires reversal.

I. Evidence of Other Crimes

The State's evidence showed that on May 6, 1979, the twenty year old victim of the crime charged was alone at home in bed. She was awakened around 2:30 a.m. by a man, later identified as Penley, who had entered her bedroom. Penley spoke to her in a soft voice and told her it was "o.k.," that her mother knew he was there. When the victim became upset, he threatened her not to "get loud." He ordered her to disrobe and he put his finger in her vagina. He told her to touch his penis. Then, he pulled a knitted hat over his face and forcibly had intercourse with her. Before Penley left, he told her he would be back.

Next, the State was permitted to elicit testimony from the sister of the victim about a sexual assault committed against her by Penley approximately one month before the attack on the victim. The sister testified that she was alone at home on March 28, 1979, when a noise in the house awakened her sometime between 3 and 4 a.m. Penley came into her bedroom with a nylon stocking on his head, put his hand over her mouth and told her to "shut up." Then he said it was "o.k.," that her mother knew he was there. He put his finger in her vagina, but when he began to undo his pants, the sister told him she was epileptic and needed her medication. With that, Penley fastened his pants and left.

The mother of the victim also testified for the State. On May 14, 1979, one week after her daughter was raped, the mother was home alone. She was awakened by a sound about 3 a.m. and saw a man, whom she later identified as Penley, outside the window cutting the screen. She screamed at him to leave, and he walked around to the side of the house. Fearful he would come in the back entrance, she ran out the front door toward the street light. Penley ran up behind her, put his hand over her mouth and began dragging her. When a neighbor appeared, he threw her down, breaking her shoulder, and escaped into the woods.

Three other rape victims, each testified that Penley was the man who raped them. The trial court held the evidence of these crimes and of the attacks on the victim's mother and sister were admissible to prove identity under the so-called "common scheme or plan" rule. Penley challenges the court's ruling as to all five of these witnesses. We conclude that the court erred in allowing testimony about the attacks against the three other rape victims, but agree with appellee that the evidence of the attacks on the sister and mother was properly admitted.

The notion that the State may not punish a person for his character is one of the foundations of our system of jurisprudence. Evidence of misconduct other than that with which one is charged ("uncharged misconduct") will naturally give rise to the inference that the defendant is of bad character. This, in turn, poses the danger that the jury will convict the defendant solely on this inference.

Exceptions to this rule must be applied with caution. Evidence of uncharged misconduct is generally inadmissible if "its sole relevance is to show that the defendant's general character is bad and that he therefore has a tendency to commit crimes." Schnee v. State (1970), 254 Ind. 661, 662, 262 N.E.2d 186, 187. However, evidence of uncharged misconduct may often be admissible because it promotes a legitimate inference about some issue in the cause, notwithstanding its incidental revelation about the defendant's character. Id.; Imwinkelreid, Uncharged Misconduct Evidence Sec. 3.

Where the identity of the perpetrator is in issue, the inference that the defendant committed the crime may be promoted in many ways which might incidentally reveal uncharged misconduct. Uncharged criminal activity may tend to reveal a motive for the charged crime, a plan or scheme to commit the crime, the defendant's preparation for the crime, his guilty knowledge of the crime, or that he was a member of a conspiracy to commit the crime. In this regard, Indiana case law is consistent with Rule 404(b) of the Federal Rules of Evidence:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.

Applicable to the case at bar is another exception by which the State may attempt to prove the identity of the perpetrator of the offense being tried by showing that an uncharged crime in which the defendant has been identified and the charged crime were committed with identical modus operandi. This exception has often been characterized by the phrase "common scheme or plan." Henderson v. State (1980), 273 Ind. 334, 403 N.E.2d 1088; Porter v. State (1979), 272 Ind. 267, 397 N.E.2d 269. However, this same phrase has also been applied to describe the exception permitting evidence of other criminal activity "to demonstrate the common plan or scheme of criminal activity from which the accused originated the charged crime." Malone v. State (1982), Ind., 441 N.E.2d 1339, 1346. Thus, as explained in Malone:

The test to bring evidence of other offenses within the common plan or scheme exception is not whether the other offenses have certain elements in common with the charged crime, but whether the other offenses tend to establish a preconceived plan by which the charged crime was committed. The crimes must, therefore, 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.

441 N.E.2d at 1347.

Thus, our cases recognize two branches of the "common scheme or plan" exception, the first permitting proof of identity by showing the defendant committed other crimes with identical modus operandi, and the second permitting proof of an uncharged crime as evidence of a preconceived plan which included the charged crime. Today we are concerned with the first branch of the "common scheme or plan" exception.

The State may prove identity by showing that the similarities between the two crimes are so strong and the method so clearly unique that it is highly probable that the perpetrator of both is the same person. This Court has recognized this exception to the general rule against use of evidence of uncharged criminal activity. Malone, 441 N.E.2d 1339. We require 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. Biggerstaff v. State (1977), 266 Ind. 148, 361 N.E.2d 895. However, as Justice Pivarnik wrote for the Court "[T]he repeated commission of similar crimes is not enough to qualify for the exception to the general rule. The acts or methods employed must be so similar, unusual and distinctive as to earmark them as the acts of the accused." Willis v. State (1978), 268 Ind. 269, 272, 374 N.E.2d 520, 522; see also, Williams v. State (1981), 275 Ind. 434, 417 N.E.2d 328. 1

The similarities between the attack on the victim and the attack on her sister sufficiently established a modus operandi to qualify the sister's testimony as admissible to resolve the issue of the identification of the victim's rapist. The attacks took place within a one-month period at approximately the same hour of the morning and in the same household. Penley used the very same words to the sisters: "It's okay, your mother knows I'm here." He began the two sexual assaults similarly; the outcomes were different only because the sister of the victim deceived Penley about her medical condition.

Although the admissibility of the evidence of the mother's attack could not rest upon similarities with the victim's attack, it was probative of Penley's plan or scheme to attack repeatedly members of the same household. The admissibility of the evidence about the sister's experience was admissible on this basis as well.

After all, he told the victim he would be back. He carried out this plan by returning to attack the mother. An Illinois court has explained this exception to the general ban on evidence of uncharged misconduct:

The State (and, indeed, some of the authorities) have used "common design" and "modus operandi " interchangeably, but the concepts are quite distinguishable. A common design refers to a larger criminal scheme of which the crime charged is only a portion. Modus operandi means, literally, "method of working," and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. (Citations omitted). A common design is frequently relevant to show the motive for the crime charged. Modus operandi is most useful in showing that the accused is the perpetrator of the crime charged.

People v. Barbour (1982), 106 Ill.App.3d 993, 999-1000...

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