Wickizer v. State

• Citation: 626 N.E.2d 795
• Decision Date: 27 December 1993
• Docket Number: No. 75SO3-9312-CR-1432,75SO3-9312-CR-1432
• Parties: Dewey Edward WICKIZER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 795

626 N.E.2d 795

Dewey Edward WICKIZER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 75SO3-9312-CR-1432.

Supreme Court of Indiana.

Dec. 27, 1993.

Stephen Bower, Cohen and Thiros, Merrillville, for appellant.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

Appellant-Defendant Dewey Edward Wickizer was convicted of three class D felony counts of child molestation. The Court of Appeals affirmed. Wickizer v. State (1993), Ind.App., 619 N.E.2d 947. We grant transfer to address questions regarding the admissibility of prior conduct evidence under the "intent" exception of Federal Rule of Evidence 404(b), substantially adopted now as Indiana Rule of Evidence 404(b). ¹

The defendant was charged in an amended information with touching a 14-year-old male on three occasions with intent to arouse the defendant's sexual desires. At trial, over defense objection, the State presented evidence of the defendant's prior sexual conduct with other male youths. One witness testified as to his sexual experiences with the defendant over a two-year period beginning approximately eight years earlier when the witness was 11 years of age. A second witness described his three-and-one-half-year sexual relationship with the defendant beginning approximately 18 years earlier when this witness was 13 years of age. The trial court ruled such testimony admissible as evidence of the defendant's depraved sexual instinct.

On appeal, the defendant presents two issues. He argues that it was reversible error for the trial court to have admitted testimony of his alleged prior conduct as evidence of his depraved sexual instinct. He also contends that, absent the testimony of his prior sexual conduct, the evidence was insufficient to support his convictions.

At the time this case was tried, in prosecutions for incest, sodomy, criminal deviate conduct, or child molesting, Indiana recognized the admissibility of evidence of certain kinds of prior sexual conduct under a depraved sexual instinct exception to the general rule of inadmissibility of prior bad acts. See Stewart v. State (1990), Ind., 555 N.E.2d 121, 124. Under this exception, the trial court in the present case properly admitted the evidence of the defendant's prior sexual conduct. However, two months after this trial, the depraved sexual instinct exception was abandoned, and the admissibility of prior sexual conduct evidence in sex offense cases was required to be treated as all other prior conduct evidence offered to prove a defendant's charged conduct, with Federal Rule of Evidence 404(b) providing the applicable rule. Lannan v. State (1992), Ind., 600 N.E.2d 1334. We also held that sex offense cases pending on direct appeal at the time we issued Lannan should be subject to this new rule. Pirnat v. State (1992), Ind., 600 N.E.2d 1342, reh'g denied (1993), 607 N.E.2d 973. The defendant's appeal thus is subject to our Lannan holding.

Furthermore, because this Court has since adopted Federal Rule of Evidence 404(b) virtually verbatim as Indiana Rule of Evidence 404(b), resolution of the issue presented today will be determinative in future cases involving Ind.Evid.R. 404(b), which provides:

Other Crimes, Wrongs, or Acts. 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] ² 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. [Emphasis added.]

The critical issue in this case is whether prior conduct evidence may be introduced under the intent exception to the general inadmissibility of other crimes, wrongs, or acts.

"The use of evidence of other crimes, acts and conduct ... to prove matters other than general character has always been problematic for the courts." Gregory Joseph et al., Evidence in America Sec. 14.3 at 6 (1992). Lannan, for example, recognized that fundamental to our system of jurisprudence is the notion that the State, relying upon evidence of uncharged misconduct, may not punish a person for his character. Lannan, 600 N.E.2d at 1338, citing Penley v. State (1987), Ind., 506 N.E.2d 806, 808. Admission of prior uncharged misconduct infers that the defendant is of bad character and poses the danger that the jury will convict solely upon this inference. Id. Similarly, authoritative commentators have noted that the admission of uncharged misconduct may weigh heavily against a defendant, even becoming a dispositive factor in conviction. See Edward J. Imwinkelried, Uncharged Misconduct Evidence Sec. 1:02 at 4 (1984-1991). However, because the mental state or culpability of a defendant is an element to be proven by the prosecution in virtually every criminal case, see State v. Keihn (1989), Ind., 542 N.E.2d 963, properly introduced evidence of intent typically is found to be relevant and of probative value and thus is admissible at trial. See Robert Miller, Indiana Practice, Vol. 12 at 266 (1984). Many criminal offenses are defined by statute to include a specific particularized culpability as one of the required elements of proof. In the present case the charged offense includes the element "with intent to arouse or to satisfy the sexual desires of either the child or the older person." Ind.Code Sec. 35-42-4-3(d).

Notwithstanding the need to allow proper evidence of an accused's intent at the time of the charged offense, the use of prior conduct evidence for this purpose introduces the substantial risk of conviction based predominantly on bad character. Applying a broad construction to the intent exception of Rule 404(b), the admissibility of prior conduct evidence could improperly create the " 'forbidden inference'--that the defendant acted badly in the past, and that the defendant's present, charged actions conform with those past bad acts...." Hardin v. State (1993), Ind., 611 N.E.2d 123, 129. This would cause the intent exception of Rule 404(b) to overwhelm the rule's primary objective of prohibiting evidence of other crimes, wrongs, or acts "to prove the character of a person in order to show action in conformity therewith."

The Advisory Committee's Original Note to Fed.R.Evid. 404(b) observes that, as to situations where prior conduct evidence is offered for a purpose other than proving character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it, "[n]o mechanical solution is offered." Jack B. Weinstein and Margaret Berger, Weinstein's Evidence Sec. 404 at 12 (1993).

Accordingly, other jurisdictions construing Fed.R.Evid. 404(b) are divided in opinion, often influenced by specific factual circumstances, as to the admissibility of prior conduct to support the intent exception to the general prohibition of the admission of other crimes, wrongs, or acts as reflective of character. Exemplifying cases which hold that such evidence is admissible under Rule 404(b) to show intent, the Eighth Circuit permitted testimony regarding a defendant's prior cocaine dealings to prove that the defendant acted knowingly and intentionally with respect to the charged crime. U.S. v. Santana (8th Cir.1989), 877 F.2d 709. Wyoming affirmed the admissibility of evidence that a victim's mother had previously abused the victim's sister as proof of the defendant's intent for purposes of the child abuse statute. Longfellow v. State (1990), Wyo., 803 P.2d 848. The New Hampshire Supreme Court allowed character evidence that a defendant was predisposed to violent behavior when intoxicated to prove intent in a prosecution for murders allegedly committed while the defendant was intoxicated. State v. Sullivan (1988), 131 N.H. 209, 551 A.2d 519. Vermont held that evidence of a defendant's alleged sexual assaults against the victim's brother was admissible as tending to show intent and plan to continue a course of conduct. State v. Parker (1988), 149 Vt. 393, 545 A.2d 512. North Carolina permitted evidence of a defendant's escape from jail, assault on a jailer, and theft of a truck and rifle to establish intent and motive in a murder prosecution. State v. Bray (1988), 321 N.C. 663, 365 S.E.2d 571. Georgia's Supreme Court ruled that evidence of a murder defendant's history of wife-beating was admissible to show intent in striking his spouse on the day on which injuries were inflicted that caused her death. Rainwater v. State (1986), 256 Ga. 271, 347 S.E.2d 586.

Conversely, other decisions have found evidence of prior conduct inadmissible under Rule 404(b) to prove intent. Montana ruled that other offenses committed by a defendant within the preceding year were inadmissible to prove the defendant's motive and intent to inflict harm upon a police officer during a booking process. State v. Brown (1990), 242 Mont. 506, 791 P.2d 1384. Oregon determined that because the similarities between a defendant's prior kidnapping and rape and the charged crime of rape and murder did not outweigh their differences, the prior crime evidence was not admissible. State v. Pratt (1990), 309 Or. 205, 785 P.2d 350, cert. denied (1993), --- U.S. ----, 114 S.Ct. 452, 126 L.Ed.2d 384. Mississippi held that evidence of abusive acts perpetrated by a defendant-mother between 15 months and eight years prior to the mother's alleged murder of her daughter was not properly admissible. Houston v. State (1988), Miss., 531 So.2d 598. The Supreme Court of Wisconsin found inadmissible evidence of a defendant's prior thefts to show the defendant's intent in a...