Wickizer v. State

CourtSupreme Court of Indiana
Citation626 N.E.2d 795
Docket NumberNo. 75SO3-9312-CR-1432,75SO3-9312-CR-1432
PartiesDewey Edward WICKIZER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date27 December 1993

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.

Page 796

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

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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

Page 798

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...

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106 practice notes
  • Wynn v. State, 90
    • United States
    • Court of Appeals of Maryland
    • September 1, 1997
    ...wrongs, or acts to the extent genuinely relevant to prove the defendant's intent at the time of the charged offense. Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993). In the present case, all parties knew that Wynn's defense was that he was an innocent purchaser of the goods at a flea mark......
  • Bishop v. State, 49A02–1409–CR–622.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 2015
    ...misconduct, may not punish a person for his character.’ ” Lee v. State, 689 N.E.2d 435, 439 (Ind.1997) (quoting Wickizer v. State, 626 N.E.2d 795, 797 (Ind.1993) (citing Lannan v. State, 600 N.E.2d 1334, 1338 (Ind.1992) )), reh'g denied. The standard for assessing the admissibility of Rule ......
  • Commonwealth v. Hicks, 718 CAP
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 28, 2017
    ...Weinstein's Evidence § 404[12] (1990)), overruled on other grounds Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) ; Wickizer v. State, 626 N.E.2d 795, 795 (Ind. 1993) ("The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpab......
  • Crain v. State, 29S00-9803-CR-180.
    • United States
    • Indiana Supreme Court of Indiana
    • October 20, 2000
    ...of its admission, and its ruling will be reviewed only for an abuse of discretion. Poindexter, 664 N.E.2d at 400. B In Wickizer v. State, 626 N.E.2d 795 (Ind.1993), this Court examined the "intent" exception to Evid.R. 404(b), finding it be available when a defendant goes beyond merely deny......
  • Request a trial to view additional results
108 cases
  • Wynn v. State, 90
    • United States
    • Court of Appeals of Maryland
    • September 1, 1997
    ...wrongs, or acts to the extent genuinely relevant to prove the defendant's intent at the time of the charged offense. Wickizer v. State, 626 N.E.2d 795, 799 (Ind.1993). In the present case, all parties knew that Wynn's defense was that he was an innocent purchaser of the goods at a flea mark......
  • Bishop v. State, 49A02–1409–CR–622.
    • United States
    • Court of Appeals of Indiana
    • July 31, 2015
    ...misconduct, may not punish a person for his character.’ ” Lee v. State, 689 N.E.2d 435, 439 (Ind.1997) (quoting Wickizer v. State, 626 N.E.2d 795, 797 (Ind.1993) (citing Lannan v. State, 600 N.E.2d 1334, 1338 (Ind.1992) )), reh'g denied. The standard for assessing the admissibility of Rule ......
  • Commonwealth v. Hicks
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 28, 2017
    ...Weinstein's Evidence § 404[12] (1990)), overruled on other grounds Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) ; Wickizer v. State, 626 N.E.2d 795, 795 (Ind. 1993) ("The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpab......
  • Crain v. State, 29S00-9803-CR-180.
    • United States
    • Supreme Court of Indiana
    • October 20, 2000
    ...of its admission, and its ruling will be reviewed only for an abuse of discretion. Poindexter, 664 N.E.2d at 400. B In Wickizer v. State, 626 N.E.2d 795 (Ind.1993), this Court examined the "intent" exception to Evid.R. 404(b), finding it be available when a defendant goes beyond merely deny......
  • Request a trial to view additional results

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