To Prove Intent
• One of the “other purposes” for which evidence of other crimes may be admissible is to show intent.
Murray v. State, 742 N.E.2d 932, 934 (Ind. 2001)(citing Evid. R. 404(b))
See Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997)(“Prior actions may be admissible to show motive, intent, or other proper purpose.”)
See also Southward v. State, 957 N.E.2d 975, 977 (Ind. Ct. App. 2011)(citing Payne v. State, 854 N.E.2d 7, 18 (Ind. Ct. App. 2006))(“Evid. R. 404(b) evidence is not wholly precluded, however, and may be admissible for other purposes, including proof of intent.”)
Advancing a contrary claim of intent
• 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.
Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993)
Iqbal v. State, 805 N.E.2d 401, 407 (Ind. Ct. App. 2004)(citing Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993))
See, e.g., Cook v. State, 734 N.E.2d 563, 569 n.4 (Ind. 2000), reh’g denied(“[T]he evidence was not admissible to show intent because [the defendant] did not argue a contrary intent.”)
See also, e.g., Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012)(“Here, [the defendant] never advanced a defense theory of contrary intent. Instead, [the defendant] maintained that the charged acts did not occur, and he even called witnesses to testify that on the night [the victim] claimed he fondled her, he was actually at a church dinner. Because [the defendant’s] intent was not at issue, the prior-misconduct evidence would not have been admissible on that basis.”)
• 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.
Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993)(emphasis added)
Iqbal v. State, 805 N.E.2d 401, 407 (Ind. Ct. App. 2004)(citing Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993))(“When a defendant alleges 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 then 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.”)
• Notwithstanding its use of the phrase “in trial,” in analyzing the case before it, the Wickizer court also took into consideration the defendant’s pretrial responses to police questions. Accordingly, we will take into account [the defendant’s] voluntary responses to police questioning in determining if he put his knowledge in issue.
Whitehair v. State, 654 N.E.2d 296, 302 n. 2 (Ind. Ct. App. 1995)(internal citation omitted)
See Iqbal v. State, 805 N.E.2d 401, 407 (Ind. Ct. App. 2004)(citing Whitehair v. State, 654 N.E.2d 296, 302 n. 2 (Ind. Ct. App. 1995))(“In Whitehair, we found that the effect of a defendant’s pre-trial statement to police, combined with his counsel’s opening remarks, placed defendant’s intent at issue.”)
Rationale for requiring the advancement of a contrary claim of intent
• A prior intent to commit a bad act . . . although of some relevance, “introduces the substantial risk of conviction based predominately on bad character,” because, since the defendant meant to cause harm before, he must therefore have meant to cause harm in this case. Because of this danger, our supreme court in Wickizer narrowly construed the intent element.
Iqbal v. State, 805 N.E.2d 401, 406-07 (Ind. Ct. App. 2004)(quoting and citing Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993))
See Whitehair v. State, 654 N.E.2d 296, 301 (Ind. Ct. App. 1995)(citing Wickizer v. State, 626 N.E.2d 795, 796-97 (Ind. 1993))(“In Wickizer, the supreme court provided guidance on the application of Ind. Evid. R. 404(b) in future cases, examining in particular the intent exception of the rule. The court discussed whether the intent exception found in Evid. R. 404(b) should be given a broad or a narrow interpretation. The court observed that, although the State must be allowed to present evidence of the defendant’s intent, using prior misconduct evidence for that purpose carried the risk of the defendant being convicted based primarily on grounds of bad character. The court noted that a broad construction of the intent exception could overwhelm the rule’s primary objective of excluding evidence of other crimes, wrongs, or acts.”)
• Other exceptions under 404(b) [besides the intent exception] necessarily involve a different set of issues. There is thus no reason to leap to the conclusion that the construction we gave to the intent exception in Wickizer applies to all the other listed exceptions.
Goodner v. State, 685 N.E.2d 1058, 1061 n. 3 (Ind. 1997)
First prong of the test for admissibility: Relevance to some matter other than the defendant’s propensity to commit crimes
• Evidence of prior bad acts is relevant to negate a claim of contrary intent.
Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)
• If intent is in issue in the case, the prior bad act must be probative of intent to be admissible under Rules 401 and 404(b).
See Pierce v. State, 761 N.E.2d 826, 829 (Ind. 2002)
• The prior bad act must be sufficiently similar to the charged crime to be probative of intent.
See Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. 2001)
• However, lesser similarity is required when the evidence is offered to show intent than when offered to show identity.
See Gibbs v. State, 538 N.E.2d 937, 939 (Ind. 1989)
• For information about using prior crimes, wrongs, or other acts to prove identity, please review To Prove Identity.
Second prong of the test for admissibility: The prejudicial effect of the evidence must not substantially outweigh its probative value
• Although we conclude that the evidence of [the defendant’s] past violence toward [the victim] was admissible under the intent and lack of accident or mistake exceptions, it may still have been inadmissible under the last part of the 404(b) test if its probative value was substantially outweighed by the danger of unfair prejudice pursuant to Evidence Rule 403.
Ceasar v. State, 964 N.E.2d 911, 917 (Ind. Ct. App. 2012), trans. denied