dissenting.
I dissent for the following reasons:
I. The Majority's application of Inp. Evr-DENCE Ruu® 404(a)(2) is overly broad and beyond its intended seope.
II. The Majority ignores the basis for which Williams sought admission of the victim's character evidence.
Here, Williams attempted to introduce evidence of the victim's previous drug use in order to prove his defense that she agreed to have sex with him and his accomplice in exchange for cocaine or money. The State filed a motion in limine to exclude the evidence which the trial court granted. On appeal, Williams argues that the exclusion of this evidence was in error. The Majority agrees, determining that the victim's prior drug use was admissible character evidence. This determination is erroneous.
A trial court's decision whether to admit evidence will not be reversed absent a showing of a manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Shaw v. State, 595 N.E.2d 743, 747 (Ind.Ct.App.1992), reh. denied.
I.
Inp. Evioence Ruis 404 (a)(2)
This case presents the first opportunity for this court to address the scope of Ind. Evin. R. 404(a)(2). By determining that the character evidence of the victim is admissible, the Majority strays far from our common law approach as well as the interpretation of this rule's counterpart, Fed.R.Evin. 404. The rule provides, in pertinent part:
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the erime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; ...
Prior to the enactment of our evidence rule, our common law provided that evidence of a victim's character was available only in cases of homicide and battery where the defendant claims self-defense and seeks to show: (1) the victim had a violent character and the defendant had reason to fear the victim; or (2) the victim was the initial aggressor. See Phillips v. State, 550 N.E.2d 1290, 1297 (Ind.1990), reh. denied; Eldridge v. State, 627 N.E.2d 844, 849 (Ind.Ct.App.1994), trans. denied.
*184A literal reading of Evin.R. 404(a)(2) indicates no such restriction to battery and homicide cases as the Majority indicates, "Insofar as it applies to evidence offered by the accused, Rule 404(a2)(2) is not limited to battery or homicide defendants claiming self-defense." Op. at 181 (quoting 12 Miller, Indiana Practice, § 404.106 at 349-850 (1995)). The Majority relies upon this statement to conclude that the rule permits admission of evidence of the victim's prior drug use here. Id.
Yet, Miller goes on to note, "As a practical matter, however, the issue will arise only in such cases; the victim's conduct might be thought to be pertinent in rape cases, but Rule 412 governs the admissibility of evidence of the victim's conduct in sex crime prosecutions." Id. at 850. He states:
[tlhe requirement in Rule 404(a)(@2) that the victim's character trait be 'pertinent' probably preserves earlier Indiana cases that required that some other evidence of the victim's aggression precede admission of the character evidence in light of the concern that the jury might view the vie-tim's bad character as an excuse for the alleged attack by the accused.
Id. (citing Holder v. State, 571 N.E.2d 1250, 1254 (Ind.1991)("If the defendant wishes to introduce either type of character evidence, she must first introduce appreciable evidence of the victim's aggression to substantiate the self-defense") and Phillips, supra (appreciable evidence of victim's aggression substantiating self-defense claim must be established before any character evidence may be relevant in murder case).
In addition, Fed.R.Evid. 404(a)(2) has been interpreted to be limited in scope as "(It speaks to 'pertinent' character traits of the victims of crimes generally and specifically to the traits of nonviolence in homicide cases." McCormick on Evidence ch.17, § 198 at 821 (John William Strong ed., 4th ed.1992). There is a great risk of prejudice when introducing evidence of a victim's character as learning of the victim's bad character could lead the jury to think that the victim merely "got what he deserved" and to acquit for that reason. Id. Nevertheless, at least in murder and battery cases, when the identity of the first aggressor is really in doubt, the probative value of the evidence ordinarily justifies taking this risk. Id.
Federal courts have applied this rule to cases of battery or homicide, or in other instances where the issue of self-defense has arisen. See e.g., United States v. Martines, 988 F.2d 685, 700 (7th Cir.1993), cert. denied, 510 U.S. 841, 114 S.Ct. 127, 126 L.Ed.2d 91 (in assault and murder case, victims' traits of violence and racism relevant to defendant's claim of self-defense or defense of another); United States v. Greschner, 647 F.2d 740, 741-742 (7th Cir.1981)(in assault case, evidence of victim's "violent character" was pertinent character trait under Fed.R.Evid. 404(a)(2) and relevant to defendant's theory of self-defense); and United States v. Talamante, 981 F.2d 1153, 1156 (10th Cir.1992), cert. denied, 507 U.S. 1041, 113 S.Ct. 1876, 123 L.Ed.2d 494 (1998) (in assault case, evidence of victim's violent character to prove victim was aggressor is cireumstantial use of character evidence, admissible through reputation and opinion evidence only).
Moreover, the advisory committee's note to this rule indicates that a victim's "violent disposition" is exactly the sort of evidence this rule was intended to encompass. United States v. Keiser, 57 F.3d 847, 853 (9th Cir. 1995), cert. denied, -- U.S. --, 116 S.Ct. 676, 133 L.Ed.2d 525 (quoting Fed.R.Evid. 404 advisory committee's note, "IMustrations are: evidence of a violent disposition to prove the person was the aggressor in the affray ... "). The Majority's broad construction of Evid.R. 404(a)(2) now allows the jury to hear character evidence of the victim in cases involving issues other than the victim's violent disposition. This goes beyond the seope of the rule and is erroncous. Keiser, supra.
This conclusion notwithstanding, I also disagree with the Majority's determination that the "extremely probative value of this evidence substantially outweighs any danger of unfair prejudice." Op. at 182. Inp.Evip.R. 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Admission of this clearly prejudicial evidence here will tempt the jury to *185acquit Williams based upon the forbidden inference that the "victim got what she deserved." This evidence will focus the jury's attention away from the acts of the defendant but to the past acts of the victim. This prejudicial effect is compounded by the fact that the State's case rests primarily on her credibility.4
The probative value of this evidence does not justify taking the great risk of prejudice which could result from the introduction of this evidence. Accordingly, I conclude that the trial court did not abuse its discretion when it granted the State's motion in limine to exclude the evidence. Shaw, supra.
IL
Basis for Admission
Notwithstanding the application of our evidence rules, the Majority ignores the basis for which Williams first argued that evidence of the victim's prior drug use should be admitted. A review of the record reveals that the defendants' initially objected to the State's motion in limine on the ground that this evidence was relevant for the purpose of attacking the victim's memory and perception of the attack.
Defendants' argued that the victim's prior cocaine habit "would obviously make a difference as to her ability to recall facts" and "goes to show her ability to observe, remember, and recall the events at the time of the occurrence." Record at 203 and 205. The trial court granted the State's motion but allowed defendants' to question the victim about her drug usage on the day of the attack until she reported the incident to the police, indicating that this evidence "would certainly go to her ability to see and perceive and to recall." Record at 232. Yet, the trial court noted that there was "no evidence presented that there is any indication that there's any inability to recall." Record at 258-239. On cross-examination, defense counsel questioned the victim regarding whether she used cocaine the night of the attack and challenged the accuracy of her memory.
These facts are akin to those presented in Robinson v. State, 525 N.E.2d 605 (Ind.1988). There, the trial court granted the State's motion in limine to exclude evidence that the victim was hospitalized for a drug overdose a few weeks prior to being shot by the defendant. On appeal, Robinson argued that the exclusion of this evidence was in error as it was relevant to the victim's credibility and perceptive ability. Id. at 606.
The Indiana . Supreme Court disagreed, noting that criminal conduct which does not result in a eriminal conviction was inadmissible for purposes of impeachment. Id. The court went on to state that the defendant failed to present any other evidence in the record which demonstrated that the prior overdose or hospitalization may have affected the victim's perception at the time of the incident. The court indicated that the trial court allowed the defendant to fully examine the victim "regarding her drug activity on the day she was shot and the effects upon her perceptive abilities." Id. Thus, exclusion of the evidence was not improper.
As indicated supra, Williams argued that this character evidence was admissible for the purpose of attacking the victim's memory of the incident. However, as in Robinson, Williams presented no evidence that the vie-tim lacked any ability to recall the events leading to her attack, but he was still allowed to question the vietim regarding her drug use on the day of the attack as well as her memory of the event. Accordingly, based upon Robinson, I conclude that the trial court did not err in excluding this evidence.
For the above reasons, I dissent.
. See United States v. Schatzle, 901 F.2d 252 (2nd Cir.1990)(in use of excessive force prosecution, exclusion of evidence of victim's prior arrest to show victim instigated altercation did not constitute an abuse of discretion as it posed a "genuine risk of focusing the jury upon the wrong event").