Dissenting Opinion
DeBruler, J.I dissent from the majority opinion and would reverse the judgment of the trial court with instructions to grant appellant’s Motion for New Trial.
Appellant alleges that the trial court erred in admitting, over appellant’s timely objection, the testimony of two witnesses, Paul Swartzendruber and Kenneth Sheeley, regarding prior acts of sodomy committed with the appellant.
The testimony of Swartzendruber was to the effect that the appellant had performed an anal copulation upon him approximately twenty-five times, the last time being some seven and one-half years prior to the time of the alleged crime for which the appellant was being tried. Sheeley testified that appellant had committed an oral copulation upon him in 1959, which would be at least six and one-half years prior to the alleged act in the case at hand.
It is true that in general evidence of prior offenses by a defendant is inadmissible if it is irrelevant or its sole relevance is to show that the defendant’s general character is bad and that he, therefore, has a tendency to commit crimes. Burns v. State (1970), 255 Ind. 1, 260 N. E. 2d 559; Meeks v. State (1968), 249 Ind. 659, 234 N. E. 2d 629; Watts v. State (1950), 229 Ind. 80, 95 N. E. 2d 570; McCormack, EVIDENCE, § 157; 2 Wigmore, EVIDENCE, § 305 (3d ed. 1940). However, if the *426evidence of prior offenses is relevant to some issue in the case, e.g., intent, motive, knowledge, plan, identity, etc., then it is admissible. Burns v. State, supra; Meeks v. State, supra; Watts v. State, supra; McCormack, supra; Wigmore, supra.
In Lamar v. State (1964), 245 Ind. 104, 195 N. E. 2d 98, we held that:
“As an exception to the general rule it is always permissible for the state, in prosecutions involving abnormal sexual intercourse, to introduce evidence as to other improper acts of sexual intimacy committed by the defendant.” 245 Ind. at 109.
This unjustified departure from the rule of relevance was apparently the law until in Meeks, we retreated from that dangerous and untenable position. In that case, we rejected the per se exception for sexual crime prosecutions as espoused in Lamar saying:
“An individual on trial for a sexual offense should be afforded the same evidentiary safeguards against irrelevant prejudicial testimony as an individual on trial for another felony.” 249 Ind. at 664.
In Meeks this Court properly applied the test of relevance as set out above. The appellant there was charged with rape and the sole issue was whether the prosecutrix consented to the act of intercourse. Evidence was admitted showing the defendant committed a rape on another woman thirty-five days prior to this act charged in the indictment. The Court held that the fact that one woman was raped has no tendency to prove another woman did not .consent, saying:
“Such evidence must be relevant to some point in issue, and in the case at bar, with consent being the only element at issue, the other alleged rape was irrelevant.” 249 Ind. at 664.
In the case at hand, since the appellant did not take the stand, the issues were formed by the charge in the affidavit and the appellant’s plea of not guilty. The appellant was charged with *427committing an act of oral copulation upon a fifteen year old boy in June, 1966. Evidence was admitted over objection as to a similar oral copulation performed by appellant upon a thirty-five year old man in 1959, and approximately twenty-five anal copulations performed on another thirty-five year old man sometime prior to or during 1959.
There was no connection between the offenses and the offense being tried. This testimony was not offered as bearing on an issue such as motive, intent, identity; nor could it evince any common scheme or plan, etc. This evidence was offered for the purpose of showing the appellant’s character was bad and that he had a tendency to commit acts of sodomy. As such it was inadmissible. Evidence of other offenses cannot be admitted merely in an attempt to show some predisposition of the accused to commit criminal acts or to establish some likelihood that he might do so.
Even where offered to prove some issue such as intent, motive, knowledge, identity or a common scheme or plan, evidence of prior offenses might be properly excluded by the trial court if it deems the evidence as being too remote to be of probative value. But in the case at hand this testimony was not offered to prove any issue before the court and was, therefore, inadmissible regardless of the remoteness or closeness in time of the prior offenses.
I would reverse the judgment with instructions to grant appellant’s Motion for New Trial.
Jackson, J. concurs.Note.—Reported in 265 N. E. 2d 22.