Lafayette v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Bates Gregory F. Zoeller
Crown Point, Indiana Attorney General of Indiana

Karl M. Scharnberg
Joby D. Jerrells
Deputy Attorneys General
Indianapolis, Indiana
______________________________________________________________________________

In the
FILED
Indiana Supreme Court Dec 08 2009, 1:42 pm
_________________________________
CLERK
of the supreme court,

No. 45S03-0904-CR-182 court of appeals and
tax court

OTHO L. LAFAYETTE,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).
_________________________________

Appeal from the Lake Superior Court, No. 45G04-0708-FA-00025
The Honorable Thomas P. Stefaniak, Jr., Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0803-CR-00118
_________________________________

December 08, 2009

Sullivan, Justice.

Defendant Otho Lafayette was convicted of rape based in part on evidence of a ten-year-
old conviction for attempted rape of another woman. Indiana law prohibits the use of evidence
of prior crimes “to prove the character of a person in order to show action in conformity there-
with” except in certain circumstances. The exceptional circumstance advanced by the State –
intent – does not apply in this case. Accordingly, we reverse Defendant‟s conviction.
 Background

The facts most favorable to the convictions indicate that in July, 2007, C.E. told the po-
lice that Defendant had raped her. Defendant admitted that he and C.E. had had sexual inter-
course but claimed that it had been consensual. Prior to trial, the State filed notice that it in-
tended to introduce his 1997 conviction for the attempted rape of another woman as evidence of
Defendant‟s intent to rape C.E. The admissibility of this evidence for this purpose is the central
issue in this appeal.

As a general rule, evidence of prior crimes may not be used as evidence “to prove the
character of a person in order to show action in conformity therewith.” Ind. Evid. R. 404(b). “It
may, however, be admissible for other purposes, such as proof of . . . intent[.]” Id. In a lengthy
and well-reasoned ruling, the trial court concluded that the evidence of Defendant‟s prior convic-
tion for attempted rape was admissible to prove intent.

The jury found Defendant guilty of rape and related charges and the court sentenced him
to a term of 60 years. Defendant appealed and the Court of Appeals reversed his conviction,
finding that the trial court had committed reversible error in admitting the prior conviction evi-
dence. Judge Vaidik dissented. Lafayette v. State, 899 N.E.2d 736 (Ind. Ct. App. 2009). The
State sought, and we granted, transfer. Lafayette v. State, 2009 Ind. LEXIS 391 (2009).

Discussion

I

A

To obtain a conviction for rape in this case, the State was required to prove beyond a rea-
sonable doubt that Defendant “knowingly or intentionally [had] sexual intercourse with [C.E.]
when [C.E. was] . . . compelled by force or imminent threat of force.” Ind. Code § 35-42-4-
1(a)(1). Because Defendant acknowledged that he had had sexual intercourse with C.E., neither

2
the fact that he had had intercourse with C.E. nor his intent to do so were at issue. Cf. Ely v.
State, 655 N.E.2d 372, 375 (Ind. Ct. App. 1995) (defendant specifically denied intent to rape).
Rather, the dispute was over whether C.E. had been “compelled by force or imminent threat of
force.” See Bryant v. State, 644 N.E.2d 859, 860-61 (Ind. 1994) (once defendant admitted to
having sexual intercourse with the victim, defendant‟s sole argument on appeal was whether the
defendant used force or the threat of force).

B

As mentioned under Background, supra, Indiana Evidence Rule 404(b) provides that evi-
dence of prior crimes may not be used as evidence “to prove the character of a person in order to
show action in conformity therewith[]” but “may, however, be admissible . . . as proof of . . . in-
tent.” The scope of this intent exception often arises in criminal prosecutions simply because a
defendant‟s intent is likely relevant to the requisite mens rea of the charged crime. Hicks v.
State, 690 N.E.2d 215, 222 n.12 (Ind. 1997). Shortly after promulgating Evid. R. 404(b),1 we
examined this subject in an appeal from a conviction for child molesting, Wickizer v. State, 626
N.E.2d 795 (Ind. 1993). Our view was that an expansive reading of the intent exception would
be inconsistent to the principal thrust of the rule itself:

Mindful of the variety of judicial perspectives regarding the proper role of
prior conduct evidence in the ascertainment of truth, we conclude that Indiana is
best served by a narrow construction of the intent exception in Evid. R. 404(b). It
does not authorize the general use of prior conduct evidence as proof of the gen-
eral or specific intent element in criminal offenses. To allow the introduction of
prior conduct evidence upon this basis would be to permit the intent exception to
routinely overcome the rule‟s otherwise emphatic prohibition against the admissi-
bility of other crimes, wrongs, or acts to prove the character of a person in order
to show action in conformity therewith.

Id. at 799.

1
Indiana Evidence Rule 404(b) was included in the Indiana Rules of Evidence adopted by this Court on
August 24, 1993, with an effective date of January 1, 1994.
3
 Consequently, we held that the intent exception is available when a defendant goes
beyond merely denying the charged culpability and alleges a particular contrary intent, whether
in opening statement, by cross-examination of the State‟s witnesses, or by presentation in defen-
dant‟s own case-in-chief. Id. The State can 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. Id. The trial court must then conduct an Evid. R. 403 analysis to determine if
the “probative value [of the prior sexual misconduct evidence] is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, or needless presentation of cumulative evidence.”

C

Although Wickizer was our first discussion of the scope of the intent exception to Evid.
R. 404(b), it largely tracked the common law of evidence in this regard that had developed prior
to our adoption of the Rules of Evidence. This was particularly so with respect to cases like this
one – where defendants had proffered defenses of consent in prosecutions for rape. For example,
in Malone v. State, 441 N.E.2d 1339 (Ind. 1982), this Court held that the trial court had commit-
ted reversible error when it allowed evidence of another rape allegedly committed by the defen-
dant six weeks after the act for which he was being prosecuted. Writing for a unanimous Court,
Justice Pivarnik said:

To indiscriminately admit proof of criminal activity beyond that specifically
charged may compel a defendant to meet accusations without notice and may ef-
fectively negate the due process presumption of innocence which our system of
justice accords to every accused. Moreover, the admissibility of such evidence
may raise collateral issues which confuse the jury or divert its attention from the
actual charges before it. The admission of such evidence may also violate our
evidentiary rules which forbid the State from attacking an accused‟s character be-
fore the accused has put his character into controversy and from proving an ac-
cused‟s bad character by showing particular bad acts. . . .

. . . Evidence of other criminal activity may be admissible in certain cases
to prove an accused‟s identity, knowledge, intent or motive, or to demonstrate the
common plan or scheme of criminal activity from which the accused originated
the charged crime. To be admissible according to any one of these exceptions,
however, the evidence must possess substantial probative value. The test for ad-

4
 mission is whether or not the evidence is so specifically and significantly related
to the charged crime in time, place and circumstance as to be logically relevant to
one of the particular excepted purposes. . . .

. . . There is no specific exception to the general rule prohibiting evidence
of an accused‟s other criminal activity which makes such evidence admissible to
prove a [prosecuting witness]‟s lack of consent.

Id. at 1346 (citations omitted). Malone followed Meeks v. State, 249 Ind. 659, 664, 234 N.E.2d
629, 632 (1968), and was, in turn, followed by Jenkins v. State, 474 N.E.2d 84, 88 (Ind. 1985),
and Reichard v. State, 510 N.E.2d 163, 165 (Ind. 1987). All of these cases reversed convictions
for rape on grounds that the trial court had committed reversible error when it allowed evidence
of other alleged rapes to refute defenses of consent.

It is true that for a time, our Court did allow prior crimes to be admitted as evidence of
“depraved sexual instinct.” See Lannan v. State, 600 N.E.2d 1334 (Ind. 1992) (abolishing the
depraved sexual instinct exception). However, the depraved sexual instinct exception was never
extended to rape prosecutions. Indeed, Reichard reversed a rape conviction where the trial court
had explicitly admitted testimony as to a prior rape as evidence of depraved sexual instinct. 510
N.E.2d at 165.

D

Defendant in this case filed a pre-trial motion to prevent the admission of the prior bad
acts evidence under the intent exception of Evid. R. 404(b). Rather than rule on the motion, the
trial court took the matter under advisement to see if the Defendant would place his intent at is-
sue as the trial progressed. After the completion of voir dire, opening statements, and defense
counsel‟s cross-examination of C.E. about the facts surrounding the alleged rape, the trial court
ruled that the Defendant had triggered the admission of the prior sexual misconduct evidence by
placing his intent at issue when he attacked the credibility of C.E. on the issue of her consent.2

2
The trial court ruled as follows:
All right, an essential element of the charge of rape is really a lack of consent because if
sexual intercourse is consensual, it is not rape. Where the State of Indiana would like to
get into 404(b) evidence under the intent exception, it is necessary for the defendant to af-
5
The trial court then found that the evidence was relevant and probative for the determination of
whether the Defendant possessed the requisite intent to rape C.E.3 The trial court further deter-
mined that the probative value of the prior misconduct evidence substantially outweighed any
prejudice it may have posed.4
This Court appreciates the careful attention given this issue by the trial court and, in par-
ticular, its considered ruling which has greatly facilitated appellate review. But we are unable to
agree with the trial court‟s conclusion which we find to be contrary to the requirements of Evid.
R. 404(b) as enunciated by Wickizer and presaged by common law precedents.

firmatively present a claim of contrary intent. When a defendant merely denies the alle-
gations and does not put forth a particular contrary intent, 404(b) evidence is not admiss-
ible. The question before the Court is whether or not the defendant has placed his intent
in issue. This Court concludes that the defendant has placed his intent in issue and has
gone beyond merely claiming a – beyond merely denying the charges. The comments in
questioning during the jury selection and the cross-examination of [C.E.] go beyond
merely denying the allegations and are an attempt at discrediting her in such a way that
you cannot believe her and since you therefore, cannot believe her, she in fact did consent
or if she did not consent, then there is at least reasonable doubt as to whether or not she
had consented.
....
That is the tone of the defense. The Court is well aware of the fact that under Wickizer,
a narrow construction must in fact be used in the State of Indiana.
(Tr. 264-67.)
3
On this point, the court ruled:
The next question becomes whether or not this is relevant evidence. Relevance, under
401 is defined as evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence. In this particular case, “consent”. The 404 evidence that
the State seeks to get into under the intent exception, clearly would give the jury other
evidence to consider on whether or not the defendant formed the requisite intent to have
sex with [C.E.] against her will.
Id. at 267.
4
On this point, the court ruled:
The third prong of the test requires that prior misconduct evidence be such that a reason-
able jury could find that the act did occur and that the defendant committed the act.
Based on past arguments by the State of Indiana, I conclude that the test has been met and
the last prong of the analysis requires the Court to go and make a 403 analysis as to
whether or not the evidence[„s] probative value is not substantially outweighed by the
danger of unfair prejudice. The probative value in this case is whether or not the sex that
was had was consensual.
Id.

6
 Judge Crone, writing for the Court of Appeals in this case, took the position that a defen-
dant does not put intent at issue at any stage of the proceedings simply by questioning the alleged
victim‟s credibility, Lafayette, 899 N.E.2d at 742-43, and we agree with his conclusion. Al-
though neither we nor the Court of Appeals has previously addressed the precise question of
whether challenging the credibility of a prosecuting witness in a rape case on the issue of consent
puts defendant‟s intent at issue, long-standing Indiana precedent discussed supra dictates that a
defendant‟s use of the defense of consent in a rape prosecution is not, standing alone, enough to
trigger the availability of the intent exception. When a defendant questions the credibility of the
prosecuting witness, we believe that the defendant does no more than advance that consent de-
fense.

Our conclusion that questioning a prosecuting witness‟s credibility should not open the
door to prior misconduct evidence is further supported by three factors. First, if a defendant‟s
intent were placed at issue by the questioning of the prosecuting witness‟s credibility, then the
defendant is effectively precluded from exercising the right to confront a witness‟s credibility at
all. Second, a defendant‟s ability to question a prosecuting witness in such a circumstance is al-
ready limited by Evid. R. 412 which prohibits the defendant from using evidence of the past sex-
ual conduct of the witness. Third, this approach is consistent with Wickizer‟s mandate that the
intent exception be narrowly construed.

Although not cases in which defenses of consent are proffered in response to rape
charges, there is authority from other jurisdictions that challenges to a prosecuting witness‟s cre-
dibility do not place a defendant‟s intent at issue for Evid. R. 404(b) purposes. See Bargas v.
State, 252 S.W.3d 876, 890 (Tex. App. 2008) (“A challenge to the complainant‟s credibility on
cross-examination does not automatically open the door to extraneous-offense evidence.”); ac-
cord State v. McKoy, 347 S.E.2d 374, 379 (N.C. 1986) (“impeach[ing] [the witness‟s] credibili-
ty[] did not „open the door‟ to evidence of the defendant‟s commission of other crimes.”). We
have found no authority to the contrary and the State cites none for this proposition.

We also agree with Judge Crone that a defendant‟s assertions that an alleged rape victim
consented to sexual intercourse does not present a claim of particular contrary intent for purposes

7
of triggering the intent exception to Evid. R. 404(b). Defendant here admitted to having sexual
intercourse with C.E.; he did not present a claim of particular contrary intent for purposes of Ev-
id. R. 404(b). At this point, the issue became one of C.E.‟s intent – whether the Defendant
brought her to his apartment without her permission and forced her to have sexual relations
against her will – not one of contrary intent on his part. Lafayette, 899 N.E.2d at 742-43.

Finally, we agree with Judge Crone that the prior attempted rape conviction was also not
admissible because it was not relevant to prove that C.E. consented to having sexual intercourse
with the Defendant. Here, because the Defendant admitted to having sexual intercourse with
C.E., the only issue that bore any relation to testimony of the Defendant‟s prior sexual miscon-
duct was whether C.E. had consented to the intercourse. Such evidence must be relevant to some
point at issue, and “with consent being the only element at issue, the [prior attempted] rape was
irrelevant.” Meeks, 249 Ind. at 664, 234 N.E.2d at 632. See Evid. R. 401 (defining “relevant
evidence” as “evidence having any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or less probable than it would be with-
out the evidence.”); Evid. R. 402 (“Evidence which is not relevant is not admissible.”).5

The evidence in this case related to Defendant‟s prior attempted rape conviction was not
admissible.

II

No error in the admission of evidence is grounds for setting aside a conviction unless
such erroneous admission appears inconsistent with substantial justice or affects the substantial

5
At trial and during oral argument, the State argued that the prior sexual misconduct testimony was rele-
vant and admissible as demonstrating Defendant‟s “modus operandi.” The trial court did not discuss
“modus operandi” in its ruling. Another exception to the general rule of Evid. R. 404(b), the exception of
“identity,” incorporates the concept of “modus operandi.” The identity “exception‟s rationale is that the
crimes, or means used to commit them, [i.e., their modus operandi,] were so similar and unique that it is
highly probable that the same person committed all of them.” Allen v. State, 720 N.E.2d 707, 711 (Ind.
1999) (quoting Thompson v. State, 690 N.E.2d 224, 234 (Ind. 1997) (internal quotation marks omitted)).
As defendant‟s identity was not at issue once he admitted that he had engaged in sexual intercourse with
C.E., “modus operandi” does not provide a basis for admitting the evidence of his prior conviction for
attempted rape.
8
rights of the parties. Ind. Trial Rule 61. The improper admission of evidence is harmless error
when the conviction is supported by such substantial independent evidence of guilt as to satisfy
the reviewing court that there is no substantial likelihood that the questioned evidence contri-
buted to the conviction. Wickizer, 626 N.E.2d at 800. To determine whether the erroneous ad-
mission of irrelevant and prejudicial evidence of “extrinsic offenses is harmless, we judge
whether the jury‟s verdict was substantially swayed. If the error had substantial influence, or if
one is left in grave doubt, the conviction cannot stand.” Hardin, 611 N.E.2d at 132 (citations and
internal quotation marks omitted).

In the present case, Defendant has shown error in admitting evidence of prior bad acts,
specifically the testimony of a woman he was convicted of attempting to rape in 1997. Other
than the prior conduct testimony of the State‟s witness, independent proof of whether the sexual
intercourse had been consensual consisted solely of the testimony of the victim. The State em-
phasized the Defendant‟s prior conviction in closing argument. The morally repugnant nature of
the prior sexual misconduct of the Defendant, as well as the similarities in pattern and methods
employed during both the prior misconduct and the rape in the instant case, received emphasis at
trial. Under these circumstances, we are unable to conclude that the jury verdict was not sub-
stantially swayed or that there was no substantial likelihood that the prior conduct testimony con-
tributed to the conviction. Indeed, on review of the record, one is left with the unmistakable and
forbidden impression that because the defendant was convicted of attempted rape in 1997, he
must have raped C.E. in 2007. We conclude, as did the Court of Appeals, that admission of the
prior conviction evidence was therefore not harmless error and the conviction must be reversed.

Conclusion

The defendant‟s conviction is reversed, and this cause is remanded to the trial court for a
new trial.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

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