Inseparable Crimes/Intrinsic Acts

• Quite apart from the rule against the admission of extrinsic offense evidence and the several exceptions thereto, there is another theory under which evidence of uncharged crimes may be admissible. This is the “inseparable crimes” . . . theory.

Weyls v. State, 598 N.E.2d 610, 613 (Ind. Ct. App. 1992), trans. denied

• [Evid. R. 404(b)] does not bar . . . evidence of uncharged criminal acts that are “intrinsic” to the charged offense.

Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997), reh’g denied

Bennett v. State, 5 N.E.3d 498, 509 (Ind. Ct. App. 2014), reh’g denied, trans. denied(citing Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997), reh’g denied)

See Cowan v. State, 783 N.E.2d 1270, 1275 (Ind. Ct. App. 2003), trans. denied(citing Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997), reh’g denied)(“The supreme court has also determined that the provisions of Evid. R. 404(b) do not bar the admission of evidence of uncharged criminal acts that are ‘intrinsic’ to the charged offense.”)

Interpretations of “inseparable” and “intrinsic”

• “Other acts are ‘intrinsic’ if they occur at the same time and under the same circumstances as the crimes charged.”

Bennett v. State, 5 N.E.3d 498, 509 (Ind. Ct. App. 2014), reh’g denied, trans. denied(quoting Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007), reh’g denied, trans. denied(quoting Holden v. State, 815 N.E.2d 1049, 1054 (Ind. Ct. App. 2004), trans. denied))

See Cowan v. State, 783 N.E.2d 1270, 1275 (Ind. Ct. App. 2003), trans. denied(citing Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997), reh’g denied)(“‘Intrinsic’ refers to those offenses occurring at the same time and under the same circumstances as the crimes charged.”)

• In addition, “‘[e]vidence of happenings near in time and place that complete the story of the crime is admissible even if it tends to establish the commission of other crimes not included among those being prosecuted.’”

Bennett v. State, 5 N.E.3d 498, 509 (Ind. Ct. App. 2014), reh’g denied, trans. denied(quoting Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007), reh’g denied, trans. denied(quoting Bocko v. State, 769 N.E.2d 658, 664–65 (Ind. Ct. App. 2002), reh’g denied, trans. denied))

• [E]vidence of uncharged misconduct which is “inextricably bound up” with the charged offense is properly admissible under Evid. R. 404.

Pope v. State, 740 N.E.2d 1247, 1250 (Ind. Ct. App. 2000)(citing Sanders v. State, 724 N.E.2d 1127, 1130 (Ind. Ct. App. 2000))

See Willingham v. State, 794 N.E.2d 1110, 1116 (Ind. Ct. App. 2003)(citing Herrera v. State, 710 N.E.2d 931, 935 (Ind. Ct. App. 1999))(“Evidence of uncharged misconduct which is probative of the defendant's motive and which is ‘inextricably bound up’ with the charged crime is properly admissible under Evid. R. 404(b).”)

• That the defendant may have been acquitted of the uncharged crime does not affect its admissibility in evidence under an “inseparable crime” or “intrinsic act” theory.

See Hensley v. State, 244 N.E.2d 225, 228 (Ind. 1969), reh’g denied(citing Zimmerman v. State, 130 N.E. 235, 237 (Ind. 1921))(“The mere fact that a defendant may commit multiple crimes at the same time and be acquitted of one of them does not guarantee him the right to exclude relevant evidence in the prosecution of any one of the crimes, if it goes to prove the commission of the crime charged.”)

Rationale

• Rule 404(b) “was designed to assure that ‘the State, relying upon evidence of uncharged misconduct, may not punish a person for his character.’” Lee v. State, 689 N.E.2d 435, 439 (Ind.1997), reh’g denied(quoting Wickizer v. State, 626 N.E.2d 795, 797 (Ind.1993)(citing Lannan v. State, 600 N.E.2d 1334, 1338 (Ind.1992))). “The paradigm of such inadmissible evidence is a crime committed on another day in another place, evidence whose only apparent purpose is to prove the defendant is a person who commits crimes.” Swanson v. State, 666 N.E.2d 397, 398 (Ind.1996), reh’g denied. However, the rule does not bar evidence of uncharged criminal acts that are intrinsic to the charged offense. ” Lee v. State, 689 N.E.2d 435, 439 (Ind.1997), reh’g denied.

Perryman v. State, 13 N.E.3d 923, 935 (Ind. Ct. App. 2014), trans. denied