List of permissible purposes is illustrative, not exhaustive
• Evidence Rule 404(b) is an inclusionary rule rather then [sic] an exclusionary one.
Dumes v. State, 718 N.E.2d 1171, 1175 n. 3 (Ind. Ct. App. 1999)(citing Hardin v. State, 611 N.E.2d 123, 128 (Ind.1993))
• Rule 404(b)’s list of permissible purposes is illustrative but not exhaustive.
Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010), trans. denied(citing Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997))
See Dumes v. State, 718 N.E.2d 1171, 1175 n. 3 (Ind. Ct. App. 1999)(citing Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997))(“[T]he list of ‘other purposes’ set forth in the second sentence of Rule 404(b) is illustrative, not exhaustive.”)
See also Dickens v. State, 754 N.E.2d 1, 4 (Ind. 2001)(citing Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993))(“Rule 404(b) lists some other purposes, but this list is illustrative only.”)
• “The list of ‘other purposes’ in the Rule is not exhaustive; extrinsic act evidence may be admitted for any purpose not specified in Rule 404(b) unless precluded by the first sentence of Rule 404(b) or any other Rule.”
Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000), reh’g denied(quoting Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997))
Examples of purposes that are not listed
• Courts have admitted extrinsic act evidence:
To demonstrate the existence of a relationship between the defendant and another.
See Wilson v. State, 765 N.E.2d 1265, 1270-71 (Ind. 2002)(“Because there was evidence that the defendant admitted that he and his companion ‘had to take her out of it’ to protect his business, and because evidence of the defendant’s other crimes, wrongs or acts were necessary for the jury to understand the relationships between the victim, various witnesses, and the defendant, we find that the admission of the challenged evidence did not violate Rule 404(b), particularly in light of the trial court’s repeated and thorough jury admonishments limiting the use of the evidence.”)
To demonstrate a victim’s state of mind.
See Hackney v. State, 649 N.E.2d 690, 692 (Ind. Ct. App. 1995), trans. denied(“[The defendant] argues that the trial court erred in permitting [the victim] to testify regarding alleged domestic abuse [the victim] observed [the defendant] inflict upon [the victim’s mother], a prior bad act excludable under Rule 404(b). The State argues that this testimony was admissible for the limited purpose of showing [the victim’s] state of mind; that is, to show that [the victim] did not come forward about [the defendant’s] abuse because [the victim] feared him. The record supports admission of [the victim’s] testimony for this limited purpose. . . . The trial court properly instructed the jury regarding the limited admissibility of [the victim’s] statements; the evidence was not admitted in order to make the “forbidden inference” of bad character. Admission of [the victim’s] statements was a proper exercise of the trial court’s discretion.”)
To demonstrate a witness’s motive to testify.
See Hopkins v. State, 668 N.E.2d 686, 690 (Ind. Ct. App. 1996), reh’g denied, trans. denied(“[The witness’s] references to his former drug supplier and [the defendant] were not offered for the only purpose of showing that [the defendant] acted badly in the past and that these prior acts proved he committed the charged crimes. Instead, this evidence was offered in response to defense counsel’s implication that [the witness] was an established drug dealer who acted as a police informant not only to retaliate against [the defendant] but also to help himself. Because this evidence was not introduced solely to produce the ‘forbidden inference’ proscribed by Evid. R. 404(b), its admission was not in error.”)
To rebut a specific factual claim raised by the defendant.
See Crafton v. State, 821 N.E.2d 907, 911 (Ind. Ct. App. 2005)(“[A]fter [the defendant] failed to object to the question submitted by the jury, he testified that the only other instance of a domestic dispute between him and his family was when [a relative] allegedly put sugar in his gas tanks. [The defendant’s] answer to the question gave the jury the impression that the only other instance of a domestic dispute between him and his family was when he was the victim. Because the door had been opened . . . by presenting a false impression, the trial court properly allowed the State to rebut [the defendant’s] misleading response by admitting evidence of his prior misconduct.”)
See also Pavey v. State, 764 N.E.2d 692, 704 (Ind. Ct. App. 2002), trans. denied(citing Robert Lowell Miller, Jr., 12 Indiana Practice, Indiana Evidence § 404.233 (2d Ed.1995))(“In an effort to rebut [the defendant’s] testimony that it was not his nature to talk about killing someone, the State offered [one witness’s] testimony that when she and [the defendant] were working together on a casino boat, [the defendant] ‘would point out to [her] and tell [her] that he could kill certain people that he saw on the boat.’ In addition, [a second witness] testified that [the defendant] told her that he could ‘slit [her] throat and watch [her] bleed.’ . . . [B]ecause the challenged testimony was introduced to contradict [the defendant’s] own testimony on the subject, it was not prohibited by 404(b).”)
• For more information about the effect of “opening the door,” please review Opening the Door.
Overcoming the entrapment defense
• One of the exceptions to the general rule against the admissibility of character evidence, including evidence of prior bad acts, arose when a defendant specifically placed character at issue by raising the defense of entrapment.
Dockery v. State, 644 N.E.2d 573, 579 (Ind. 1994)(citing Hardin v. State, 611 N.E.2d 123, 131 (Ind. 1993))
See Hardin v. State, 611 N.E.2d 123, 131 (Ind. 1993)(“In instances where entrapment is presented as a defense, the state may introduce evidence of the defendant’s character to rebut the entrapment defense. The state may show a defendant’s predisposition to commit the charged offense in order to show that the defendant was not induced to commit the crime, and that the defendant was ready, willing, and able to commit the crime, despite any police involvement.”)
• [T]his court has recently observed that a defendant who raised the defense of entrapment had affirmatively asserted a claim of contrary intent which triggered the exception to Evid. R. 404(b). Stoker v. State, 692 N.E.2d 1386, 1391 (Ind. Ct. App. 1998). . . . As in Stoker, [the defendant] challenged his intent to deal in cocaine when he raised the issue of entrapment at trial. Thus, [the confidential informant’s] testimony was admissible as an exception to Evid. R. 404(b) because it was relevant to proving [the defendant’s] knowledge and intent to deal in cocaine.
Dixon v. State, 712 N.E.2d 1086, 1089 (Ind. Ct. App. 1999)
• For information about using prior crimes, wrongs, or other acts to prove intent, please review To Prove Intent.
• For information about using prior crimes, wrongs, or other acts to prove knowledge, please review To Prove Knowledge.
• For more information about the entrapment defense, please review Entrapment.