General rule
• [E]vidence about other “bad acts” may be admissible for different purposes, such as proof of identity.
Allen v. State, 720 N.E.2d 707, 711 (Ind. 1999)(citing Evid. R. 404(b))
Rationale for the exception
• The identity exception in Rule 404(b) was crafted primarily for crimes so nearly identical that the modus operandi is virtually a “signature.”
Thompson v. State, 15 N.E.3d 1097, 1102 (Ind. Ct. App. 2014), reh’g denied(citing Thompson v. State, 690 N.E.2d 224, 234 (Ind. 1997))
• “The exception’s rationale is that the crimes, or means used to commit them, were so similar and unique that it is highly probable that the same person committed all of them.”
Thompson v. State, 15 N.E.3d 1097, 1102 (Ind. Ct. App. 2014), reh’g denied(quoting Thompson v. State, 690 N.E.2d 224, 234 (Ind. 1997))
See Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999)(“The justification for admission of evidence of another crime to prove the identity of the perpetrator is that the two crimes are so unique that they must have been committed by the same person.”)
First prong of the test for admissibility: Relevance to some matter other than the defendant’s propensity to commit crimes
• The prior crime . . . must be “strikingly similar” to the current crime to be probative of identity.
Camm v. State, 908 N.E.2d 215, 231 (Ind. 2009), reh’g denied(citing Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003))
See Baker v. State, 997 N.E.2d 67, 71 (Ind. Ct. App. 2013)(quoting Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003))(“‘The test, of course, is whether the crimes are strikingly similar.’”)
• [T]he inquiry is whether the “crimes [are] so strikingly similar that one can say with reasonable certainty that one and the same person committed them[.]”
Camm v. State, 908 N.E.2d 215, 231 (Ind. 2009), reh’g denied(quoting Davis v. State, 598 N.E.2d 1041, 1048 n. 2 (Ind. 1992), reh’g denied, cert. denied, 510 U.S. 948 (1993))
• Not only must the methodology of the two crimes be strikingly similar, but the method must be unique in ways which attribute the crimes to one person.
Camm v. State, 908 N.E.2d 215, 231 (Ind. 2009), reh’g denied(quoting Penley v. State, 506 N.E.2d 806, 810 (Ind. 1987))
• Two generally similar crimes do not qualify under this exception.
Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999)(emphasis added)