To Prove Plan

• Under Rule 404(b), evidence of other crimes, wrongs, or acts may be admissible to prove “plan.” Before the Evidence Rules' adoption, Indiana courts long held extrinsic act evidence admissible to show a “common scheme or plan,” [but] Rule 404(b) displaced pre-Rule “common scheme” case law, and the absence of any reference in Rule 404(b) to “common scheme” leaves the “plan” prong of Rule 404(b) narrower than earlier law. Still, consistent with earlier Indiana law, evidence of plan may be admitted either to show a preconceived plan that included the charged crime, or to provide a vehicle for a chain of inferences, through showing a similar modus operandi, leading to an ultimate inference of intent, motive, purpose, or identity.

12 Robert Lowell Miller, Jr., Indiana Practice Series: Indiana Evidence § 404.217 (3d. ed. 2015)(emphasis added)(footnotes omitted)

Relevant background information

• In the past, our supreme court permitted the admission of evidence of prior crimes under the ‘common scheme or plan’ rule of our common law of evidence. The ‘common scheme or plan’ exception required that the uncharged crime be tangibly connected to the one for which the defendant was on trial. However, our promulgation of Evid. R. 404(b) is not a mere continuation of that common law caselaw. Instead of the old ‘common scheme or plan’ rule, our law now admits evidence of ‘plan’ alone. It is a narrower exception than our old rule, which tended to degenerate into an all-purpose excuse for admitting pretty much any old prior misconduct.

Spires v. State, 670 N.E.2d 1313, 1315 (Ind. Ct. App. 1996)(citing Lay v. State, 659 N.E.2d 1005, 1009, 1015 (Ind.1995), reh’g denied)(footnote omitted)

See Southern v. State, 878 N.E.2d 315, 323 (Ind. Ct. App. 2007), trans. denied(citing Spires v. State, 670 N.E.2d 1313, 1315 (Ind. Ct. App. 1996))(“Prior to the adoption of Evidence Rule 404(b), our Supreme Court permitted the admission of evidence of prior crimes under the ‘common scheme or plan’ rule of the existing common law rule of evidence. The ‘common scheme or plan’ exception required that the uncharged crime be tangibly connected to the one for which the defendant was on trial. With the promulgation of Evidence Rule 404(b), the exception to the rule narrowed by admitting only evidence that demonstrates a plan of the defendant.”)

See also Remy v. State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans. denied(quoting Lay v. State, 659 N.E.2d 1005, 1009, 1015 (Ind.1995), reh’g denied(Shepherd, C.J., dissenting))(“Commenting on Lannan, the adoption of Indiana's own Evidence Rule 404(b), and the dismissal of the common law ‘common scheme or plan’ rule in favor of Rule 404(b)'s ‘plan’ exception, Chief Justice Shepard clarified that Rule 404(b) offered ‘a narrower exception than our old rule, which tended to degenerate into an all-purpose excuse for admitting pretty much any old prior misconduct.’”)

Two branches of the exception

• Indiana recognizes two branches of the common scheme or plan exception. The first allows admission of extrinsic activity as evidence of a pre-conceived plan that includes the charged crime. To be admissible, the crimes must be “so related in character, time, and place of commission as to establish some plan which embraced both the prior and subsequent criminal activity and the charged crime.” The second branch permits the admission of extrinsic evidence to establish intent, motive, purpose, or identity by showing the defendant committed other offenses with a similar modus operandi.

Hazelwood v. State, 609 N.E.2d 10, 16 (Ind. Ct. App. 1993), trans. denied(citing and quoting Gibbs v. State, 538 N.E.2d 937, 939 (Ind. 1989))

• Extrinsic evidence may properly be admitted under Evid. R. 404(b) as per the common scheme or plan exception if it is admitted to either: (1) prove the identity of the perpetrator by showing that the defendant has committed other crimes with an identical modus operandi; or (2) as “evidence of a preconceived plan which included the charged crime.”

Moore v. State, 653 N.E.2d 1010, 1015-16 (Ind. Ct. App. 1995), reh’g denied, trans. denied(quoting Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993))

Reeves v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011), trans. denied(quoting Moore v. State, 653 N.E.2d 1010, 1015-16 (Ind. Ct. App. 1995), reh’g denied, trans. denied(quoting Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993)))

Interpretations of “evidence of a pre-conceived plan that includes the charged crime”

• “The test to bring evidence of other offenses within the common plan or scheme exception is not whether the other offenses have certain elements in common with the charged crime, but whether the other offenses tend to establish a preconceived plan by which the charged crime was committed. The crimes must, therefore, be so related in character, time and place of commission as to establish some plan which embraced both the prior and subsequent criminal activity and the charged crime.”

Lannan v. State, 600 N.E.2d 1334, 1339 (Ind.1992)(quoting Malone v. State, 441 N.E.2d 1339, 1347 (Ind.1982))

Giles v. State, 699 N.E.2d 294, 299-300 (Ind. 1998)(quoting Lannan v. State, 600 N.E.2d 1334, 1339 (Ind.1992))

Turner v. State, 682 N.E.2d 491, 496 n. 5 (Ind. 1997)(quoting Hardin v. State, 611 N.E.2d 123, 130 (Ind. 1993)(quoting Malone v. State, 441 N.E.2d 1339, 1347 (Ind.1982))

• The uncharged conduct must be tangibly connected to the one for which the defendant is on trial.

Giles v. State, 699 N.E.2d 294, 300 (Ind. 1998)(citing Mayberry v. State, 605 N.E.2d 244, 246 (Ind. Ct. App. 1992), trans. denied)

• The preconceived plan exception has been further limited by Lannan, which required that the crimes constitute an “‘uninterrupted transaction.’”

Moore v. State, 653 N.E.2d 1010, 1015-16 (Ind. Ct. App. 1995), reh’g denied, trans. denied(quoting Hardin v. State, 611 N.E.2d 123, 129 (Ind. 1993)(quoting Lannan v. State, 600 N.E.2d 1334, 1340 (Ind. 1992)))

• An uninterrupted transaction requires that the crimes be committed in conjunction with each other.

Moore v. State, 653 N.E.2d 1010, 1015 (Ind. Ct. App. 1995), reh’g denied, trans. denied

Interpretations of “evidence to establish intent, motive, purpose, or identity by showing the defendant committed other offenses with a similar modus operandi”

• The record discloses that the reasons underlying the prosecutor's introduction of the testimony were in order to prove [the defendant’s] purpose, motive, and intent. Generally, these are all proper purposes for admitting evidence of prior crimes, wrongs, or acts under the common scheme or plan exception.

Moore v. State, 653 N.E.2d 1010, 1016 (Ind. Ct. App. 1995), reh’g denied, trans. denied(footnote, quotation marks, and citation to the record omitted)

• [T]hat evidence of a common scheme or plan may be admitted in order to establish motive, intent, and purpose, must serve to invoke analyses identical to those employed where evidence has been admitted pursuant to those exceptions enumerated in the language of Evid. R. 404(b).

Moore v. State, 653 N.E.2d 1010, 1015 n.6 (Ind. Ct. App. 1995), reh’g denied, trans. denied

• 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 motive, please review To Prove Motive.

• For information about using prior crimes, wrongs, or other acts to prove identity, please review To Prove Identity.