In general
• Indiana Evidence Rule 404(b) is customarily used by criminal defendants to seek exclusion of evidence about their own prior bad acts. [The defendant] presents a question of first impression: [D]oes Rule 404(b) apply to evidence about persons other than the defendant? We conclude that it does.
Garland v. State, 788 N.E.2d 425, 427 (Ind. 2003)
• We . . . hold that the admissibility of evidence about prior bad acts by persons other than defendants is subject to Rule 404(b).
Garland v. State, 788 N.E.2d 425, 430 (Ind. 2003)
See Davis v. State, 948 N.E.2d 843, 848 (Ind. Ct. App. 2011), trans. denied(citing Garland v. State, 788 N.E.2d 425, 430 (Ind. 2003))(“Rule 404(b) applies to persons other than defendants.”)
Cf. Britt v. State, 937 N.E.2d 914, 917 (Ind. Ct. App. 2010)(“Evidence Rule 404(b) generally prohibits the admission of evidence of a person's ‘other crimes’ to prove the person's character in order to show that the person acted in conformity therewith. And this prohibition applies to persons other than the defendant.”)
• Our supreme court addressed the applicability of Evidence Rule 404(b) to those other than the defendant in Garland. . . . The court explained: “First, the text of Rule 404(b) is such that it governs evidence about acts by defendants, and non-defendants. Second, the rule acts as an appropriate restraint on admissibility of evidence about events or acts that are by definition largely extraneous to those for which a defendant is on trial.” However, for evidence about the bad acts of a non-defendant to be admissible, one of the exceptions of Rule 404(b) must apply.
Wells v. State, 904 N.E.2d 265, 270 (Ind. Ct. App. 2009), trans. denied(quoting and citing Garland v. State, 788 N.E.2d 425, 429-30 (Ind. 2003))(emphasis added)
See Kien v. State, 866 N.E.2d 377, 383 n. 3 (Ind. Ct. App. 2007), trans. denied(quoting and citing Garland v. State, 788 N.E.2d 425, 429-30 (Ind. 2003))(emphasis added)(“The court explained, ‘First, the text of Rule 404(b) is such that it governs evidence about acts by defendants, and non-defendants. Second, the rule acts as an appropriate restraint on admissibility of evidence about events or acts that are by definition largely extraneous to those for which a defendant is on trial.’ In order for evidence about the bad acts of non-defendants to be admissible, though, one of the exceptions of Rule 404(b) must apply.”)
• Our Supreme Court noted that “[w]here a defendant has probative, admissible evidence that [someone else committed the crime], regular due process would admit the evidence.” However, if the defendant “has little or no direct evidence” that someone else did it, then one of the exceptions of Rule 404(b) must apply.
See Kien v. State, 866 N.E.2d 377, 383 n. 3 (Ind. Ct. App. 2007), trans. denied(quoting and citing Garland v. State, 788 N.E.2d 425, 430 (Ind. 2003))