                                                                       Aug 29 2014, 9:30 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                        GREGORY F. ZOELLER
Appellate Public Defender                    Attorney General of Indiana
Crown Point, Indiana
                                             JAMES B. MARTIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

RONALD DEWAYNE THOMPSON,                     )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 45A03-1401-CR-8
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Diane Ross Boswell, Judge
                            Cause No. 45G03-1301-FA-2



                                  August 29, 2014

                            OPINION–FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Ronald Dewayne Thompson appeals his convictions for

Rape,1 a class A felony, and Criminal Deviate Conduct,2 a class B felony.                    More

particularly, Thompson contends that the trial court erred when it admitted evidence that

Thompson was a suspect in another sexual assault case. Additionally, Thompson argues

that the State’s request to introduce evidence under Indiana Evidence Rule 404(b) did not

provide reasonable notice as required by that rule and lack of such notice was not

excused for good cause. Finding that the evidence was inadmissible under Evidence Rule

404(b) and that it was prejudicial, we reverse and remand for a new trial.

                                             FACTS

          On August 18, 2012, T.H. traveled from Elkhart, Indiana, to Gary, Indiana. T.H.

had just finished her CNA3 program and was going to Gary to celebrate with her nephew

Ramon and his girlfriend. To arrive in Gary, she took a trolley, a bus, and the South

Shore train. However, when T.H. got off the trolley, she ran into her nephew James. She

stopped to talk to him about her CNA certificate. She had a drink of vodka with James,

and then continued on a bus to the South Shore train. While on the bus, she drank a tall

can of beer she had brought with her in her purse.

          After 6:00 pm, T.H. arrived in Gary. She took a bus to 21st street and Broadway

and then began walking on Broadway, looking for a bus that would take her to Ramon’s

1
    Ind. Code § 35-42-4-1(a)(1)
2
    I.C. § 35-42-4-2(a)(1)
3
 The record does not indicate what T.H.’s CNA program was, but it is likely that it was a certified
nursing assistant program.
                                                2
house. Before she found a bus, T.H. ran into Thompson, who introduced himself as

Michael and asked T.H. if she needed a ride. T.H. told him that, if he would get her

safely to Ramon’s home, she would like a ride. She got into his white minivan.

      T.H. did not have any money, and she offered Thompson her electronic benefits

(EBT) card, telling him he could make a purchase with it if he liked. They then went to a

service station on Broadway, where Thompson went into the building with T.H.’s EBT

card, but he returned to the van empty-handed. He then drove to another store, where he

purchased orange juice. He and T.H. each drank some gin from a bottle. At this point,

Thompson told T.H. he needed to “run out to [his] job real quick.” Tr. p. 64.

      Thompson drove to Merrillville, where he took T.H. inside a building. Once she

entered the building, T.H. noticed that it was completely empty except for carpeting and a

chart on the wall. Worried, she attempted to leave. Thompson would not allow her to

leave and blocked her exit. He grabbed T.H.’s hair, and T.H. said “no.” Id. at 69.

      T.H. tried to leave once more, but Thompson grabbed her clothes, put his hands

around her neck, and pushed her against the wall. T.H. pretended to collapse, because

Thompson was choking her hard, and she wanted to “get away from the choking.” Id.

While T.H. was lying on the floor, Thompson kicked her in the side approximately five

times and stomped on her chest three times. T.H. then began to cry.

      When T.H. opened her eyes and looked at Thompson, she saw that he had pushed

his pants and underwear down to his ankles. He told her to take off her clothes and get

on her knees. Thompson then ordered T.H. to perform fellatio on him. When T.H.

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complied, Thompson said that she was not doing it “correctly,” and hit her in the head

several times. Id. at 72. Thompson then pushed T.H. back on the carpet, forced her to

open her legs, and inserted his penis into her vagina. Thompson then asked T.H. to put

her clothes back on and told her he would take her to her nephew’s house.

       T.H. and Thompson left the building and got into Thompson’s van. When they

had travelled a little way down the road, they saw a police officer directing traffic. When

the vehicle came to a stop, T.H. jumped out and yelled to the officer that she had been

raped. Thompson drove away.

       More police and an ambulance arrived, and T.H. was taken to the hospital, where

she stayed for three days. While T.H. was in the hospital, a sexual assault nurse examiner

performed an examination for sexual assault.

       Merrillville Police Detective Ray Smith was able to find a suspect in the case by

conferring with Detective George Fields, who was investigating a similar assault and

battery case. That assault occurred in a similar location, involved a vehicle similar to the

one used by Thompson, and the description of the suspect was similar to the description

T.H. had given of Thompson. Based on the information gleaned from Detective Fields, a

photo array was developed and shown to T.H. From the photo array, T.H. identified

Thompson as her attacker.

       A buccal swab was collected from Thompson. The DNA profile from the sperm

cell fraction obtained from the rape kit collected from T.H. matched Thompson.



                                             4
       On January 29, 2013, the State charged Thompson with Count I, rape as a class A

felony; Count II, criminal deviate conduct as a class A felony; Count III, robbery

resulting in serious bodily injury as a class A felony; Count IV, criminal confinement as a

class B felony; and Count V, battery resulting in serious bodily injury as a class C felony.

Thompson’s jury trial took place on November 18, 19, and 22, 2013.

       In his opening statement, counsel for Thompson stated that:

       [T.H.] went out partying that night. That’s what happened in this case. She
       was out partying. After things happened, [T.H.} decided, “you know what,
       this isn’t what I wanted to happen. I wanted to come here, but this isn’t
       what I wanted to happen, so now I’m going to claim that I was raped, that I
       was beaten. That’s what I’m going to do, because I made some poor
       decisions earlier in the evening, now I’m going to say I was raped.”

Id. at 47. Likewise, during closing argument, Thompson’s counsel stated: “we’re not

disputing that Mr. Thompson and [T.H.] engaged in sexual intercourse at or around the

time that she says she was assaulted . . . .” Id. at 411.

       During the State’s case, the prosecutor argued for the admission of evidence under

Evidence Rule 404(b). The evidence regarded “how [Thompson] was developed as a

suspect in this case, and that is that based upon the similarities – that is the similarities of

the crime and the location involving him and [another] case that has previously been

tried,” and showed that Detective Smith “had reason to believe there may be some

relation between him and this instant case, and that was the motive to go on the 17th of

January to question him about – about this particular case.” Id. at 338-339. The State

argued that this evidence should be admissible to show identity and intent, citing the


                                               5
similarities between the sexual assaults: the proximity of the crime scenes, the description

of the vehicle used, and the description of the suspect. The trial court admitted the

testimony of Detective Smith, in which he explained that he was able to link Thompson

to the rape of T.H. because Thompson was also a suspect in another sexual assault.

       Detective Smith testified that he had been able to locate Thompson as a suspect

when he spoke with Detective George Fields and discovered that there were similarities

between his sexual assault case and a sexual assault case Detective Fields was

investigating. He testified that the similarities were “the proximity of the crime scene,

the description of the vehicle in both cases, and the description of the suspect.” Id. at

353. He also testified that Thompson was the individual who was identified and charged

in Detective Fields’s case. Id. at 355.

       At the close of the State’s arguments, the trial court entered a judgment of

acquittal on count III robbery resulting in serious bodily injury. The jury found

Thompson guilty as charged on the remaining counts. The trial court merged Count V

into Count I and also merged Count IV into Count II.

       On December 20, 2013, the trial court sentenced Thompson to forty years on

Count I and to twenty years on Count II, to be served consecutively for an aggregate

sentence of sixty years.

       Thompson now appeals.




                                             6
                                DISCUSSION AND DECISION

       Thompson argues that the trial court erred in admitting the testimony of Detective

Smith that Thompson was also a suspect in another sexual assault case.                         More

particularly, Thompson maintains that the evidence in question was admitted in violation

of Evidence Rule 404(b), as it does not fall under the identity or intent exceptions cited

by the State.4

       A trial court has broad discretion in ruling on the admissibility of evidence, and,

on review, we will disturb its ruling only on a showing of abuse of discretion. Sparkman

v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When reviewing a decision under

an abuse of discretion standard, we will affirm if there is any evidence supporting the

decision. Id. A claim of error in the admission or exclusion of evidence will not prevail

on appeal unless a substantial right of the party is affected. Ind. Evidence Rule 103(a).

In determining whether error in the introduction of evidence affected a defendant's

substantial rights, we assess the probable impact of the evidence on the jury. Sparkman,

722 N.E.2d at 1262.

       Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

other act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.”                   However,

Evidence Rule 404(b) allows the introduction of evidence of other crimes and wrongs for


4
 Thompson also argues that the State failed to provide reasonable notice of its intent to use evidence
under Evidence Rule 404(b). However, as we find that the evidence was inadmissible, we need not
address Thompson’s notice argument.
                                                  7
purposes other than proving propensity to commit the charged crime, “such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” To be admissible under Evidence Rule 404(b), the evidence must be

relevant to some matter other than the defendant's propensity to commit crimes and the

prejudicial effect of the evidence must not substantially outweigh its probative value

pursuant to Indiana Evidence Rule 403. Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999).

      The State argues that Detective Smith’s testimony regarding Thompson’s status as

a suspect in another sexual assault was admissible because it showed identity and modus

operandi. It contends that the similarities between the two sexual assaults–the location of

the assaults, the description of the vehicle, and the description of the perpetrator–were

sufficient to establish modus operandi.

      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, 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.” Id. The analysis of admissibility under Rule 404(b)

incorporates the relevancy test of Rule 401 and the balancing test of Rule 403. Allen v.

State, 720 N.E.2d 707, 711 (Ind. 1999).

      In Lafayette v. State, our Supreme Court found that evidence of prior bad acts was

not admissible for the purposes of showing identity or modus operandi when the

defendant had admitted he had engaged in sexual intercourse with the victim. The

                                            8
defendant’s “identity was not in issue once he admitted that he had engaged in sexual

intercourse with C.E.” 917 N.E.2d 660 n. 6 (Ind. 2009).

      Here, Thompson did not contest that he had engaged in sexual intercourse with

T.H. Tr. p. 411. Rather, he argued that T.H. had consented to sexual intercourse with

him. Therefore, identity was no longer at issue and the evidence of prior bad acts was not

admissible to show modus operandi.

      The State also argues that evidence of the prior bad act was admissible to show

intent under Evidence Rule 404(b). It contends that Thompson asserted a contrary intent

when he stated that T.H. had consented to sexual intercourse.

      The intent exception under Evidence Rule 404(b) is available when a defendant

goes beyond merely denying the charged culpability and alleges a particular contrary

intent, whether in opening statement, by cross-examination of the State’s witnesses, or by

presentation in the defendant’s own case-in-chief. Wickizer v. State, 626 N.E.2d 795,

799 (Ind. 1993). The State may respond by offering evidence of prior crimes, wrongs, or

acts to the extent genuinely relevant to prove the defendant’s intent at the time of the

charged offenses. Id. The trial court must then determine whether to admit or exclude

such evidence depending upon whether “its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.” Evid.

R. 403.



                                            9
       However, contrary intent does not apply in the instant case. In Lafayette, our

Supreme Court determined that “a defendant’s assertions that an alleged rape victim

consented to sexual intercourse does not present a claim of particular contrary intent for

purposes of triggering the intent exception to Evid. R. 404(b).” 917 N.E.2d at 666.

Rather, when the defendant alleges consent, the issue becomes one of the victim’s

consent, not one of contrary intent on the part of the defendant. Id.

       Here, Thompson admitted to having sexual intercourse with T.H. and asserted that

she consented. Therefore, the issue became whether T.H. consented, and contrary intent

is not applicable. The evidence relating to Thompson’s involvement in a prior sexual

assault was not admissible.

       “[I]n some instances the erroneous admission of evidence is harmless. Errors in

the admission of evidence will not result in reversal if the probable impact of the

evidence upon the jury is sufficiently minor so as to not affect a party's substantial

rights.” Collins v. State, 826 N.E.2d 671, 679 (Ind. Ct. App. 2005).

       Here, the jury heard evidence suggesting that Thompson had sexually assaulted

another woman. Thompson asserted that he had consensual sexual intercourse with T.H.,

while T.H. asserted that she had not consented.          Therefore, the determination of

Thompson’s guilt hinged solely on the credibility of T.H. In light of these circumstances,

we find it likely that Detective Smith’s testimony had a prejudicial impact on the jury and

contributed to the guilty verdict.



                                             10
      We reverse Thompson’s convictions and remand for a new trial.

KIRSCH, J., and ROBB, J., concur.




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