Appeal from the Floyd Superior Court. The Honorable Susan L. Orth, Judge. Trial Court Cause No. 22D01-0712-FA-858.
ATTORNEY FOR APPELLANT: Matthew J. McGovern, Anderson, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, Indiana.
Vaidik, Chief Judge. Robb, J., and Pyle, J., concur.
Vaidik, Chief Judge.
[¶1] Indiana Evidence Rule 404(b) provides that evidence 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, the evidence may be admissible for another purpose, such as proving identity. The identity exception was crafted primarily for " signature" crimes with a common modus operandi. The exception's rationale is that the crimes, or the means used to commit them, are so similar and unique that it is highly probable that the same person committed all of them. Crimes that are only " generally similar" do not qualify under this exception; rather, the crimes must be " strikingly similar."
[¶2] Anthony Lamar Caldwell was charged with Class A felony burglary and Class A felony attempted rape for breaking into a woman's house, badly beating her, and attempting to rape her. At trial, the State introduced evidence that Caldwell looked in the window at another woman's house--which was in the same neighborhood--fifty-seven days later. The trial court admitted this evidence under the identity exception in Evidence Rule 404(b) because it found that the second crime was " sufficiently similar" to the first crime and the crimes demonstrated Caldwell's " signature." The jury found Caldwell guilty as charged, and the trial court sentenced him to an aggregate term of 100 years.
[¶3] Although there are general similarities between the crimes, we find that the similarities are not striking, primarily because the second incident did not involve an entry into the woman's house or a sexual assault. Because they are not signature crimes, we conclude that the trial court abused its discretion in admitting evidence of the second crime. Nevertheless, we find that the error is harmless in light of the fact that Caldwell's DNA was found at the scene of the first crime and the jury was admonished to consider the second crime for identification purposes only. In addition, because the enhancements to Caldwell's burglary and attempted-rape convictions violate the common-law prohibition against double jeopardy, we reduce Caldwell's burglary conviction from a Class A felony to a Class B felony, thereby resulting in a new aggregate sentence of seventy years.
Facts and Procedural History
[¶4] On July 21, 2003, fifty-six-year-old L.C. lived alone at 1770 Lynwood Drive in New Albany, Indiana. That night, L.C. went to bed around 9:45 p.m. Her laundry-room window, which did not have a screen, was closed at the time. While she was in bed, L.C. heard a noise coming from the laundry room. L.C. got out of bed, put on her robe, and walked down the hall, turning on the light. As L.C. rounded the corner into the living room, a man stepped out and grabbed her. According to L.C., the man wore a light-blue t-shirt, a brown belt, and blue jeans; was about 5'10" to 6' tall; weighed about 175 pounds; and was about twenty-five to thirty years old. However, L.C. was unable to see the man's face or ascertain his race, and she was never able to identify him. Tr. p. 525, 527-28, 537, 547.
[¶5] After the man grabbed L.C., he pulled her robe over her head and started pushing her back toward the bedroom. During this process, the man hit L.C. in the face with his fists. When L.C. tried to cover her face with her hands and screamed, the man hit her harder. He also ripped off her underwear. Once they got to the base of the bed in L.C.'s bedroom, the man hit her so hard that she briefly lost consciousness and fell to the floor. The next thing L.C. remembered was the man putting a bed pillow over her face. L.C., who thought she was going to die, struggled to push the pillow away. When the man touched the outside of L.C.'s vagina with his hand, she exclaimed, " Jesus, Jesus." Id. at 132. The man then abruptly ended the attack and left.
[¶6] L.C. called 911 at 10:14 p.m. An ambulance took L.C. to Floyd Memorial Hospital, where she was hospitalized for two days. She had a broken eye socket, a laceration below her right eye, and broken bones in her left hand and fingers. She also had significant bruising and swelling in her face. See State's Ex. 6, 7.
[¶7] Responding officers determined that the perpetrator had entered L.C.'s house through the laundry-room window. There were no other signs of forced entry. Officers discovered blood on the blinds covering the laundry-room window, and an evidence technician took a swab of the blood for DNA testing. Officers also discovered mud on the wall below the laundry-room window, blood on a bed pillow and the carpet, and torn underwear. Nothing had been taken from the house.
[¶8] Over four years later, in November 2007, the DNA from the blood on the laundry-room blinds matched Caldwell's profile in the National DNA Database. As a result of the match, in December 2007 the State charged Caldwell with Count I: Class A felony burglary (bodily injury) and Count II: Class A felony attempted rape (deadly force), and the trial court issued a warrant for his arrest. Caldwell, however, was not arrested until six years later in December 2013. See Appellant's App. p. 2.
[¶9] Before trial, the State filed a notice of intent to present evidence regarding " [a] traffic stop of Anthony Caldwell on September 17, 2003 at or near 3309 Mellwood Avenue, New Albany, Indiana and investigation into Caldwell attempting to look into a window at 3309 Mellwood Avenue." Id. at 40. The State claimed that this evidence was admissible under the identity exception in Indiana Evidence Rule 404(b). Caldwell filed a motion in limine, seeking to exclude, among other things, " [a]ny discussion of the traffic stop on September 17, 2003 involving [him]." Id. at 53. A hearing was held, and the parties discussed the events leading up to the traffic stop. Specifically, fifty-seven days after the break-in and attempted rape at L.C.'s house, sixty-year-old J.H. reported to the police at 11:06 p.m. that when she was home alone at 3309 Mellwood Avenue, a black male was in her backyard looking in her window but left when she turned on the lights. See Tr. p. 70-97. J.H. lived approximately twelve or thirteen houses from L.C. Minutes after the report, the police pulled over Caldwell, who was driving away from the area at " a fairly accelerated speed," for an expired license plate. Id. at 584. The police noticed that Caldwell was sweating, the bottom of his pant legs were wet, and although he was wearing dry shoes, he had a pair of wet shoes covered in grass clippings in the backseat of his car. Caldwell told the police that he was in the area visiting a female friend, who lived at University Woods apartments. Although Caldwell's route did not make sense to the police, they contacted the female, who confirmed that Caldwell had recently been staying with her and that they were romantically involved. The police took an audiotaped statement from Caldwell on the ...