The permissible material facts which prior misconduct evidence may be offered to prove are set forth in Fed.R.Evid. 404(b), which was adopted by our supreme court in Lannan v. State (1992), Ind., 600 N.E.2d 1334. Fisher v. State (1994), Ind. App., 641 N.E.2d 105, 107. Fed.R.Evid. 404(b) provides in pertinent part as follows:
Indeed, "remoteness and similarity must be considered together because the two concepts are so closely related[.]" Id. (quoting Fisher v. State, 641 N.E.2d 105, 109 (Ind.Ct.App. 1994)). See Betterton, 417 F.3d at 831 ("[T]o be admissible under Rule 404(b), the evidence must be . . . similar in kind and not overly remote in time to the charged crime[.
This Court in State v. Fisher took the quoted sentence verbatim from an Indiana court of appeals decision. 2010 S.D. 44, ¶ 28, 783 N.W.2d at 673 (quoting Fisher v. State of Indiana , 641 N.E.2d 105, 109 (Ind. Ct. App. 1994) ). We then restated this quoted language in Most , 2012 S.D. 46, ¶ 17, 815 N.W.2d at 565.
Furthermore, "[r]emoteness and similarity must be considered together because the two concepts are so closely related; the remoteness of a prior crime takes on increased significance as the similarity between the prior crime and the charged offense increases." Fisher, 2010 S.D. 44, ¶ 28, 783 N.W.2d at 673 (alteration in original) (quoting Fisher v. State, 641 N.E.2d 105, 109 (Ind. Ct. App. 1994)). "Accordingly, 'a prior bad act, despite its remoteness, may still be relevant if it is strikingly similar to the charged offense.
Furthermore, “[r]emoteness and similarity must be considered together because the two concepts are so closely related; the remoteness of a prior crime takes on increased significance as the similarity between the prior crime and the charged offense increases.” Fisher, 2010 S.D. 44, ¶ 28, 783 N.W.2d at 673 (alteration in original) (quoting Fisher v. State, 641 N.E.2d 105, 109 (Ind.Ct.App.1994)). “Accordingly, ‘a prior bad act, despite its remoteness, may still be relevant if it is strikingly similar to the charged offense.
(1) be directed toward proving a matter in issue other than the defendant's propensity to commit the crime charged, (2) show that the prior act is similar enough and close enough in time to be relevant to the matter in issue, (3) be such that a reasonable jury could find that the act occurred and that the defendant committed the act, and (4) meet the requirement of Rule 403 that the evidence's probative value not be substantially outweighed by the danger of unfair prejudice. Fisher v. State, 641 N.E.2d 105, 108 (Ind.Ct. App. 1994) (quoting United States v. Schweihs, 971 F.2d 1302, 1311 (7th Cir. 1992)). In other words, the evidence may be admitted for the purpose of rebutting, or countering, a defendant's factual assertions, to the extent that the evidence admitted is relevant to those factual assertions.
Wickizer v. State (1993) Ind., 626 N.E.2d 795, 799. That an accused presents a defense which denies commission of an act in its entirety will not suffice; in order that intent is affirmatively presented as an issue, an accused must in effect admit to the commission of the act, but profess that he acted with some intent contrary to that required by the statute under which he is charged. See Fisher v. State (1994) 2d Dist. Ind. App., 641 N.E.2d 105, 108. We address the intent issue even though it is not encompassed within the common scheme or plan exception under which A.L.'s testimony was admitted, because the exception is a proper purpose for admission of evidence of previous crimes wrongs or acts as per the enumerated language of Evid.R. 404(b).
"(1) be directed toward proving a matter in issue other than the defendant's propensity to commit the crime charged, (2) show that the prior act is similar enough and close enough in time to be relevant to the matter in issue, (3) be such that a reasonable jury could find that the act occurred and that the defendant committed the act, and (4) meet the requirement of Rule 403 that the evidence's probative value not be substantially outweighed by the danger of unfair prejudice." Fisher v. State (1994), Ind. App., 641 N.E.2d 105, 108, trans. denied (quoting United States v. Schweihs (7th Cir. 1992), 971 F.2d 1302, 1311). At trial, S.S. testified that she had first been molested by Sloan when she was five years old, and that he had continued to molest her about twenty times a year for the next six years.
. “Remoteness and similarity must be considered together because the two concepts are so closely related.” Fisher v. State, 641 N.E.2d 105, 109 (Ind.Ct.App. 1994). See also State v. Most, 815 N.W.2d 560, 565 (S.D. 2012); State v. McGuire, 135 Idaho 535, 20 P.3d 719, 723 (Idaho Ct. App. 2001).
"Remoteness and similarity must be considered together because the two concepts are so closely related." Fisher v. State, 641 N.E.2d 105, 109 (Ind. Ct. App. 1994). See alsoState v. Most , 815 N.W.2d 560, 565 (S.D. 2012) ; State v. McGuire , 135 Idaho 535, 20 P.3d 719, 723 (Idaho Ct. App. 2001).