OPINION
Case Summary
Denny Wages appeals the trial court’s denial of his motion to exclude evidence the State wishes to present during his trial for three counts of Class C felony reckless homicide. We affirm.
Issue
The sole issue before us is whether the trial court properly decided to allow the State to present evidence that Wages was driving erratically before he crashed head-on into another vehicle.
Facts
On June 25, 2004, Wages was traveling west on U.S. Highway 150 in Floyd County, which apрarently is a two-lane highway at that point. Wages attempted to pass a car in his lane but struck an approaching
The State charged Wages with three counts of Class C felony reckless homicide. On August 9-12, 2005, a jury trial was held that resulted in a hung jury. The State expressed its intention to retry Wages.
After seeing a news report of the trial’s conclusion, Cathy Kern contacted the Floyd County Police Department to report that she had seen a vehicle matching the description of Wages’s truck being driven erratically shortly before the accident. Kern had been unaware that Wagеs was being prosecuted. She gave a videotaped statement to police in which she said that she noticed the truck “zipping” in and out of traffic, that it appeared to be traveling at an excessive rate of speed, and that it passed in a no-passing zone a line of three cars, including Kern’s, that were traveling at the speed limit. Tr. p. 9. Sometime after the truck passed Kern, she came upon the immediate aftermath of the wreck 1 and recognized Wages’s truck as the one that was being driven erratically shortly before.
The State informed Wages that it intended to present Kern as a witness during the retrial. Wages moved to exclude Kern’s expected testimony as irrеlevant, unfairly prejudicial, and improper evidence of prior bad acts. On April 17, 2006, the trial court denied Wages’s motion to ex-elude Kern’s testimony. The trial court certified its order for interlocutory appeal and this cоurt has accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).
Analysis
Wages argues that Kern’s expected testimony should be deemed inadmissible under three Indiana Rules of Evidence: Rule 401 governing relevancy, Rule 403 governing unfairly рrejudicial evidence generally, and Rule 404(b) governing evidence of pri- or bad acts. Because Kern’s expected testimony specifically addresses alleged prior bad acts by Wages before the wreck occurred, Rule 404(b) is the focus of our analysis. 2 Rule 404(b) states in part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for othеr purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
When addressing the admissibility of evidence under Rule 404(b), courts must utilize a two-prong analysis.
Scalissi v. State,
In determining whether a defendant’s driving was reckless as opposed to merely nеgligent, courts have considered evidence of erratic driving by the defendant immediately preceding a wreck; one such case is
Warner v. State,
Additionally, we сonclude Evidence Rule 404(b) permits the admission of such relevant evidence in a reckless homicide prosecution. Among other things, the rule does not bar evidence of uncharged acts that are “intrinsic” to the charged оffense.
Lee v. State,
Kern’s statement to police did not indicate precisely how much time passed from the time she last observed Wages’s erratic driving until she came upon the immediate aftermath of the accident. Because this is an interlocutory appeal, we do not know exactly what Kern’s trial testimony will be, but it would appear from the gist of her statement to police that the time period was a matter of minutes, if not seconds. Assuming this would be her testimony, the time period is sufficiently brief to allow Kern’s testimony as evidence of conduct on Wages’s part that wаs “intrin
Additionally, one of the express purposes for admitting evidence of prior bad acts under Rule 404(b) is to prove “absence of mistake or accident.” This part of the rule has been described as “ 'simply a special form of the exception that permits the use of other crimes to prove intent.’ ” Miller, Courtroom Handbook on Indiana Evidence at 80 (2007) (quoting 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5247, at 517-18 (1978)). Indeed, “intent” is not at issue in this case, but the difference between the mens reas of recklessness and negligencе is. Although we do not have the transcript of Wages’s first trial before us and his second has not yet been held, it seems clear that his sole defense to the reckless homicide charges is that the wreck was an “accident,” or in othеr words that he acted at most negligently, not recklessly, in causing the wreck. 3
We conclude it would be appropriate for the State to present evidence of Wages’s erratic driving before the wreck, using Kern’s testimony to rebut any claim that Wages’s fatal attempt at passing without adequately checking for oncoming traffic merely was a negligent and isolated lapse of judgment. Instead, Kern’s testimony would support the conclusion that Wages’s final driving maneuver was the culmination of a series of acts that were closely related in time and circumstances, and which evinced conscious disregard of an unjustifiable risk. Kern’s testimony will not be used for the purpose of proving that Wages generally is a reckless driver, but that he was driving recklessly on this particular occasion, immediately before the wreck. Such testimony would be admissible to prove the wreck was no “accident,” but the result of Wages’s ongoing reckless and erratic driving.
We also believe that Kern’s expected testimony does not appear to be so unfairly prejudicial that it must be excluded under Evidence Rule 403, which allows a trial court to exclude evidence whose probative value is “substantially outweighed” by the danger of unfair prejudice. We note that all relevant evidence necessarily is “prejudicial” in a criminal prosecution.
State v. Seabrooks,
Here, Kern’s expected testimony would suggest that during one car trip, Wages was driving erratically for some reason, and that his final, fatal driving maneuver was likewise erratic, rather than an isolat
Conclusion
The trial court did not abuse its discretion in ruling that Kern will be permitted to testify as to her observations of Wages’s driving shortly before thе fatal wreck. We affirm.
Affirmed.
Notes
. The vehicles were still rolling from the force of the impact when Kern came upon the scene.
. Before the trial court, Wages argued that Kern’s statement to the police was insufficient to identify Wages as the driver of the truck she saw being driven erratically shortly before the accident. Wages does not raise this issue on appeal.
. It is unclear whether, under the "absence of mistake or accident” prong of Rule 404(b), thе defendant must first affirmatively claim that he or she did something mistakenly or accidentally before the State can invoke that prong to introduce evidence of other wrongs.
See McCloud v. State,