CRONE, J.
In an opinion issued shortly before the Indiana Rules of Evidence became effective in January 1994, our supreme court sought to provide guidance regarding the so-called intent exception of Evidence Rule 404(b). Wickizer v. State, 626 N.E.2d 795 (Ind. 1993). The court stated,
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The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, 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 offense. 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. Id. at 799 (citation to record omitted).
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We commend the trial court on the thoroughness and thoughtfulness of its evidentiary ruling, but we respectfully disagree with it in several crucial respects. First, we believe that a criminal defendant does not put his intent at issue at any stage of the proceedings simply by questioning the victim’s credibility, which itself is at issue in nearly every case. [Footnote omitted.]
Next, we believe that by asserting that an alleged rape victim consented to sexual intercourse, a criminal defendant does not present a claim of particular contrary intent for purposes of Evidence Rule 404(b). As the rape statute indicates, a criminal defendant’s intent to have sexual intercourse with an alleged victim and the victim’s consent to the sexual intercourse are separate and discrete elements of the crime and therefore are separate and discrete issues for purposes of Evidence Rule 404(b). See Ind. Code § 35-42-4-1(a) (defining rape as knowingly or intentionally having sexual intercourse with a member of the opposite sex when “the other person is compelled by force or imminent threat of force”). Here, Lafayette admitted to having sexual intercourse with C.E.; thus, he did not present a claim of particular contrary intent for purposes of Evidence Rule 404(b). As such, the trial court abused its discretion in admitting E.C.’s testimony on that basis.
Here, because Lafayette admitted to having sexual intercourse with C.E., the only issue that bore any relation to E.C.’s testimony was whether C.E. had consented to the intercourse. Again, “[t]he fact that one woman was raped has no tendency to prove that another woman did not consent.” Malone, 441 N.E.2d at 1347. Consequently, E.C.’s testimony would not be admissible under Evidence Rule 402, let alone under Evidence Rule 404(b), to prove that C.E. did not consent to having sexual intercourse with Lafayette. See Ind. Evidence Rule 401 (defining “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”); Ind. Evidence Rule 402 (“Evidence which is not relevant is not admissible.”). Thus, the trial court abused its discretion in admitting E.C.’s testimony on that basis as well.
KIRSCH, J., concurs in result with separate opinion:
I concur in the decision to reverse Lafayette’s convictions, but I reach that conclusion by a different route than that set forth in Judge Crone’s lead opinion. I disagree with the conclusion that a criminal defendant does not put his intent at issue by asserting that an alleged rape victim consented to the sexual intercourse, but I do not believe that Lafayette made any such assertion at trial and, accordingly, did not put his intent in issue. In challenging the credibility of the prosecuting witness on her claim that the sexual intercourse was forced, Lafayette made no affirmative claim that the sexual intercourse was consensual. Had he done so, I believe it would have opened the door to the challenged testimony of the prior bad acts.
VAIDIK, J., dissents with separate opinion:
We have previously determined that, where a defendant in a rape case alleges that intercourse was consensual, the defendant has placed his or her contrary intent at issue for the purpose of Evidence Rule 404(b). Johnson, 722 N.E.2d at 384; see also Udarbe v. State, 749 N.E.2d 562, 566 (Ind. Ct. App. 2001) (citing Johnson with approval). Lafayette argues that instead of “bringing consent up,” . . . he challenged the victim’s credibility to “attack[] what the State had to prove, lack of consent,” . . . and that this is somehow different from placing the victim’s consent at issue. . . . Despite defense counsel’s avoidance of the terms “consent” or “consensual” during trial, a review of the trial transcript makes it apparent that Lafayette did indeed place his own contrary intent, i.e., the victim’s consent, at issue.
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Further, I disagree with the majority’s conclusion that evidence of Lafayette’s prior bad act is irrelevant to the question of intent to engage in nonconsensual intercourse and therefore also inadmissible under Indiana Evidence Rule 402. . . . The evidence presented by the State regarding the 1997 attempted rape, however, was not simply that Lafayette attempted to rape a woman in the past. Rather, it revealed conduct nearly identical to the offenses that led to Lafayette’s latest convictions. . . . .
. . . Given the uncanny similarities in Lafayette’s conduct toward C.E. and E.C.-before, during, and after his assaults upon them-I must disagree with the majority’s conclusion that the evidence presented through E.C.’s testimony is irrelevant.