It seems that Matara had helped Clark create his own personal entry on MySpace, the social networking website. Clark testified in his own defense, and the prosecutor read to Clark, over defense counsel’s objection, his own description of himself:
Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B. . . sh. . . . And with all my obstacles, why the f. . . can’t you.
(Tr. at 466–68.)
Clark contends the trial court abused its discretion when it admitted evidence of his MySpace posting. (Appellant’s Br. at 20–24.) Clark claims this was inadmissible character evidence, citing Indiana Rule of Evidence 404(b), which provides in relevant 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 other purposes, such as proof of motive, intent, preparation, plan knowledge, identity, or absence of mistake or accident.
(Appellant’s Br. at 20–24.) Evidence is excluded under Rule 404(b) when it is introduced to prove the “forbidden inference” of demonstrating the defendant’s propensity to commit the charged crime. Camm v. State, 908 N.E.2d 215 (Ind. 2009).
Otherwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence. Jackson v. State, 728 N.E.2d 147 (Ind. 2000). The door may be opened when the trier of fact has been left with a false or misleading impression of the facts.
We conclude that the trial court properly admitted the evidence of Clark’s MySpace page. Clark’s posting contained only statements about himself and in reference to himself. (Tr. at 465–469.) Thus, the State is right to observe that this is solely evidence of his own statements, not of prior criminal acts. It was Clark’s words and not his deeds that were at issue, so Rule 404(b) does not apply.
It is only slightly more difficult to consider whether the MySpace entry was actually probative of any issue at trial. Clark testified that at most Samantha died because he was drunk and he was “reckless.” (Tr. at 431–32.) Clark made his character a central issue, a reasonable defense strategy presumably aimed at obtaining a jury verdict on the lesser-included offense of reckless homicide. He testified on a number of occasions about his state of mind, suggesting his intent could only have been “reckless” and not criminal:
Clark: I was negligent. I was reckless. I was irresponsible. I was an a. . . hole. Sorry but for a lack of a better word, but, yeah. That’s what I am, but I’m not an intentional killer. I mean, I don’t even know how to explain this, but there’s a lot better ways to kill somebody that [sic] doing it like that. You know, there’s no attempt to hide the crime. I didn’t clean up anything. I didn’t change clothes, mens rea. People do certain things when they kill somebody. They try to hide a crime. There’s no evidence. No evidence whatsoever that I tried to hide anything. And the cops, they know that. They know that. (Id.)
State: You say, your conduct is reckless?
Clark: Most definitely. That’s what your evidence shows.
(Tr. at 469.)
State: Well, why didn’t you pick up the phone and call 911?
Clark: Once again, I was incoherent. It’s an issue of coherency. You asked me a question. Can I answer it?
State: Sure, go ahead.
Clark: Thank you sir. I mean, it’s more or less common sense for the Jury. Let them figure it out, but the bottom line is your officers, oh, he’s not drunk, he’s not drunk, and your own tests say I am drunk. It’s one of those issues where you guys are trying to make an issue out of something that simply is not an issue. You’re making a murder charge out of a reckless homicide charge. I’ve told your office that over and over. I would plead guilty to reckless homicide. You’re making an issue of it. You’re attacking every little thing and you’re looking pitiful in front of this Jury.
State: Why would you plead guilty to reckless homicide if you didn’t do anything?
Clark: A reckless act that ends in the death of a human being is termed reckless homicide. I believe, through the evidence, and common sense, Mr. Hearn, that I am guilty of reckless homicide. I am not guilty of an intentional crime. And the evidence, one hundred percent, shows that.
State: Well, reckless homicide is that you knowingly and intentionally committed an act and you’re saying you’re willing to admit to that?
Clark: I’m guilty. I will answer this for you one more time, and then I won’t answer your question if you pose it another way. So, get this straight. I’m guilty of a reckless act. Period.
(Tr. at 471–472.) Once Clark took the stand to testify along these lines, it was proper to permit the prosecution to confront Clark with his own seemingly prideful declarations that rebutted his defense. Clark’s MySpace declarations shared much with his boast to the police after he killed Samantha: “It’s only a C Felony. I can beat this.”
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.