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Sweet v. Roy4/26/2002
rk continued from 1986 right up to the present.
We have a similar reaction to defendants' claim that the prior bad acts were not sufficiently similar to the conduct involving plaintiff. On this point, defendants are apparently challenging not only the Wright case evidence but also the evidence of events involving other tenants which occurred around the time of the vandalism of plaintiff's home. Defendants argue that none of these events are sufficiently similar because only plaintiff claimed that her windows were broken and her electric wire cut.
The record does not support defendants' argument. Mr. Scott testified that his windows were broken and his electric power was disconnected. In any event, defendants are quibbling over minor differences and ignoring the essential similarity in the experiences of the tenants and those who bought mobile homes in the park. As the court concluded in the Wright decision, defendants engaged in "strong-arm tactics" to prevent an owner from selling to a purchaser other than defendants. Whether those strong-arm tactics involved vandalizing vehicles, cutting cable TV lines, cutting power lines, disconnecting power lines, removing a kerosene tank's drain plug, shooting a hole in a kerosene tank, throwing rocks through windows or throwing a rock through a front door is insignificant. They are all anonymous acts of vandalism intended to interfere with the use and enjoyment of the mobile home premises and usually to scare and intimidate the mobile home occupant. In most cases, they were accompanied by a refusal to approve prospective purchasers and/or a refusal to recognize, or even respond to, a purchaser without a prior authorization. The similarities overwhelm any differences.
There is a second, more general, reason why the evidence was admissible under the plan exception in this case. All of our Rule 404(b) plan cases have involved an "unlinked plan," that is, a series of proximate, similar crimes which establish a plan to commit the series of crimes. See E. Imwinkelried, Using a Contextual Construction to Resolve the Dispute Over the Meaning of the Term "Plan" in Federal Rule of Evidence 404(b), 43 U. Kan. L. Rev. 1005, 1011 (1995). This, however, is a "linked acts" plan, also called a true plan, where plaintiff has shown a grand design to gain ownership of the mobile homes in the park and each act of misconduct "is a means to the end of achieving the overarching end or objective." Id. at 1015; see also 1 J. Strong, McCormick on Evidence § 190, at 661 (5th ed. 1999) (under plan exception "crime should be an integral part of an overarching plan explicitly conceived and executed by the defendant"). In true plan cases, an "act can be probative of a true plan even when it is dissimilar to the charged" acts and "the uncharged and charged . . . [acts] need not be proximate in time." 1 E. Imwinkelried, Uncharged Misconduct Evidence § 3.22, at 118 (rev. ed. 1999). Thus, while we believe that the trial court could consider similarity and proximity in determining the admissibility of the evidence, there are no hard and fast lines as defendants suggest.
The evidence was also admissible to show identity, a critical issue in this case where plaintiff had no direct evidence that Leon Roy committed the acts of vandalism. Particularly relevant to plaintiff's case was the evidence from the Wright case that the acts of vandalism were anonymous, but the court found by a preponderance of the evidence that Leon Roy committed those acts. Also relevant was the fact that unapproved occupants of homes suffered acts of vandalism, suggesting that the vandalism was being used as a method of eviction. Indeed, that was exactly the court's conclusion in the Wright case.
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