STATE OF IOWA v. KEVIN JON THOREN
No. 20-0192
IN THE SUPREME COURT OF IOWA
Submitted October 20, 2021–Filed February 25, 2022
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.
The defendant seeks further review of the court of appeals decision affirming his conviction for sex abuse and the district court rulings allowing evidence of the licensing board‘s investigation and settlement and his prior bad acts. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which Christensen, C.J., and Appel and McDermott, JJ., joined. Waterman, J., filed a special concurrence,
Martha J. Lucey, State Appellate Defender, and Ashley C. Stewart (argued), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers (argued), Assistant Attorney General, for appellee.
“It is fundamental to American jurisprudence that ‘a defendant must be tried for what he did, not for who he is.’” United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980) (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977)). Our rules prohibit using a defendant‘s prior bad acts as propensity evidence—that is, to show that because a defendant did something before, he must have done it again. That said, evidence of prior bad acts can be used for other purposes, but only if the other purpose is truly disputed in the case. And when the evidence is allowed, the district court must take care to limit use of the evidence to the proper use, not the prohibited propensity use.
The defendant in this case, who was convicted of sexually abusing a client during a Reiki treatment session, argues the court of appeals erred in affirming his conviction because the district court violated this fundamental principle. Specifically, the defendant asserts the State should not have been allowed to introduce evidence about an investigation by the Iowa Board of Massage Therapy (Board) into allegations he had inappropriately touched other clients that ultimately led to the loss of his massage license or testimony from those complaining former clients. Given the unique circumstances of this case and the significant evidence presented about “phantom touches” in the defendant‘s attempt to convince the jury the victim only imagined that the defendant vigorously rubbed her vaginal area with his hand during the Reiki session, we conclude the district court properly admitted some evidence from the defendant‘s former massage clients about their experiences. But the district court erred in
I. Factual Background & Proceedings.
Kevin Thoren voluntarily surrendered his license to practice massage therapy in September 2018 following an investigation by the Board. The investigation arose from a complaint of inappropriate touching filed by a client named L.K. The complaint alleged that during a massage in 2014 Thoren exposed L.K.‘s breasts and pulled on her nipples. Although Thoren voluntarily surrendered his license after the investigation, the self-surrender included no admission of guilt.
In addition to L.K., four other clients filed complaints with the Board about inappropriate sexual conduct during appointments with Thoren. J.J., who worked for Thoren, complained in 2017 that Thoren had massaged too close to her breasts in 2008 and 2009 after she asked him not to and that Thoren had used an electric vibrating machine against her wishes. J.J. was so upset that she quit working for Thoren after the incidents. In 2017, M.L. complained that Thoren had massaged the side of her breast during a 2012 appointment in an
Thoren continued to offer alternative healing modalities, including Reiki and craniosacral therapy, after surrendering his massage license. The client remains fully clothed for these treatments. According to the evidence presented at trial, Reiki, often referred to as a type of energy therapy, is an ancient form of natural hands-on healing where the practitioner holds his hands over the client‘s body to facilitate a transfer of energy to help the body heal itself. In a Reiki treatment, the practitioner either gently touches or holds his hands lightly above the client‘s body without actually touching it. Reiki is different from massage in that Reiki involves no rubbing, kneading, or manipulation. The practitioner holds his hands stationary in specific positions, either hovering over or gently
Craniosacral therapy is also distinct from massage. It focuses on the bone structure between the skull and the sacrum bone at the base of the spine and works to improve movement of cerebral spinal fluid throughout the spine. The practitioner gently touches certain areas on the head or the sacrum—described as using pressure equal to the weight of a dime—with no movement or manipulation.
The story that led to the charges for which Thoren stood trial actually starts here. On November 21, 2018, L.R. was attending her second appointment with Thoren. L.R.‘s first appointment for a craniosacral therapy treatment provided relief for her neck and headaches, so she booked a second appointment online. The appointment receipt shows that L.R. signed up for Reiki therapy, although she intended to book another craniosacral therapy session. This distinction matters because Thoren‘s theory at trial was that L.R. imagined the physical contact she claims she experienced, introducing evidence that clients may feel phantom touching—a feeling of being touched in places where no contact has occurred—during Reiki sessions like L.R. received.
The parties disagree on the facts of what happened during L.R.‘s second appointment. According to L.R., Thoren covered her eyes with a cloth and stated that he was going to “work on [her] vaginal area.” Thoren then began to rub L.R.‘s stomach with his hand over her clothes, moving his hand down her body and eventually applying increasing amounts of pressure and rubbing vigorously over
Thoren describes a very different account. According to Thoren, during a conversation at the start of the second appointment L.R. repeatedly mentioned that her sexual energy had returned after her last session. Thoren ignored the comments and began the session, which included both craniosacral therapy and Reiki. He recalled touching L.R. at the start of the session while performing craniosacral therapy, but denied touching her at any point during the Reiki treatment and denied ever touching her vaginal area. Thoren held his hands above L.R.‘s naval and her solar plexus, which is the common method for conducting the Reiki treatment. He also insisted that he ended the session after L.R. groaned and said she had just experienced an orgasm. He repeatedly told her that was not the purpose or intent of the therapy.
Prior to trial, Thoren moved to exclude evidence from the Board relating to the previous complaints against him. The district court denied his motion and permitted a Board representative to testify about the Board‘s investigation and the five former clients to testify about Thoren‘s inappropriate touching during massage sessions. The jury ultimately found Thoren guilty of sexual abuse in the third degree. Thoren appealed his conviction, challenging the admission of evidence about the Board‘s investigation and report as well as the testimony from
II. Standard of Review.
Thoren appeals the district court‘s evidentiary rulings, which we review for abuse of discretion. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017). “A district court abuses its discretion when it bases its decisions on grounds or reasons clearly untenable or to an extent that is clearly unreasonable . . . [or] if it bases its conclusions on an erroneous application of the law.” Id. (citation omitted).
III. Error Preservation.
The State argues the district court‘s motion in limine ruling was conditional, so Thoren failed to preserve error on the issues raised in his motion to the extent he did not also object to the evidence at trial. Although Thoren objected at trial to the State‘s introduction of the Board‘s report, he did not object to testimony from his former clients.
Thoren moved in limine to exclude (1) testimony and other evidence relating to the Board investigation which led to the self-surrender of his license and (2) testimony from any former clients alleging abuse during a massage. He argued that this evidence was irrelevant under
The district court denied Thoren‘s motion and granted the State‘s request, conditioned on satisfying foundational issues for admitting the evidence. The State subsequently listed the five prior clients as witnesses, and Thoren moved to reconsider the court‘s prior ruling and strike the identified witnesses. The court denied Thoren‘s motion, ordering: “The State‘s proposed witnesses may offer testimony within the parameters of that [prior] ruling.”
Generally, denial of a motion in limine does not preserve error for appellate review. State v. Leedom, 938 N.W.2d 177, 191 (Iowa 2020); Quad City Bank & Tr. v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 89 (Iowa 2011). Motions in limine are procedural rulings that “serve[] the useful purpose of raising and pointing out before trial certain evidentiary rulings the court may be called upon to make during the course of the trial.” Quad City Bank & Tr., 804 N.W.2d at 89 (quoting Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974)). If denied, the resisting party must object at the time the evidence is offered at trial to preserve a challenge to the evidence on appeal. Twyford, 220 N.W.2d at 924. If sustained, the ruling “excludes reference or introduction of this evidence until its
As with most rules, there is an exception. “[I]f the ruling [on the motion in limine] reaches the ultimate issue and declares the evidence admissible or inadmissible, it is ordinarily a final ruling and need not be questioned again during trial.” State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) (quoting State v. O‘Connell, 275 N.W.2d 197, 202 (Iowa 1979) (en banc)). The ruling on Thoren‘s motion in limine left no question about its finality, concluding: “[T]he State will be allowed the opportunity to present evidence of prior incidents of unwanted sexual touching during massages.” The district court reaffirmed its ruling in response to Thoren‘s motion to reconsider and strike the identified witnesses: “The State‘s proposed witnesses may offer testimony within the parameters of that [prior] ruling.” The ruling on the motion in limine preserved the evidentiary issues without the need for objections during trial.
IV. Analysis.
We consider two evidentiary issues on appeal: (1) the admission of evidence from the Board investigation as a violation of
A. Board Investigation. Thoren claims the district court committed reversible error by admitting evidence about the Board‘s investigation that led to the loss of his massage license. Tony Alden, the Board‘s administrator, testified
Thoren contends this evidence should have been excluded as unduly prejudicial under
Evidence is relevant when “it has any tendency to make a fact more or less probable than it would be without the evidence[] and . . . [t]he fact is of consequence in determining the action.”
While the different standards do not necessarily make evidence from the Board‘s investigation irrelevant, we have cautioned that introducing professional standards with lower burdens of proof in a criminal trial creates a significant risk of prejudice. See Buman, 955 N.W.2d at 221. In Buman, a nurse was charged with wanton neglect of a healthcare facility resident and the jury received evidence and instructions about the definition of accountability in the nursing
According to the State, evidence from the Board investigation is probative because it “makes it more likely that Thoren committed sexual abuse when he touched the victim in the case at bar.” In other words, it provides propensity evidence.
The State asserts that the evidence was also relevant to show that Thoren had surrendered his massage license. This might have been a valid purpose for introducing some evidence from the Board‘s investigation—if Thoren‘s license to perform massages was somehow relevant to the criminal charges against him.
The court of appeals found the evidence relevant to help show that Thoren “should have been aware of the line between proper and improper touching during a massage as a result of the prior sanction,” but we disagree that this is a proper purpose. By that reasoning, the state would be generally permitted to show evidence of prior convictions in order to demonstrate that the defendant “should have been aware” of the line between lawful and unlawful conduct. Nobody suggested or argued that Thoren was unaware of the proper line between proper and improper touching.
On the other side of the scale, the potential prejudice from the evidence about the Board‘s investigation is quite high. Because administrative agencies are arms of the state, there is a risk that juries will treat agency findings as official, state-sanctioned results. Id. at 537–38 (“[W]e see a real danger the jury will be unfairly influenced by that agency finding, which gives the ‘imprimatur’ of a purportedly unbiased state agency on a conclusion that Huston was guilty of child abuse.“). Allowing the State to introduce administrative findings as
In light of these concerns, the use of evidence from the Board‘s investigation to enhance the credibility of the witnesses and the victim created a substantial risk of unfair prejudice. See Huston, 825 N.W.2d at 537 (“In child abuse cases, much evidence will be ‘at least somewhat prejudicial. Exclusion is
In making this determination, we take guidance from our prior decision in State v. Huston, 825 N.W.2d 531. There we held it was reversible error in a child endangerment prosecution to allow evidence that the department of human services had investigated and issued a founded report of child abuse against the defendant. Id. at 539–40. We reasoned there was a real danger that the jury would be unfairly influenced by this finding. Id. at 537–38. Similar concerns exist here. The women who complained to the Board appeared at trial and testified. Thus, to the extent their testimony was relevant and that relevance was not outweighed by the danger of unfair prejudice (which we take up next), there was no need to introduce evidence about the Board‘s investigation. The jury could evaluate those incidents based on the testimony of the women involved.
While relevant evidence is generally admissible unless its prejudice outweighs its probative value, see
(1) Prohibited use. Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted uses. This evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Notwithstanding
One way to think of rule 404(b)(2)‘s list is as circumstances where we have concluded that evidence of past acts might be presented to the jury in a way that will direct the jury away from the improper propensity inference that rule 404(b) is designed to protect against. . . . [R]ule 404(b)(1) maintains that such an inference would be improper. But we nevertheless believe that when prior-acts evidence is introduced for another purpose under rule 404(b)(2), we can trust the jury to maintain its focus on the permissible, non-propensity-based inference.
Given the risk of improper use of prior acts evidence, we require the district court to engage in a three-part analysis when considering its admissibility. State v. Putman, 848 N.W.2d 1, 8–9 (Iowa 2014). The court must first “determine whether the evidence is relevant to a legitimate, disputed factual issue.” Id. at 9. Second, the evidence must provide “clear proof” that the defendant engaged in the act. Id. Mere speculation or hearsay is not enough, but “[t]estimony of approximately twenty-three states and the District of Columbia follow some form of the ‘lustful disposition’ exception created either by judicial application or legislative codification.”). The views supported by those jurisdictions are contrary to our holding in Cox, and we do not consider them.
To satisfy the first element, the party introducing the evidence must “articulate a tenable noncharacter theory of logical relevance” between that evidence and a legitimate, disputed factual issue. Id. at 28 (quoting Edward J. Imwinkelried, The Use of Evidence of an Accused‘s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 585 (1990)); cf. State v. Reynolds, 765 N.W.2d 283, 290 (Iowa 2009) (“It is generally impossible to rule on the admissibility of prior bad acts before trial because their admissibility is so contingent on what ‘legitimate issue[s] [are] in the case.‘” (alterations in original) (quoting Sullivan, 679 N.W.2d at 25), overruled on other grounds by Alcala v. Marriott Int‘l, Inc., 880 N.W.2d 699 (Iowa 2016)). Although not all-inclusive,
Here, the State generally identified motive, intent, and lack of mistake or accident to support admission of the prior bad acts evidence. The district court and the court of appeals both recited the same litany of noncharacter purposes for the prior acts evidence without addressing how each was actually at issue in
1. Intent or motive.
Although the district court found the testimony was probative of Thoren‘s intent and motive, it failed to first address whether intent or motive was actually at issue. See State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004) (“It is first essential to identify whether intent was at issue in the case.“); Sullivan, 679 N.W.2d at 25 (requiring evidence be relevant “to a legitimate issue in the case other than a general propensity to commit wrongful acts” (emphasis omitted)). We begin our analysis there.
While they are often lumped together, motive and intent are not merely synonyms for the same concept. “Motive is the impetus that supplies the reason for a person to commit a criminal act.” Putman, 848 N.W.2d at 10 (emphasis omitted) (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein‘s Federal Evidence § 404.22[3], at 404-119 to -120 (Joseph M. McLaughlin ed., 2d. ed. 2014)). Although motive is rarely an element of an offense, prior bad acts may be relevant to provide context and help explain why the defendant committed the charged acts. In State v. Richards, 809 N.W.2d 80, 92 (Iowa 2012), evidence of the defendant‘s drinking problem and his ex-wife‘s pressure for him to stop provided “a reason why Richards would have killed his ex-wife to whom he had recently become reengaged.” In State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010), evidence of the defendant‘s desire to “get back at” his sister helped explain, or provide a motive, for why he stole her
But evidence of prior inappropriate sexual contact with other clients does not help explain Thoren‘s motive in sexually abusing L.R. Unlike Richards and Barnes, the fact that Thoren had previously inappropriately touched other massage clients has no bearing on his relationship with L.R. Nor do Thoren‘s past abuses give him a reason for later sexually abusing L.R. In this context, when the state offers evidence of prior sex acts to prove motive, it is really offering it to prove intent without showing that intent is actually at issue. Used in this way, the testimony shows only that Thoren has a generalized motive to sexually abuse his massage clients and so his motive when treating L.R. was to sexually abuse her. This rationale overgeneralizes the relevancy of motive to a criminal prosecution, disguising what is really just propensity evidence. “The motive for [sexual assault] crimes [is] obviously and inherently sexual, so any purported use to that end [i]s pretextual or inadequate.” Jackson v. Commonwealth, No. 2019-SC-0597-MR, 2021 WL 2618168, at *7 (Ky. June 17, 2021) (Minton, C.J., concurring in result only).4 The testimony should not have been admitted to
The State can offer evidence from Thoren‘s former clients to prove intent only if Thoren‘s intent is a legitimate disputed issue the jury needs to decide. Intent can be at issue when it is a disputed element of the crime. In State v. Elston, 735 N.W.2d 196, 200 (Iowa 2007), evidence that the defendant viewed pornographic images of prepubescent girls was probative of his intent where he was charged with indecent contact with a child. See Id. But that charge required the state to prove the defendant touched the victim “for the purpose of arousing or satisfying the sexual desires of either [himself or A.E.]” under
Although the jury was also instructed on the lesser included offense of assault with intent to commit sexual abuse, so that intent was an element, intent still needs to be disputed. Intent is often a disputed issue for assault with intent to commit sexual abuse—essentially an incomplete sex abuse crime—where the state must prove the defendant had the specific intent to commit a sex act even
Yet, the elements of a charged offense do not automatically become legitimate, disputed factual issues in a case. We have cautioned that “[e]vidence of an unconnected prior crime is always evidence of propensity and never evidence of a specific intent to commit the crime charged.” Taylor, 689 N.W.2d at 128 n.6 (quoting Sullivan, 679 N.W.2d at 26). Federal courts have recognized as much in allowing very similar evidence under
Because many crimes require some showing of mens rea, admitting prior bad acts testimony every time a charge includes some notion of specific intent would eviscerate
Although the lesser included offense of assault with intent to commit a sex act was instructed to the jury, the State made no effort to prove intent at trial and Thoren raised no defenses about intent. Intent and motive do not become controverted issues at trial simply because a lesser included offense has some mens rea element. See State v. Gibson, 52 P.3d 339, 346 (Kan. Ct. App. 2002) (“The crucial distinction in admitting evidence of other crimes . . . on the issue of intent is not whether the crime is a specific or general intent crime, but whether the defendant has claimed that his or her acts were innocent.” (citation
2. Lack of accident.
The State also argues the former clients’ testimony helped prove that Thoren did not accidentally touch L.R. and that he had no therapeutic reason to touch her vaginal area. Prior bad acts evidence can be admitted to show the touching or assault was not accidental. See Taylor, 689 N.W.2d at 125 (citing Stewart v. State, 730 So. 2d 1203, 1234 (Ala. Crim. App. 1997)). Accident is at issue when a defendant claims he touched intimate parts of the victim‘s body either accidentally, such as while playing, or for a legitimate reason, such as bathing or giving a medical treatment to a child. See, e.g., United States v. Mosquito, 532 F. Supp. 3d 1074, 1080 (E.D. Okla. 2021) (allowing evidence of prior incidents under
But Thoren never argued that he accidentally touched L.R. or that he touched her vaginal area for therapeutic purposes. Cf. Elston, 735 N.W.2d at 200 (concluding evidence defendant had accessed pornographic pictures of young girls was especially probative after defense attorney asked child victim on cross-
3. Credibility.
The State, district court, and court of appeals also considered the former clients’ testimony relevant to credibility on the theory that evidence of similar inappropriate actions in similar settings is important in a he said, she said case because it bolsters the victim‘s credibility and makes it more probable that the defendant is being dishonest. But we have rejected use of prior bad acts evidence when used solely to bolster the victim‘s credibility. See Mitchell, 633 N.W.2d at 300 (“If the State is allowed to prevail on its theory that there is an independent relevancy to bad-acts evidence for credibility purposes, this doctrine could be invoked in nearly every criminal case.“). Allowing a jury to consider the evidence for credibility purposes is essentially allowing it to use it for propensity purposes—he did it before so he must be lying about not doing it now. Prior bad acts evidence cannot be used solely to bolster the victim‘s credibility, especially in a he said, she said case. Id.
Although not argued on appeal, we briefly address two other arguments made by the State below—that the prior acts could be admissible to show either Thoren‘s modus operandi or his plan to use his position as a therapist to sexually abuse his clients. See State ex rel. Dickey v. Besler, 954 N.W.2d 425, 432 (Iowa 2021) (holding we may affirm on any basis urged below); In re M.W., 876 N.W.2d 212, 221 (Iowa 2016) (recognizing our obligation to affirm where any proper basis exists to do so).
“Modus operandi is ‘a distinct pattern or method of procedure thought to be characteristic of an individual criminal[ ] and habitually followed by him’ that is typically relevant to prove identity or lack of consent.” Cox, 781 N.W.2d at 770 (alteration in original) (quoting State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988) (en banc)); see also Putman, 848 N.W.2d at 11 (“To permit the inference that similar acts establish the same person committed both acts, we have required that the other acts must be ‘strikingly similar’ or of a ‘unique nature.‘” (quoting In re J.A.L., 694 N.W.2d 748, 753 (Iowa 2005))). But neither identity nor consent was at issue here. “[T]o expand modus operandi to all similar crimes without requiring that they be offered to demonstrate a legitimate issue would simply admit prior bad acts to show propensity.” Cox, 781 N.W.2d at 770.6
“Common scheme or plan means more than the commission of two similar crimes by the same person.” Id. at 769 (quoting State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971)). “Although not an element of an offense, plan suggests mental preparation and a decision to go forward with criminal activity. The physical acts accompanying the plan must bear some relationship to completion of the larger offense.” 7 Laurie Kratky Dorè, Iowa Practice Series Evidence § 5.404:6, at 274 (2018-19 ed. 2018) [hereinafter Dorè]. “Evidence of other crimes should never be admitted when it appears that the defendant committed them wholly independent of the one for which he is then on trial. There must be some connection between the crimes.” Cox, 781 N.W.2d at 769-70 (citation omitted) (quoting Wright, 191 N.W.2d at 641).
Although some jurisdictions broadly apply the common scheme or plan basis for allowing prior acts evidence, see 22B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5252, at 265 (2017) [hereinafter Wright & Graham] (noting the danger when courts read “plan” in
5. Lack of victim‘s mistake.
Whether lack of mistake was a legitimate, disputed issue at trial is a closer call. Mistake usually arises in the context of the defendant‘s mistake—was the defendant‘s conduct the result of a mistake rather than criminal behavior. See, e.g., United States v. Tanner, 61 F.3d 231, 237 (4th Cir. 1995) (witness‘s testimony that pharmacist illegally refilled her prescriptions over five year period was relevant to rebut claim of mistake in prosecution for selling prescription drugs without a valid prescription); Dean v. Sanders County, 204 P.3d 722, 728 (Mont. 2009) (evidence of employee‘s marijuana use and connection to known drug dealer‘s marijuana business
But
Thoren‘s theory at trial was that L.R. imagined he touched her vaginal area during the Reiki therapy when in fact he never touched below her belly button. Both sides called expert witnesses at trial to discuss Reiki therapy and the possibility of experiencing “phantom touches” during a Reiki session. According to witnesses from both the State and Thoren, clients often feel a sensation of being touched during Reiki treatments in places where no physical contact has occurred. This testimony was essential to Thoren‘s defense that he did not touch L.R. below her belly button and that she imagined the rubbing of her vaginal area. Given the significant trial testimony devoted to describing Reiki treatment and phantom touches, whether L.R. mistakenly believed that Thoren touched her vaginal area was a legitimate and disputed issue at trial.
With lack of mistake at issue, we must determine whether the testimony from Thoren‘s five former clients was relevant. Evidence is relevant if “it has any
Even when prior bad acts may be relevant to a legitimate and disputed factual issue at trial, we are cautious to only allow such evidence that is both “relevant and necessary.” Cox, 781 N.W. 2d at 768. In Koo, the court allowed evidence from two former patients who described details similar to those described by the victim, including that the defendant taped the examining sheet to an overhead lamp so they couldn‘t see what he was doing, giving credence to the victim‘s similar story. Id. at 100-01. We recognize that the testimony from Thoren‘s former clients differs from his abuse of L.R. in some significant ways. The former clients testified they were inappropriately touched during a traditional massage that necessarily involved direct physical contact. L.R. claimed she was abused during a Reiki session, which, as described by witnesses presented by both parties, differs from the type of physical contact received during a traditional massage. The former clients were all unclothed for their massages, while L.R. was fully clothed. The disputed issue is whether L.R. imagined the contact by experiencing phantom touching, which was not an issue for the former clients who were clearly touched. In addition, the events were not close in time, spanning a period of nearly ten years.
We nonetheless find the evidence relevant given the unique nature of this sexual abuse case involving significant evidence about alternative healing modalities and phantom touches. Thoren claimed that L.R. imagined the physical touching she testified she felt—even claiming L.R. stated she
Having concluded the evidence was relevant to a disputed issue, we next determine whether its “probative value is substantially outweighed by the danger of unfair prejudice to the defendant.”8 Sullivan, 679 N.W.2d at 25. We consider a number of factors, including:
the need for the evidence in light of the issues and the other evidence available to the prosecution, whether there is clear proof the defendant committed the prior bad acts, the strength or weakness
of the evidence on the relevant issue, and the degree to which the fact finder will be prompted to decide the case on an improper basis.
Putman, 848 N.W.2d at 9-10 (quoting Taylor, 689 N.W.2d at 124).
“‘Weighing probative value against prejudicial effect is not an exact science,’ so ‘we [generally] give a great deal of leeway to the trial judge who must make this judgment call.‘” Id. at 10 (quoting State v. Newell, 710 N.W.2d 6, 20-21 (Iowa 2006)). Here, the district court made its call before trial in its limine ruling at a time when it lacked a full appreciation of the evidence that would be presented at trial. Whether prior bad acts evidence should be admitted is a fact-specific determination that should generally be made within the context of the other evidence presented at trial when the district court can adequately weigh the need for the evidence. See Reynolds, 765 N.W.2d at 290. We caution district court judges to conduct their balancing analysis at a point when they have all the relevant evidence to ensure they understand the probative value of the offered evidence and its prejudicial effect can be fully appreciated.
In addressing the need for the evidence, we note that the State put on its own witness experienced in Reiki therapy as part of its case-in-chief, and the defense put on two Reiki practitioners as well as two of Thoren‘s current clients who had received Reiki and craniosacral treatments from him, describing the phantom touching Thoren claimed L.R. experienced. L.R., whose eyes were covered, admittedly had to rely on her other senses in claiming that Thoren physically rubbed her vaginal area with his hand—a necessary element of the sex abuse charge. For the most part, testimony from the former clients was relatively short and to the point and focused on how Thoren inappropriately
However, two witnesses testified beyond the scope of what we have found to be the relevant purpose for the evidence, that is, whether L.R. might have been mistaken about what she felt. Thoren‘s sister-in-law, S.T., testified about a massage she received from Thoren in his home in 2009, nine years before the events for which Thoren was convicted. In addition to testifying that he used a vibrating machine directly over her clitoris, she also testified about how Thoren‘s actions violated the trust she had in Thoren as her brother-in-law and the damage it did to their relationship. The facts that S.T. had a personal relationship with Thoren, received a message in his home rather than in a clinical setting, and lost trust in her brother-in-law take S.T.‘s testimony well beyond the limited purpose for which the prior acts evidence was relevant to this case.
Another former client, M.L., testified that during a massage in 2012 Thoren massaged farther up the side of her breast than was appropriate and that he was panting and breathing heavy while doing so as if he was sexually aroused. Whether or not Thoren was panting and aroused has no relevance to whether L.R. felt Thoren‘s hand or experienced phantom touching. This testimony was not needed to support the proper purpose for the evidence but risked giving the jury an improper basis on which to decide the case. See Putman, 848 N.W.2d at 9-10 (considering the strength or weakness of the prior act
On balance, the probative value of the testimony from the other three former clients was not substantially outweighed by the danger of unfair prejudice to Thoren, and the district court did not abuse its discretion in admitting their testimony as relevant to the issue of whether L.R. was mistaken. See Sullivan, 679 N.W.2d at 25.
V. Harmless Error.
We next determine whether the district court‘s errors are reversible. When a district court commits a nonconstitutional error by admitting evidence it should have excluded, we do not reverse the defendant‘s conviction if the error was harmless. The test for harmless error “is whether the rights of the objecting party have been ‘injuriously affected by the error’ or whether the party has ‘suffered a miscarriage of justice.’ ” State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008) (quoting Sullivan, 678 N.W.2d at 29). Overwhelming evidence of the defendant‘s guilt can make the error harmless. Id. at 210. “We presume prejudice and ‘reverse unless the record affirmatively
Our review of the trial proceedings convinces us that the district court‘s errors were not harmless. Although some of the evidence about Thoren‘s prior acts was admissible to rebut Thoren‘s theory that L.R. was mistaken about what she felt, the district court‘s failure to identify the specific purpose for which the evidence could be used prejudiced Thoren. First, it allowed evidence about the Board‘s investigation and testimony from S.T. and M.L. that went beyond the specific issue to which the prior act evidence was relevant. Second, it allowed the State to use even the properly admitted evidence beyond its limited purpose of rebutting Thoren‘s theory that L.R. experienced phantom touching. The district court painted with too broad a brush in ruling that all of the evidence could come in for the purposes of showing intent, motive, or lack of accident or mistake. The definitive pretrial ruling allowed the State to begin its case-in-chief with evidence about the Board‘s investigation that led Thoren to surrender his massage license followed by testimony from the five former clients. Putting “the effect of this evidence . . . in[to] perspective,” Rodriquez, 636 N.W.2d at 243, this is not a case where the improperly admitted evidence had minimal effect or was downplayed by the State, cf. id. (“The State did not elicit great detail about the prior assaults and spent a relatively small amount of time on this line of questioning.”). Rather, the improper evidence set the stage for the State‘s he said, she said case by painting Thoren as a bad actor based on events unrelated to the charged crime, bolstered by the Board‘s investigation, before even presenting the actual facts of
The district court was tasked with determining the specific legitimate issues to which the evidence was relevant and limiting its use to those issues. Its failure to do so fell far short of the “model of caution” we have recognized in cases involving
Finally, the strength of the State‘s case does not make the errors harmless. The evidence against Thoren was not overwhelming where his conviction turned on whether the jury believed L.R.‘s version of events or Thoren‘s. See State v. Redmond, 803 N.W.2d 112, 127 (Iowa 2011) (holding evidence of guilt was not overwhelming for purposes of harmless error review where “P.M. testified to one version of the events on that evening; Redmond to another”). The district court‘s
VI. Disposition.
We vacate the court of appeals decision, reverse Thoren‘s conviction, and remand the case for a new trial consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
Christensen, C.J., and Appel and McDermott, JJ., join this opinion. Waterman, J., files an opinion concurring specially, in which Mansfield, J., joins. Mansfield, J., files an opinion concurring specially, in which Waterman and McDonald, JJ., join.
WATERMAN, Justice (concurring specially).
I join part IV.A of the majority opinion and concur in the result and join Justice Mansfield‘s special concurrence as to part IV.B. I write separately to raise an additional reason that evidence of a practitioner‘s voluntary settlement with a licensing board should be inadmissible in a subsequent criminal proceeding arising from the same or similar misconduct: Iowa‘s strong public policy to encourage settlements as reflected in
Our court today correctly holds that the district court abused its discretion in this criminal trial by admitting into evidence Kevin Thoren‘s voluntary surrender of his massage license and related documents from the Iowa Board of Massage Therapy. A contrary holding would deter other licensed professionals from voluntary settlements surrendering their license to practice if that settlement would be admissible into evidence against them in related criminal proceedings. Settlements with licensing boards should be encouraged, not discouraged. For this additional reason, I join the court‘s opinion requiring a retrial of the criminal charge without evidence of Thoren‘s settlement with the licensing board.
Mansfield, J., joins this special concurrence.
MANSFIELD, Justice (concurring specially).
I join part IV.A of the majority opinion. I concur in the result as to part IV.B. Specifically, I agree with the majority that the district court did not abuse its discretion in admitting the prior acts involving L.K., J.J., and A.N. but abused its discretion in admitting the prior acts involving S.T. and M.L. However, I believe the majority‘s analysis in IV.B confuses an important evidentiary issue. Therefore, I specially concur.
I. The Majority‘s Mistake About Mistake.
According to the majority, Kevin Thoren‘s prior acts of sexual misconduct against L.K., J.J., and A.N. are admissible only to prove that L.R. didn‘t make a mistake in claiming Thoren sexually assaulted her—i.e., to prove that the alleged victim‘s testimony is correct. But how is this any different from bolstering the victim‘s credibility, a ground that the majority states is invalid? These are two sides of the same coin.
Analytically, we need to back up and consider how the other incidents involving L.K., J.J., and A.N. might be relevant to prove L.R. didn‘t err in her testimony. They are relevant because they tell us something about Thoren, specifically that Thoren when performing therapeutic procedures on female clients has repeatedly touched them sexually against their wishes. And why is this significant? Because it tells us that Thoren derives gratification from this kind of activity and therefore is more likely to have engaged in it with L.R. In short, the underlying reason why the other incidents are relevant is to show
Again, to the extent prior bad acts by Thoren could demonstrate that L.R. didn‘t make a mistake, they do so by showing that Thoren had a tendency to do the same thing to other women in the same position. That is 100% propensity evidence, unless you treat it as bearing also on the defendant‘s motive and intent. Consider the following hypotheticals:
- Mr. X is stopped by a police officer for erratic driving. He refuses the Datamaster but is prosecuted for OWI. The officer testifies that he smells an alcoholic beverage on the defendant‘s breath and that the defendant was driving erratically, which the defendant denies. Can the state introduce evidence of the defendant‘s prior OWI‘s to prove “lack of mistake” by the cop in his testimony?
- An informant who is a heavy drug user testifies that he bought drugs from Ms. Y. Can the state introduce evidence of Ms. Y‘s prior drug convictions to show “lack of mistake” by the informant—e.g., to rebut the claim that the informant was a heavy drug user and not a reliable witness?
The answer to these questions is, “Clearly no.” Evidence of the defendant‘s prior acts is not admissible to prove absence of mistake per se by a complaining witness. Those acts are only admissible when the evidence is able to demonstrate something about the defendant‘s motive, intent, plan, etc. at the time of the charged crime.
The evidence that this Defendant rendered four other women, whom he had relationships with, unconscious with drugs and then raped them is not admitted to establish that the Defendant has a criminal disposition or a bad character; it is admitted to show that he committed the charged offense pursuant to the same design he used in committing the other four acts of misconduct. The evidence is admitted to show plan, not propensity. In this case, the Defendant‘s history of drugging women, with whom he had a personal relationship, in order to rape them while they were unconscious or confused and disoriented evidences a larger design to use his special expertise with drugs to render them unable to refuse consent to sexual intercourse. A rational trier of fact could find that the Defendant was the mastermind of an overarching plan.
Id. The legal analysis in the case from the Indiana Court of Appeals is pretty conclusory and, I would suggest, out of date. See Wages v. State, 863 N.E.2d 408, 412 (Ind. Ct. App. 2007) (noting that “[t]his 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’ ”) (quoting Robert L. Miller, Jr., Courtroom Handbook on Indiana Evidence 80 (2007)). The California Court of Appeal case involves a very different situation where the defendant brought up prior conduct of the victim—i.e., her alleged accidental falls resulting in injury. Deeney, 193 Cal. Rptr. at
The predominant view is that
Thus, I believe lack of victim mistake is an unnecessary legal distraction, without support in logic or precedent.
While I do not think absence of victim mistake is a basis for admissibility under
Thoren‘s defense was that he did not touch L.R. in any private area, and that his purpose was never to give L.R. “sexual energy” but merely to give her “energy.” For example, Thoren testified,
I asked her a couple questions. Again, typical, when somebody is having a session, but just, how are you doing, what are you experiencing, what are you feeling, and she didn‘t answer. And so then I asked again. And she didn‘t answer. So I just dropped it, because I thought, well, she‘s just in a really relaxed state, doesn‘t want to answer. And then she made a noise, kind of a groan, and said that was the deepest orgasm I‘ve ever had. There was nothing - anyway.
Q. So [L.R.] said that to you?
A. Yes.
Q. Was there anything that you said inappropriate that went before that?
A. No, sir.
Q. And what was your response to [L.R.] saying that?
A. I immediately pulled my hands away, and I said that was not the purpose or intent, I believe is what the word I used. I may have reacted a little too strongly in that way.
Of course, using evidence of past misconduct to help prove the defendant committed the charged crime is fraught with danger. If the prior misconduct provides only weak evidence of the defendant‘s motive and intent, there is a grave risk that its legitimate use will be outweighed by its improper effects. Most trial judges recognize this point intuitively. They therefore base
We recognized this point in State v. Putman, a case where identity was at issue and where we found that evidence of the defendant‘s possession of two pornography videos of very young children being raped was admissible to prove that the defendant had raped a very young child. 848 N.W.2d 1, 12–13 (Iowa 2014). We emphasized, “There is undeniable similarity between the two videos and the act for which Putman was on trial.” Id. at 12.
The most analogous case factually to the present case is State v. Allen, 565 N.W.2d 333 (Iowa 1997). In a prosecution of a hypnotherapist for having sexual
We believe the testimony of Westphal tended to show a pattern or scheme of conduct in connection with Allen‘s behavior. Both Westphal and Frederick found Allen‘s listing in the yellow pages of the telephone directory and sought help from him for their problems—Westphal for weight loss and Frederick for unexplained physical symptoms. Allen initiated sexual contact with both women while they were in his office for treatment. The similarities between the two situations were relevant to establishing such factors as motive, intent, opportunity, and plan. See
Iowa R. Evid. 404(b) .
Other courts follow a similar analytical approach focusing on the similarity of the prior conduct on the ground that more similar conduct is more probative of motive, intent, or plan. See, e.g., People v. Gonzales, 377 N.E.2d 91, 100 (Ill. App. Ct. 1978) (“The attacks on the other women and the rape of the complainant bear significant similarities which rendered evidence of the former relevant as proof of the existence of a common scheme or design, and modus operandi.”); Young v. State, 106 So. 3d 775, 780 (Miss. 2012) (en banc) (“[T]he trial court here did not abuse its discretion by admitting evidence of Young‘s previous sexual abuse of another prepubescent female family member, because the evidence was admissible for noncharacter purposes. Those purposes include establishing that Young‘s motive was a ‘seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles’ and that both assaults were part of a ‘common plan, scheme, or system’ that involved Young
We need to apply that screen here, as well as the “clear proof” and “need for the evidence”
Considering the similarity of the other incidents, the timeframe in which they occurred, the strength of the proof of those incidents, the need for the evidence, and the other
Waterman and McDonald, JJ., join this special concurrence.
Notes
a. Prohibited uses. Evidence of the following is not admissible—on behalf of any party—to prove the validity or amount of a disputed claim:
(1) Furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim that was disputed on either validity or amount.
(2) Conduct or a statement made during compromise negotiations about the claim.
b. Exceptions. The court may admit this evidence for another purpose, such as proving a witness‘s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Notably,