Lead Opinion
Riсky Lee Putman was charged with one count of first-degree sexual abuse for allegedly performing a sex act on L.R., a two-year-old girl. Putman filed a motion in limine that sought to exclude evidence of child pornography found on his computer and other electronic devices. After an evidentiary hearing, the district court denied the motion in limine, with limitations. The district court allowed the State’s expert to testify at trial that child pornography was found on Putman’s computer and other electronic devices. However, it limited the State’s expert to testifying only to the file names of two videos. A jury convicted Putman, and he appealed, claiming the district court erred when it admitted the evidence of prior bad acts. The court of appeals affirmed. Putman sought further review, which we granted. For the reasons set forth below, we affirm his conviction.
I. Background Facts and Proceedings.
Around 6 p.m. on May 22, 2010, forty-one-year-old Ricky Putman came to the home of Lawrence and Holley Robbins in Arlington, Iowa, to spend time with the couple and their three children. One of the children was two-year-old L.R. After joining the family on a trip to a nearby park, Putman returned with the family to their home around 9 p.m. Shortly after the group returned from the park, Holley’s cousin, fifteen-year-old Alex, came to the house.
Back at the house, the adults drank beer, watched television, and listened to music while the children played. By midnight or 1 a.m., the Robbins children had fallen asleep. The two boys had fallen asleep on the couch, and L.R., wearing a blue dress and a diaper, was carried upstairs to her crib, which was located in a room just adjacent to the bedroom shared by Lawrence and Holley.
Holley spent some more time downstairs with Lawrence, Alex, and Putman before going upstairs to go to sleep. Putman followed Holley up the stairs, climbed into bed with her, and became sexually aggressive towards her. Holley got out of the bed, went downstairs followed by Putman, and told Lawrence and Alex what had just taken place. Holley demanded that Law
Putman did not leave. Around 4:80 a.m., at Lawrence’s suggestion, Putman went to sleep in Lawrence and Holley’s bedroom. Lawrence, after cleaning up the downstairs, went upstairs to cheek on L.R. in her crib. Lawrеnce did not notice anything unusual at that time. He also observed Putman sleeping in his and Holley’s bed. Lawrence then went downstairs and fell asleep on a chair. Lawrence awoke around 7 a.m. on May 23 when Alex’s mother, Marilyn Blackford, came to the house looking for Alex.
L.R. came downstairs around 8 a.m. L.R. was not wearing her diaper or the blue dress she had been wearing the previous night. Lawrence did not think this odd as L.R. had removed her own diaper on previous occasions. While Lawrence did notice some blood between L.R.’s legs, he believed she had merely scratched herself. Lawrence put a fresh diaper on L.R. and sat her on the couch. After L.R. cried for a bottle, Lawrence went upstairs to retrieve it from her crib. While he was upstairs, Lawrence exchanged greetings with Putman and noticed that Putman had blood on his shirt and on his hands. Lawrence believed Putman could have cut himself on a broken table beside the bed. Lawrence went back downstairs and fixed a bottle for L.R. Lawrence laid L.R. on the couch where she fell asleep, and he sat in a chair. Lawrence did notice that L.R. was lying awkwardly on the couch.
Shortly afterward, Putman came downstairs. Putman looked at the blood on his hands and clothes and asked Lawrence what had happened. Lawrence told Put-man he may have cut himself on the broken table next to the bed. L.R. awoke, looked at Putman, and moved towards Lawrence. Putman then put his shoes on and left the house.
Eventually Holley returned home. When she arrived, Lawrence was upset and shaking. He told Holley that he had to go, and he went to the home of Marilyn Blackford, Holley’s aunt, who lived a few houses away. While at Marilyn Black-ford’s house, Lawrence asked Marilyn and her boyfriend how a person would know if a child had been sexually molested. Meanwhile, while Lawrence was gone, Holley noticed bruising on L.R.’s face and neck, what she suspected to be bite marks on her ear, and blood on her chest and legs.
Lawrence returned home with Marilyn Blackford. After observing L.R., including opening up L.R.’s diaper, Marilyn Blackford instructed Lawrence and Holley to take L.R. to the hospital in Oelwein, and law enforcement would be contacted. The Robbins family went immediately to the hospital, and the Fayette County Sheriff was contacted.
After being examined at Mercy Hospital in Oelwein, it was determined that the injuries sustained by L.R. were too extensive to be properly treated there. L.R. was subsequently transferred to the University of Iowa Hospitals and Clinics for appropriate treatment. After examinations by pediatric physicians at the University of Iowa Hospitals and Clinics, they conсluded that L.R. had suffered vaginal penetration injuries. To repair those injuries, L.R. was taken to surgery and put
After its preliminary investigation to secure the scene and identify possible suspects, the sheriffs department began conducting interviews in the morning hours of May 23. A sheriffs deputy went to Put-man’s home in Arlington. There, the deputy found Putman, who appeared to have recently showered. Putman was advised of his Miranda rights. With Putman’s consent, the deputy began to collect evidence from the Putman home. It became apparent during the investigation that Putman had begun to launder some of his clothing. Ultimately seized from Putman’s home was a recently laundered shirt matching the description of the one Putman was alleged to have worn the previous night.
Putman was eventually arrested and charged by trial information with sexual abuse in the first degree, a class “A” felony. While in jail, Putman, who lived alone, asked a friend, Rodney Peterman, to go to his house and feed his cat. Peterman built computers as a side business and had built and sold Putman a computer and related electronic devices. Knowing the reason Putman had been arrested, Pеterman decided to see what was on Putman’s computer while he was at Putman’s house. On the computer, Peterman found what he suspected to be child pornography. Because of this discovery, and the fact that Putman still owed him money for the computer, Peterman took the computer, which contained a CD and an external hard drive. Peterman took these items to his parents’ house and called the sheriffs department. A deputy from the sheriffs department retrieved the computer, CD, and the external hard drive.
On another trip to feed Putman’s cat, Peterman took more items from Putman’s house. Among the items Peterman took was a box containing miscellaneous tattoo equipment that Peterman had given to Putman. Inside the box, Peterman also found a loose USB drive. Upon returning home, Peterman plugged this USB drive into his own computer. On the USB drive, Peterman found more disturbing materials, so he notified the sheriffs department and dropped off the USB drive at the sheriffs office. The computer and other electronic devices were later turned over to a unit within the Iowa Division of Criminal Investigation (DCI), the Internet Crimes Against Children Task Force. That unit performed a forensic evaluation of the computer and related electronic devices.
Before trial, Putman filed a motion in limine seeking to exclude evidеnce of prior bad acts. Putman asserted that any information obtained from his computer was not admissible, specifically identifying evidence of child pornography. The State also requested a ruling from the district court on the admissibility of the child pornography, citing motive and identity as potential issues in the case. The district court issued an order permitting the State to offer into evidence images of young child pornography seized from Putman’s computer, per rule 5.404(6) of the Iowa Rules of Evidence. The district court ruled that such evidence of prior bad acts was relevant to the issues of identity, motive, and related issues due to the fact the
An evidentiary hearing on Putman’s motion to reconsider was held. An investigator for DCI testified at the hearing regarding his investigation of the computer and other electronic devices. The DCI investigator examined the computer’s hard drive, external hard drive, the USB drive, and the CD and found thousands of photographs and over one hundred videos depicting child pornography. Contained within these vidеos, the DCI investigator discovered two titles of special note as they specifically referenced rapes involving a two-year-old child. The DCI investigator read into the record the two videos’ entire titles and confirmed the videos’ titles described the videos’ content.
The defense cross-examined the DCI investigator, drawing from him several points. First, the DCI investigator testified he was unable to determine whether the USB drive had ever been inserted into Putman’s computer. In addition, he was unable to conclude Putman’s computer had been used to copy files onto the USB drive. Next, regarding the CD, the DCI investigator could not determine that its contents had been placed on the disk using the computer. The DCI investigator also testified he was unsure whether the computer, which had multiple user accounts, was password protected. He acknowledged his investigation could not reveal who downloaded the files onto the computer or other devices. Finally, he conceded that if the computer’s internal clock were altered, then a file’s time stamp would be inaccurate. He knew of no way, however, to determine whether the computer’s clock was accurate at the time a file was downloaded.
At the conclusion of the hearing, the State agreed not to make any mention оf the child pornography in its opening statement to the jury and agreed not to display any of the seized child pornography during trial. After the hearing, the district court denied Putman’s motion, finding the State had established Putman’s ownership of the computer, use of the computer, and the chain of custody for the evidence. The court also found the evidence relevant and not unduly prejudicial. Finally, the court bound the State to the agreements it made during the hearing, noting the court had “relied on them in making its ruling.”
At trial, the State called Peterman, who testified he built the computer for Putman and sold it to Putman. Peterman testified that when he sold the computer to Putman it did not contain child pornography. Pe-terman also testified regarding his discovery of the child pornography on Putman’s computer and other electronic devices. The DCI investigator also testified. He explained his forensic investigation into Putman’s computer and the electronic devices. He also testified he found child pornography on all four items that had been taken from Putman’s house. He was allowed to mention only the two video titles, and he did not read the entire video titles to the jury, as he had at the hearing. The DCI investigator testified the video titles matched their content, estimating the girls in the videos to be two or three years of age. No pоrnographic images were shown to the jury. On cross-examination, the investigator testified he could not determine who was operating the computer or other electronic devices at the time when a file was generated.
Putman was convicted of one count of first-degree sexual abuse. Putman appealed on several grounds, one of which was
II. Issue on Further Review.
On further review, we have discretion to consider all the issues raised on appeal. State v. Becker,
III. Standard of Review.
We review evidentiary rulings regarding the admission of prior bad acts for abuse of discretion. State v. Cox,
IV.Discussion.
A. Iowa Rule of Evidence 5.404(6 ). This appeal turns on the admissibility of evidence of prior bad acts. Under Iowa Rule of Evidence 5.404(6), evidence of prior bad acts is not admissible for purposes of proving character: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.” Iowa R. Evid. 5.404(6). The evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. The rule “exelude[s] evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer hе or she committed the crime in question.” State v. Rodriquez,
In determining whether to admit prior-bad-acts evidence, we rely on a three-step analysis.
There also “must be clear proof the individual against whom the evidence is offered committed the bad act of crime.” Sullivan,
If the evidence is relevant to a legitimate and disputed factual issue, and the clear-proof requirement is satisfied, the court must determine whether the evidence’s “probative value is substantially outweighed by the danger of unfair prejudice to the defendant.” Sullivan,
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*10 will be prompted to decide the case on an improper basis.
Taylor,
B. Relevancy. Putman first attacks the purpose for which the two video titles were admitted. He argues the evidence served no purpose other than to prove he acted in conformity with his character. In response, the State insists the evidence served to show Putman’s motive and identity as the perpetrator, which it claims, were disputed factual issues in the case.
The State advances motive as its first noncharacter purpose for admitting the child pornography video titles. “Motive is the impetus that supplies the reason for a person to commit a criminal act.” 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 404.22[3], at 404-119 to 404-120 (Joseph M. McLaughlin ed., 2d. ed.2014); see also State v. Richards,
The perpetrator’s motive for sexually abusing L.R. was not a legitimate or disputed issue in this case. The State was not required to prove Putman’s state of mind as an element of the crime, and Putman’s state of mind at the time of the crime was not put in issue. See Newell,
The State further advanced identity as a noncharacter purpose for admitting the child pornography evidence. It is thus essential to decide whether identity was at issue in this case. Cf. Taylor,
In cases in which evidence of prior bad acts is offered for the purpose of proving identity, we have imposed a more demanding test than the general relevancy test. See, e.g., State v. Butler,
We acknowledge the difference, in broad terms, between Putman’s act of allegedly possessing child pornography and the act for which he was оn trial, sexual abuse of a child. Strictly applying the requirement of similarity between prior acts and the act for which the defendant was on trial, one court noted the “wide gulf’ separating “the act of possessing written descriptions or stories about criminal conduct from the act of committing the offenses described.” See People v. Shymanovitz,
We have evaluated similarity by comparing the contents of materials possessed by a defendant to a criminal act committed by the defendant. See, e.g., Barrett,
In the other category are cases in which the acts are indeed strikingly similar. See Butler,
According to the DCI investigator’s report, which was admitted at the hearing on admissibility, Putman’s computer hard drive contained thousands of photographic images, some of which were images of child pornography. The USB drive contained thirty-five images and fifteen videos of child pornography, the external hard drive contained thousands of images and ninety-four videos of child pornography, and the CD found in Putman’s computer contained 645 images of child pornography. The videos and images show nude children and children engaged in sex acts. What is more, the external hard drive contained amateur photographs of a teenage girl taken with a digital camera. The photographs show a man, believed to be Putman, performing sex acts on the unconscious teen.
None of this evidenсe was presented to the jury. Indeed, evidence suggesting only a general preoccupation with child pornography may well have been inadmissible in this child sex abuse case. Cf. J.A.L.,
There is undeniable similarity between the two videos and the act for which Put-man was on trial. Like the video victims, L.R. was two years of age, although it is unclear whether Putman knew L.R.’s exact age. Further, L.R. was put to bed wear
C. Clear Proof. As his next point of contention, Putman insists the State failed to clearly prove he was responsible for downloading the two videos on his computer. As noted, proof of prior bad acts is clear if it prevents the jury from speculating or inferring from mere suspicion. See Taylor,
The State takes a different view. It argues there was clear proof Putman possessed the videos — the videos on Putman’s computer belonged to Putman, even if he did not download them. First, Peterman testified he built the computer for his friend Putman, and when he sold it to Putman, the computer did not contain any child pornography. In addition, although the computer and hardware were in Pe-terman’s possession before being given to the sheriffs department, he notified the sheriffs department soon after making the discoveries. Next, Peterman testified Putman lived alone at the time he was arrested, diminishing the likelihood the videos on Putman’s computer belonged to or were downloaded by someone else. Also, although Putman denied owning the videos on his computer, he never disputed owning the computer or the other electronic devices. Cf. State v. White,
First, many of our cases have evaluated the existencе of clear proof as part of the balancing process. See, e.g., Taylor,
We must next consider the need for the evidence that Putman possessed the two videos in light of the other available evidence and the issues in the case. See id. Because Putman denied that he committed the crime, the crucial issue in the case was the identity of the perpetrator, and as already noted, Putman’s possessing the two videos made it more probable he, rather than L.R.’s father Lawrence, sexually abused L.R. See Henderson,
We also consider the strength or weakness of the evidence on identity. See Taylor,
However, this does not end our analysis. We also must determine whether the probative value of this evidence “is substantially outweighed by the danger of unfair prejudice.” Iowa R. Evid. 5.403. Evidence is unfairly prejudicial if it has “ ‘an undue tendency to suggest decisions on an improper basis commonly, though not necessarily, an emotional one.’ ” Newell,
There is no question child pornography has “a strong tendency to produce intense
The district court narrowed the scope of the prior-bad-acts evidence in this case. Consistent with the district court’s ruling on the motion in limine, the State’s expert was allowed to mention that child pornography had been found on each of the electronic devices. He also testified as to the file names of only two videos which were strikingly similar to the sexual assault which occurred here. The jury was not shown any images from these two videos found on Putman’s computer or other electronic devices. The State was not allowed to describe the volumes of photographs and videos of child pornography found on the electronic devices. Nor did the State mention the two videos in its opening statement. Aside from the brief testimony, the State made no mention of the two videos until its rebuttal closing argument — after being brought up by Putman’s counsel. Even then, the State reminded the jury of the “very narrow purpose” for which it could use the evidence of the two video titles. The State thus carefully adhered to the district court’s narrowly tailored order.
To the extent any testimony exceeded the district court’s narrowly defined scope of permissible testimony, it was necessary to establish a context for the discovery of the two videos. Evidence that reveals the context of prior-bad-acts evidence is in some cases permissible. See id. Thus, Peterman testified about his initial discovery of the child pornography. The State’s expert testified that child pornography had been found on each of the devices provided to him. Though these references must factor into the balance, under the circumstances of this case, they are not alone sufficient to tip that balance in favor of excluding the evidence.
Finally, in addition to significantly limiting the testimony presented to the jury, the district court gave a limiting instruction informing the jury of the limited purpose for which the evidence could be used. See State v. Bayles,
V. Conclusion.
To be clear, not all evidence that a defendant possesses child pornography is admissible as prior-bad-acts evidence. Applying our long-standing analysis of the admissibility of prior-bad-acts evidence to the circumstances of this case, we hold the district court did not abuse its discretion when it admitted evidence that Putman possessed specific videos involving child sexual abuse through the admission of the video titles in his trial for first-degree sexual abuse. The evidence was relevant to the issue of the identity of the perpetrator, there was clear proof Putman possessed the two videos, and the evidence’s probative value was not substantially outweighed by the danger of unfair prejudice. Finding no abuse of discretion, we affirm Putman’s conviction.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Notes
. Initially, the deputy seized a different shirt that Putman represented he had been wearing the previous night.
. There has been persistent confusion in our cases about whether Iowa Rule of Evidence 5.404(6) requires clear proof that the person against whom the evidence is offered committed the prior bad act. In some cases, it has been suggested a showing of clear proof is required as an independent prong in the pri- or-bad-acts analysis, in addition to finding relevancy and weighing prejudice. In State v. Sullivan, we explained that clear proof and relevancy were the two "conditions” to be established before evidence could "be considered admissible.”
In other cases, however, we have evaluated whether there was clear proof as one factor in the multi-factored weighing process, not as an independent prong in the analysis. In State v. Reynolds, which followed Sullivan, we explained a court must determine whether the evidence is relevant to a disputed issue and whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice See
Some requirement of proof the actor against whom the evidence is offered committed the prior act is common. Many jurisdictions consider it as an independent analytical step. See, e.g., State v. Terrazas,
Still other courts take a slightly different view. In Huddleston v. United States, the United States Supreme Court explained the determination whether proof existed that the actor committed the prior act was subsumed under the relevancy prong of the prior-bad-acts test: "In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.”
After reviewing our cases and the diverse approaches of other jurisdictions, we con-elude the better approach is to require, as an independent prong in the prior-bad-acts analysis, "clear proof the individual against whom the evidence is offered committed the prior” act or crime. Jones,
Dissenting Opinion
(dissenting).
I respectfully dissent. I agree with the court’s analysis on the inadmissibility of the testimony that the police found child pornography on four items taken from Putman’s house and the reference to the two video titles that the witness read into the record for the reason this evidence does not go to motive. I part company with the court’s opinion because this evidence does not go to identity.
I reach this conclusion for two reasons. The first reason is the court is applying Iowa Rule of Evidence 5.404(6) as a rule of inclusion, rather than a rule of exclusion. The second reason is the caselaw does not allow a court to use the mere fact of possession of pornography to establish identity, no matter how similar the pornography is to Putman’s alleged act.
The court applies rule 5.404(6) as a rule of inclusion. In People v. Shymanovitz, 157 F.Sd 1154, 1159 (9th Cir.1998), abrogated by United States v. Curtin,
Criminal activity is a wildly popular subject of fiction and nonfiction writing — ranging from the National Enquirer to Les Miserables to In Cold Blood. Any defendant with a modest library of*17 just a few books and magazines would undoubtedly possess reading material containing descriptions of numerous acts of criminal conduct. Under the government’s theory, the case against an accused child molester would be stronger if he owned a copy of Nabokov’s Lolita, and any murder defendant would be unfortunate to have in his possession a collection of Agatha Christie mysteries or even James Bond stories. Woe, particularly, to the son accused of patricide or incest who has a copy of Oedipus Rex at his bedside.
Id. at 1159. The reasoning in Shymano-vitz is consistent with applying rule 5.404(6) as a rule of exclusion.
Ten years after Shymanovitz, the Ninth Circuit sat en banc in the case of United States v. Curtin,
In Iowa, we initially interpreted rule 5.404(6), our state equivalent to Federal Rule 404(b), as a rule of inclusion. See State v. McDaniel,
We have held that other-acts evidence can go to identity if the other acts are strikingly similar or of a unique nature. See In re J.A.L.,
The best argument the prosecutor can make for the admission of the video titles is that the video titles read in the record are similar or unique to the crime; thus, this evidence goes to identity. The problem with this argument is Iowa caselaw does not support the admissibility of these types of written material to show identity without another act or a plan. In J.A.L.,
A review of J.A.L.’s journal entries indicates J.A.L. was fascinated with suicide, death, and murder. The journal entries, however, do not offer any indication J.A.L. was preparing to place a bomb threat at the school. The entries do not contain any plans to place a bomb threat or to kill any of his fellow students.
Id. at 758.
Another case supporting the exclusion of these video titles is Barrett. There, the State charged the defendant with two counts of murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (1985). Barrett,
The district court admitted both journals into evidence, and the defendant was convicted. Id. at 185-86. On appeal, we determined the first journal was not ex-cludable under rule 404(6 ) because the defendant had, in fact, bought life insurance on one of the murder victims, and the journal dispelled the notion the defendant bought the life insurance for a legitimate reason. See id. at 188. However, we held the second journal was excludable under rule 404(6) because the writings were not similar to the modus operandi of the murders for which the defendant was tried. See id. at 189. We then reversed the convictions and remanded for a new trial. Id.
The lesson we learn from J.A.L. and Barrett is that mere writings do not in and of themselves make the writings admissible. There has to be some link between the material sought to be introduсed and the crime charged. In J.A.L., the juvenile’s journal entries do not support an inference he was responsible for falsely reporting the placement of an explosive device. See
The court’s opinion also relies on State v. Butler,
Here, we have no other act done by Putman. There is no connection between the videos or the сrime charged. Rather the alleged other act is merely possessing certain titles of child pornography that, on their face, appear to be similar to the crime.
Other states faced with similar facts would not let the video titles or pornography into the record. Kentucky is one such state. There, the Commonwealth charged a defendant with sodomy in the first degree committed on a boy under the age of twelve. Dyer v. Commonwealth,
The Supreme Court of Kentucky reversed the defendant’s conviction, finding the materials were inadmissible to profile the defendant as a pedophile. See id. at 652-54. In doing so, the court said, “We declare, unqualifiedly, that citizens and residents of Kentucky are not subject to criminal conviction based upon the contents of their bookcase unless and until there is evidence linking it to the crime charged.” Id. at 652.
The Supreme Court of South Carolina came to the same conclusion. See State v. Nelson,
Some states allow such materials to be admissible as the complete story of the crime if the defendant showed the objects to the child. E.g., State v. Ericson,
There is no showing Putman acted upon his fascination with child pornography at the time of the crime. Without that link, the court impermissibly allowed the jury to infer Putman was acting in conformity with this character trait when he committed the crimes with which he was charged. I would borrow a phrase from the Supreme Court of Kentucky and declare, un-qualifiedly, that citizens and residents of Iowa are not subject to criminal conviction basеd upon the contents of their bookcase unless and until there is evidence linking it to the crime charged.
Finally, the prosecutor did not limit her final argument to the two video titles the court held admissible in her final argument. Instead, she waited until her rebuttal argument and argued the child pornography on the defendant’s computer and on every single item taken from the defendant’s home linked him to the crime. By not limiting her argument to the two video titles and using in her argument the pornography found on the computer and other drives, she used the totality of the pornography for propensity rather than identity. Accordingly, I would reverse Putman’s conviction and remand for a new trial.
HECHT and APPEL, JJ., join this dissent.
Dissenting Opinion
(dissenting).
Although I join the dissent of Justice Wiggins because I am not persuaded Put-man’s possession of the pornographic materials constituted an “act” under Iowa Rule of Evidence 5.404(6), I write separately because I conclude the evidence should have been excluded for another reason. Even assuming only for the sake of analysis that the evidence was offered for the legitimate purpose of proving identity, I believe it should have been excluded because the danger of unfair prejudice attending its admission substantially outweighed its probative value.
The factors we consider in assessing the probative force of evidence in relatiоnship to the resulting danger of unfair prejudice are:
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.
State v. Taylor,
I. The State’s Need for the Evidence.
The victim in this tragic case was an infant who could not testify and identify the person who brutally injured her. Yet, I do not believe this fact weighs strongly in favor of admission of the challenged evidence. There was substantial evidence other than the pornography tending to link Putman to the crime. For example, there was evidence supporting a finding that Putman was the only adult who slept upstairs on the same level of the house where
It should be noted that even when the State’s need for the evidence is great, “the need for the evidence does not make the evidence more likely to prove that which it is offered to prove.” United States v. Stout,
II. Clarity of Proof the Defendant Committed the Prior Bad Acts.
The State presented clear evidence that Putman’s computer and related devices held a substantial quantity of pornographic images including two titles involving rape of infants. For the reasons stated in the dissent of Justice Wiggins, I am not persuaded Putman’s possession of pornography is an “act” within the meaning of rule 5.404(6). Accordingly, I shall not further address this factor here.
III. The Strength or Weakness of the Evidence on the Relevant Issue.
Although Putman’s possession of pornography including two titles involving rape of infants might suggest some positive correlation between Putman’s interest in a specific genre of pornography and the peculiar facts of the crime, social science literature suggests the correlation might be weak at best. See Melissa Hamilton, The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?, 22 Stan. L. & Pol’y Rev. 545, 579-80 (2011) (“Social science studies considering the correlation between viewing child pornography and contact sexual offenses against children are not consistent, though there is much evidence that only a subset of offenders who use child pornography also sexually offend against children. To support this, researchers conducting comprehensive reviews of empirical literature often conclude there is little evidence of any direct impact of viewing child pornography on the commission of contact sexual offenses.... In general, the literature supports the view that while child molesters may possess child pornography, those that possess child pornography are generally not likely to engage in contact offenses against children. Instead, child molesters are merely a small subset of child pornographers.”). Given the available social science, I cannot conclude the evidence of Putman’s possession of child pornography is strong evidence identifying him as the person who raped L.R.
IV.Degree to Which Jurors Will Be Motivated to Decide on Improper Basis.
On this element of the analysis, I share the view of Chief Justice Hannah of the Arkansas Supreme Court who characterized the overwhelming prejudice occasioned by the admission of evidence that pornography was found on a defendant’s computer: “When the circuit court erroneously admitted into evidence the repugnant deviant pornographic pictures and titles that were found on the appellant’s computer, this case was over.” Johnston v. State, No. CR-13-371,
In my view, this case presents a classic example of the type of evidence rule 5.404(6) is intended to exclude in furtherance of a fair trial. Even if it is assumed for the sake of analysis that the evidence was probative of identity — and not merely of propensity — it should have been excluded because it was so uniquely and extraordinarily prejudicial as to deny Putman a fair trial on the crime charged in this case. Cf. United States v. Fawbush,