STATE OF IOWA, Appellee, vs. MATTHEW EARL COX, Appellant.
No. 07-2083
IN THE SUPREME COURT OF IOWA
Filed April 30, 2010
Robert E. Sosalla, Judge.
Appeal from the
Defendant challenges admissibility of evidence of incidents of prior sexual abuse with other victims. JUDGMENT REVERSED AND CASE REMANDED.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Harold Denton, Linn County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.
STREIT, Justice.
Matthew Cox was convicted pursuant to
I. Background Facts and Prior Proceedings.
Fourteen-year old J.M. accused her cousin Matthew Cox of fondling her on several occasions beginning when she was between four and six years old in about 1996–1998 and raping her beginning when she was a pre-teen in about 2003. According to J.M., most of these incidents took place at her grandmother’s house, where Cox lived. The State charged Cox with sexual abuse in the second degree for acts between January 1, 2003, and October 31, 2005, and later added a charge of sexual abuse in the third degree for acts after J.M. turned twelve.
At trial, T.C. and A.L., two of Cox’s other cousins, testified to prior sеxual contact with Cox. T.C., a female, described two occasions when Cox forcibly fondled her, once at her grandmother’s house when she was ten, in about 1998, and once in a car when she was thirteen, in about 2001. A.L., a male and J.M.’s half-brother, described a pattern of abuse that began with inappropriate touching and forced oral sex when he was around age six, in about 1992, and escalated to incidents during which Cox forcibly performed anal intercourse with him. A.L. testified some of these alleged acts took place at his grandmother’s house.
Charges had been filed jointly based on Cox’s alleged abuse of A.L., but these charges were severed from those relating to J.M. prior to trial1. Cox then filed a motion in limine seeking to exclude prior-bad-acts evidence under
The State argued the prior acts of sexual abuse should be admitted under
Ruling in favor of the State, the court concluded the evidence was admissible under
The district court ordered the State to lay the foundation for these witnesses outside the presence of the jury and again determined the testimony was admissible. The court gave a limiting jury instruction that “[e]vidence of another offense for which a defendant is not on trial does not mean that the defendant is guilty of the charges for which he is on trial.” The jury returned a guilty verdict, and Cox appealed.
II. Scope of Review.
We review a district court’s evidentiary rulings regarding the admission of prior bad acts for abuse of discretion. State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). “An abuse of discretion occurs when the trial court exercises its discretion ‘on grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ ” State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). However, to the extent a challenge to a trial court ruling on the admissibility of evidence implicates the interpretation of a statute or a rule of evidence, our review is for errors at law. See State v. Stone, 764 N.W.2d 545, 548 (Iowa 2009); State v. Jordan, 663 N.W.2d 877, 879 (Iowa 2003). We review constitutional claims de novo. State v. Bumpus, 459 N.W.2d 619, 622 (Iowa 1990).
III. Merits.
A. Prior Bad Acts Evidence.
Cox asserts the district court erred by admitting evidence of his prior acts of sexual abuse under
Under
“is founded not on a belief that the evidence is irrelevant, but rather on a fear that juries will tend to give it excessive weight, and on a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.”
State v. Sullivan, 679 N.W.2d 19, 24 (Iowa 2004) (quoting United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985)).
However, prior bad acts are admissible if offered for the purpose of establishing “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant’s commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the cоmmission of the prior act of sexual abuse.
B. Constitutionality of Iowa Code Section 701.11.
Cox argues
In State v. Reyes, 744 N.W.2d 95 (Iowa 2008), we examined the constitutionality of
The holding in Reyes was limited to prior incidents involving the same victim. Id. at 102 n.1. Reyes expressly declined to address situations involving a different victim. As stated in a footnote, “[w]e express no view regarding the constitutionality of
The United States Supreme Court has not reached, and instead has expressly reserved, the question of whether a state law admitting propensity evidence violates the
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. . . . The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.
Michelson v. United States, 335 U.S. 469, 475–76 (1948) (footnotes omitted). Similarly, in Old Chief v. United States, 519 U.S. 172, 191 (1997), the Supreme Court held a trial court abused its discretion by admitting the name and factuаl circumstances of a previous conviction, even though a prior felony conviction was an element of the crime charged. The court, citing Michelson, held the evidence was unfairly prejudicial, explaining, “[t]here is, accordingly, no question that propensity would be an ‘improper basis’ for conviction.” Old Chief, 519 U.S. at 181–82.
The
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
In United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998), the Tenth Circuit held
because of the safeguard of
Similarly, in United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001), the Ninth Circuit determined the аdmission of the defendant’s other instances of molestation did not violate his due process rights. LeMay, 260 F.3d at 1026–27. Holding
State courts have also confronted statutes similar to
The Supreme Court of Missouri, however, has declared a law similar to
When we evaluate the constitutionality of rules of evidence based on due process considerations, “the traditional approach has been to invalidate an evidentiary rule only if it ‘violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” which define “the community’s sense of fair play and decency.” ’ ” Reyes, 744 N.W.2d at 101 (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)). Cox argues Iowa courts have generally refused to accept the admission of propensity evidence, and therefore,
The general rule prohibiting propensity evidence was firmly established in Iowa courts at common law. See State v. Vance, 119 Iowa 685, 686, 94 N.W. 204, 204 (1903) (“The rule as to evidence of similar acts at other times and with other persons than those charged in the indictment is well understood. The state cannot prove against a defendant any crime not alleged in the indictment, either as foundation for separate punishment or as aiding the proofs that he is guilty of the crime charged.“). The courts developed a requirement that evidence of prior bad acts be relevant ” ‘ “to prove some fact or element in issue other than the defendant’s criminal disposition” ’ ” and therefore relevant “for a legitimate purpose” other than propensity to be admissible. Rodriquez, 636 N.W.2d at 239–40 (quoting State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001)). After codification of the general prohibition on propensity evidence in
[p]roof of them only tended tо prejudice the defendants with the jurors . . . . However depraved in character, and however full of crime [the defendants’] past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged.
Boyd v. United States, 142 U.S. 450, 458 (1892).
Although historical practice generally excluded propensity evidence, “[t]he historical practice with respect to the admissibility of prior sexual acts is ambiguous at best.” Reyes, 744 N.W.2d at 101. We noted in Reyes that some jurisdictions
This court traced the history of a “lewd disposition” exception in Iowa in State v. Cott, 283 N.W.2d 324, 327 (Iowa 1979). As Cott explained:
[E]vidence tending to prove a lewd disposition of the defendant charged with lascivious acts with a minor was originally considered relevant only insofar as it showed his intent solely toward the рrosecuting witness. Almost imperceptibly, the lewd disposition exception was overextended to permit evidence of the defendant’s acts with other victims. First, in [State v. Schlak, 253 Iowa 113, 116, 111 N.W.2d 289, 291 (1961)], it crept in as a synonym for motive. Then, in [State v. Maestas, 224 N.W.2d 248, 250–51 (Iowa 1974)], it was used as an alternative rationale to the common scheme exception. However, proving lewd disposition has never been the sole purpose for which this court has approved the admission of testimony concerning prior acts with persons other than the prosecutrix.
Id. (emphasis added). Instead of relying solely on a “lewd disposition” exception, when faced with prior sexual offenses towards one other than the victim, this court has typically required the challenged evidence to be ” ‘relevant and material to some legitimate issue other than a general propensity to commit wrongful acts.’ ” State v. Casady, 491 N.W.2d 782, 785 (Iowa 1992) (quoting Plaster, 424 N.W.2d at 229). For example, evidence of prior sexual abuse of a different victim is admissible when the identity of an attacker—alleged to be the defendant—is in dispute and a prior act by the defendant was “strikingly similar” or of a “unique nature.” State v. Walsh, 318 N.W.2d 184, 185–86 (1982). Such evidence is also admissible when the defendant is charged for assault with intent to commit sex abuse and prior similar crimes are used to demonstrate the element of sexual intent. See Casady, 491 N.W.2d at 785–86 (admitting prior instances of defendant pulling young women into his car and sexually assaulting them when defendant was charged with intent to commit sexual assault for a failed attempt to pull a girl into his car); State v. Spargo, 364 N.W.2d 203, 205, 209 (1985). This court has also admitted prior sexual acts to rebut a defendant’s claim that the charged sexual activity was consensual. See State v. Bayles, 551 N.W.2d 600, 604–05 (1996); State v. Tillman, 514 N.W.2d 105, 108–09 (Iowa 1994) (admitting defendant’s statement to victim that he had previоusly killed a woman to rebut claim that sex acts were consensual); Plaster, 424 N.W.2d at 229–31.
This court did allow admission of a prior sexual offense against an individual other than the particular victim without tying it to a legitimate issue other than general propensity in State v. Spaulding, 313 N.W.2d 878, 881 (1981). In Spaulding, the court held testimony by the victim’s sister regarding an incident of sexual abuse could be admitted. Id. This court referenced a quotation from a renowned treatise stating: ” ‘[C]ertain unnatural sex crimes are in themselves so unusual and distinctive that any previous such acts by the accused with anyone are strongly probative of like acts upon the occasion involved in the charge.’ ” Spaulding, 313 N.W.2d at 881 (quoting Edward W. Cleary, McCormick’s Handbook on the Law of Evidence § 190, at 449 (2d ed. 1972)). The dissent in Spaulding noted the quoted passage from McCormick had been taken out of context and the following sentence was more equivocal, stating: ” ‘but the danger of prejudice is likewise enhanced here, and most courts have in the pаst excluded such acts with other persons for this purpose. More recent cases show signs of lowering this particular barrier to admission.’ ” Id. at 883 (quoting Edward W. Cleary, McCormick’s Handbook on the Law of Evidence § 190, at 449–50) (Allbee, J. dissenting).
Notably, after Spaulding, this court continued to identify a legitimate and independent issue on which to base admission of prior sexual offenses towards one other than the particular victim. See Bayles, 551 N.W.2d at 604–05 (consent); Casady, 491 N.W.2d at 785–86 (intent); Plaster, 424 N.W.2d at 229–31 (consent); Spargo, 364 N.W.2d at 205, 209 (intent); Walsh, 318 N.W.2d at 185–86 (identity). In State v. Mitchell (Mitchell I), 633 N.W.2d 295 (Iowa 2001), this court clarified that testimony of prior sexual abuse of a different victim was not admissible to bolster the particular victim’s credibility because it was essentially propensity evidence and therefore did not have an “independent relevancy.” Mitchell, 633 N.W.2d at 300.
Case law recognizes deep concerns over admission of propensity evidence, including prior sexual abuse against a victim other than the one involved in the charged conduct; however, we must determine whether those concerns are rooted in constitutional protections or simply an example of the court’s supervisory authority over evidentiary rules. As noted above, an evidentiary rule violates due process if it ” ‘violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” which define “the community’s sense of fair play and decency.” ’ ” Reyes, 744 N.W.2d at 101 (quoting Lovasco, 431 U.S. at 790).
In Enjady, the Tenth Circuit summarized the due process arguments against
While this Court has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment, our decisions exercising supervisory power over criminal trials in federal courts, as well as
decisions by courts of appeals and of state courts, suggest that evidence of prior crimes introduced for no purpose other than to show criminal disposition would violate the Due Process Clause. Evidence of prior convictions has been forbidden because it jeopardizes the presumption of innocence of the crime currently charged.
Spencer v. Texas, 385 U.S. 554, 572–75 (1967) (Warren, C.J., concurring in part and dissenting in part) (emphasis added) (footnotes omitted). Other courts have similarly pointed to the fundamental principle excluding propensity evidence:
” ‘there are few principles of American criminal jurisprudence more universally accepted than the rule that evidence which tends to show that the accused committed another crime independent of that for which he is on trial, even one of the same type, is inadmissible.’ ”
Hurst v. State, 929 A.2d 157, 162 (Md. 2007) (quoting State v. Taylor, 701 A.2d 389, 392 (Md. 1997)).
Iowa courts similarly ground the rejection of propensity evidence on “fundamental” concerns of fairness and the presumption of innocenсe. The policy against admissibility of general propensity evidence stems from ” ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ” Sullivan, 679 N.W.2d at 24 (quoting Daniels, 770 F.2d at 1116). ” ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.’ ” Id. at 23–24 (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977); United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980)).
This court has also applied the reasoning that general propensity evidence is fundamentally unfair in the context of prior sexual abuse involving a different victim. In Cott, this court based its rejection of the “lewd disposition exception” on concerns of “unfairness.” As the court explained:
A focus on the criminal or aberrant disposition of the defendant with regard to various victims is exactly the sort of prejudice which the genеral rule seeks to avoid. By creating an exception of this kind, we would seriously erode the impact of the general rule, proscribing evidence of prior criminal conduct, in the context of sex crimes. The resultant unfairness to those accused of sex crimes is self-evident.
Cott, 283 N.W.2d at 327 (footnotes omitted). As one treatise explains, there is no rationale for treating prior sexual offenses differently than all other offenses:
Unlike the other purposes for other-crimes evidence, the sex-crime exception flaunts the general prohibition of evidence whose only purpose is to invite the inference that a defendant who committed
a previous crime is disposed toward committing crimes, and therefore is more likely to have committed the one at bar.
1 Kenneth S. Broun, McCormick on Evidence § 190, at 764 (6th ed. 2006) [hereinafter McCormick on Evidence].
Based on Iowa’s history and the legal reasoning for prohibiting admission of propensity evidence out of fundamental conceptions of fairness, we hold the
Our holding today is consistent with Reyes. Prior bad acts evidence involving the same victim “has relevance on the underlying criminal charge because it shows the nature of the relationship between the alleged perpetrator and the victim.” Reyes, 744 N.W.2d at 102. For example, within the domestic violence context, “the defendant’s prior conduct directed to the victim of a crime, whether loving or violent, reveals the emotional relationship between the defendant and the victim and is highly probative of the defendant’s probable motivation and intent in subsequent situations.” State v. Taylor, 689 N.W.2d 116, 125 (Iowa 2004). Evidence of prior crimes against the same victim ” ‘furnishes part of the context of the crime’ or is necessary to a ‘full presentation’ of the case.” See United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (quoting United States v. Smith, 446 F.2d 200, 204 (4th Cir. 1971); United States v. Weems, 398 F.2d 274, 275 (4th Cir. 1968)). Reyes warned, however, that “[i]n settings involving prior sexual abuse with persons other than the alleged victim, therе is a substantial risk that ‘ “a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” ’ ” Reyes, 744 N.W.2d at 102 n.1 (quoting Old Chief, 519 U.S. at 181). Prior crimes against the same victim are relevant to a legitimate issue because the later crimes ” ‘do not occur single and independent—isolated from all others—but each is connected with some antecedent fact,’ ” whereas acts against a different victim are “not part of the principal transaction.” People v. Jones, 335 N.W.2d 465, 466–67 (Mich. 1983) (quoting People v. Jenness, 5 Mich. 305, 323–24 (1858)).
Unlike the federal courts that have considered this issue, we do not believe evidence of prior bad acts can be admitted for the sole purpose of showing general propensity even if a trial judge considers the balancing test found in
C. Applicability to Cox.
Here, the evidence of prior sexual abuse was improperly admitted into evidence as propensity evidence. However, we must decide whether it could be admitted for a “legitimate issue.” If a legitimate issue can be identified, we then consider whether the evidence is unfairly prejudicial compared with the probative value of the legitimate issue. We address these issues because we do not reverse when evidence was improperly admitted based on one particular reason if the evidence could be admitted for other reasons on retrial. DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002).
Before the trial court, the State suggested the evidence would be admissible to show “proof of motive, opportunity, intent, preparation, plan and some of the other purposes for which prior bad acts are admissible.” Therefore, to dеtermine whether these prior bad acts were admissible, we must consider whether they were relevant to one of these legitimate issues other than propensity.
1. Opportunity, preparation. Before the district court, the State listed the exceptions found in
2. Common scheme or plan. The State argued to the trial court that because the victims of the charged and uncharged conduct were all cousins, and some of the abuse took place at the same location and stage in their lives, it demonstrated a common scheme or plan. The State argued that although this was not a “signature crime,” it shows a “pattern of behavior.”
The test for a common scheme or plan is not simply a pattern of prior bad acts. “Common scheme or plan means more than the commission of two similar crimes by the same person.” State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971).
In Cott, this court addressed whether sexual abuse of someone other than the victim of the charged crime could be considered a common scheme or system of criminal activity. The court rejected that argument because “[t]he fact that defendant committed crimes of the same nature against the two girls is insufficient to bring the testimony within that exception.” Cott, 283 N.W.2d at 328. Such testimony did not show that one crime “was ‘dependent upon or connected with’ the other, nor would it ‘complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” Id. (quoting Wright, 191 N.W.2d at 641; State v. Wright, 203 N.W.2d 247, 251 (Iowa 1972)).
Here there has been no suggestion of a common scheme or plan that would necessitate the admissibility of A.L.’s and T.C.’s testimony to complete the story of the crime against J.M. The evidence demonstrates Cox essentially committed crimes of availability against his cousins, which demonstrates nothing more than propensity. J.M., T.C., and A.L. all testified to a pattern of abuse they suffered as children and young adults, but none of the incidents of abuse against T.C. or A.L. are alleged to have occurred on the same day or connected to an incident of abuse against J.M. None of the testimony by T.C. or A.L. was necessary to “complete the story” of the crimes against J.M. or to provide the ” ‘immediate context of happenings near in time and place.’ ” Id. (quoting Wright, 203 N.W.2d at 251).
3. Modus operandi. Although the State stated before the district court that the additional evidence was “not exactly, I guess, what we would refer to as a signature crime,” we consider the modus opеrandi exception. “Modus operandi is ‘ “a distinct pattern or method of procedure thought to be characteristic of an individual criminal[] and habitually followed by him.” ’ ” Plaster, 424 N.W.2d at 231 (quoting Youngblood v. Sullivan, 628 P.2d 400, 402 (Or. Ct. App. 1981)). Modus operandi is typically relevant as a subset of identity. Id. at 231 n.1 (“Modus operandi is usually used to establish identity.“); United States v. Williams, 985 F.2d 634, 637 (1st Cir. 1993) (“Evidence of modus operandi is admissible under Rule 404(b) to prove identity . . . .“)); Hurst v. State, 929 A.2d 157, 166 (Md. 2007) (“The modus operandi exception is a subset of the identity exception under Rule 5-404(b).“).
We have also used modus operandi to admit evidence for the legitimate issue of countering a defense of consent in a sexual assault case. Plaster, 424 N.W.2d at 231. However, to 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. See State v. Vorhees, 248 S.W.3d 585, 590–91 (Mo. 2008) (holding modus operandi is only appropriate to demonstrate idеntity because modus operandi used to corroborate the victim is “at base, propensity evidence masquerading under the well-recognized identity exception“). When modus operandi is used to
4. Motive, intent. There are numerous ways in which prior sexual abuse of one other than the victim may become relevant to motive or intent; however, there is no argument that they are present in this case. For example, prior bad acts may be relevant to demonstrate motive or intent when a defendant claims touching was accidental. Cf. State v. Elston, 735 N.W.2d 196, 200 (Iowa 2007) (noting within the context of a motion to sever that pornographic images of young females tended to prove touching of victim was not accidental). Similarly, this court has allowed evidence of prior bad acts when an individual is charged with assault with intent to commit sexual abuse. In Casady, 491 N.W.2d at 785–86, this court allowed admission of evidence showing the defendant had previously pulled women into his car and sexually assaulted them in order to demonstrate the defendant’s intent when he unsuccessfully tried to pull a girl into his car. In Spargo, 364 N.W.2d at 209, this court admitted evidence of the defendant’s previous sexual activities with adolescents to support a charge of assault with intent to commit sexual abuse. Here, however, the State was not required to prove specific intent, only that the alleged sexual conduct occurred with J.M. See Lamphere v. State, 348 N.W.2d 212, 217 (Iowa 1984) (“Second-degree sexual abuse . . . is not a specific intent crime . . . .“); State v. Tague, 310 N.W.2d 209, 211 (Iowa 1981) (rejecting defendant’s argument that intent is an element of sexual abuse in the third degree); compare
D. Harmless Error.
Because we hold the testimony of A.L. and T.C. was improperly admitted at trial, we consider whether the error was harmless. To establish harmless error when a defendant’s constitutional rights have been violated, the State must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009). Cox was prosecuted for incidents of vaginal rape against J.M. occurring between January 1, 2003, and October 31, 2005. T.C. testified to two separate acts of fondling by Cox. A.L. testified to at least five instances of prior sexual abuse by Cox, including forced oral sex and anal rape. The large number and variety of prior sex abuse admitted into evidence leads us to conclude that their admission wаs not harmless error. Therefore, we reverse Cox’s conviction and remand for retrial.
Although it does not appear the testimony of A.L. and T.C. was relevant to any “legitimate issue” and therefore was not appropriately admitted, we express no opinion regarding whether the evidence may become relevant to a legitimate issue and be admissible on retrial. In Mitchell I, this court held that evidence of prior sex
IV. Conclusion.
Admitting evidence of a defendant’s sexual abuse of other victims under
JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Baker, J., who takes no part.
Notes
United States v. Mound, 157 F.3d 1153, 1153 (8th Cir. 1998) (Arnold, J., dissenting from denial of rehearing en banc).[T]he members of two committees, consisting of 40 persons in all, and appointed by the Judicial Conference of the United States to examine Fed. R. Evid. 413 before its passage, all but unanimously urged that Congress not adopt the rule because of deep concerns about its fundamental fairness.