*1 Iowa, Plaintiff-Appellee, STATE v. CASTANEDA,
John Defendant- Appellant.
No. 98-0835. Supreme of Iowa. Court Jan. *2 Iowa, from City,
Sioux California. as a City, Castaneda worked substi- Sioux tute and later became a full-time teacher City elementary teacher at a Sioux school. *3 In 1992 Castaneda Johnson became brother, parents foster and her S.C. night, leaving M.C. worked at Johnson alone with the children. On Castaneda occasions when Johnson returned from work, sleeping she found S.C. Castane- room, was da’s sometimes while Castaneda sleeping there too. occasions, saw Cas-
On several Johnson together This taneda and S.C. bed. Johnson, and she talked to Cas- angered however, practice, taneda about it. The Gallo, Appellate De- Linda Del continued. fender, Japuntich, Assis- Stephan J. Defender, appel- Appellate for In 1994 and Johnson were tant State Castaneda process adopting S.C. and M.C. lant. time, Johnson moved out of During this General, Miller, Attorney Thomas J. home, eventually she divorced .the Tauber, Attorney Thomas S. Assistant Castaneda, however, went for- Castaneda. General, Mullin, County Attor- Thomas S. adoption, which the district ward with Jr., Assistant ney, Kittredge, and Pahl E. in 1995. court finalized Attorney, appellee. County for final, adoption Before the became S.C. grade-school told a friend that Castaneda raped parent, As a foster care had her. LAVORATO, Justice. Chief mandatory reporter. As was a Castaneda juryA convicted John Castaneda of sex- such, report bound to legally he felt his ten- degree ual abuse in the second Hu- Department to the Iowa allegation adopted daughter. appealed He year-old Services, depart- man which he did. The of conviction and sen- judgment from the un- ment determined the accusation was tence, contending the district court founded. damag- in admitting its discretion abused Later, a com- department received He testimony from his former wife. ing physically had plaint that Castaneda his also contends the district court violated during investiga- abused S.C. It was right Amendment to confrontation Sixth of sexual abuse allegations tion that the videotaped into evidence a when it allowed department re- question surfaced. transcript and a daughter interview of the police, after ported complaint the case of that interview. We transferred removed from which and M.C. were appeals, which affirmed. to the court of home. Castaneda’s appeals further review of the court of On decision, decision, we vacate that reverse 8, 1996, police the Mar- May had On sentence, judgment of conviction and Health Child Protection Center ion Center and remand for a new trial. Kircher, a social interview S.C. Janet center, conducted employed worker Proceedings. Background I. Facts and interview, videotaped. Dur- which was interview, 1990s, related that over early ing and his she wife, Johnson, years, beginning when past moved to the two former Patricia old, years right Castaneda had on five violate his Amendment con- eight Sixth committed various sex frontation. seven occasions acts her or looked her while she upon hearing, judge district Following Dew- was naked. videotaped ie J. Gaul found the interview Duey met the requirements regard- Dr. Patrick James conducted a of the rule ing hearsay exception. medical examination S.C. and deter- residual judge videotaped mined the examination consistent with also found that the inter- A deposi- examination. Class 3 exami- view was than the Class 3 more suspicious is classified as one tion that was filled nation child’s talk and unwillingness abuse. reluctance to However, give answers. the judge de- Based on the interview and the medical *4 admissibility clined to rule on the of the examination, charged the State Castaneda time, videotaped pending interview this on with three counts of June 3 a time of determination at the trial as to see Iowa Code degree, abuse in the second give whether was unavailable to S.C. live 709.3(2) 702.17, 709.1, (1995), §§ B a class testimony. felony, and one count of indecent contact child, 709.12, see April § with Iowa Code judge On 3 district Michael S. aggravated presided misdemeanor. Walsh hearing over a second admissibility videotaped of the inter- attorney On December Castaneda’s view. judge videotape, The reviewed the depose attempted During depo- to S.C. report from Dr. Richard C. Brown—a doc- sition, uncooperative S.C. was and fre- tor who had interviewed S.C.—and the quently to evade the attor- answering tried deposition. judge, The over Castaneda’s ney’s she questions. She said did not want objections, with judge concurred Gaul’s alleged talk about sexual abuse. ruling. Judge Walsh also found that S.C. attorney S.C. referred the to her video- testify was “unavailable” to trial and taped Although interview. she often said ruled that the State would be allowed to remember, that she did not S.C. did an- admit the videotaped interview to the ex- attorney’s questions swer of the some tent it was otherwise admissible. alleged about the sex acts that Castaneda supposedly April parties had committed. tried the On 27 the case jury. Because was unable to 1997, February On the State filed a verdict, reach a unanimous the court Videotape” pursu- of Intent to Use “Notice granted Castaneda’s motion for mistrial. 803(24) ant to Iowa Rules Evidence 804(b)(5), 13, 1998, and Iowa section On January Code before the and/or start of 910A.14(3) trial, that (providing recorded state- second Castaneda filed motion describing ments of a child asking sexual contact the district court reconsider may or on the child be if the admitted whether was unavailable to testify. S.C. substantially comport statements with the Castaneda also asked the court to that rule requirements proposed for admission under Iowa testimony of Patricia John- 804(b)(5), Rule of Evidence the residual son concerning allegedly per- sex acts she motion, In its hearsay exception). formed on him he was while observing irrelevant, a probability State noted that existed that children unfairly was well as pursu- prejudicial, would be deemed “unavailable” and therefore inadmissible. 804(a). ant to Iowa Rule of Evidence judge Phillip District Dandos presid- S. that the argued State had not ed over hearing on Castaneda’s motion shown that S.C. was “unavailable” to testi- and the second trial. on the reason, fy. For that motion immediately Castaneda insisted was held to the that, if allowed the beginning the court State to use of the second trial on March interview, the videotaped such previous use would 1998. addition to the rulings relevant, Walsh, value of this even if judge Dandos by judges Gaul unfairly outweighed by its therapist, evidence from S.C.’s a letter considered under Iowa Rule of Evi- prejudicial Loeffelholz. nature Doreen M. worker social he contended such previous Finally, dence 403. this letter and upon Based Walsh, judge testimony constituted character judges Gaul findings of Evidence 404 “currently un- Iowa Rule of governed Dandos held trial; were she and not admissible. testify at available to would be testify in to brought contended that the would add her and that damaging to 404(b) under rule to show was admissible little, in this anything, if to the evidence objections, the intent. Over Castaneda’s videotaped Judge Dandos ruled case.” testimony. court allowed the district that interview transcript interview Specifically, the court ruled the tes- were admissible. “strictly limited to the timony would be attorney did hearing, At the Castaneda’s - any part intent on the purpose showing and, letter object therapist’s the crimes of the defendant commit fact, objection to the admission waived alleged.” transcript. videotaped interview and of the the ob appeal, Castaneda reasserts On Dan- objections, judge Over Castaneda’s *5 testimony that he jections to Johnson’s tes- also ruled that Patricia Johnson’s dos in court. The State as made the district Dandos timony Judge was admissible. district court did not abuse serts that the testimony was that Johnson’s concluded testimony admitting in her its discretion only “goes to the extent that admissible in activity Johnson described because intent.” fantasizing that Castaneda was dicated March 24 the returned verdicts On having activity with children. about except charges on all as guilty of not asserts that Johnson’s The State therefore in of sexual abuse the second one count intent to have testimony was relevant as to degree. The court sentenced Castaneda t Additionally, with indecent contac twenty-five-year term. to an indeterminate that, prejudicial, if even the State asserts First, presents two issues. appeal This unfairly prej testimony was not Johnson’s the district court abuse its discretion did udicial. testimony about the sex allowing Johnson’s Applicable Rule of Evi- B. law. Iowa upon allegedly performed acts Cas- she 404(b) provides dence Second, court did the district vio-
taneda? [ejvidence crimes, wrongs, of other right Amendment late Castaneda’s Sixth the char- prove not admissible to acts is evi- when it admitted into to confrontation person in order to show acter of videotaped interview and dence S.C.’s It conformity therewith. he acted transcript that interview? however, be admissible for may, motive, op- proof purposes, such Prior Acts With II. Evidence of Sexual intent, preparation, plan, portunity, Than the Other Victim. One or absence of mis- knowledge, identity, parties’ In a A. The contentions. take or accident. motion, pretrial on a Castaneda of our common- testimony The rule is a codification objected to Johnson’s about the proved rule that one crime cannot be performed upon law alleged oral sex acts she purpose of the by proof while of another. on two different occasions from the rule was to “exclude play- common-law allegedly observing children he which has no jury’s consideration evidence testimony was He contended that the ing. the defen- relevancy except to show that of Evidence under Iowa Rules irrelevant likely com- that, person and thus is a bad further dant 401 and 402. He contended rule). analysis “An question.” mitted the crime in State v. under common-law (Iowa 1979). Cott, finding pro- 283 N.W.2d affirmative balancing law, the common evidence that was Under precludes admissibility cess of even rele- prove fact or element Plaster, “relevant to some vant evidence.” 424 N.W.2d at criminal issue other than the defendant’s two-step analysis, employing prohibi- disposition escapefd] the rule’s the district court must exercise its discre- accordingly recog- tion.” Id. This court tion. Id. at 229. We will reverse its deci- categories permissible nized certain ob- sion when we find a clear abuse of jectives proof prior criminal acts. for Id. discretion. categories
Id. These included: Analysis. We assume without C. “(1) (2) (3) motive, intent, absence of deciding testimony that Johnson’s was rel (4) accident, mistake -or a common However, follow, evant. for reasons that system activity scheme or of criminal unfairly prej we believe the embracing the commission of two or udicial, and the district court abused its proof more crimes so related that of one admitting discretion in it into evidence. other, prove identity tends to person charged the commission “any Evidence is relevant when it has of a crime.” tendency to make the existence of fact Folkens, (quoting State v. 281 N.W.2d consequence that is of to the determination (Iowa 1979)). 1, 5 probable proba- of the action more or less ble than it would be without the evidence.” 404(b), Under rule we continue to added). (emphasis R. All Iowa Evid. 401 recognize that there must be some factual except relevant evidence is admissible permit issue raised to evidence of other exceptions applicable certain here. crimes, wrongs, or acts under the noted Iowa R. Evid. 402. Plaster, exceptions. See State v. *6 (Iowa 1988). N.W.2d 229 If the evi may Even relevant evidence be ex test, dence prima meets this it is facie probative cluded “if its value is substantial admissible, though even the evidence’s ten ly outweighed by the danger of unfair dency is to demonstrate the defendant’s prejudice....’’ Iowa R. Evid. 403. Proba Plaster, bad character. 424 N.W.2d at gauges strength tive value and force of 229. Plaster, relevant evidence. 424 N.W.2d at In determining whether the chal admissible, lenged evidence is the district prejudice” in “Unfair rule 403 is defined employ two-step analysis. court must a “ tendency suggest ‘an undue deci-
Id. The court must first decide whether basis, improper sions on an commonly the evidence If is relevant. Id. it is not though necessarily, not an emotional relevant, challenged then the evidence is ” (quoting one.’ Id. Fed.R.Evid. 403 adviso- (“Evi inadmissible. Iowa R. Evid. 402 note). ry Evidence, therefore, committee’s dence which is not relevant is not admissi that ble.”). However, if the court finds that the “appeals jury’s sympathies, arous- challenged relevant, evidence is the court horror, provokes es its sense of its in- must then decide whether the evidence’s probative punish, triggers stincts to or substantially outweighed value is of human by mainsprings may action cause danger prejudice. of unfair Iowa relevant, jury a to base its decision on something R. Evid. (“Although may propositions be other than the established excluded if its value is appellate substantially by may the case. The court outweighed danger Plaster, prejudice....”); prejudice’ unfair that ‘unfair conclude occurred 231; Cott, N.W.2d at see because an insufficient effort was also 283 N.W.2d made (employing two-step at 328-29 a dangers prejudice, similar below to avoid the evi- mis- accidentally, which the S.C.’s breast or that S.C. theory because the on or to elicit designed interpreted Finally, was offered was an innocent action.” dence justified response jurors argues from that “although the State Johnson’s by the evidence.” testimony may prejudiced have Castane- case, it bore on a legitimate da’s issue and (quoting at 231-32 Jack B. Weinstein unfairly prejudicial.” was not Berger, A. Evi- Margaret Weinstein’s & ¶ (1986)). 403[03], at 403-33-40 dence testimony, Johnson’s to the extent it had mentioned, the Cas- charged As State value, any probative bore on Castaneda’s abuse taneda with three counts of sexual specific intent —the fact—an consequential degree and counts includ- the second those IV. element count (1) following acts: between ed the contact jury did not convict Castaneda genitalia or hand finger his and S.C.’s IV, count in- specific count requiring (2) (count I), genitalia contact between his jury tent. Rather the convicted Castaneda (count (3) II), and contact genitalia and her (contact one count—count III be- (count genitalia his mouth and between her tween his mouth and her genitalia) III). also charged The State Castaneda guilty remaining found him not (count contact a child with indecent with act significant counts. This is because this IV) in he “fondled or touched is similar to the act claimed she Johnson “with intent to specific breast” of S.C. performed on while he was ob- Castaneda or satisfy” arouse or his sexual desires serving jury likely children. The inferred those of S.C. (1) testimony from this was Castaneda (indecent with a As to count IV contact sexually fantasizing at the about children child), jury district court instructed he was relieving same time himself sexual- prove that the was required prone ly and therefore be “fondled or the breast” Castaneda touched child, in similar acts in this engage specific “with the intent to arouse of S.C. case, tempting While it is to draw satisfy” his sexual or those of desires inference, it this kind precisely such an added.) (Emphasis As to the remain- 404(b) of character inference that rule was counts, three instructed the ing court prevent jury drawing. from designed to prove required that the State Obviously, Johnson’s —which “performed a sex act with in the context of children—would specified the conduct counts [S.C.] *7 jury’s sense and would arouse a of horror II, I, In the specific and III. intent instruc- its provoke punish its instinct to and base tion, jury that the court instructed the on testimony on this rather than decision act “with “specific doing intent” means an specific intent. the issue Additionally, specific purpose mind.” a instruction, wisely concerning jury As one court observed in this told the the court prior acts evidence: only necessary prove specific that is to “[i]t con- regarding intent the crime of indecent jurors hear has When that a defendant tact with a child under count IV and is occasions essential- on earlier committed I, II, and III.” necessary under counts crime which he is ly the same as that for trial, unquestionably support In of its contention that John- on information powerful prejudicial impact. rule testimony was admissible under has a son’s That, course, 404(b), why prosecution it had to is argues the State that specific in order it can. prove Castaneda’s intent uses such evidence whenever introduced, a acts him of contact with When evidence is to convict indecent purpose, of the argues regardless that John- stated child. State further very great jurors is that the testimony “had likelihood significant son’s precisely prove value to intent and to will use Castaneda’s to may it allay any purpose considered[:] doubt that touched not be 442 contact, per- that the defendant a bad
suggest
argues
is
indecent
the State
criminal,
son,
that if
jurors
a convicted
he under the court’s instruction the
probably
again.”
it before he
did it
“did
could not make
further use of John-
testimony.
son’s
Johnson,
1186,
States v.
27 F.3d
United
Cir.1994).
(6th
specific
intent instruction did advise
vein,
suggests
In the same
one writer
jury
prove
that the State
had to
prosecutors rely
uncharged
that when
on
specific
regarding
intent
the crime of inde-
prove
conduct to
intent
cent contact with a
under count
child
IV
jurors
that the
will
grave
there is
risk
necessary
prove
and it was not
such
tempted
guilty
be
to return
verdict on
I, II,
intent under counts
and III. Con-
improper
an
basis. Evidence of the ac-
assertion, however,
trary to the State’s
poten-
uncharged
cused’s
misconduct is
instructions,
nowhere in the
did the court
tially prejudicial
jurors per-
because the
jury
tell the
it could not consider
uncharged
ceive the
conduct as immoral
testimony
Johnson’s
three
consequently
adversely
react
I, II,
charges under counts
and III. In
part,
accused. For the most
is
fact, the district
limiting
court’s
instruction
wrongful
gives
accused’s
intent which
actually permitted
jury
as worded
perceived
the conduct its
quali-
immoral
consider
testimony
charges.
her
on all the
wrote,
ty.
Shakespeare
As
“[T]here
charges
very
One of those
included
one
bad,
nothing
good
thinking
either
but
of which Castaneda was convicted. On
makes it so.” When a writer wants to
point,
limiting
instruction stated:
express
thought
person
that a
has
may
“You
testimony] only
[Johnson’s
use
criminal disposition,
frequent-
the writer
purpose
determining
for the
the defen-
ly
person
describes the
aas
“criminal
dant’s intent
to commit the crimes al-
mind”-—-rather than a criminal arm or
leged.”
Suppose
leg.
concludes
Moreover, even had the district court
warped
has a
accused
mind
instruction,
given a
limiting
correct
we
inclined to criminal intent. That conclu-
think it would not have removed the un-
jurors
experience
sion can cause the
fairly prejudicial nature of Johnson’s testi-
very type
of revulsion which the
mony.
inherently
Her
was so
prohibition
character evidence
is de-
prejudicial that no amount of admonition
signed
guard against.
by the court was sufficient to remove the
Imwinkelried,
Edward J.
The Use Evi-
prejudice.
dence
Uncharged
Accused’s
Miscon-
Marvin,
v.
197 Iowa
duct to Prove Mens Rea: The Doctrines
(1924),
N.W. 315
charged
the State had
Which Threaten to Engulf the Character
defendant with
Prohibition,
lascivious acts with a child.
Evidence
St. L.J.
Ohio
(1990).
The trial court
jury’s
withdrew from the
*8
prior
consideration evidence
similar
of
bad
preju-
The State contends there
nowas
444,
acts with another child.
Id. at
197
contention,
support
dice.
In
of its
the
appeal,
N.W.
315-16. On
this court
First,
points
State
out
following.
the
the
trial,
that,
granted
new
holding
given
the
district court’s limiting instruction told the
nature of the testimony, the trial court’s
jury
they
that
could use Johnson’s testimo-
action was
to
enough
not
remove the
ny only to determine Castaneda’s intent.
testimony
harmful effect of such
to the
Second,
jury
the court also instructed the
444, 445,
defendant.
Id. at
197 N.W. at
that
the
prove
State had to
intent with
point,
thisOn
the court said:
contact,
respect
charge
of indecent
respect
but not with
to the three charges
questioned
Did the withdrawal of the
Last,
degree
of second
testimony
abuse.
be-
from the consideration of the
jury
cause the
found
guilty
jury
Castaneda not
cure the error of its admission in
not,
videotaped
The
concedes that the
think
and
State
first instance? We
the
However,
hearsay.
The
the
is
evidence
interview was
reason
obvious.
the
jurors
minds of the
leave
the
contends no constitutional violation
State
contention,
prone-
of
defendant’s
impression
support
the
of
the
occurred.
its
the
and the knowl-
things,
to do such
exception
ness
the residual
for
State relies on
jury
the
had received
edge which
hearsay
in Iowa
found
Rule of Evidence
804(b)(5).
the
the defendant with
to
acts of
relation
by
be erased
girl could not
another
of
constitu
Our review Castaneda’s
part of the trial
direction on the
mere
de
tional
to confrontation is
novo.
right
court,
that
when was determined
such
659,
Rojas,
See State v.
N.W.2d
should be held inadmissible.
(Iowa 1994).
think the
Evidence
65
The two
clause,
the declar-
declarant is unavailable when
accord-
policies underlying
tant
the
present
testify
Court,
to
at
ant “is unable to be
preference
to the
was a
for
ing
of death or
the trial or
because
face-to-face confrontation at trial and the
existing physical or mental illness or
then
right of cross-examination.
Id.
added.) The dis-
infirmity."
(Emphasis
Nevertheless, the
recognized
Court
court
was unavail-
trict
concluded
“may
dispens-
competing interests
warrant
the evidence
she suf-
able because
showed
65,
at
at
ing with confrontation
trial.” Id.
posttraumatic
from
stress disorder
fered
2538,
607;
at
100
65 L.Ed.2d at
ac-
S.Ct.
alleged
sexual abuse.
related
524
accom-
Rojas,
cord
N.W.2d at 664. To
Amendment
to the Federal
Sixth
interests,
the
competing
modate these
“in all
guarantees that
crimi
Constitution
adopted “a general approach”
Court
enjoy
shall
prosecutions,
nal
the accused
determining when
state-
incriminating
right
...
to
the
the
be confronted with
exception
admissible under an
to
ments
against him.” U.S. Const.
witnesses
hearsay
require-
the
rule also meet
the
VI. The
Amendment
amend.
Sixth
the
ments of
Confrontation
Rob-
Clause.
binding on the
through
states
Four
erts,
65,
2538,
at
448 U.S.
100
at
65
S.Ct.
teenth Amendment to the Federal Consti
607; Rojas,
at
L.Ed.2d at
524 N.W.2d
805, 813,
Wright,
tution. Idaho v.
497 U.S.
noted that
Court
the Confrontation
3139, 3145,
638,
111
651
110 S.Ct.
L.Ed.2d
“operates
separate ways
in two
to
Clause
(1990).
range
hearsay.”
restrict
of admissible
Although
Supreme
Court has
“First, in
Id.
conformance with
Fram-
recognized
hearsay rules and the Con
accusation,
preference
ers’
for face-to-face
generally designed
Clause
frontation
are
prosecution
...
produce,
must either
values,
protect similar
the Court does
of,
unavailability
or demonstrate the
equate
pro
the Confrontation Clause’s
declarant whose statement it
to use
wishes
general
with the
prohibiting
hibitions
rule
Roberts,
against the defendant.”
448 U.S.
of hearsay
the admission
statements.
Id.
65,
2538,
607;
at
at
at
100 S.Ct.
65 L.Ed.2d
814,
3146,
at
445
making
round
the
and
Clause. 448
the
statement
violate the Confrontation
2540-45,
66-77,
particularly
that render the declarant
wor-
at
that declarant is “unable to be
or
ings would
difficulty
create tremendous
testify
at trial or
because of
with
testifying
court and Mr. Castane-
then-existing physical
death or
or mental
presence
da’s
likely
retraumatize
Two,
infirmity”)?
illness or
did the video-
her in
emotionally
vulnerable state
taped
“particularized
interview have the
unlikely
she
in.
It is also
guarantees of
required
trustworthiness”
she would be able to communicate the
hearsay
residual
statement?
occurred,
offenses that
and as stated
mentioned,
previously,
just
expressed
she has
her un-
As
before the second
started,
willingness to talk
judge
trial
about these offenses.
Dandos ruled that S.C.
forced,
If
additional physiological
and
testify
unavailable to
at trial. He
psychological
harm would occur.
ruling
part
based his
on a recent letter
Loeffelholz,
from social worker Doreen M.
The State relies on cases from several
therapist.
S.C.’s
Loeffelholz noted that
jurisdictions which
“psy-
have held that a
alleged
Castaneda’s
abuse
chologically unavailable” witness is un-
being
therapy,
addressed in
but that
purposes
available for
of the Confrontation
Clause. We discussed
of these
several
very
remains
resistive to talking about
cases in
v. Gregg,
(1) probability inju- of psychological the ruling correctness of trial the court’s (2) the ry testifying, as a result of de- expert’s agreement because of the (3) injury, the gree anticipated of ex- the comparative severity the of victim’s injury, pected probable duration of the and testifying again. reaction to expected inju- psychological whether the (footnote omitted). Id. 829-30 substantially greater the ry is than reac- At of in March average rape, victim of a the time trial S.C. tion She is fourteen. terrorist act.... The fac- twelve. now Two kidnapping or years passed ex- weighed in the have since Loeffelholz’s tors should be context now, other, By well amination and letter. S.C. is each as in context of perhaps testify alleged- able to about what preexist- the nature of crime and remand, her. ly happened to the State ing psychological history of the witness. On again prove will to is have burden (1981). 436 A.2d 830 n. 18 if it to use unavailable wants the video- Warren, trial court excused transcript taped and the of that interview victim rape testifying from because at the of this This interview retrial case. she experts agreed medical “would obliged prove time will the State be to undergo greater anguish far mental than for S.C.’s condition meets the test unavail- normally appearances accompanies court ability have set out. we rapes ... that her victims of and likely in court ... be appearance lapse of time Given psychosis, possible lead to severe even sui- adopted fact now that we have standard Id, ample at 828. There was rec- cide.” determining psychological unavailabili that the witness had suffered ord evidence prudence ty, a new examination of dictates depression that severe had reached suicid- should S.C. The examination cover Additionally, independent al levels. Id. enough detailed Warren factors be sup- of the witness psychiatric evaluation allow district court to determine decision, ported court’s the trial psychologically whether is unavailable independent witness concurred with the adopted. under have the standard we expert opinion the State’s witness. at 828-29. court, If in applying the district unavailable, standard, in is passage think the determines S.C. following
We War- up then to determine if the aptly feeling ren our as when it the court will need sums “particu- meets the appropriate apply theory psy- videotaped interview ac- chological unavailability: guarantees larized of trustworthiness” CADY, cording Supreme (dissenting). to the factors the Court Justice Wright found appropriate. respectfully I dissent from the conclu- Wright imply do not the factors We majority sion reached the trial may consider. are the factors a court admitting its court abused discretion mentioned some additional factors We I Castaneda’s act. sex Rojas. See N.W.2d would conclude the trial within court acted its discretion to admit the evidence. Disposition. we Because conclude
IV. *13 admitting in the district court erred the majority The assumes evi- disputed the challenged testimony for- of Castaneda’s specific dence relevant to intent the wife, we the of the mer vacate decision the element of crime of indecent contact appeals, of judgment court reverse the of assumption with a child. This is correct sentence, conviction and remand for a because the intent or state mind associ- of new trial. prior the ated with sex act makes more AP- DECISION OF COURT OF probable than not that VACATED; PEALS OF JUDGMENT specific the have had intent to arouse or REVERSED; DISTRICT COURT CASE if satisfy his desire other evidence REMANDED FOR TRIAL. NEW engaged prohibit- at trial he showed the child. See Iowa Rs. with a ed contact justices All concur except SNELL and 404(b). Thus, Evid. fighting ques- the NEUMAN, JJ., who concur specially, tion is whether this relevant is evidence CADY, LARSON, TERNUS, JJ., who pro- nevertheless inadmissible “its because dissent. is substantially outweighed by bative value prejudice.” the of danger unfair Iowa R. SNELL, specially). Justice (concurring Evid. 403. opinion I majority concur with the hold- I acknowledge danger prejudice a of ing the case must be and re- reversed by permitting jury exists to hear evi- a manded for new trial. evidence of The prior dence of Castaneda’s How- sex act. prior the defendant’s sexual acts with one ever, danger of unfair prejudice is not than the victim should have been enough exclude evidence under rule 403. as excluded inadmissible of a evidence requires probative The rule value of trait of character under Iowa Rule Evi- substantially the evidence to be out- 404(b), prejudicial dence and as unfairly by weighed danger of prejudice. unfair under Iowa evidence Rule of Evidence 403. “hostility This means evidence arouses addition, the evidence should have sympathy regard for one side without as not under been excluded relevant probative value of the evidence.” by standards established Rule Evi- Iowa of McCormick Evidence on Strong, John W. prior-acts dence is dis- evidence (4th ed.1992). § Yet, we can- to the charged similar offense to which prejudice not assume will occur based sim- relevancy is claimed. engag- Defendant’s ply on the nature of In- the evidence. a ing in sex act with not his wife was stead, 403 requires rule of assessment legal any but did not involve children value of the evidence and the act. illegal The State’s of rele- assertion degree danger, compari- by followed stretches vancy the word “relevant” Fishman, son of the two. Clifford S. unreasonably fashion that would admit re- (7th Jones on Evidence 11:12, § at 290 motely subject connected having matter ed.1994). sex nexus. agree pro- I with the majority that the NEUMAN, J., joins special prior bative value of the act is concurrence. specific diminished this case because the particular prior act evi- manner prohibited contact in the engage intent to dence. or not secondary to whether a child Nevertheless, specific the act occurred. prior the value of the comparison A the crime an element intent remains prejudice with the fear act evidence prove. required the State is a clear conclusion produce does should be excluded. prior act evidence hand, danger degree the other On cau- by is reinforced conclusion This also diminished. evidence is by the posed by given instruction tionary illegal and was not prior act indication court and a lack district charged. the act from factually dissimilar improperly prior act evidence was that the similarity between Generally, greater in argument. used charged gives and the crime act prejudice. unfair risk of greater to a rise in an issue of this appeal Our role Fishman, on Evidence Jones S. judgment 3 Clifford our not to substitute nature is ed.1998). case, (7th In this 17:93, § at 618 judge trial made for the decision *14 likely dissimilarity makes it less the factual of discretion a clear abuse to look for but the evidence misuse jury recognize must of that decision. We crime committed conclude Castaneda is diffi- under rule 403 balancing task have fan- may he simply because charged to dif- cult, may come judges and “[w]ise committing a children while about tasized situations.” similar fering conclusions is evidence Thus, an adult. When judges act with § sex trial at 782. Strong, dissimilar, is less likelihood there to make such deci- position in the are best guilt. it to infer misuse leeway.” will “much given should be sions and failed to majority has at 783. pri- likelihood that Additionally, the important precept. follow generate in this case would evidence or act way to render or shock such disgust TERNUS, JJ., join this LARSON verdict a rational jury unable to return dissent. if the it would be far less than is an actual consisted of charged The crime of a child. abuse most of shocking, and
this case is necessarily be support it will
evidence to Yet, suggest nothing
shocking. there strong particularly in a jury will react