*1 the cost be available. Given will fenses Iowa, Appellee, STATE of experts to counter hiring of
and trouble however, defenses, is evident those effectively eliminate today’s decision will in the arising assaults prosecution of RODRIQUEZ, Appellant. Aladdin bar fights. context of No. 00-0763. concern, voluntary permitting greater
Of responsibility diminished intoxication and Supreme Court of Iowa. abuse domestic raised as defenses to be substantially undermine will assault Nov. our abuse purpose domestic
protective
statutes, legis- contravening clear thereby Neuzil, intent. State
lative Cf. 1999) (Iowa (classification 708, 711 re- stalking crime general-intent as but proof purposeful conduct
quires defen- proving hurdle
avoids substantial intent, subjective permit- thereby
dant’s harassment
ting state intervention before confrontation). to physical
escalates short, I court’s am convinced the the intent question
turnabout on the unnecessary in
required assault from of this case unsound
the context standpoint public policy. legisla- A might assault
tive rewrite of the statute run,1 problem long but
remedy will in the meantime. Giv- reign
confusion us, I record see no reason
en the before bench,
subject public the bar upheaval.
LARSON, J., special joins this
concurrence. statute, 708.1(2). example, Iowa section found in the assault section
1. For Code statute, l(2)(a), stalking proscribes Neuzil, 708.1 (proof N.W.2d at 711 of intent See a "purposefully engaging] in of con- course proof subjective on motive whereas focuses person duct" that would cause reasonable proscribed party engaged conduct bodily using injury, rather than to fear behavior). solely objective focuses language place another in fear” "intended *4 Johnston, Muscatine, Douglas E. ap- for pellant. Miller, General,
Thomas J. Attorney Mary Tabor, E. Attorney Assistant Gener- al, Phillips, R. County Attorney, Richard and Dana Christensen and Teresa Stoeck- el, County Attorneys, appel- Assistant lee.
TERNUS, Justice. defendant,
The Rodriquez, ap- Aaddin peals multiple his criminal convictions aris- ing out of an incident domestic abuse. Concluding that evidence of and sub- sequent occasions of domestic abuse had admitted, been improperly the Iowa Court Appeals reversed the defendant’s con- victions and remanded for a new trial. We granted application the State’s for further review and appeals now vacate the court of (2) (3) murder; injury; ed willful third- and affirm the district court’s decision (4) and domes- degree kidnapping; aggravated of conviction sentence. judgment (5) assault; as- tic serious domestic Proceedings. Background I. Facts 708.4, 707.11, §§ sault. See Iowa Code 708.2A(2)(b) 710.1, 710.4, 708.2A(2)(c), twenty, Enriquez, age was seen Melinda (1999). pled guilty. room of a The defendant emergency Muscatine evening on the of October hospital trial, Prior the State filed notice reported boyfriend that her had 1999. She En- to introduce evidence from intended her, him identify but refused beaten she other riquez regarding and her mother boyfriend her hit her by name. She said objected incidents of abuse. defendant buckle, and hit a metal belt her with with trial, to this the court but her with feet in his hand kicked his permitted testimony by about head, chest, and abdomen. She also and about occasions abuse stomped her alleged boyfriend incident that occurred the October after neck. mother this tes- assault. Her corroborated injuries physical A examination revealed timony. testimony In addition to the *5 history. Enriquez with this had consistent witnesses, emer- these the State called the nose, forehead, around left bruising her gency physician Enri- room who treated cheek. In eye and addition there were quez injuries, for her the officer who inter- neck, her on the side of her right bruises an Enriquez hospital, viewed at and chest, upper cage, lower left right her rib expert who testified about “the battered shoulder, upper the left part across the of syndrome.” women’s upper aspect and the outer right her arm After the court overruled his motion for upper “spar- her left arm. Evidence of verdict, a took the directed defendаnt at the ing,” pattern a often left site of dispute stand. did The defendant an was also This impact object, noted. Enriquez’s injuries, he caused but had being with hit sparing consistent jealous angry. He claimed he was and Although with force. x- great belt buckle Enriquez that he with admitted assaulted fractures, no rays revealed there was some belt, hand, stepped hit her with his and retropharyngeal swelling tissue in En- soft choking on her and neck. denied cheek He neck, indicating that her trachea riquez’s confining and denied her their addition, depressed had been backward. apartment. tender, Enriquez’s abdomen was and she testimony, After the defendant’s was stiff sore. jury jury. case was submitted police a Muscatine officer arrived When charges guilty found the defendant of all hospital, Enriquez gave at the him several except attempted murder. At his later sen- the perpetrator, names for but never iden- tencing, that the two urged the defendant true It was until a tified her assailant. be domestic assault convictions should incident, subsequent approximately one merged in the willful conviction. The injury later, the defendant month when chased court do so declined to and sentenced knife, Enriquez with a she informed defendant to serve consecutive sentences police responsi- the defendant was charge for each of which was convicted. he injuries ble for of October 3,1999, chal appealed, On December the defendant was The defendant (1) separate grounds: with convictions on charged lenging five offenses relat- his four (1) attempt- to the error in evidence of ing October assault: (2) acts; subsequent allowing bad error in conformity acted therewith. It (3) however, expert testify; may, the domestic abuse be admissible for other (4) judge impartial; purposes, proof motive, the trial was not such as op- intent, in failing merge error the assault con- portunity, preparation, plan, injury victions into the willful conviction.1 knowledge, identity, or absence of mis- We transferred the case to the court of take or accident. appeals. That court reversed the defen- 404(b). Iowa R. Evid. This court has re convictions, concluding pri- dant’s 404(b) cently observed that rule “is a codi or and subsequent bad acts evidence was fication of our common-law rule that one
improperly granted admitted. We further crime cannot proved by proof be of anoth review. Castaneda, er.” State v. 621 N.W.2d (Iowa 2001). Thus, 404(b) rule seeks to
II. Did the Triаl Err Court in Admit- exclude evidence that serves no purpose ting Evidence Prior Bad Acts? except to show the defendant is a bad person, from which likely Scope A. review. This court infer he or she committed “generally the crime evidentiary rulings review[s] question. Hedican, Id. 439-40. Accordingly, to be abuse of discretion.” Williams “ admissible, (Iowa evidence must 1997); be relevant 561 N.W.2d ‘to accord (Iowa some fact or 173,177 element in issue other Bugely, State v. ” 1997) than the disposition.’ defendant’s criminal (applying abuse discretion stan Cott, Id. at 440 (quoting State v. reviewing dard in admission of other (Iowa evidence). 1979)). crimes An abuse of discretion *6 occurs when the trial court exercises its Evidence is relevant ... “when it has discretion “on grounds or for reasons ‘any tendency to make the existence of clearly clearly untenable or to an extent any fact that consequence is of to the Maghee, unreasonable.” State v. 573 proba- determination of the action more (Iowa 1, 1997). N.W.2d 5 “A ground or ble or probable less than it would be ” reason is sup untenable when it is not without the evidence.’ Evidence is rele- ported by substantial evidence or when it vant if person a reasonable might be- application is based on аn erroneous of the probability lieve the of the truth of the law.” Graber v. City Ankeny, 616 of consequential fact to if be different (Iowa 2000). 633, N.W.2d 638 person knew of the challenged evidence. (Iowa Brown, 113, State v. 569 N.W.2d 116 Analytical B. Iowa framework. 1997) Plaster, (quoting State v. 424 N.W.2d 404(b) Rule of Evidence addresses the ad (Iowa 1988)). 226, 229 missibility of of evidence other bad acts. It states: If the evidence is relevant for a crimes,
Evidence of other wrongs, legitimate purpose, or the court must then acts is not admissible to the char- assess whether the “probative evidence’s person acter of a in order to show that substantially value is outweighed by the alleged 1. The defendant also Jeopardy precludes error in submis- Clause our review of a attempted charge sion of the murder to the judgment acquittal. Taft, of State v. jury. acquitted charge, Because he was of that (Iowa 1993). The defendant any error in its submission was harmless. any respect does not contend that error with Sharpe, State v. 304 N.W.2d 223-25 attempted charge to the murder infected his (Iowa 1981); Love, State v. convictions of the other offenses. (Iowa 1981). addition, the Double analy- in the Iowa R. Evid. of review context of the prejudice.” dard of unfair danger “ the trial The abusе of required of court. gauges value’ sis 403. ‘[Probative “to in applicable standard of review force of’ evidence discretion strength and less recognizes fact more or that whether evi- consequential this matter make a Plaster, 231. N.W.2d at Un- crimes admitted should be probable.” dence evidence that is on trial fairly prejudicial judgment part evidence call of the is court. arous- sympathies, “appeals jury’s to the horror, in- provokes its its sense
es
Analyzing
pertinent
weighing
other
punish,
triggers
stinct
costs and benefits [of
may
action
mainsprings
[that]
of human
is
trivial task. Wise
evidence]
acts
no
on
its decision
cause a
base
may
differing
come
conclu-
judges
other than the established
something
sions
similar situations. Even
propositions
the case.”
may
item of
fare differ-
same
evidence
al.,
next, depend-
et
(quoting 1 Jack B. Weinstein
from one case
ently
Id.
¶ 403[03], at 403-33
relationship
Evidence
its
to the other evi-
ing
Weinstein’s
(now
(1986)
Joseph
case,
M.
importance
to 403-40
found
of the
dence
bears,
Federal Evi-
McLaughlin,
likely
Weinstein’s
on which
and the
issues
403.04[l][c],
§
at 403-40 to 403-44
dence
to the
efficacy
cautionary
instructions
(2d
2001))).
pro-
weighing
A
proper
ed.
jury. Accordingly,
leeway
given
much
requires
value and unfair
bative
pro-
judges
fairly weigh
trial
who must
court
that the
consider
dangers.
probable
bative value
side,
for the
actual need
“on the one
§
at 647-
1 McCormick on Evidence
light
other-crimes
complaining party
the de-
—here
available
and the other evidence
issues
establishing
“the
fendant —has
burden
convincingness
prosecution,
to the
the trial court
its discretion
abused
crimes were
the evidence
the other
balancing process under
rule 403.”
accused was the
committed
Plaster,
State N.W.2d agree. third- charge, and we To (Iowa 1991) Cleary, (quoting Edward W. kidnapping, required degree the State was (2d § on at 453 McCormick Evidence Enri- confined to show defendant 1972) (now substantially at 1 found ed. did apartment, knowing in the that he quez Strong, on Evidence John W. McCormick so, have сonsent do with the her to (5th 1999) § at 672 [hereinafter ed. injury upon inflict her or intent to serious Evidence])). de- on Since our McCormick secretly the intent to confine her. with Wade, we that there cision have stated 710.1(3), (4). relevancy of § Iowa Code proof’ “clear that the defendant must be under bad acts evidence is best Brown, 569 bad acts. committed context with the record stood at 117. There respect kidnapping charge. to the fore, ruling pertinent we turn now to testimo
Before we examine the case, stan- the witnesses. briefly ny in this we consider the Enriquez testified that at approximately Shortly after the defendant removed his neck, a.m. on morning 3:00 of October foot from Enriquez’s she was allowed 1999, the angry go defendant became when to to the bathroom. As she was wiping face, mother, his blood off request she refused to have sex. The her her Carmela Escobedo, Enriquez being Upon defendant accused un- arrived. seeing her faithful, daughter, they argued, him Escobedo and she told she became nauseated. Escobedo begged him. the defendant going was to leave This statement to let her take her daughter hospital, to the caused the defendant to an- but he become even Eventually, refusеd. when some of grier began forcefully and he the de- hitting her (The fendant’s apartment, friends arrived at the with the metal buckle of a belt. vi- Enriquez and her mother were attack able to highlighted by ciousness this escape and drive to emergency room. Enriquez’s testimony that one of the blows from the belt broke her skin and resulted Enriquez questioned was also about her scar.) permanent in a Enriquez When tried tumultuous relationship with the defen- bedroom, run out of the grabbed her dant. This testimony included the defen- hair, belt, by again hit her with the physical dant’s Enriquez, abuse of includ- pushed bedroom, her back into the and ing incidents where punched the defendant told her to quiet. be He said that he didn’t her, threatened her gun, attempted with a want her to leave because the day she her, strangle her, slapped twisted her leaves she “will be six feet underground.” arm, lips iron, burned her with a curling Enriquez understood this statement hit causing abdomen her to mean that Rodriquez would kill her. suffer a miscarriage. Enriquez said that Rodriquez had threatened to harm her or
Enriquez lay down in the corner of the
kill her if
reported
she ever
his abuse. She
room and “didn’t move so [the defendant]
also testified that
these incidents almost
time,
again.”
wouldn’t hit
During
[her]
always began when she announced an in-
positioned
the defendant
top
himself on
tention to leave Rodriquez,
simply
said
door,
by
purportedly
pre-
bed
she wanted to
Enriquez
visit her mother.
vent Enriquez
escaping. Eventually,
from
did not go
great
respect
into
detail with
the defendant
apolo-
calmed down and
prior assaults,
these
by
as evidenced
Nevertheless,
gized.
testified
fact
testimony
subject
that her
on this
that she was not allowed to leave the bed-
during
comprised
direct examination
less
room
during
day
entire
October
pages
than six
274-page
trial tran-
Rodriquez
She said
continued to sit on the
script.
bed
the door “watching
[her]
whole
time.”
cross-examination,
On
defense counsel
*8
sought
Enriquez
to establish that
did not
In the
early
late afternoon or
evening of
stay with the defendant out of fear or
11, Enriquez
October
told the defendant
intimidation, but out of love. Counsel made
that she was tired
him hitting
of
her and
a point
emphasizing
of
that Enriquez re-
going
she was
to leave him. He became
turned to live with the defendant after the
enraged and began hitting her with the
October
incident.
herself,
belt.
she tried
When
to defend
he
began punching her. When she fell to
Enriquez’s
the
mother
prior
corroborated
floor,
stomped
he
on
point
her neck “to the
incidents of
personally
abuse that she had
witnessed,
where [she] couldn’t breathe” and
injuries
her “vi-
as well as bruises and
sion went black.” She testified she thought
daughter.
she observed on her
Escobedo
going
she was
to die.
also recalled occasions when she overheard
force,
deception.”
threat
Enriquez’s
threaten
life.
or
The fact
the defendant
cruelly
defendant had
Enri-
testimony
direct-examination
concern-
the
assaulted
Her
occupied
quez
past
than four
when she tried to leave
ing prior
less
abuse
him
it
probable
makes more
that his mere
transcript.
pages of the
in
presence
bedroom
the
was intended—
earlier,
testified
noted
the defendant
As
perceived
and
be a
of harm
threat
—to
admit-
in his own
defendant
defense.
calculated to
In
prevent
leaving.
her from
belt, striking
with
hitting Enriquez
the
ted
addition,
prior
of the
evidence
defendant’s
arms
his hands
her in the face and
with
intentional, violent acts towards the victim
neck,
fists,
on her
and
stepping
and
cheek
coupled
with his
to kill her if
threats
causing
“nasty” injuries
in
the
general
and
him
it
probable
she left
also makes more
of
taken at
photographs
Enriquez
shown
inju-
that he
to cause her
intended
serious
days
hospital
the
and а few
later. Rodri-
ry on
claim
October
contrast to his
this conduct was
quez acknowledged
injuries
day
that the
he inflicted that
were
assault, and
wrong,
guilty
was
unintended,
merely
incidental
conse-
Then, in
punished
that he
for it.
would be
Haskins,
quences
anger.
See
his
State v.
words,
attorney’s
his
defendant was
(Iowa
Ct.App.1997)
45-46
questioned
and the
“about
elements
(finding
evidence
assault
counts
for.”
[the
five
defendant
here
was]
victim
intent
relevant
of defendant
response
attorney’s
In
his
questions,
victim).
charged
attempted
with
murder
that he
defendant denied
ever confined
Enriquez
apartment
kept
or
D.
value
preju
Probative
versus
leaving.
from
The defendant
testified
Having
dicial
concluded that
effect.
keep Enriquez
intention to
relevant,
was
his
is
we
evidence
now consider
leaving
that he
trying
from
was not
whether the trial court
its discre
abused
kill
He
cause
her.
said he did
intend to
deciding
probative
tion in
value of
any permanent
injury,
disfigure-
a serious
outweighed
inherently
this evidence
its
ment,
any
Enri-
permanent damage
first
“the
prejudicial
inquiry
effect. Our
body
quez’s
Rodriquez
or mind.
testified
actual need
...
for the
his
simply
temper
that he
lost
and beat
light of the
and the
issues
other evidence
Enriquez
anger
jealousy.
out of
He
Wade,
availablе.”
The final whether there was clear crime”). rehensible nature of prоof charged that the the defendant committed the acts, Moreover, prior supports also admission of the fact that the defendant ad only Enriquez testify evidence. Not did mitted the October 11 assault any to removed incidents, these but her mother corrobo- danger prior acts evidence would many rated of the abusive events and be used to show that on October 11 he threats. in conformity prior acted with his acts and perpetrator. therefore was the See Godber On the other side of balancing Miller, (Iowa sen v. process, the trial court required was 1989) (stating prejudicial pri- effect of consider degree prejudice by or acts evidence was weakened defen prior would result from of the admission respect dant’s admission with the cur testimony.2 Certainly acts this evidence crime). rent would have capability producing un balance, say fair On we cannot that the trial jury, such as desire fairly court did not punish weigh probative the defendant. But the effect put perspective. probable this evidence must be value of the evidence against the dangers The State did not elicit it. think great detail about We the trial prior spent assaults and a relatively balancing court’s resolution of this delicate small amount time ques- process on this line of was reasonable and did not consti- Prejudice 2. lo defendant can be limited he had committed the October 11 assault be- cautionary with the use of a instruction ex- acknowledged cause defense counsel in his plaining purpose prior for which the acts opening statement that the defendant con- Plaster, may be used. See guilty ceded he was of at least one of the N.W.2d at 232. Here the defendant did not charges. assault request limiting instruction and none was future, given. In the trial courts would be jury 4.If in this case had been molivaied give jury, wise to such an instruction overwhelming hostility toward the defen- specifically requested by even if not the defen- evidence, likely dant acts it seems dant, whenever bad acts evidence is intro- would have convicted the defendant purpose. duced for a limited attempted charge. of the murder To con- trary, jury acquilted Rodriquez of this Although the defendant had not testified at offense, charge which the most serious the time the trial court ruled on the admissi- bility on which he was tried. acts the court was dispute aware that the defendant did not
244
Holland,
Accordingly,
any prejudicial effect.” Stаte v.
tute an abuse of discretion.
1992).
652,
(Iowa
per-
trial court’s decision to
es-
we affirm the
655
“To
the de-
by
prejudice,
mit
bad acts
defendant]
evidence of
tablish
must
[the
probability
for
fendant.
show reasonable
but
of the trial
the error the outcome
would
Err
Admit-
Trial Court
III. Did the
Crone,
have been different.” State
545
Act
Subsequent
ting Evidence
the
of
1996).
(Iowa
273
it
Although
N.W.2d
by
Abuse
the
of
Defendant?
reviewing
for a
court “to sur-
is difficult
scope
governing
question by
of review and the
Our
mise what answer to what
in the
legal
have been set forth
of
principles
tipped
proof
witness
the burden
what
repeated
verdict,”
and
be
precipitated
division
will not
preceding
and thus
the
where
by the de-
challenged
overwhelmingly
The evidence
here.
the other evidence
estab-
by Enri-
testimony
of
fendant consisted
guilt,
ap-
lishes the
we have
defendant’s
November,
quez
after the October
plied the
error doctrine. State v.
harmless
assault,
(Iowa
had another
Rodriquez
Brodene,
1992).
she and
N.W.2d
leaving for work
Enriquez
altercation.
was
think that even without the
We
subse-
to come
and the defendant wanted her
evidence,
acts
there was
quent bad
over-
straight home when she was done. She
whelming
guilt.
evidence of the defendant’s
demand,
this
he told
agree
so
refused
Both Enriquez
He admitted the assault.
her
not
The defendant
she could
leave.
mother
that' even
and her
testified
after
money.
proceeded
then
her
When she
took
apartment
Escobedo arrived at the
on Oc-
door,
pull
he tried to
walk out
11, the
tober
defendant still would not
Rodriquez
back in
the hair.
then ran
emergency
allow
to leave. The
knife,
apartment,
and
got
back into the
physician
room
both the na-
corroborated
Escobedo,
began
Enriquez.
Enri-
chasing
injuries.
Enriquez’s
ture and extent of
In
mother,
quez’s
witnessed this event. After
addition, he testified to the force that was
incident, Enriquez
police
this
called
injuries
as
required
inflict these
well as
reported
the November assault
injury
Enriquez’s
fact that the
tra-
Rodriquez as the
identified
assailant
have
threatening.
chea could
been life
This
October assault.
evidence, together
with the
bad acts
analysis
in an
engage
willWe
detailed,
previously
sup-
evidence we have
relevancy
evidence nor will
ported each element of the crimes of which
balancing
we review the trial court’s
convicted, including
the defendant
probative
against
of the
its
value
evidence
specific
of confinement and
in-
elements
prejudicial
do so because
effect. We do not
tent,
disputed.
which
had
When we
if
we think that even
the evidence was
prejudicial
weigh
against
this evidence
admitted,
improperly
such admission was
evidence,
subsequent
effect of the
bad acts
harmless error.
preju-
we do not think the defendant was
prejudicial
required
Reversal
diced. The
effect
subse-
unless
acts
minimal
quent
erroneous admission of evidence
bad
evidence was
when
Liggins, 524
of the other
results. State v.
viewed
context
(Iowa
1994);
State v.
behavior al-
N.W.2d
defendant’s assaultive
1982).
(Iowa
Windsor,
simply
ready
the record.
cannot
We
admission
determining
prejudicial
effect
conclude
but for the
evidence,
subsequent
court
other evi
bad
the outcome
reviews the
acts
presented
of the trial would have been different. For
“weights]
dence
*11
reasons,
violence,”
tionship,
cycle
we hold that the admission
or “the
these
assault,
control,
aspects
power
how different
of evidence of the November
even
violence,
erroneous,
the core of domestic
by
if
are used
was harmless.
abuser
the victim. Smock noted
Trial
Err in
IV. Did the
Court
Admit-
it
very
is
common for the abuser to refuse
ting
Expert’s Testimony?
family
to let a
sеe her
victim
and to isolate
they
the victim from others so
do not know
review is
Our standard of
isolation,
going
what is
on. This
she testi-
it
alleged
same for this
error as was in
fied,
commonly
also
extends to controlling
considering the admission of bad acts evi
ability
the victim’s
to work and her access
dence: abuse of discretion. See State v.
resources,
to economic
as well
as access
(Iowa 1998)
Rains,
574 N.W.2d
medical care and treatment.
(considering whether court abused its dis
expert testimony).
cretion
admission of
Smock also
to what
testified
is referred
Thus, the trial court’s
will
decision
not be
to as “the battered women’s syndrome.”
overturned unless the trial court
opined
exposure
“exer She
that continued
to do-
cised
mestic abuse leads to a
grounds
feeling
helpless-
[its] discretion
or for
ness, where the victim often
clearly
begins
reasons
untenable or to an extent
believe what
being
she is
told
her abus-
clearly
Maghee,
unreasonable.”
er, i.e.,
stupid,
that she is ignorant,
ugly, a
at Additionally,
we note “[t]he
mother,
terrible
etc. The victim feels
general
jurisdiction
rule
is one of
trapped and unable to leave. Smock said
liberality
opinion
in the admission of
evi
statistically,
“the national
it
average is
Halstead,
dence.”
362 N.W.2d
State
usually
takes
about seven times for a wom-
(Iowa 1985).
an
go
finally
back and forth
[she]
before
provide
rules of
Our
the ultimate decision to leave.”
make[s]
following standard for
admission
of Additionally,
Smock noted that
is com-
expert testimony:
deny
mon for a battered woman to
scientific, technical,
If
spe-
or other
place,
testify
incident took
be reluctant to
knowledge
cialized
will assist the trier of
batterer,
against her
refuse
assist
fact to understand the evidence or to in
prosecution.
Often these reactions
issue,
determine a fact in
qual-
witness
are out of fear. Smock also testified that
skill,
expert by
ified as an
knowledge,
statistically,
a battered woman is
experience, training,
may
or education
danger
most
when she tries
an
to leave
testify
opinion
thereto in the form of an
relationship. Finally,
in-
abusive
Smock
or otherwise.
although
formed the
she had met
case,
the victim in this
she did not have
words,
R.
Iowa
Evid. 702. In other
“[e]x-
any personal information about the facts of
pert testimony is
if it
admissible
is reliable
the case at hand.
and ‘will assist the trier of fact in resolving
” Rains,
an issue.’
reflected Merge the Assault Convictions expert on battered testimony of Injury Into the Conviction? gave jury informa- syndrome women’s Willful sig- to understand the tion that it needed claims that Iowa Code Rodriquez the defendant’s meaning of nificance trial court to required 701.9 section the victim’s and to understand conduct aggravated for do merge his convictions Thus, evi- that conduct. this reaction to assault аnd serious domestic mestic abuse jury resolving in assisted the dence into conviction for willful abuse assault his and intent. disputed issues of confinement this claim for correction injury. We review conclude, therefore, that the trial court We Anderson, v. error. State legal of its discretion in did not abuse (Iowa 1997). N.W.2d Griffin, State testimony. this Cf. in Iowa is ex- merger doctrine (Iowa 1997) (allowing ex- pressed section 701.9: battered women’s pert testimony about pub- convicted of a person No shall be credibility victim’s syndrome on issue of necessarily included lic offense which is where, trial, had recanted her prior to she public offense of which another Gettier, defendant); State accusation If returns a person is convicted. (Iowa 1989) (allowing, more than one of- guilty verdict of abuse, expert tes- criminal trial sexual verdict conflicts with fense and such “rape syndrome” trauma suf- timony on section, judgment the court shall enter abuse). of sexual fered victims of the offenses guilty greater Judge Duty the Trial Fail in His V. Did only. Impartiality ? recently § This court has Iowa Code 701.9. principles applicable to legal stated the
The defendant has failed to state merger doctrine: preserved application in his brief how error was dеtermining whether a lesser offense abuse assault did not include the alterna- one, we greater referring display weapon, is included look tive aof found if the elements each and determine aggravated first element for the can greater offense be committed assault offense. The third elements of committing without also the lesser of- entirely these crimes were different. For *13 If greater fense. offense cannot be assault, the serious domestic abuse without committing committed also jury required was to find that defen- “[t]he offense, lesser the lesser is included in bodily injury dant’s act caused to the vic- “impossibil- call greater. We this the tim.” ity” test. The so-called “elements” test nowWe contrast the elements of applied only for included offenses is as charges these with the elements of willful an in using impossibility aid test and injury: fully subsumed in it. day 1. On or about the 11th of Octo- Hickman, State ber, 1999, attempted the defendant (Iowa 2001) (citations omitted). repeatedly choke and struck Melinda The court instructed the on the Enriquez. following charge elements of the of aggra- 2. specifically The defendant intended vated domestic abuse assault: injury to cause a serious to Melinda day 1. the 11th On or about of Octo- Enriquez. ber, 1999, the defendant either did an Enriquez Melinda sustained a bodi- pain act which was meant to cause or ly injury. in injury, physical result contact which apparent It is at once the domestic offensive, insulting place was or Melinda charges abuse assault contain an element physical in fear of immediate injury not found in the willful charge: “The painful, contact which would have been act occurred between household members injurious, her, insulting or offensive to together who at the resided time of the displayed threatening a manner a Thus, possible incident.” it is to commit the weapon Enri- dangerous toward Melinda greater committing offense without also quez. Consequently, the lesser offenses. the do- apparent 2. The defendant had the mestic abuse assault convictions are not ability to do the act. “necessarily injury included” in the willful 3. At that time the defendant used or conviction. displayed dangerous weapon a or intend- aggravated Because domestic abuse as- injury ed to cause a serious to Melinda sault and serious domestic abuse assault Enriquez. are not of willful injury, included offenses 4. The act occurred between house- merger requirement of section 701.9 together hold members who resided Therefore, apply. does not the trial court the time of the incident. separate in entering judgments did err charge of serious domestic abuse as- for each sentences conviction. separate sault was submitted instruc- tion. The second and fourth elements of Summary Disposition. VII. serious abuse were identi- domestic assault cal to the and fourth elements of The trial court did not abuse discre- second its charge aggravated admitting domestic abuse tion in evidence of acts of slightly; assault. The first element vai’ied domestic abuse the defendant Error, any, admitting the first element for serious the victim. if evi- domestic in law. probative recognized value not domestic vi- tial act of subsequent dence of Goodwin, 492 F.2d also hold States harmless. We United olence was Cir.1974). Therefore, (5th ex- “[t]he not abuse its discretion trial court did testimony on the bat- expert evidence is founded clusion of bad-acts irrelevant, The defendant syndrome. women’s the evidence is tered a belief that claim that error on his preserve failed to juries a fear that will tend but rather on fi- impartial. And was not judge the trial and on a funda- weight, give excessive trial court conclude the nally, we should be con- mеntal sense that no one con- that the defendant’s ruling correct in on his or her victed of a crime based abuse domestic aggravated victions v. Dan- States previous misdeeds.” United abuse as- and serious domestic (D.C.Cir.1985). assault iels, 770 F.2d *14 merged into not have been sault should ju- that have confirmed Empirical studies injury as the for willful the conviction highly proba- such evidence as ries treat not included offenses former crimes are Most, Id.; also v. 578 tive. see State no error or Finding in latter crime. (Iowa (“In 250, Ct.App.1998) 254 N.W.2d in trial court’s rul- discretion abuse of evidence is any case where crimes convic- we affirm the defendant’s ings, offered, strong court must consider tions. tendency jury to use for an for improper purpose.”). AP- OF OF COURT
DECISION
VACATED;
OF
JUDGMENT
PEALS
“diverts the attention
Bad-acts evidence
AFFIRMED.
COURT
DISTRICT
question
from the
of defen
of the
charged
responsibility for the crime
dant’s
LAVORATO,
except,
concur
justices
All
of
charac
improper
issue
his bad
CARTER, J., who dissent and
C.J.
Phillips,
v.
401 F.2d
ter.” United States
STREIT, J.,
part.
no
who takes
(7th Cir.1968).
301,
Consequently, even
305
LAVORATO,
(dissenting).
Chief Justice
carefully
crafted
judge gives
if the trial
reason,
long
have
fol-
good
courts
For
significance
of such
limiting
instruction
admitting bad-acts
against
lowed the rule
the defendant
is
prejudice to
showing
of
purpose
“for the
v.
“well-nigh inescapable.” United States
disposition
in
has
criminal
the defendant
(D.C.Cir.1973).
Carter,
738,
482 F.2d
740
the inference that he
generate
order to
is
against
rule
bad-acts evidence
“
he is
the crime with which
committed
in
‘just and wise’
order
avoid
therefore
Myers,
v.
550
charged.” United States
prejudice to the
danger
the enormous
Cir.1977).
(5th
1036,
As the
1044
F.2d
creates.”
evidence]
defendant
[such
observed,
Myers
concomitant
“[a]
court
Martin,
v.
505 F.2d
States
San
United
innocence is that a
presumption
Cir.1974).
(5th
918, 921
did,
what he
must be tried for
defendant
Finally,
recognize
courts
“funda-
Id. This rule is
not for who
is.”
jurisprudence.”
to American
Unit-
mental
exceptions
categories
that the various
517,
Foskey,
F.2d
523
ed
v.
636
States
intent, de-
the bad-acts
[to
evidence]—
(D.C.Cir.1980).
identity,
mag-
etc.—are not
sign
plan,
or
incantation
passwords whose mere
ic
impor-
recognize the critical
also
Courts
open wide the courtroom doors
will
guarding
tance of
incursions
may be offered
whatever evidence
rule,
has no
because bad-acts evidence
ex-
contrary,
To the
each
value,
their names.
very
reason
probative
but for
carefully
been
carved out
ception has
may
very
have
substan-
that such evidence
249
404(b)
exceptions in
judi-
a limited
The listed
rule
arе
general
rule to serve
not exclusive. Id. The critical
issue
purpose.
prosecutorial
cial and
disputed evidence
“whether the
is ‘relevant
Goodwin,
excep-
1155. These
492 F.2d at
legitimate
and material to some
issue oth-
cautioned,
tions,
courts have
“should
general propensity
er than a
to commit
permitted to swallow the rule.” San
be
”
wrongful
(quoting
acts.’
Id.
State v. Bar-
Martin,
(quoting
F.2d at 921
United
505
rett,
(Iowa 1987)).
187
“If
(5th
Miller,
F.2d
v.
States
challenged
evidence is relevant
to a
Cir.1974)).
dispute,
legitimate
prima
issue
then it is
404(b)
of Evidence
controls the
Our Rule
admissible, regardless
any
facie
tenden-
admissibility
pro-
of bad-acts evidence. It
cy to also establish a defendant’s bad char-
vides:
propensity
committing
acter or
bad
crimes,
wrongs,
Evidence of other
However,
Id.
courts do not look with
acts.”
char-
acts is not admissible to
upon
favor
bad-acts evidence and its use
person
acter of a
order to show
narrowly
“must be
and lim-
circumscribed
conformity
he acted in
therewith.
It
Hodges,
ited.” United States
F.2d
however,
may,
be admissible for other
(9th Cir.1985)
(quoting
United
motive,
purposes,
proof
op-
such as
Bailleaux,
685 F.2d
States
*15
intent, preparation,
plan,
portunity,
(9th Cir.1982)).
or
mis-
knowledge, identity,
absence of
disputed
To determine whether such
evi
take or accident.
admissible,
engage
dence is
courts
in a
404(b).
R.
Iowa
Evid.
Mitchell,
two-step process.
633
N.W.2d
foregoing authority,
Consistent with the
First,
the court must determine
404(b)
we have noted that rule
whether the bad-acts evidence is relevant
legitimate
dispute.
to a
factual issue in
Id.
principles:
recognizes two fundamental
relevancy
If the court determines such
first, that
acts
evidence of other bad
exists,
proba
it then decides whether the
relevant to whether a defendant commit-
tive value of the bad-acts evidence is sub
crime,
second,
charged
ted the
un
stantially outweighed by
danger
evidence,
reality
highly
that such
while
Id.;
prejudice
fair
Iowa
defendant.
probative,
highly prejudicial
is also
to a
finding
R. Evid. 403. An affirmative
in this
attempts
defendant. The rule
to balance
evi
balancing process overcomes the
competing
by presuming
these
interests
Mitchell,
prima
admissibility.
dence’s
facie
evidence is inadmissi-
[bad-acts]
crimes,
no substantial
having
evidence.
ly
careful
such
that ac-
the inference
except
ground
probably
man and hence
cused is a bad
Carleo,
846,
v.
576 F.2d
United States
crime,
omitted).
must be excluded.
(10th Cir.1978) (citations
committed this
rather in
leeway
discretion lies
intending to introduce bad-acts
When
direction, empowering the
opposite
only
duty
has the
State
the other-crimes evi-
judge to exclude
proffered
the trial court how the
to show
dence,
inde-
even when it has substantial
to one or more issues
evidencе is relevant
relevancy,
judgment
if in his
its
pendent
case,
precisely
in the
it must also articulate
purpose
for this
is out-
probative value
404(b) exception.
of a rule
applicability
will
danger
that it
stir
weighed
Golochowicz,
298,
Mich.
People v.
See
sweep
as to
passion
such
(1982)
(holding
beyond a rational consideration of
them
requesting
that when
admission
bad-
trial.
or innocence of the crime on
guilt
evidence, prosecutor’s
duty
first
is to
acts
only leeway but
implies
Discretion
404(b) exception upon
specify the rule
clearly wrong
A
responsibility.
decision
noting
which the
relies and
State
probative
question
balancing
on
might
the evidence
while
some instances
danger
will be
value
single pur-
than a
be admissible for more
appeal
as an abuse of dis-
corrected
case).
usually the
pose, that is not
cretion.
Additionally, the trial court must identi
fy
applicable exception.
United States
Mitchell,
(quoting
neutralized standing of a long as “the modern bastion a red charged crime” is nature of the protects a criminal defen- tradition that Biswell, 700 herring. Seе United States reputation’ and from ‘guilt by dant from (10th Cir.1983) ” (holding F.2d ‘unnecessary prejudice.’ United States bad-acts evi- improper admission of Cir.1976). (3d Cook, F.2d dence, am- other evidence even face of “[bjecause com- weighing And the entails verdict, impinged upon the ply supporting interests, delicate, must be it is peting trial). the The fact fundamental fairness of with care lest accommodation employed prior the and subse- that without remains needs results subvert- prosecutor’s the jury the would have quent assault evidence central to our con- ing principle a is to convict the defen- opportunity had no Otherwise, we allow cept of fairness.” Id. That solely on this evidence. dant based 404(b) in rule to swallow exceptions to the of whether brings question me Id. important rule. evidence is probative value of the bad-acts case, I think the In the context of danger substantially outweighed important weigh- two critical factors prejudice. unfair of the confinement ing process, light why balancing authority describes One issue, the evidence and are the need for go and the factors that into test needed is proof. disagree I efficacy alternative such a test: says majority when with accepted logi- an fact that there is [T]he necessary to evidence was assault than the for the evidence other cal basis with, a careful re- begin To confinement. showing proclivity one of forbidden téstimony regarding view of the victim’s preclude jury criminality does support an does not assaults apparent a defendant’s relying from that the defendant confined inference Ac- criminal behavior. propensity toward of these assaults. on the occasions authority recognizes cordingly, most Therefore, evi- only reason for such problem merely one was a the defendant dence was to show then classifying and but of pigeonholing, convict should person and bad whether the dan- balancing. deciding acts. him because of such the like sub- unfair ger concedes the majority Additionally, the incremental stantially outweighs *19 prior assaults was testimony of the value, variety matters victim’s a probative victim’s to bolster the considered, actually needed including the must be of confinement. credibility on the issue the com- evidence as to strength of the 254 impermissible heightened application
This is an
use
bad-acts
need for the careful
403.”).
Mitchell,
principles
at
in
evidence.
299-300. of the
sеt out
rule
There
convincing
was no
evidence that
Finally,
proof apart
there was other
fact,
that was done here.
the record is
prior
from
from which infer-
the
assaults
any
by
barren of
mention
the trial court of
could be made.
ences of confinement
See
any possible prejudice
the
defendant.
Most,
First,
578
at 254.
there was
N.W.2d
Daly, 623
at
N.W.2d
802.
Cf.
testimony on the
the victim’s direct
issue.
Second,
testimony
her
on the issue was
The trial court’s failure to make an ex-
testimony
police
plicit
probative
a
offi-
finding
bolstered
on the
value versus
physical
prejudicial
cer and her mother as to
effect of the evidence and
following
give
limiting
condition
the assault on October
its failure to
instruction
circumstances,
11.
highlight
inadequate
giv-
Under the
the need for
consideration
simply
Johnson,
balancing process.
bad-acts evidence was
not es-
en to the
See
Back,
probative
1193;
tablished and its
value was nomi- 27 F.3d at
at
588 F.2d
Cook,
nal at best. See
To
the balancing
from
The final flaw as I see it was the failure
becoming
process
a mechanical
of allowing
give limiting
of the trial court to
instruc-
just
bad-acts evidence
because it meets
tion.
trial judge
Once the
concludes that
404(b) exception,
a rule
balancing
there must be a
weighs
favor of
evidence,
“principled exercise of discretion.” Beas-
the court
ordinarily
should
1279;
ley, 809 F.2d at
see also
jury carefully
United
instruct the
as to the limited
Lavelle,
States v.
751 F.2d
purpose
for which the evidence is admit-
(D.C.Cir.1985) (“Introducing evidence of
ted.
v. Sangrey,
United States
586 F.2d
(9th
Cir.1978).
legitimate purpose,
bad
for a
acts
advisory
however,
automatically
does not
cleanse
committee notes to Federal Rule of Evi-
the evidence of its unique quality of unfair-
dence 403
the trial
require
judge to consid-
accused.”).
ly prejudicing
rights
er the effectiveness of a limiting instruc-
That
the trial judge
means
“must both tion in reducing
prejudicial impact
identify
exceptiоn
applies
to the
evidence.
an
only
Such
instruction is the
evidence in
question
way
guard
evaluate whether
the undue
although relevant and within
engenders.
bad-acts
United
(2d
exception,
sufficiently probative
Danzey,
to States v.
594 F.2d
Cir.1979).
jurors
make tolerable the risk that
will act
jury
Otherwise the
is left to its
on the basis of emotion or an inference via
usually
own devices. That
means the
the blackening of the defendant’s charac- will consider such evidence for an improp-
1279;
ter.” Beasley,
purpose
809 F.2d at
see also
er
convict based on the bad-
—to
Johnson,
(“[Bjecause prior
Iowa verdict.”). more say that it is I cannot pur- for one is admissible when the bad-acts evi- than not pur- probable another but not admissible pose not affect this case did dence introduced restrict upon request shall “the court pose, F.2d at Hodges, 770 jury’s in- verdict. See scope and proper to its the evidence the decision of the I affirm 1481. would The rule sim- jury accordingly.” struсt court reverse the district appeals, if court of must instruct that the court ply means for a new trial. and remand judgment, about a no mention It makes requested. obligation give sponte sua trial court’s CARTER, J., joins this dissent. by the advi- as directed
such an instruction Rule 403. notes to Federal sory committee the defen- simply notes that majority
The instruction request such an
dant did not That not answer given. does
and none was court the district question whether giving own considered
should have its the nature of instruction. Given possible only I think the bad-acts BLUMENTHAL INVESTMENT prejudice unfair was have avoided way to Partnership, TRUSTS, an Iowa instruction, Such an give the instruction. Appellant, however, guaranteed not have still would v. to erase jury would have been able MOINES, WEST DES CITY OF collective mind. evidence from its bad-acts Iowa, Appellee. Toto, F.2d Islands v. Virgin See Castaneda, (3d Cir.1976); State v. 282-83 No. 99-1458. (Iowa 2001). 435, 442 621 N.W.2d Iowa. Supreme Court of probative value the whatever I conclude had in this case bad-acts evidence Nov. danger
substantially outweighed by the admis- prejudice engendered
unfair all of into evidence. Given
sion of such acts I process, con- balancing flaws in the trial abused its discretion
clude the court I also conclude the evidence. affected of such evidence
the admission and consti- rights
defendant’s substantial prejudicial
tuted error. defendant] prejudice, [the
“To establish probability that a reasonable
must show of the trial the error the outcome
but for Crone, different.” State
would have been (Iowa 1996); also see Enterprises, Circus
Tennison Circus Cir.2001) (“A (9th
Inc., 244 F.3d only find
reviewing court should that, probably more
if it concludes