                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2082
                            Filed November 27, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH RAY WILLIAM FREDERICK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Joseph Frederick appeals multiple criminal convictions following a jury trial.

AFFIRMED.



      Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R.

Wilson, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Mullins, P.J., Greer, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.

       Joseph Frederick appeals multiple criminal convictions following a jury trial.

He argues the district court abused its discretion in allowing the presentation of

prior-bad-acts evidence.

I.     Background Facts and Proceedings

       Frederick was in an on-again, off-again relationship with S.H. for one and

one-half to two years prior to the incident resulting in his convictions. On the

evening of June 24, 2018, shortly after another discontinuation of the relationship

between S.H. and Frederick, S.H. and four of her relatives—her son, A.H.; her

mother, C.G.; her daughter, C.H.; and a cousin, O.G.—were traveling in a car.1

A.H. observed a car weaving in and out of traffic; it ultimately pulled up beside

them. A.H. testified he observed Frederick sitting in the back seat of the vehicle.

A.H. pointed out Frederick’s presence to his co-passengers. A shot from a BB gun

was fired into the rear passenger side window, shattering it. C.G. testified she

looked back and observed Frederick in the adjacent car. A.H. suffered cuts to his

hands. C.H. suffered a cut to her arm.           O.G. suffered an eye injury, which

ultimately left her blind in her left eye.

       Frederick was charged with several crimes in relation to the shooting. Prior

to trial, he filed a notice of his intention to offer an alibi defense. He also filed a

motion in limine, in which he sought the exclusion of evidence concerning prior

bad acts. The State filed a notice of its intention to use evidence of prior bad acts




1
 S.H. was driving, C.G. was in the passenger seat, A.H. was seated behind the driver
seat, O.G. was seated behind the passenger seat, and C.H. was in the middle of the back
seat.
                                            3


pursuant to Iowa Rule of Evidence 5.404(b)(2). The State highlighted claims that

S.H.’s “car and/or house ha[ve] been previously shot up with a BB gun by”

Frederick and allegations that Frederick physically abused her in the past.

Frederick resisted. In a subsequent brief, the State explained the evidence would

show Frederick and S.H. were in a nearly two-year, on-again, off-again relationship

that ended shortly before the shooting and, every time the couple previously broke

up, Frederick would engage in acts of violence, intimidation, harassment, and

vandalism toward S.H. The State argued said acts were relevant for reasons other

than a general propensity to commit wrongful acts, namely Frederick’s modus

operandi, intent, and identity. The State requested the court to allow presentation

of the evidence and provide the jury with a cautionary instruction to not use the

evidence for an improper purpose.2

       Following a hearing, the court agreed with the State that the prior acts were

relevant to identity and motive but concluded “the multiplicity of the acts are far too

prejudicial.” The court ruled the State could only present evidence concerning the

January incident, in which Frederick allegedly attempted to ram his vehicle into

S.H.’s vehicle, and the March assault.




2
  The State attached a number of police reports to its brief referencing the incidents of
harassment and violence. The first concerned a January 2018 incident. S.H. reported
she and Frederick had recently broke up and Frederick attempted to ram her vehicle at a
railroad crossing. In a second report about a week later, S.H. reported Frederick drove
by her residence and “shot holes in the front windows.” In early February, S.H. reported
Frederick ran into her car while it was parked outside of her residence, leaving a dent. In
late February, S.H. reported she got in a verbal altercation with Frederick and Frederick
began swinging a baseball bat at her vehicle, ultimately striking the windshield and one of
the tail lights. Finally, in March, S.H. reported Frederick assaulted her, hit her with a
handgun, pointed it at her, and threatened to kill her.
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       At trial, S.H. testified over objection that, shortly after a break up between

her and Frederick in January, she called the police because Frederick was

following her and came “full towards [her] vehicle” while she was stopped waiting

for a train. She additionally testified that, shortly after another break up in March,

police were called concerning “another incident.”

       Ultimately, the jury found Frederick guilty as charged. The court denied

Frederick’s combined motion for a new trial and in arrest of judgment. Frederick

appealed following the imposition of sentence.

II.    Standard of Review

       Appellate review of the district court’s decision to allow the presentation of

prior-bad-acts evidence is for an abuse of discretion. State v. Richards, 879

N.W.2d 140, 145 (Iowa 2016). This is our most deferential standard of review,

State v. Roby, 897 N.W.2d 127, 136 (Iowa 2017), and “we give a great deal of

leeway to the trial judge who must make [a] judgment call.” Richards, 879 N.W.2d

at 145 (alteration in original) (quoting State v. Newell, 710 N.W.2d 6, 20–21 (Iowa

2006)). An abuse of discretion will only be found where the court exercised its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable. Eisenhauer ex rel. T.D. v. Henry Cty. Health Ctr., ___ N.W.2d ___,

___, 2019 WL 5460622, at *3 (Iowa 2019); State v. Heard, ___ N.W.2d ___, ___,

2019 WL 5089718, at *3 (Iowa 2019). “If an abuse of discretion occurred, reversal

will not be warranted if error was harmless.” Richards, 879 N.W.2d at 145 (quoting

State v. Reynolds, 765 N.W.2d 283, 288 (Iowa 2009)).
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III.     Analysis

         Our rules of evidence provide “[e]vidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Iowa R. Evid.

5.404(b)(1).    However, evidence of a crime, wrong, or other act, “may be

admissible for another purpose such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Iowa R. Evid. 5.404(b)(2).

         Our supreme court has delineated a three-step analysis in determining

whether prior-bad-acts evidence is admissible under rule 5.404(b)(2):

         (1) “the evidence must be relevant and material to a legitimate issue
         in the case other than a general propensity to commit wrongful acts”;
         (2) “there must be clear proof the individual against whom the
         evidence is offered committed the bad act or crime”; and (3) if the
         first two prongs are satisfied, “the court must then decide if [the
         evidence’s] probative value is substantially outweighed by the
         danger of unfair prejudice to the defendant.”

Richards, 879 N.W.2d at 145 (alteration in original) (quoting State v. Sullivan, 679

N.W.2d 19, 25 (Iowa 2004)); accord State v. Putnam, 848 N.W.2d 1, 8–9 (Iowa

2014).

         As to the first step, we easily conclude that evidence of prior incidents

between Frederick and S.H. “is highly probative of [Frederick]’s probable

motivation and intent” in the occurrence resulting in his convictions. See Richards,

879 N.W.2d at 146 (quoting State v. Taylor, 689 N.W.2d 116, 125 (2004)). In all

three situations, the harassment in January, the assault in March, and the shooting

in June, involved acts of aggression by Frederick following the discontinuation of

the relationship between him and S.H. The history “set[] the stage for their later
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interaction.” Id. (quoting Taylor, 689 N.W.2d at 128 n.6). Perhaps more relevant

in this case, given Frederick’s alibi defense and the conflicting testimony as to

where he was at the time of the shooting, the prior acts were highly probative on

the issue of identity. Cf. id. (“Because there was conflicting testimony among

witnesses about the incident, [the] ‘[e]vidence reflecting the nature of the

relationship between the defendant and victim would be crucial to a fact finder

resolving inconsistencies.’” (second alteration in original) (quoting Taylor, 689

N.W.2d at 127). Two individuals, A.H. and C.G., testified they observed and

identified the shooter as Frederick.     However, other evidence was presented

indicating C.G. was unable to provide a description of the shooter to police officers.

Other sworn testimony asserted Frederick was in bed sick on the evening in

question. In addition, Frederick presented evidence that he was set up by way of

an exhibit of a social media message to him from S.H., apologizing and noting

another individual “put me up to setting you up.” When confronted with the

evidence at trial, S.H. denied she sent the message, claiming Frederick hacked

her social media account. On the other hand, another witness testified she was

with Frederick when he received the messages from S.H. The conflicting evidence

rendered the issue of identity a legitimate issue in dispute. See id. at 147–52

(discussing legitimacy requirement).

       That being said, proving identity with prior bad acts is subject to “a more

demanding test than the general relevancy test.” Putnam, 848 N.W.2d at 11. The

prior acts must be “strikingly similar” to the subject offense or “unique in nature.”

Id. (quoting In re J.A.L., 694 N.W.2d 748, 753 (Iowa 2005)).          This standard

“requires drawing out and comparing the peculiar circumstances of the acts.” Id.
                                        7


at 12. The prior acts presented in this case concerned harassing and aggressive

behavior toward S.H. on the part of Frederick following a break up between the

pair. The subject offense concerned the same type of behavior by someone,

toward S.H., following a break up between the two. We find the standard met.

      As to the second step, Frederick makes no argument the prior acts were

not supported by clear proof, instead conceding “a witness’[s] testimony,” which

we have here, “can satisfy the requisite standard.” Accord Richards, 879 N.W.2d

at 152; Putnam, 848 N.W.2d at 9. We deem any argument to the contrary waived.

      We turn to the third and final inquiry, whether the evidence’s probative value

is substantially outweighed by the danger of unfair prejudice to the defendant.

Richards, 879 N.W.2d at 145. We consider a number of factors in this assessment:

      the need for the evidence in light of the issues and the other evidence
      available to the prosecution, whether there is clear proof the
      defendant committed the prior bad acts, the strength or weakness of
      the evidence on the relevant issue, and the degree to which the fact
      finder will be prompted to decide the case on an improper basis.

Id. at 152 (quoting Taylor, 689 N.W.2d at 124).

      As to the need for and other evidence available and the strength or

weakness of the evidence presented on the issue, we have already noted above

that the evidence was conflicting. While Frederick generally argues the State’s

evidence trumped his evidence outright on the issue of identity, we are

unpersuaded that circumstance alone mandates reversal, nor do we agree the

State’s evidence was so much more powerful than his that the evidence was not

needed.   The fact of the matter is, the evidence was conflicting.       As noted,

Frederick agrees the prior acts are supported by clear proof. As to the degree the

evidence would prompt the jury to decide the case on an improper basis, we fully
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acknowledge that prior bad acts might instill a desire to punish in a jury and juries

are susceptible to deciding cases on an improper basis. Id. Here, the district court

significantly limited the State’s presentation of evidence of prior acts. The State

requested to present evidence concerning five previous incidents between

Frederick and S.H.; the court only allowed evidence concerning two. The court

only allowed “general terms” about the incidents, their dates, and what happened.

The testimony itself was limited—S.H. merely testified that in January, she called

the police because Frederick was following her and came “full towards [her]

vehicle” while she was stopped waiting for a train. She additionally testified that,

shortly after another break up in March police were called concerning “another

incident.” “[C]oncerns about prejudice to a defendant might be eased by narrowing

the scope of the prior-bad-acts evidence presented to the jury.” Putnam, 848

N.W.2d at 15. Here, the testimony comprised an extremely minute portion of the

evidence presented to the jury. “[T]he district court carefully circumscribed the

scope of the other acts testimony and thereby limited its potential prejudicial

impact.” Richards, 879 N.W.2d at 152. The State and court even offered to

provide a cautionary instruction concerning the prior-bad-acts evidence. Defense

counsel declined, stating, “I don’t need one.”      Frederick cannot be heard to

complain on appeal about any prejudice flowing from a lack of a cautionary

instruction. See, e.g., Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) (noting

litigants “cannot deliberately act so as to invite error and then object because the

court has accepted the invitation”).

       Upon our review, we are unable to say the probative value of the prior-bad-

acts evidence was substantially outweighed by the danger of unfair prejudice.
                                        9

Affording the district court a great deal of leeway, Richards, 879 N.W.2d at 145,

nor do we find the district court exercised its discretion on untenable grounds or

reasons or to an extent clearly unreasonable. Thus, we affirm Frederick’s criminal

convictions.

      AFFIRMED.
