               IN THE SUPREME COURT OF IOWA
                             No. 53 / 05-1980

                            Filed July 13, 2007

STATE OF IOWA,

      Appellee,

vs.

MARK ANTHONY ELSTON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Pottawattamie County, James

S. Heckerman, Judge.



      Applicant seeks further review of court of appeals decision holding the

district court did not abuse its discretion in denying his motion to sever and

preserving claims of ineffective assistance of counsel for possible

postconviction proceedings. DECISION OF COURT OF APPEALS AND

JUDGMENT OF DISTRICT COURT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Shelly Sedlak,

Assistant County Attorney, for appellee.
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HECHT, Justice.

      This case is before us on further review of a court of appeals decision

concluding the district court did not abuse its discretion in denying

defendant Mark Elston’s motion to sever a charge of indecent contact from

charges of sexual exploitation and in preserving Elston’s claims of

ineffective assistance of counsel for possible postconviction proceedings.

We affirm.

      I.     Factual and Procedural Background.
      Mark Elston was a friend of Brenda Neff and her husband, Dale Neff.

Brenda is the mother, and Dale the stepfather, of two female children, A.E.

and her sister. Elston came to the Neffs’ house almost every day to socialize

with the Neffs and occasionally babysat the children. Elston and the Neffs

generally spent time together in the Neffs’ bedroom, with the door shut and

locked.

      Debra Krebs, who socialized with Elston and the Neffs and babysat

A.E. and her sister on a regular basis, became suspicious that the children

were being sexually abused. On February 10, 2005, she contacted the

children’s school counselor, who then met with the children. A.E. reported
her stepfather had touched her inappropriately, and both children indicated

they had seen “nasty pictures” on their parents’ computer.

      After meeting with the children, the school counselor called the

Department of Human Services (DHS) and reported suspected sexual abuse.

When they were interviewed the next day by a DHS social worker and a

police detective, the children essentially repeated the allegations made

previously to the school counselor, and A.E. also divulged that her

stepfather had photographed her in the nude. After that interview but prior
                                      3

to the execution of a search warrant on the Neffs’ house, the children told

investigators that Elston had touched them inappropriately.

      The State charged Elston with eighteen counts of sexual exploitation

of a minor, in violation of Iowa Code sections 728.12(1), 728.12(3), and

728.1(7)(g) (2005), and one count of indecent contact with a child, in

violation of section 709.12(2).   The sexual exploitation counts charged

Elston with accessing child pornography through the Neffs’ computer and

participating with Mr. Neff in taking illicit photographs of A.E. from

approximately July 1, 2003 through February 11, 2005. The indecent

contact count alleged Elston inappropriately touched A.E. within the same

timespan.
      Elston filed a motion to sever the trial of the sexual exploitation of a

minor counts from the trial of the indecent contact count. He contended

separate trials would ensure the jury’s compartmentalization of the evidence

relevant to each charge. The district court overruled the motion.

      A.E. testified at the jury trial that Elston, on at least two occasions,

put his arm around her and then touched her between her clothed legs

while they watched movies in the Neffs’ home. During cross-examination,
A.E. conceded that Elston may have touched her accidentally. A.E. also

testified that her stepfather, Dale Neff, took nude photographs of her in the

Neffs’ bedroom and that Elston was sometimes present when this occurred.

A.E. and her sister testified that they had observed Elston in that same

bedroom using the Neffs’ computer to observe nude pictures of young girls.

      After A.E. testified, a detective who participated in the Elston

investigation testified for the State.    Through the detective, the State

introduced seventeen photographs of young, naked females found on the

hard drive of the computer in the Neffs’ bedroom. In addition, the State
                                      4

introduced numerous photographs of young, naked females found on the

Neffs’ screensaver. Although a forensics investigation of the Neffs’ computer

revealed no evidence he had ever downloaded or viewed any of the

particular photographs introduced by the State, Elston admitted to

investigators he had used the Neffs’ computer to view sites featuring

“females not completely developed.”

      None of the photographs retrieved from the Neffs’ computer depicted

A.E. in the nude.      There was some evidence, however, that such

photographs were on the Neffs’ computer before the State seized it. Krebs

testified she had seen a picture of A.E. naked on the Neffs’ computer and

expressed her concern to Elston, who told her he would “check into it.”

According to the detective who testified for the State, Elston conceded

during an interview that he “thought” he had seen “one of the girls [A.E. or

her sister] on the computer.”
      The district court granted Elston’s motion for judgment of acquittal

on all counts except the count of indecent contact with a child. The jury

returned a guilty verdict on that count.

      Elston filed a notice of appeal contending the district court abused its
discretion in denying the motion to sever and asserting his trial counsel was

ineffective. The court of appeals affirmed Elston’s conviction and preserved

his ineffective counsel claim for possible postconviction relief proceedings.

We granted further review.

      II.       Standards of Review.

      We review refusal to sever multiple charges against a single defendant

for abuse of discretion. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992)

(citing State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985)).          We review
                                      5

ineffective assistance of counsel claims de novo. State v. Martin, 704 N.W.2d

665, 668 (Iowa 2005).

      III.      Discussion.

      A.     Motion to Sever.

      Our analysis of whether the district court abused its discretion in

denying Elston’s motion to sever begins with Iowa Rule of Criminal

Procedure 2.6(1). This rule provides:

      Two or more indictable public offenses which arise from the
      same transaction or occurrence or from two or more
      transactions or occurrences constituting parts of a common
      scheme     or   plan,    when    alleged   and      prosecuted
      contemporaneously, shall be alleged and prosecuted as
      separate counts in a single complaint, information or
      indictment, unless, for good cause shown, the trial court in its
      discretion determines otherwise.

We have held that transactions or occurrences are part of a “common

scheme or plan” under Iowa Rule of Criminal Procedure 2.6(1) when they

are the “products of a single or continuing motive.” See State v. Oetken, 613

N.W.2d 679, 688 (Iowa 2000) (citing State v. Lam, 391 N.W.2d 245, 250

(Iowa 1986)). In ascertaining whether a “common scheme or plan” exists,

“we have found it helpful to consider factors such as intent, modus

operandi, and the temporal and geographic proximity of the crimes.” Id.

(citing Lam, 391 N.W.2d at 249-50).

      We conclude the transactions forming the factual basis for the

indecent contact charge and the sexual exploitation charges against Elston

were part of a “common scheme or plan” under Iowa Rule of Criminal

Procedure 2.6(1). All of the crimes alleged in this case against Elston could
be found to have been motivated by his desire to satisfy sexual desires

through the victimization of children.    All of the transactions allegedly

occurred in close geographic proximity within the Neffs’ small home.
                                         6

Although the temporal proximity of the alleged indecent contact and sexual

exploitation offenses was not close 1 and the modus operandi allegedly
employed by Elston was dissimilar, we find no abuse of discretion in the

district court’s determination that the several alleged offenses were part of a

common scheme or plan.

       Although the existence of a “common scheme or plan” indicates the

charges should be joined, the district court nonetheless had discretion to

sever the charges for “good cause.” Iowa R. Crim. P. 2.6(1). To prove the

district court abused its discretion in refusing to sever charges, Elston

bears the burden of showing prejudice resulting from joinder outweighed

the State’s interest in judicial economy. Oetken, 613 N.W.2d at 689. For

the reasons that follow, we conclude Elston has not met this burden.
       Elston argues he suffered prejudice resulting from joinder of the

sexual exploitation and indecent contact charges far outweighing the State’s

interest in judicial economy.       Although he concedes the pornographic

photographs would have been relevant to the sexual exploitation charges,

Elston asserts the pictures would not have been admissible to prove the

indecent contact charge, the only charge actually submitted to the jury, had
it been tried separately, because they are inadmissible evidence of “other

crimes, wrongs, or acts.” Generally, evidence of an accused’s other “crimes,

wrongs, or acts” is inadmissible to prove his propensity to behave in a

certain manner. See Iowa R. Evid. 5.404(b) (“Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order

to show that the person acted in conformity therewith.”). However, such

evidence is generally admissible for purposes other than proving propensity;

for instance, such evidence may be used to prove “motive, opportunity,

      1As we have noted, the State alleged the offenses occurred between July of 2003

and August of 2005.
                                           7

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Id.
       We follow a well-established test to determine whether the

photographs were admissible to prove the charge of indecent contact. First,

we must ascertain “whether the challenged evidence [was] relevant and

material to some legitimate issue” other than a general propensity to

commit wrongful acts. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988)
(internal quotation marks and citation omitted). If this test is satisfied, the

evidence was prima facie admissible, even though it illustrates the

accused’s bad character. Id. Second, we “must . . . decide whether the

evidence’s probative value [was] substantially outweighed by the danger of

unfair prejudice.”     Id. (citing Iowa R. Evid. 5.403).         If unfair prejudice

resulting from admission of the evidence substantially outweighed its

probative value, the evidence was inadmissible. Id.

       We conclude the pornographic images of young girls had great

probative value on the question of whether Elston touched A.E. “for the

purpose of arousing or satisfying the sexual desires of either [himself or
A.E.].” Iowa Code § 709.12. As noted above, defense counsel first raised
during the cross-examination of A.E. the question of whether Elston might

have accidentally touched A.E. between her clothed legs. The State’s need

to respond to Elston’s assertion of accidental touching substantially

increased the probative value of the pornographic photographs.                     The

pornographic images of young females seized from the Neffs’ computer

during the execution of the search warrant tended to prove Elston’s

touching of A.E. was not accidental. 2



       2The seizure was made from the very computer Elston admitted he had used prior to

the search to look at images of nude, undeveloped girls.
                                      8

      We are unconvinced that the photographs’ considerable probative

value would have been substantially outweighed by the danger of unfair
prejudice had they been admitted in a separate trial on the indecent contact

charge. The photographs were no more prejudicial than other evidence that

was admitted at trial and that would have been admissible in a separate

trial as evidence of Elston’s intent. In particular, A.E. testified that Elston

was present in the bedroom when Dale Neff took pornographic photographs
of her.    This evidence was considerably more prejudicial than the

pornographic photographs of unknown female children, because it tended

to prove Elston had a sexual interest in A.E., the very child whom he was

charged with touching indecently.

      In summary, we conclude the district court did not abuse its

discretion in overruling Elston’s motion to sever the sexual exploitation and

indecent contact charges. The pornographic photographs were admissible

to prove the indecent contact charge against Elston whether or not the trial

of that charge was joined with the trial of the sexual exploitation charges.

Elston failed to prove any prejudice resulting from joinder of the charges
outweighed the State’s interest in judicial economy.
      B.     Ineffective Assistance of Counsel.

      Elston’s claims of ineffective assistance of counsel are before us on

direct appeal.   We usually preserve claims of ineffective assistance of

counsel for potential postconviction proceedings. State v. Buck, 510 N.W.2d

850, 853 (Iowa 1994). However, if the record is sufficient to decide such

claims, we will do so on direct appeal. State v. Martens, 569 N.W.2d 482,

484 (Iowa 1997).
                                      9

      1.     Failure to Object to Testimony of Debra Krebs.

      The State called Debra Krebs, who testified Elston owned a collection
of adult pornography. On appeal, Elston argues his trial counsel should

have objected to this evidence pursuant to Iowa Rules of Evidence 5.402

(irrelevant evidence is inadmissible) and 5.403 (relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice).
      “[P]ostconviction proceedings are often necessary to discern the

difference between improvident trial strategy and ineffective assistance.”

State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006). Such is the case here.

Although trial counsel failed to object to this testimony, we are unable on

this record to assess whether the failure constituted ineffective assistance of

counsel. We consequently preserve this claim for possible postconviction

proceedings.

      2.    Failure to Request Jury Instruction Explaining              Proper
      Consideration of Evidence Related to the Dismissed Counts.

      Elston also claims his trial counsel provided ineffective assistance in
failing to request a jury instruction explaining the proper consideration of

evidence related to the dismissed sexual exploitation counts. In particular,
he asserts trial counsel should have requested the district court to instruct

the jury to disregard the pornographic pictures during deliberations on the

indecent contact charge. We find no merit in this claim because we have

already concluded the pictures were admissible as part of the State’s proof

of the indecent contact offense. See State v. Wills, 696 N.W.2d 20, 24 (Iowa

2005) (finding trial counsel was not ineffective in failing to raise

unmeritorious issue).
                                    10

      IV.   Conclusion.

      We conclude the district court did not abuse its discretion in denying
the motion to sever. We preserve one claim of ineffective assistance of

counsel for possible postconviction proceedings.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT

COURT AFFIRMED.
