                    IN THE COURT OF APPEALS OF IOWA

                                     No. 12-1917
                                 Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ISAAC LEE KIDD,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer (trial on underlying charge) and Bradley J. Harris (trial on habitual offender

enhancement), Judges.



       Isaac Kidd appeals his judgment and sentence for possession of a firearm

as a felon, enhanced as a habitual offender. REVERSED AND REMANDED.



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

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Brook Jacobsen, Assistant

County Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
                                                2


VAITHESWARAN, J.

           Isaac Kidd appeals his judgment and sentence for possession of a firearm

as a felon, enhanced as a habitual offender. He raises several issues, one of

which we find dispositive: the admission of prior-bad-acts evidence.

I.         Background Facts and Proceedings

           Waterloo police officers received information from a crime suspect that the

suspect obtained a gun from Isaac Kidd. Officers executed a search warrant on

a home identified by the suspect. The home was leased by a woman with whom

Kidd once had a relationship. A search of one of two bedrooms uncovered a

semiautomatic handgun.

           The State eventually charged Kidd with possession of a firearm as a felon,

“having previously been convicted of Carrying Weapons and Possession of a

Controlled Substance with Intent to Deliver, contrary to and in violation of Section

724.26 of the Iowa Criminal Code.” Kidd denied that he was in fact Kidd and

disrupted several pretrial proceedings, resulting in district court admonishments

to comport himself or risk exclusion. Kidd did not heed the warnings and was

excluded from the proceedings and, later, from the entire trial.1 Following trial,

the jury found Kidd guilty as charged.

           On appeal, Kidd contends (1) the district court abused its discretion in

admitting evidence that, in his view, “went way beyond proving [his] prior felony

convictions”; (2) the record lacks substantial evidence to support the jury’s finding

that he possessed a firearm; (3) his trial attorney was ineffective in several

respects; (4) the district court abused its discretion in declining to instruct the jury

1
     Kidd does not challenge his exclusion from trial.
                                          3


to draw no inference from his silence; and (5) the district court erred in granting a

belated motion to amend the trial information to add the habitual offender

enhancement. Our disposition of the first issue obviates the need to address the

final three issues.

II.      Admission of Prior Bad Acts Evidence on Status as a Felon

         The jury was instructed that, to prove possession of a firearm as a felon,

the State, in part, would have to establish that, “The defendant was previously

convicted of Carrying Weapons or Possession of a Controlled Substance with

Intent to Deliver.”

         Before trial, the prosecutor expressed an intent to prove the prior felonies

by introducing “certified copies of a number of documents from [] two separate

court files.” He identified the following documents: (1) the complaints, (2) face

sheets of the trial informations, (3) written pleas of guilty, (4) the judgments, and

(5) an application for appointment of counsel and financial affidavit in one of the

cases.     Kidd’s attorney moved “to exclude all of those items other than the

judgment.” He reasoned as follows:

         All the State is required to prove is that he has a prior conviction.
         That’s the judgment. You don’t need the allegations, the State
         doesn’t need the plea agreement, it doesn’t need the financial
         affidavit . . . . [N]ow the State is attempting to have this jury
         consider all the things in that prior case, not merely the fact of
         conviction, but the facts and circumstance . . . . [I]t goes way
         beyond what is necessary and now clearly is unfairly prejudicial to
         the defendant.

The prosecutor responded by noting the absence of a stipulation concerning

Kidd’s prior felony.     He said the documents were needed because “[t]his

defendant has identification information on all of those documents,” and “[w]ithout
                                           4


the defendant being present . . . the State is going to have to rely a little bit more

on identification information that’s contained in the file.” The prosecutor also

suggested he needed the facts contained in some of the documents because

“[n]ot all carrying weapons convictions disqualify one from possessing a firearm

. . . .”     The district court preliminarily declined to exclude the documents,

reasoning that “identification would be an issue.”

           Kidd’s attorney later renewed his objection to the documents. He said he

had no intent to dispute the existence of a prior felony conviction notwithstanding

the absence of a formal stipulation and he questioned the prosecutor’s motive in

seeking “to not just establish the prior felony, but carrying weapons.” In his view,

the introduction of documents relating to the carrying weapons conviction would

impermissibly allow the jury to hear “that this defendant previously carried

weapons, therefore, he should be punished this time under propensity for

carrying weapons.” As for the State’s expressed need to identify Kidd, counsel

argued the identity issue was “a straw man being erected for the purpose of

hewing it down with the idea that the jury in a circumstantial case will make the

connection that such evidence of past behavior is evidence that he did it on this

occasion.” He noted the additional documents did nothing more than “la[y] out in

excruciating detail not just the fact of conviction, but the purported reasons,”

reasons that he argued were entirely irrelevant to establishing his status as a

felon. Finally, Kidd’s attorney reiterated that, “[a]s [Kidd’s] lawyer,” he “made no

defense that this is the wrong person” and he would not, through any of his

questions or argument, challenge Kidd’s identity or the existence of a prior felony
                                          5


offense. He again moved to exclude “[a]nything that goes beyond a judgment

that shows he was convicted of a prior felony, a non-gun felony.”2

       The district court found the documents “relevant to the issue of proving the

prior offenses, to proving the identity of the individual who’s convicted of the prior

offenses and “not unfairly prejudicial.” The court admitted all the documents

listed by the prosecutor.

       On appeal, Kidd contends “the district court abused its discretion by

admitting the court documents other than the judgment entries from Kidd’s

previous cases for carrying weapons, theft in the 4th degree and possession with

intent to deliver.” According to Kidd, “[t]he State only needed to simply establish

Kidd had a felony on his record and that he possessed a firearm” and “[t]he

amount and type of evidence presented to the jury was prejudicial overkill.” Our

review of this issue is indeed for an abuse of discretion. See State v. Taylor, 689

N.W.2d 116, 124 (Iowa 2004).

       The Iowa Supreme Court has had occasion to address the admissibility of

“prior bad acts” evidence on several occasions, more recently, in State v.

Putman, ___ N.W.2d ___, ___, 2014 WL 2619405 (Iowa 2014). In Putman, the

court summarized the rule as follows:

       “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.” Iowa R. Evid. 5.404(b). The
       evidence “may, however, be admissible for other purposes, such as
       proof of motive, opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident.” Id. The rule
       “exclude[s] evidence that serves no purpose except to show the

2
  On appeal, the defense does not go so far as to seek redaction of the carrying
weapons judgment, apparently conceding that the single judgment entry for three
crimes, including carrying weapons, was admissible.
                                           6


         defendant is a bad person, from which the jury is likely to infer he or
         she committed the crime in question.” State v. Rodriquez, 636
         N.W.2d 234, 239 (Iowa 2001).

2014 WL 2619405, at *5. The court reiterated the three-step analysis courts

must employ to decide whether to admit prior-bad-acts evidence: (1) whether

“the evidence is relevant to a legitimate, disputed factual issue,” (2) whether

there is “clear proof the individual against whom the evidence is offered

committed the bad act or crime,” and (3) whether the evidence’s “probative value

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

Id. at *5-6.

         On the relevancy question, we need go no farther than the marshalling

instruction to conclude that some evidence of a prior felony conviction was

necessary to prove the State’s case. Because Kidd refused to concede anything,

including his name, the State was obligated to prove his status as a felon and

could legitimately offer certified copies of the judgments, as Kidd’s appellate

attorney concedes. See id. at *5.

         With the judgments in evidence, the remaining documents proffered by the

State were only marginally relevant to a legitimate disputed fact issue.           The

prosecutor’s purported reason for offering the documents was to confirm Kidd’s

identity. However, identifying information, including Kidd’s social security number

and birth date, was included in the judgments. The balance of the information

contained in the additional documents was largely irrelevant to Kidd’s status as a

felon.

         The complaints and trial informations contained unproven charges that, as

Kidd’s attorney explained, did not “make the existence of any fact more or less
                                          7

true that’s of significance to any issue that’s in this trial.” See State v. Williams,

315 N.W.2d 45, 54 (Iowa 1982) (affirming the exclusion of evidence of

amendment and proposed amendment of trial information after concluding the

evidence was not “material to determining defendant’s guilt or innocence of the

charge”).   Additionally, the “carrying weapons” complaint in the first case

revealed details about the gun, Kidd’s explanation of how he obtained it, and an

officer’s determination of its source—unproven allegations that had no bearing on

whether Kidd was a felon. Similarly, the complaint in the second case provided

details of a drug-related charge and identified a weapon that was found on the

premises.     Notably, the weapons enhancement in the second case was

ultimately dismissed.

       The application for appointment of counsel described Kidd as “fully

indigent” and revealed details about his support system that were immaterial to

Kidd’s status as a felon. As for the plea agreements, both revealed the State’s

agreement not to file additional charges which, again, was not material to his

status as a felon.

       We conclude all the documents introduced to establish Kidd’s status as a

felon except the certified judgments were of limited probative value in

establishing Kidd’s identity.

       This brings us to the “clear proof requirement.” There is no question that

the certified judgments of the prior convictions constituted “clear proof” that Kidd

was a felon. As noted, those judgments, entered in a single order, identified Kidd

by his birth date and social security number.          The social security number

matched the number found in Kidd’s wallet in the bedroom that was searched.
                                              8


The remaining documents contained the same identifying information and, to that

extent, amounted to clear proof of his identity although, they were duplicative of

the information in the judgments.

       We are left with the question of whether the contested evidence’s

“probative value is substantially outweighed by the danger of unfair prejudice to

the defendant.”       Putman, 2014 WL 2619405, at *6.                Kidd’s trial attorney

eloquently articulated the concerns with the non-judgment evidence the State

proffered to establish Kidd’s status as a felon. First, he pointed out that the

complaints, trial informations, guilty pleas, and financial affidavit were not needed

to establish Kidd was a felon. See id. (noting the “need for the evidence” is a

consideration in evaluating this factor). Second, he explained that, contrary to

the State’s assertion, the judgments did not contain gaps the State was required

to fill with other documents.       But, even if there were gaps, counsel made a

professional statement that he had no intention of disputing Kidd’s status as a

felon notwithstanding the absence of a formal stipulation.3 See Williams, 315

N.W.2d at 52-53 (“The term ‘professional statement’ . . . means a statement of

fact presented to the court by an attorney in connection with a matter then before

such court, verified in effect by the oath of such attorney, and designed or

calculated to aid or influence the court in the determination of a given cause or

3
  In State v. Cole, No. 04-0811, 2006 WL 623216, at *4 (Iowa Ct. App. Mar. 15, 2005),
this court held that the district court should not have admitted evidence relating to a
defendant’s prior convictions after his attorney made an on-the-record offer to stipulate
to the convictions. In this case, counsel did not formally offer to stipulate, given his
client’s unwillingness to even acknowledge his name. However, counsel offered a
reasonable equivalent, which was his representation that he would not contest the
element. We see no material distinction. See Old Chief v. United States, 519 U.S. 172,
174, 190 (1997) (holding court abused its discretion in admitting the full record of a prior
judgment in the face of an offer to stipulate to the prior conviction and stating “the fact of
the qualifying conviction is alone what matters”).
                                         9


issue.”). Finally, he explained the additional documents would prompt the jury to

reach a decision on an improper basis. See Putman, 2014 WL 2619405, at *11

(“Evidence is unfairly prejudicial if it has an undue tendency to suggest decisions

on an improper basis commonly, though not necessarily an emotional one.”

(internal quotation marks omitted)).

      We agree with defense counsel’s characterization of the challenged

evidence. As noted, the complaints and trial informations contained details about

past crimes similar to the crime with which Kidd was presently charged.

Needless to say, the details placed Kidd in a bad light. See id. at *8 (stating rule

that “generally similar prior-bad-acts evidence” is inadmissible); State v. Liggins,

524 N.W.2d 181, 188 (Iowa 1994) (finding evidence that Liggins was a supplier

of cocaine appealed to the jury’s instinct to punish drug dealers). The application

for appointment of counsel and the reference to Kidd as being “fully indigent”

could only be viewed as pejorative in this context. See State v. Wilson, 599

N.W.2d 481, 487 (Iowa 1999) (“Evidence a defendant is indigent and

represented by court-appointed counsel may be more prejudicial than probative if

used merely to portray the defendant as an indigent.”); State v. Sallis, 574

N.W.2d 15, 17 (Iowa 1998) (stating in a proper case a defendant’s affidavit of

financial condition might prove crucial to establishing elements of offense

charged but the prosecutor’s use to prove drug-dealing was too attenuated and

cautioning prosecutors to “refrain from abusing the strategy lest it prejudicially

impact defendants’ exercise of their Sixth Amendment right to counsel”); State v.

Roghair, 353 N.W.2d 433, 435 (Iowa Ct. App. 1984) (noting a financial affidavit

“prejudices the jury against the defendant because he used public funds for his
                                          10


defense”). As for the plea agreements, they were prejudicial on their face to the

extent they implied Kidd committed other uncharged crimes.

       We conclude any probative value these documents might have had was

substantially outweighed by the danger of unfair prejudice.

       In reaching this conclusion, we have considered the fact that the district

court gave the jury a cautionary instruction, at least with respect to the exhibits in

one of the cases.4 The court advised the jurors they were only to consider the

exhibits “for the purpose of establishing whether or not there was a prior

conviction and whether or not this was the individual who had that prior

conviction.” In our view, that instruction did not “alleviate the danger of unfair

prejudice.” See State v. Elliott, 806 N.W.2d 660, 674 n.4 (Iowa 2011). As Kidd’s

attorney stated, “I think we are overly optimistic in thinking that a jury can just

disregard these prior bad acts and compartmentalize and only use them for a

limited purpose even with a limiting instruction.” That was particularly true where

some of the additional exhibits referred to details of similar crimes.

       We acknowledge the Putman court’s reaffirmation of the principle that

cautionary instructions are only deemed insufficient in extreme cases. 2014 WL

2619405, at *12. We view the proffer of voluminous documents to prove the

simple fact of Kidd’s identity and felon status as falling within this “extreme case”

exception. The documents did not make “brief, inadvertent reference to prior

criminal activity.”   State v. Belieu, 288 N.W.2d 895, 901 (Iowa 1980).            The

documents contained “numerous references to other alleged crimes which


4
  Defense counsel requested a cautionary instruction not be given following the offer of
the second round of exhibits.
                                         11

remained part of the record.” Id. Given the extensive non-probative content of

the documents, the cautionary instruction did not suffice to remove the prejudice

to Kidd.

       Because the probative value of the evidence was substantially outweighed

by the danger of unfair prejudice, all documents admitted to establish Kidd’s

status as a felon except the certified copies of the judgments should have been

excluded. See State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). We reverse

and remand for a new trial. Id. at 31.

III.   Sufficiency of the Evidence

       Kidd contends there was insufficient evidence to support a finding he

possessed a firearm. We must address this claim to determine whether retrial is

permissible or whether jeopardy attached, requiring entry of a judgment of

acquittal. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003). The jury’s

verdict is binding on appeal if there is substantial evidence in the record to

sustain it. State v. Hennings, 791 N.W.2d 828, 832-33 (Iowa 2010).

       The jury was instructed, in part, that the State would have to prove the

following element: “On or about July 31, 2009, through August 3, 2009, the

defendant knowingly possessed or had under his dominion and control a

firearm.” See Iowa Code § 724.26(1) (2009). The jury was further instructed:

              The law recognizes several kinds of possession. A person
       may have actual possession or constructive possession. A person
       may have sole or joint possession.
              A person who has direct physical control over a thing on his
       person is in actual possession of it.
              A person who, although not in actual possession, has both
       the power and the intention at a given time to exercise dominion or
       control over a thing, either directly or through another person or
       persons, is in constructive possession of it. . . .
                                          12


              Whenever the word “possession” has been used in these
       instructions, it includes actual as well as constructive possession
       and sole as well as joint possession.

       It is undisputed that Kidd had possession, if at all, on a constructive rather

than actual basis. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (“The

State may show the defendant had either ‘actual possession’ or ‘constructive

possession’”). Because he was not the only person who lived in the home that

was searched, we must determine whether there are any circumstances linking

him to the firearm. See id. at 443.

       A reasonable juror could have found the following facts connecting Kidd to

the firearm. The gun was discovered on the floor between a nightstand and a

bed.   On the second shelf of the nightstand were documents bearing Kidd’s

name. On the same nightstand was a Bible also bearing Kidd’s name, as well as

a baseball cap. A DNA sample taken from the cap was consistent with the

known DNA profile of Kidd. On a crate in the bedroom was a wallet containing

an Iowa ID and social security card belonging to Kidd. The ID card listed the

searched home as Kidd’s address. The closet in the bedroom contained men’s

clothing and no women’s clothing.

       These facts amount to substantial evidence in support of a finding that

Kidd constructively possessed the gun found between the bed and nightstand.

Accordingly, Kidd was not entitled to judgment of acquittal on the possession

charge.

IV.    Ineffective Assistance

       Kidd contends his trial attorney was ineffective in failing to (a) file a motion

to suppress evidence obtained during the search of the home, (b) object to
                                          13


evidence concerning a filed-off serial number on the gun, and (c) object to

statements that he was in custody. We find it unnecessary to address these

issues in light of our remand for a new trial.

V.     Disposition

       There is substantial evidence to support the jury’s finding of guilt.

Accordingly, judgment of acquittal is not warranted.    We find an abuse of

discretion in the admission of prior-bad-acts evidence, which requires reversal

and a remand for a new trial. We find it unnecessary to address the remaining

issues raised on appeal.

       REVERSED AND REMANDED.
