              IN THE SUPREME COURT OF IOWA
                              No. 12–0022

                          Filed June 13, 2014


STATE OF IOWA,

      Appellee,

vs.

RICKY LEE PUTMAN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Fayette County, John J.

Bauercamper, Judge.



      A criminal defendant seeks further review of a court of appeals

decision affirming a district court’s admission of prior-bad-acts evidence

in the form of two video titles involving child pornography in a trial for

child sex abuse. DECISION OF COURT OF APPEALS AND JUDGMENT

OF DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J.

Japuntich, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, and W. Wayne Saur, County Attorney, for appellee.
                                       2

ZAGER, Justice.

      Ricky Lee Putman was charged with one count of first-degree

sexual abuse for allegedly performing a sex act on L.R., a two-year-old

girl. Putman filed a motion in limine that sought to exclude evidence of

child pornography found on his computer and other electronic devices.

After an evidentiary hearing, the district court denied the motion in

limine, with limitations. The district court allowed the State’s expert to

testify at trial that child pornography was found on Putman’s computer

and other electronic devices.      However, it limited the State’s expert to

testifying only to the file names of two videos. A jury convicted Putman,

and he appealed, claiming the district court erred when it admitted the

evidence of prior bad acts.     The court of appeals affirmed.      Putman

sought further review, which we granted.         For the reasons set forth

below, we affirm his conviction.

      I. Background Facts and Proceedings.

      Around 6 p.m. on May 22, 2010, forty-one-year-old Ricky Putman

came to the home of Lawrence and Holley Robbins in Arlington, Iowa, to

spend time with the couple and their three children. One of the children

was two-year-old L.R. After joining the family on a trip to a nearby park,

Putman returned with the family to their home around 9 p.m. Shortly

after the group returned from the park, Holley’s cousin, fifteen-year-old

Alex, came to the house.

      Back at the house, the adults drank beer, watched television, and

listened to music while the children played. By midnight or 1 a.m., the

Robbins children had fallen asleep. The two boys had fallen asleep on

the couch, and L.R., wearing a blue dress and a diaper, was carried

upstairs to her crib, which was located in a room just adjacent to the

bedroom shared by Lawrence and Holley.
                                     3

       Holley spent some more time downstairs with Lawrence, Alex, and

Putman before going upstairs to go to sleep. Putman followed Holley up

the stairs, climbed into bed with her, and became sexually aggressive

towards her.   Holley got out of the bed, went downstairs followed by

Putman, and told Lawrence and Alex what had just taken place. Holley

demanded that Lawrence get Putman out of the house. However, this

did not occur. Shortly thereafter, Holley again went back upstairs to go

to bed, this time followed by Putman and Alex. Putman again crawled

into bed with Holley, touched her, and told her to leave Lawrence for

him.   Holley immediately climbed out of bed and went downstairs a

second time, this time followed by Alex and Putman.       Holley left the

house with Alex around 4 a.m., again telling her husband to get Putman

out of the house.

       Putman did not leave.         Around 4:30 a.m., at Lawrence’s

suggestion, Putman went to sleep in Lawrence and Holley’s bedroom.

Lawrence, after cleaning up the downstairs, went upstairs to check on

L.R. in her crib. Lawrence did not notice anything unusual at that time.

He also observed Putman sleeping in his and Holley’s bed.      Lawrence

then went downstairs and fell asleep on a chair. Lawrence awoke around

7 a.m. on May 23 when Alex’s mother, Marilyn Blackford, came to the

house looking for Alex.

       L.R. came downstairs around 8 a.m.     L.R. was not wearing her

diaper or the blue dress she had been wearing the previous night.

Lawrence did not think this odd as L.R. had removed her own diaper on

previous occasions.       While Lawrence did notice some blood between

L.R.’s legs, he believed she had merely scratched herself. Lawrence put a

fresh diaper on L.R. and sat her on the couch.     After L.R. cried for a

bottle, Lawrence went upstairs to retrieve it from her crib. While he was
                                    4

upstairs, Lawrence exchanged greetings with Putman and noticed that

Putman had blood on his shirt and on his hands.          Lawrence believed

Putman could have cut himself on a broken table beside the bed.

Lawrence went back downstairs and fixed a bottle for L.R. Lawrence laid

L.R. on the couch where she fell asleep, and he sat in a chair. Lawrence

did notice that L.R. was lying awkwardly on the couch.

      Shortly afterward, Putman came downstairs.         Putman looked at

the blood on his hands and clothes and asked Lawrence what had

happened.    Lawrence told Putman he may have cut himself on the

broken table next to the bed. L.R. awoke, looked at Putman, and moved

towards Lawrence. Putman then put his shoes on and left the house.

      Eventually Holley returned home.     When she arrived, Lawrence

was upset and shaking. He told Holley that he had to go, and he went to

the home of Marilyn Blackford, Holley’s aunt, who lived a few houses

away. While at Marilyn Blackford’s house, Lawrence asked Marilyn and

her boyfriend how a person would know if a child had been sexually

molested. Meanwhile, while Lawrence was gone, Holley noticed bruising

on L.R.’s face and neck, what she suspected to be bite marks on her ear,

and blood on her chest and legs.

      Lawrence returned home with Marilyn Blackford. After observing

L.R., including opening up L.R.’s diaper, Marilyn Blackford instructed

Lawrence and Holley to take L.R. to the hospital in Oelwein, and law

enforcement would be contacted. The Robbins family went immediately

to the hospital, and the Fayette County Sheriff was contacted.

      After being examined at Mercy Hospital in Oelwein, it was

determined that the injuries sustained by L.R. were too extensive to be

properly treated there.    L.R. was subsequently transferred to the

University of Iowa Hospitals and Clinics for appropriate treatment. After
                                        5

examinations by pediatric physicians at the University of Iowa Hospitals

and Clinics, they concluded that L.R. had suffered vaginal penetration

injuries.   To repair those injuries, L.R. was taken to surgery and put

under general anesthesia.       Her injuries required numerous stitches to

repair the damage.

      After its preliminary investigation to secure the scene and identify

possible suspects, the sheriff’s department began conducting interviews

in the morning hours of May 23.         A sheriff’s deputy went to Putman’s

home in Arlington. There, the deputy found Putman, who appeared to

have recently showered.        Putman was advised of his Miranda rights.

With Putman’s consent, the deputy began to collect evidence from the

Putman home. It became apparent during the investigation that Putman

had begun to launder some of his clothing.              Ultimately seized from

Putman’s home was a recently laundered shirt matching the description

of the one Putman was alleged to have worn the previous night. 1 The

damp shirt hung from a bedroom door handle while a few other items of

clothing tumbled in the dryer. The deputy decided to detain Putman.

      Putman was eventually arrested and charged by trial information

with sexual abuse in the first degree, a class “A” felony. While in jail,
Putman, who lived alone, asked a friend, Rodney Peterman, to go to his

house and feed his cat. Peterman built computers as a side business

and had built and sold Putman a computer and related electronic

devices.    Knowing the reason Putman had been arrested, Peterman

decided to see what was on Putman’s computer while he was at Putman’s

house. On the computer, Peterman found what he suspected to be child

pornography. Because of this discovery, and the fact that Putman still

      1Initially,the deputy seized a different shirt that Putman represented he had
been wearing the previous night.
                                    6

owed him money for the computer, Peterman took the computer, which

contained a CD and an external hard drive. Peterman took these items

to his parents’ house and called the sheriff’s department. A deputy from

the sheriff’s department retrieved the computer, CD, and the external

hard drive.

      On another trip to feed Putman’s cat, Peterman took more items

from Putman’s house.      Among the items Peterman took was a box

containing miscellaneous tattoo equipment that Peterman had given to

Putman. Inside the box, Peterman also found a loose USB drive. Upon

returning home, Peterman plugged this USB drive into his own

computer. On the USB drive, Peterman found more disturbing materials,

so he notified the sheriff’s department and dropped off the USB drive at

the sheriff’s office. The computer and other electronic devices were later

turned over to a unit within the Iowa Division of Criminal Investigation

(DCI), the Internet Crimes Against Children Task Force.        That unit

performed a forensic evaluation of the computer and related electronic

devices.

      Before trial, Putman filed a motion in limine seeking to exclude

evidence of prior bad acts.     Putman asserted that any information

obtained from his computer was not admissible, specifically identifying

evidence of child pornography. The State also requested a ruling from

the district court on the admissibility of the child pornography, citing

motive and identity as potential issues in the case. The district court

issued an order permitting the State to offer into evidence images of

young child pornography seized from Putman’s computer, per rule

5.404(b) of the Iowa Rules of Evidence. The district court ruled that such

evidence of prior bad acts was relevant to the issues of identity, motive,

and related issues due to the fact the defense theory of the case was that
                                        7

another person committed the crime and the two-year-old victim was the

only witness to the crime as it occurred.         Putman then filed a motion

requesting the district court reconsider its ruling on the admissibility of

the child pornography evidence.

      An evidentiary hearing on Putman’s motion to reconsider was held.

An investigator for DCI testified at the hearing regarding his investigation

of the computer and other electronic devices.           The DCI investigator

examined the computer’s hard drive, external hard drive, the USB drive,

and the CD and found thousands of photographs and over one hundred

videos depicting child pornography. Contained within these videos, the

DCI investigator discovered two titles of special note as they specifically

referenced rapes involving a two-year-old child.         The DCI investigator

read into the record the two videos’ entire titles and confirmed the videos’

titles described the videos’ content.

      The defense cross-examined the DCI investigator, drawing from

him several points. First, the DCI investigator testified he was unable to

determine whether the USB drive had ever been inserted into Putman’s

computer. In addition, he was unable to conclude Putman’s computer

had been used to copy files onto the USB drive. Next, regarding the CD,

the DCI investigator could not determine that its contents had been

placed on the disk using the computer.             The DCI investigator also

testified he was unsure whether the computer, which had multiple user

accounts, was password protected.           He acknowledged his investigation

could not reveal who downloaded the files onto the computer or other

devices. Finally, he conceded that if the computer’s internal clock were

altered, then a file’s time stamp would be inaccurate.        He knew of no

way, however, to determine whether the computer’s clock was accurate

at the time a file was downloaded.
                                      8

         At the conclusion of the hearing, the State agreed not to make any

mention of the child pornography in its opening statement to the jury

and agreed not to display any of the seized child pornography during

trial.    After the hearing, the district court denied Putman’s motion,

finding the State had established Putman’s ownership of the computer,

use of the computer, and the chain of custody for the evidence.         The

court also found the evidence relevant and not unduly prejudicial.

Finally, the court bound the State to the agreements it made during the

hearing, noting the court had “relied on them in making its ruling.”

         At trial, the State called Peterman, who testified he built the

computer for Putman and sold it to Putman.         Peterman testified that

when he sold the computer to Putman it did not contain child

pornography. Peterman also testified regarding his discovery of the child

pornography on Putman’s computer and other electronic devices.          The

DCI investigator also testified.   He explained his forensic investigation

into Putman’s computer and the electronic devices. He also testified he

found child pornography on all four items that had been taken from

Putman’s house. He was allowed to mention only the two video titles,

and he did not read the entire video titles to the jury, as he had at the

hearing.     The DCI investigator testified the video titles matched their

content, estimating the girls in the videos to be two or three years of age.

No pornographic images were shown to the jury. On cross-examination,

the investigator testified he could not determine who was operating the

computer or other electronic devices at the time when a file was

generated.

         Putman was convicted of one count of first-degree sexual abuse.

Putman appealed on several grounds, one of which was the admission of

the evidence of child pornography, including the two video titles.      We
                                      9

transferred the case to the court of appeals, and it affirmed Putman’s

conviction.    Putman sought further review, which we granted to

determine whether the admission of the evidence of child pornography

and, specifically, the two video titles, as limited, was proper.

      II. Issue on Further Review.

      On further review, we have discretion to consider all the issues

raised on appeal. State v. Becker, 818 N.W.2d 135, 140 (Iowa 2012). We

may let the court of appeals decision on any particular issue stand as a

final decision.    Id.   On further review, we address only Putman’s

challenge to the admission of the evidence of child pornography and the

two video titles. With respect to Putman’s challenge to the sufficiency of

the evidence to convict him, and to the district court’s exclusion of the

DCI laboratory report, the court of appeals decision stands as final. See

id. (allowing court of appeals decision to stand on an issue not addressed

on further review).

      III. Standard of Review.

      We review evidentiary rulings regarding the admission of prior bad

acts for abuse of discretion. State v. Cox, 781 N.W.2d 757, 760 (Iowa

2010). “A court abuses its discretion when its ‘discretion was exercised

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

unreasonable.’ ”      State v. Long, 814 N.W.2d 572, 576 (Iowa 2012)

(quoting State v. Teeters, 487 N.W.2d 346, 349 (Iowa 1992)). “ ‘A ground

or reason is untenable when it is not supported by substantial evidence

or when it is based on an erroneous application of the law.’ ” In re Det. of

Stenzel, 827 N.W.2d 690, 697 (Iowa 2013) (quoting Ranes v. Adams

Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010)). Even if a trial court has

abused its discretion, prejudice must be shown before we will reverse.

State v. Jordan, 779 N.W.2d 751, 756 (Iowa 2010).
                                           10

       IV. Discussion.

       A. Iowa Rule of Evidence 5.404(b).                This appeal turns on the

admissibility of evidence of prior bad acts. Under Iowa Rule of Evidence

5.404(b), evidence of prior bad acts is not admissible for purposes of

proving character: “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 defendant is a bad person, from

which the jury is likely to infer he or she committed the crime in

question.” State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001).

       In determining whether to admit prior-bad-acts evidence, we rely

on a three-step analysis. 2 See State v. Sullivan, 679 N.W.2d 19, 25 (Iowa


        2There has been persistent confusion in our cases about whether Iowa Rule of

Evidence 5.404(b) requires clear proof that the person against whom the evidence is
offered committed the prior bad act. In some cases, it has been suggested a showing of
clear proof is required as an independent prong in the prior-bad-acts analysis, in
addition to finding relevancy and weighing prejudice. In State v. Sullivan, we explained
that clear proof and relevancy were the two “conditions” to be established before
evidence could “be considered admissible.” 679 N.W.2d 19, 25 (Iowa 2004). In State v.
Jones, we concluded that, because evidence of prior bad acts was relevant and clearly
proved, the trial court did not abuse its discretion in refusing to exclude it. 464 N.W.2d
241, 243 (Iowa 1990); see also State v. Roth, 403 N.W.2d 762, 765 (Iowa 1987)
(requiring relevancy and clear proof before analyzing evidence’s prejudicial effect),
abrogated on other grounds by State v. Campbell, 714 N.W.2d 622, 630 (Iowa 2006). In
State v. Johnson, we observed that, in addition to the relevancy requirement, “[p]roof of
the other offenses must be clear” before explaining the trial court still must balance
evidence’s probative value against its prejudicial effect. 224 N.W.2d 617, 620, 621
(Iowa 1974); see also Rodriguez, 636 N.W.2d at 240 (“Since our decision in [State v.]
Wade, [467 N.W.2d 283 (Iowa 1991)], we have stated that there must be ‘clear proof’
that the defendant committed the prior bad acts.”); State v. Brown, 569 N.W.2d 113,
117 (Iowa 1997) (noting that “[i]n at least some cases we have added as a final
consideration” the clear-proof requirement). Under this strand of cases, it is necessary
that the evidence is relevant to some legitimate and disputed issue, that there is clear
proof the defendant committed the prior act or crime, and that the evidence’s probative
                                           11

________________________________
value is not substantially outweighed by the danger of unfair prejudice. See Sullivan,
679 N.W.2d at 25.
        In other cases, however, we have evaluated whether there was clear proof as one
factor in the multi-factored weighing process, not as an independent prong in the
analysis. In State v. Reynolds, which followed Sullivan, we explained a court must
determine whether the evidence is relevant to a disputed issue and whether the
evidence’s probative value is substantially outweighed by the danger of unfair prejudice
See 765 N.W.2d 283, 289–90 (Iowa 2009). Rather than expressing the clear-proof
requirement as an independent analytical step, we explained that, when a court weighs
the prejudicial effect of evidence, it must consider whether there was clear proof it was
the defendant who committed the prior bad act. See id. at 290. Other recent cases
have stated the test similarly. See, e.g., State v. Henderson, 696 N.W.2d 5, 11 (Iowa
2005) (considering the existence of clear proof as one factor in balancing process
without mentioning the clear-proof requirement as an independent analytical step);
State v. Taylor, 689 N.W.2d 116, 129–30 (Iowa 2004) (same). Earlier cases also apply
the test in this fashion. See, e.g., Wade, 467 N.W.2d at 284 (including proof the
accused committed the prior act as a consideration in the balancing process, not as an
independent analytical step); State v. Plaster, 424 N.W.2d 226, 231–32 (Iowa 1988)
(considering whether the accused defendant committed the prior act as part of the
balancing process). Under this strand of cases, it need only be found that the evidence
is relevant to a legitimate, disputed issue and that the danger of unfair prejudice to the
defendant does not substantially outweigh the evidence’s probative value.              See
Reynolds, 765 N.W.2d at 290.
        Some requirement of proof the actor against whom the evidence is offered
committed the prior act is common. Many jurisdictions consider it as an independent
analytical step. See, e.g., State v. Terrazas, 944 P.2d 1194, 1196 (Ariz. 1997); People v.
Garner, 806 P.2d 366, 373 (Colo. 1991); Johnson v. United States, 683 A.2d 1087, 1093
(D.C. 1996); Rittenhouse v. State, 526 S.E.2d 342, 344 (Ga. 2000); People v. Thingvold,
584 N.E.2d 89, 95 (Ill. 1991); State v. Jackson, 625 So. 2d 146, 149 (La. 1993); State v.
Faulkner, 552 A.2d 896, 898 (Md. 1989); Commonwealth v. Leonard, 705 N.E.2d 247,
250 (Mass. 1999); State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991); State v. Floyd,
763 N.W.2d 91, 98 (Neb. 2009); State v. Kirsch, 662 A.2d 937, 942 (N.H. 1995); State v.
Hernandez, 784 A.2d 1225, 1232 (N.J. 2001); State v. Holder, 676 S.E.2d 690, 698 (S.C.
2009); Harrell v. State, 884 S.W.2d 154, 158 (Tex. Crim. App. 1994); State v. Pirtle, 904
P.2d 245, 257–58 (Wash. 1995).
        Still other courts take a slightly different view. In Huddleston v. United States,
the United States Supreme Court explained the determination whether proof existed
that the actor committed the prior act was subsumed under the relevancy prong of the
prior-bad-acts test: “In the Rule 404(b) context, similar act evidence is relevant only if
the jury can reasonably conclude that the act occurred and that the defendant was the
actor.” 485 U.S. 681, 689, 108 S. Ct. 1496, 1501, 99 L. Ed. 2d 771, 782 (1988). Some
states take a similar view. See, e.g., State v. McDonald, 500 N.W.2d 243, 246 (S.D.
1993) (“The strength of the evidence offered is already part of the relevancy
determination.”); State v. McGinnis, 455 S.E.2d 516, 524–25 (W. Va. 1994) (“The
evidence is relevant only if the jury can reasonably infer that the act occurred and that
the defendant was the actor.”). In spite of our divergent caselaw, this court has
explained that “the State must present clear proof that the defendant was culpable in
the other acts in question” because the “[c]rimes of third persons are not relevant.”
Johnson, 224 N.W.2d at 620. Whether the proof requirement is subsumed under the
                                          12

2004). A court must first determine whether the evidence is relevant to a

legitimate, disputed factual issue. Id. Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would

be without the evidence.”         Iowa R. Evid. 5.401.         The general test of

relevancy is “whether a reasonable [person] might believe the probability

of the truth of the consequential fact to be different if [the person] knew

of the proffered evidence.” State v. Plaster, 424 N.W.2d 226, 229 (Iowa

1988) (citation omitted) (internal quotation marks omitted).                Irrelevant

evidence is, of course, inadmissible evidence. Iowa R. Evid. 5.402.

       There also “must be clear proof the individual against whom the

evidence is offered committed the bad act or crime.”                   Sullivan, 679

N.W.2d at 25.       In assessing whether clear proof of prior misconduct

exists, the prior act need not be established beyond a reasonable doubt,

and corroboration is unnecessary. State v. Taylor, 689 N.W.2d 116, 130

(Iowa 2004). “There simply needs to be sufficient proof to ‘ “prevent the

jury from engaging in speculation or drawing inferences based on mere


________________________________
relevancy prong or is viewed as an independent prong, the party offering the evidence
must still show sufficient proof the actor against whom the evidence is offered
committed the act before a court weighs prejudice. Thus, the result of failing to show
sufficient proof will be functionally the same, and the court will not need to weigh the
danger of unfair prejudice against its probative value. Cf. Sullivan, 679 N.W.2d at 29
(finding evidence of prior bad acts not relevant to a noncharacter purpose and thus not
weighing prejudice against probative value).
       After reviewing our cases and the diverse approaches of other jurisdictions, we
conclude the better approach is to require, as an independent prong in the prior-bad-
acts analysis, “clear proof the individual against whom the evidence is offered
committed the prior” act or crime. Jones, 464 N.W.2d at 243. Requiring clear proof
accords a defendant protection from the “concern that unduly prejudicial evidence
might be introduced under [r]ule [5.404(b)].” Huddleston, 485 U.S. at 691, 108 S. Ct. at
1502, 99 L. Ed. 2d at 783. Moreover, expressing the requirement of clear proof as an
independent prong makes the prior-bad-acts test easier for trial courts and juries to
apply. Notably, in this case, the trial court instructed the jury the evidence of two
videos on Putman’s computer must have been shown by clear proof.
                                    13

suspicion.” ’ ” Id. (quoting State v. Brown, 569 N.W.2d 113, 117 (Iowa

1997)).   Testimony of credible witnesses can satisfy the clear-proof

requirement. See Rodriguez, 636 N.W.2d at 243 (concluding testimony of

two witnesses was sufficient to support a finding of clear proof).

      If the evidence is relevant to a legitimate and disputed factual

issue, and the clear-proof requirement is satisfied, the court must

determine whether the evidence’s “probative value is substantially

outweighed by the danger of unfair prejudice to the defendant.” Sullivan,

679 N.W.2d at 25. We consider a series of factors in weighing probative

value against the danger of unfair prejudice. See, e.g., State v. Martin,

704 N.W.2d 665, 672–73 (Iowa 2005) (applying factors to analyze

whether the danger of unfair prejudice substantially outweighed

probative value). We consider

      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.

Taylor, 689 N.W.2d at 124. If the danger of the evidence’s prejudicial

effect substantially outweighs its probative value, the evidence must be

excluded. See State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005) (holding

district court abused its discretion in admitting prejudicial prior-bad-acts

evidence). Weighing probative value against prejudicial effect “is not an

exact science,” so “we give a great deal of leeway to the trial judge who

must make this judgment call.” State v. Newell, 710 N.W.2d 6, 20–21

(Iowa 2006).

      B. Relevancy.     Putman first attacks the purpose for which the

two video titles were admitted.      He argues the evidence served no

purpose other than to prove he acted in conformity with his character.
                                      14

In response, the State insists the evidence served to show Putman’s

motive and identity as the perpetrator, which it claims, were disputed

factual issues in the case.

      The State advances motive as its first noncharacter purpose for

admitting the child pornography video titles. “Motive is the impetus that

supplies the reason for a person to commit a criminal act.” 2 Jack B.

Weinstein    &   Margaret     A.   Berger,   Weinstein’s   Federal   Evidence

§ 404.22[3], at 404-119 to 404-120 (Joseph M. McLaughlin ed., 2d. ed.

2014); see also State v. Richards, 809 N.W.2d 80, 92 (Iowa 2012)

(describing motive as the reason why a defendant would have committed

murder).     We have observed, for example, that revenge and avoiding

criminal charges may be motives for committing a crime. See, e.g., State

v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010) (finding evidence of

defendant’s desire to “get back at” his sister probative of his motive to

steal his sister’s property); State v. Nelson, 791 N.W.2d 414, 425–26

(Iowa 2010) (finding evidence of drug dealing relevant to accused

murderer’s motive because a drug dealer would be more likely to shoot a

buyer if the drug dealer believed the buyer was an undercover police

officer). Motive, like any other noncharacter purpose for which evidence

might be offered, must have been at issue in the case. See Taylor, 689

N.W.2d at 124 (explaining that the first step in the prior-bad-acts

analysis is identifying whether the noncharacter purpose is at issue in

the case).

      The perpetrator’s motive for sexually abusing L.R. was not a

legitimate or disputed issue in this case. The State was not required to

prove Putman’s state of mind as an element of the crime, and Putman’s

state of mind at the time of the crime was not put in issue. See Newell,

710 N.W.2d at 21 (discussing elements of first-degree murder and the
                                   15

need for evidence on the defendant’s state of mind at the time of the

crime in making a relevancy determination).       The evidence of child

pornography therefore could not be admitted for the purpose of proving

Putman’s motive.

      The State further advanced identity as a noncharacter purpose for

admitting the child pornography evidence. It is thus essential to decide

whether identity was at issue in this case. Cf. Taylor, 689 N.W.2d at 124

(holding court must determine whether intent, a nonpropensity purpose,

was at issue in the case).   Identity of the perpetrator was clearly the

primary issue in the case.   The State was required to prove beyond a

reasonable doubt that Putman sexually abused L.R. Cf. id. (examining

the first-degree-burglary statute to decide whether intent was at issue).

Moreover, identity was the only disputed issue in the case as the defense

sought to shift responsibility for the crime onto the victim’s father,

Lawrence Robbins. See Cox, 781 N.W.2d at 771 (explaining identity may

be put in issue “[w]hen a defendant argues a crime was committed by

another person”). Accordingly, we reject Putman’s contention the State

offered the evidence for no purpose other than to prove he was a bad

person and that he acted in conformity with his character.

      In cases in which evidence of prior bad acts is offered for the

purpose of proving identity, we have imposed a more demanding test

than the general relevancy test. See, e.g., State v. Butler, 415 N.W.2d

634, 636 (Iowa 1987) (holding rare burglar’s tool used by the defendant

in previous crimes and the tool used in the case on appeal were

sufficiently similar to permit prior-bad-acts evidence for purpose of

proving identity); State v. Walsh, 318 N.W.2d 184, 186–87 (Iowa 1982)

(finding sufficient similarity between circumstances of a homicide the

defendant was previously convicted of and the homicide for which
                                     16

defendant was on trial to admit evidence for purpose of proving identity).

“To permit the inference that similar acts establish the same person

committed both acts, we have required that the other acts must be

‘strikingly similar’ or of a ‘unique nature.’ ” In re J.A.L., 694 N.W.2d 748,

753 (Iowa 2005) (quoting State v. Barrett, 401 N.W.2d 184, 189 (Iowa

1987)).

       We acknowledge the difference, in broad terms, between Putman’s

act of allegedly possessing child pornography and the act for which he

was on trial, sexual abuse of a child. Strictly applying the requirement of

similarity between prior acts and the act for which the defendant was on

trial, one court noted the “wide gulf” separating “the act of possessing

written descriptions or stories about criminal conduct from the act of

committing the offenses described.” See People v. Shymanovitz, 157 F.3d

1154, 1159–60 (9th Cir. 1998) (holding trial court abused its discretion

in admitting magazine articles as prior-bad-acts evidence), overruled in

part by United State v. Curtin, 489 F.3d 935, 943 n.3 (“Prior acts evidence

admitted under Rule 404(b) . . . [requires] ‘some connection’ between the

reason for introducing the prior act and the nature of the crimes

charged. Any language in Shymanovitz to the contrary is disapproved.”).

This court, however, has not applied the similarity requirement so

strictly.

       We have evaluated similarity by comparing the contents of

materials possessed by a defendant to a criminal act committed by the

defendant.   See, e.g., Barrett, 401 N.W.2d at 189 (comparing “rather

sketchy plans” in the defendant’s journal to homicides for which the

defendant was being tried).     In J.A.L., for example, a juvenile faced a

delinquency adjudication for falsely reporting placement of an explosive

device in his school.   694 N.W.2d at 750.       We analyzed whether the
                                    17

juvenile court should have admitted the defendant’s journal entries,

which revealed the juvenile’s fascination with “suicide, death, and

murder,” in spite of the broad dissimilarity between the act of placing a

bomb threat at a school and authoring or possessing a macabre diary.

See id. at 753. Though we held the journal entries should not have been

admitted, it was because the journal topics did not contain “plans to

place a bomb threat or to kill any of his fellow students,” not because

journaling, or possessing a journal, lacks striking similarity with the act

of placing a bomb threat. See id. Thus, when assessing the relevancy of

prior-bad-acts evidence, we look not only for similarities between two

acts committed by the defendant, but also for similarities between

contents of materials possessed by the defendant and acts committed by

the defendant. See id.

      Our criminal cases evaluating prior-bad-acts evidence are of two

general categories. One category is cases in which there are only general

similarities between the prior bad act and the crime for which the

defendant is being tried.      See, e.g., Cox, 781 N.W.2d at 759–60

(identifying “ ‘common threads’ ” between prior acts of sexual abuse and

the acts the defendant was being tried for); J.A.L., 694 N.W.2d at 753

(comparing a preoccupation with death in a journal to threats to bomb a

school); Barrett, 401 N.W.2d at 189 (comparing plans to kill a newspaper

carrier contained in the defendant’s journal to the life-insurance-scheme

killing for which the defendant was on trial). Not surprisingly, we have

held generally similar prior-bad-acts evidence inadmissible. J.A.L., 694

N.W.2d at 753; Barrett, 401 N.W.2d at 189.

      In the other category are cases in which the acts are indeed

strikingly similar. See Butler, 415 N.W.2d at 636 (concluding modified

“nippers” used in defendant’s burglaries were sufficiently similar to admit
                                     18

evidence); Walsh, 318 N.W.2d at 186–87 (finding two “bizarre” homicides

to be sufficiently similar).   Finding striking similarity requires drawing

out and comparing the peculiar circumstances of the acts. See Walsh,

318 N.W.2d at 186 (conceding that some similarities between two

homicides were “commonplace in crimes of this type” and comparing the

“not commonplace” similarities).       This case falls into the strikingly

similar category.

      According to the DCI investigator’s report, which was admitted at

the hearing on admissibility, Putman’s computer hard drive contained

thousands of photographic images, some of which were images of child

pornography.    The USB drive contained thirty-five images and fifteen

videos of child pornography, the external hard drive contained thousands

of images and ninety-four videos of child pornography, and the CD found

in Putman’s computer contained 645 images of child pornography. The

videos and images show nude children and children engaged in sex acts.

What is more, the external hard drive contained amateur photographs of

a teenage girl taken with a digital camera. The photographs show a man,

believed to be Putman, performing sex acts on the unconscious teen.

      None of this evidence was presented to the jury. Indeed, evidence

suggesting only a general preoccupation with child pornography may well

have been inadmissible in this child sex abuse case.        Cf. J.A.L., 694

N.W.2d at 753 (holding a journal showing a fascination with death

inadmissible in a juvenile adjudication proceeding for a threat to bomb a

school).   The district court, however, winnowed out this mass of child

pornography evidence, leaving only the evidence of child pornography

bearing a striking similarity to the crime for which Putman was on trial.

Thus, Rodney Peterman testified at trial that, understanding the charge

Putman faced, he observed what he believed to be child pornography on
                                     19

Putman’s computer. He then confiscated the computer and informed law

enforcement. The DCI investigator testified he found child pornography

on all four items he examined, and he told the jury parts of the names of

two videos he found: “Two YO [year old] getting raped” and “Two YO girl

getting raped during diaper change.” The DCI investigator also explained

the videos showed adult men sexually assaulting girls that he estimated

to be two or three years of age.

      There is undeniable similarity between the two videos and the act

for which Putman was on trial.       Like the video victims, L.R. was two

years of age, although it is unclear whether Putman knew L.R.’s exact

age. Further, L.R. was put to bed wearing a diaper. When she came

downstairs the next day, the diaper had been removed, and there was

blood on her legs. In one video, as its title makes clear, the child’s diaper

figures prominently.   Like the video victims, testimony confirmed L.R.

was the victim of vaginal penetration, which resulted in serious injuries.

We conclude there was a striking similarity between the content of the

two videos found on Putman’s computer, and the act of sexually abusing

a two-year-old girl.   Putman’s possessing the two videos involving the

violent sexual abuse of very young children by adult men goes to the

heart of the disputed issue of identity and makes it more probable he

was the person who sexually abused L.R. and not the victim’s father.

Accordingly, the prior-bad-acts evidence was highly relevant to the

identity of the perpetrator. If the evidence is determined to be relevant,

the evidence is “prima facie admissible, even though it illustrates the

accused’s bad character.”    State v. Elston, 735 N.W.2d 196, 199 (Iowa

2007).

      C. Clear Proof. As his next point of contention, Putman insists

the State failed to clearly prove he was responsible for downloading the
                                    20

two videos on his computer. As noted, proof of prior bad acts is clear if it

prevents the jury from speculating or inferring from mere suspicion. See

Taylor, 689 N.W.2d at 130.      Putman points out the DCI investigator

could not identify who downloaded the material on Putman’s computer.

Nor could he determine with certainty, from the computer’s internal

clock, when the videos were downloaded. Further, Rodney Peterman’s

testimony indicates the computer was not password protected, meaning

someone other than Putman could have accessed it. Putman also notes

Peterman had the computer and other electronic devices in his own

possession for some period of time before turning the items over to the

sheriff. This evidence, Putman argues, undermines the State’s claim he

downloaded the two videos whose titles were mentioned at trial.

      The State takes a different view. It argues there was clear proof

Putman possessed the videos—the videos on Putman’s computer

belonged to Putman, even if he did not download them. First, Peterman

testified he built the computer for his friend Putman, and when he sold it

to Putman, the computer did not contain any child pornography.           In

addition, although the computer and hardware were in Peterman’s

possession before being given to the sheriff’s department, he notified the

sheriff’s department soon after making the discoveries. Next, Peterman

testified Putman lived alone at the time he was arrested, diminishing the

likelihood the videos on Putman’s computer belonged to or were

downloaded by someone else. Also, although Putman denied owning the

videos on his computer, he never disputed owning the computer or the

other electronic devices. Cf. State v. White, 668 N.W.2d 850, 855 (Iowa

2003) (finding a defendant’s failure to dispute prior bad acts at trial

supported a finding of clear proof). Most significant, the DCI investigator

testified the same external hard drive that contained one of the two
                                    21

videos also contained photographs of Putman with his daughter, which

suggests, at a minimum, that Putman had access to the hard drive, and

thus its contents belonged to him. Finally, in its limiting instruction, the

district court instructed the jury that this evidence must be shown by

clear proof. Considering all the evidence, there was clear proof for the

jury to find Putman possessed the two videos found on his computer

without speculating or inferring from suspicion.

      D. Balancing Unfair Prejudice Against Probative Value. Since

we conclude the evidence was relevant and there was clear proof Putman

possessed the two videos, we must now decide whether the danger of

unfair prejudice substantially outweighed the evidence’s probative value.

See Richards, 809 N.W.2d at 92. As explained above, we balance a series

of factors in weighing evidence’s probative value against the evidence’s

danger of unfair prejudice. See, e.g., Henderson, 696 N.W.2d at 11–12

(finding evidence’s “strong prejudicial impact” substantially outweighed

its probative value).

      First, many of our cases have evaluated the existence of clear proof

as part of the balancing process. See, e.g., Taylor, 689 N.W.2d at 124

(noting the existence of clear proof is a factor in the balancing process).

For purposes of clarity and consistency, whether clear proof exists

should remain as part of the balancing process, in addition to being

analyzed as an independent analytical step.        As noted above, there is

clear proof Putman possessed the two videos.          This factor supports

admission.

      We must next consider the need for the evidence that Putman

possessed the two videos in light of the other available evidence and the

issues in the case. See id. Because Putman denied that he committed

the crime, the crucial issue in the case was the identity of the
                                    22

perpetrator, and as already noted, Putman’s possessing the two videos

made it more probable he, rather than L.R.’s father Lawrence, sexually

abused L.R. See Henderson, 696 N.W.2d at 11 (examining defendant’s

defense to determine the need for the evidence in light of the case’s

issues). Additionally, there was no forensic evidence that linked Putman

to the crime, and the victim was just two-years old, incapable of

testifying against her abuser. The only additional evidence available to

the State at the time of trial was her observed behavior after the assault.

Seeing Putman after the assault, L.R. moves towards Lawrence and hides

her head in her hands. Thereafter, L.R. is generally afraid of all male

strangers and clings to Lawrence.         The State’s need to respond to

Putman’s assertion that it was Lawrence and not him who was the

perpetrator of this sexual assault on L.R. substantially increased the

probative value of the evidence of the two videos found in his possession.

Since the need for the evidence on the identity of the abuser was

therefore high, this supports admission of the evidence.

      We also consider the strength or weakness of the evidence on

identity.   See Taylor, 689 N.W.2d at 124.      Again, clear proof Putman

possessed the videos showing two- or three-year-old girls being sexually

abused is strong evidence suggesting Putman committed the act similar

to the one in the videos against L.R. The most probative evidence on the

issue of identity is the similar acts found in the two videos. All of these

factors favor admission.

      However, this does not end our analysis. We also must determine

whether the probative value of this evidence “is substantially outweighed

by the danger of unfair prejudice.”      Iowa R. Evid. 5.403.   Evidence is

unfairly prejudicial if it has “ ‘an undue tendency to suggest decisions on

an improper basis commonly, though not necessarily, an emotional
                                    23

one.’ ” Newell, 710 N.W.2d at 20 (quoting Plaster, 424 N.W.2d at 231).

Even highly probative evidence such as this may be excluded if the

danger of unfair prejudice is too great.     See State v. Reynolds, 765

N.W.2d 283, 292 (Iowa 2009) (excluding highly prejudicial evidence

despite its probative value to demonstrate the defendant’s motive).

      There is no question child pornography has “a strong tendency to

produce intense disgust.” United States v. Loughry, 660 F.3d 965, 974

(7th Cir. 2011) (holding danger of unfair prejudice posed by evidence of

“hard core” child pornography outweighed its probative value in

prosecution for distribution of “lascivious exhibition” child pornography).

Accordingly, the district court in this case, mindful of the prejudicial

nature of the evidence, significantly limited the testimony the State was

allowed to present to the jury to the two video titles. We have previously

indicated that concerns about prejudice to a defendant might be eased

by narrowing the scope of the prior-bad-acts evidence presented to the

jury. See Barrett, 401 N.W.2d at 188 (explaining “[i]t would lessen our

concerns regarding unwarranted prejudice if the statements in the

journal concerning plans to harm other persons could be excised” so as

to leave only relevant statements, but ultimately deciding against doing

so to preserve context).

      The district court narrowed the scope of the prior-bad-acts

evidence in this case. Consistent with the district court’s ruling on the

motion in limine, the State’s expert was allowed to mention that child

pornography had been found on each of the electronic devices. He also

testified as to the file names of only two videos which were strikingly

similar to the sexual assault which occurred here.      The jury was not

shown any images from these two videos found on Putman’s computer or

other electronic devices.   The State was not allowed to describe the
                                     24

volumes of photographs and videos of child pornography found on the

electronic devices.     Nor did the State mention the two videos in its

opening statement. Aside from the brief testimony, the State made no

mention of the two videos until its rebuttal closing argument—after being

brought up by Putman’s counsel.       Even then, the State reminded the

jury of the “very narrow purpose” for which it could use the evidence of

the two video titles.    The State thus carefully adhered to the district

court’s narrowly tailored order.

      To the extent any testimony exceeded the district court’s narrowly

defined scope of permissible testimony, it was necessary to establish a

context for the discovery of the two videos.     Evidence that reveals the

context of prior-bad-acts evidence is in some cases permissible. See id.

Thus, Peterman testified about his initial discovery of the child

pornography.    The State’s expert testified that child pornography had

been found on each of the devices provided to him.            Though these

references must factor into the balance, under the circumstances of this

case, they are not alone sufficient to tip that balance in favor of excluding

the evidence.

      Finally, in addition to significantly limiting the testimony presented

to the jury, the district court gave a limiting instruction informing the

jury of the limited purpose for which the evidence could be used. See

State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996) (explaining a limiting

instruction “help[s] to nullify the danger of unfair prejudice”); see also

Rodriguez, 636 N.W. 2d at 243 n.2 (advising trial courts to give a limiting

instruction “explaining the purpose for which the prior acts evidence may

be used” even if unrequested by the defendant).          The district court

instructed the jury Putman was “not on trial for” possessing child

pornography. It also instructed the jury the evidence could “only be used
                                     25

to show motive, intent, or identity of the person charged.”       We have

explained before that in most cases a limiting instruction such as this is

an antidote for the danger of prejudice: “It is only in extreme cases that

such an instruction is deemed insufficient to nullify the danger of unfair

prejudice.” Plaster, 424 N.W.2d at 232. This is not one of those extreme

cases.

         The district court’s approach to this highly prejudicial evidence

“was a model of caution.” See Richards, 809 N.W.2d at 93 n.4 (praising a

district court’s efforts in sifting through remote, and thus less relevant,

prior-bad-acts evidence).     The district court winnowed thousands of

images and videos of child pornography, leaving only two highly relevant

video titles for the jurors’ ears.   The district court did not permit the

videos to be shown, nor did it permit the State to mention the videos in

its opening statements, conditions with which the State strictly complied.

Moreover, the district court instructed the jury on the narrow purposes

for which this evidence could be used. On balancing the probative value

of the evidence in this case against the prejudicial impact of such

evidence, we cannot conclude that the district court abused its discretion

in allowing into evidence the very limited evidence of the two videos.

         V. Conclusion.

         To be clear, not all evidence that a defendant possesses child

pornography is admissible as prior-bad-acts evidence.         Applying our

long-standing analysis of the admissibility of prior-bad-acts evidence to

the circumstances of this case, we hold the district court did not abuse

its discretion when it admitted evidence that Putman possessed specific

videos involving child sexual abuse through the admission of the video

titles in his trial for first-degree sexual abuse. The evidence was relevant

to the issue of the identity of the perpetrator, there was clear proof
                                    26

Putman possessed the two videos, and the evidence’s probative value was

not substantially outweighed by the danger of unfair prejudice. Finding

no abuse of discretion, we affirm Putman’s conviction.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur except Wiggins, Appel, and Hecht, JJ., who

dissent; and, writing separately, Hecht, J., who dissents.
                                    27
                                           #64/12–0022, State v. Putman
WIGGINS, Justice (dissenting).

      I respectfully dissent.   I agree with the court’s analysis on the

inadmissibility of the testimony that the police found child pornography

on four items taken from Putman’s house and the reference to the two

video titles that the witness read into the record for the reason this

evidence does not go to motive. I part company with the court’s opinion

because this evidence does not go to identity.

      I reach this conclusion for two reasons.     The first reason is the

court is applying Iowa Rule of Evidence 5.404(b) as a rule of inclusion,

rather than a rule of exclusion. The second reason is the caselaw does

not allow a court to use the mere fact of possession of pornography to

establish identity, no matter how similar the pornography is to Putman’s

alleged act.

      The court applies rule 5.404(b) as a rule of inclusion. In People v.

Shymanovitz, 157 F.3d 1154, 1159 (9th Cir. 1998), abrogated by United

States v. Curtin, 489 F.3d 935 (9th Cir. 2007), a panel of the Ninth

Circuit Court of Appeals held the defendant’s possession of adult gay

male magazines was not relevant to show the defendant’s intent

regarding the crimes of assault, child abuse, and criminal sexual

conduct involving children. See 157 F.3d at 1155, 1158–60. I agree with

the following statement made by the panel in its decision:

             Criminal activity is a wildly popular subject of fiction
      and nonfiction writing—ranging from the National Enquirer
      to Les Miserables to In Cold Blood. Any defendant with a
      modest library of just a few books and magazines would
      undoubtedly     possess      reading    material   containing
      descriptions of numerous acts of criminal conduct. Under
      the government’s theory, the case against an accused child
      molester would be stronger if he owned a copy of Nabokov’s
      Lolita, and any murder defendant would be unfortunate to
      have in his possession a collection of Agatha Christie
      mysteries or even James Bond stories. Woe, particularly, to
                                        28
      the son accused of patricide or incest who has a copy of
      Oedipus Rex at his bedside.

Id. at 1159. The reasoning in Shymanovitz is consistent with applying

rule 5.404(b) as a rule of exclusion.

      Ten years after Shymanovitz, the Ninth Circuit sat en banc in the

case of United States v. Curtin, 489 F.3d at 937. There, the court held

articles in the defendant’s possession describing sexual acts between an

adult and minors were admissible on the element of specific intent. See

id. at 958–59. The reason for disapproving of Shymanovitz and allowing
this testimony was based on the rationale that Federal Rule 404(b) is a

rule of inclusion, rather than a rule of exclusion. See id. at 944, 953–54.

The court applies rule 5.404(b) as the Ninth Circuit did in Curtin; thus,

the court applied this rule as a rule of inclusion.

      In Iowa, we initially interpreted rule 5.404(b), our state equivalent

to Federal Rule 404(b), as a rule of inclusion. See State v. McDaniel, 512

N.W.2d 305, 308 (Iowa 1994) (“[E]vidence of other illegal activities that

tend to prove the defendants’ general propensity . . . is relevant and

should be admitted.”), overruled by State v. Sullivan, 679 N.W.2d 19, 28

(Iowa 2004). We subsequently overruled McDaniel and recognized rule

5.404(b) is a rule of exclusion. See Sullivan, 679 N.W.2d at 28 (“We think

the better rule is that unless the prosecutor can articulate a valid,

noncharacter theory of admissibility for admission of the bad-acts

evidence, such evidence should not be admitted.”).          As a rule of

exclusion, the prosecutor must prove a valid, noncharacter theory of

admissibility for the testimony that the police found child pornography

on Putman’s computer and the reference to the two video titles that the

witness read into the record. The prosecutor claims this evidence goes to

identity. I disagree.
                                    29

      We have held that other-acts evidence can go to identity if the

other acts are strikingly similar or of a unique nature. See In re J.A.L.,

694 N.W.2d 748, 753 (Iowa 2005). We require similarity or uniqueness

to prevent the fact finder from determining “identification based on the

forbidden inference of propensity.”      Id.   First, the mere possession of

pornography does not qualify as an act.            Additionally, there is no

showing in the record the child pornography found on the four items

taken from Putman’s house, other than the video titles read into the

record, are similar or unique to this crime. Thus, the district court erred

by allowing the DCI investigator’s testimony of finding child pornography.

The mention of dissimilar child pornography is enough to require a new

trial. See State v. Barrett, 401 N.W.2d 184, 189 (Iowa 1987) (finding the

admission of a journal entry in violation of rule 404(b) (now rule 5.404(b))

required a new trial, even though a similar journal entry was admissible

under rule 404(b)).

      The best argument the prosecutor can make for the admission of

the video titles is that the video titles read in the record are similar or

unique to the crime; thus, this evidence goes to identity. The problem

with this argument is Iowa caselaw does not support the admissibility of

these types of written material to show identity without another act or a

plan. In J.A.L., the State alleged the juvenile was delinquent for falsely

reporting the placement of an explosive device in violation of Iowa Code

section 712.7 (2003). 694 N.W.2d at 750. The State introduced notes

from the juvenile’s journal into evidence. See id. at 750–51. In holding

these writings excludable under rule 5.404(b), we said:

            A review of J.A.L.’s journal entries indicates J.A.L. was
      fascinated with suicide, death, and murder. The journal
      entries, however, do not offer any indication J.A.L. was
      preparing to place a bomb threat at the school. The entries
                                   30
      do not contain any plans to place a bomb threat or to kill
      any of his fellow students.

Id. at 753.

      Another case supporting the exclusion of these video titles is

Barrett.   There, the State charged the defendant with two counts of

murder in the first degree in violation of Iowa Code sections 707.1 and

707.2 (1985).    Barrett, 401 N.W.2d at 185.   The State introduced into

evidence two journals made by the defendant.       Id.   The first journal

detailed a plan by the defendant to kill several people, including one for
whom the defendant was the beneficiary of the person’s life insurance

policy. See id. at 185–86. The State’s theory as to why the defendant

killed a second person was that it was the defendant’s intent to make the

police believe the second person killed the first person, then committed

suicide.   Id. at 185.   The second journal referred to kidnapping and

ransoming an unidentified woman. Id. at 186. It also included plans for

kidnapping and murdering a newspaper carrier and plans to plant false

clues about these crimes. Id.

      The district court admitted both journals into evidence, and the

defendant was convicted. Id. at 185–86. On appeal, we determined the

first journal was not excludable under rule 404(b) because the defendant

had, in fact, bought life insurance on one of the murder victims, and the

journal dispelled the notion the defendant bought the life insurance for a

legitimate reason. See id. at 188. However, we held the second journal

was excludable under rule 404(b) because the writings were not similar

to the modus operandi of the murders for which the defendant was tried.

See id. at 189. We then reversed the convictions and remanded for a

new trial. Id.
                                     31

      The lesson we learn from J.A.L. and Barrett is that mere writings

do not in and of themselves make the writings admissible. There has to

be some link between the material sought to be introduced and the crime

charged.   In J.A.L., the juvenile’s journal entries do not support an

inference he was responsible for falsely reporting the placement of an

explosive device. See 694 N.W.2d at 753. In Barrett, one journal was

admissible only because the defendant bought life insurance on one of

the victims. See 401 N.W.2d at 188. Here, the possession of videos with

the specific titles shows Putman’s fascination with child rape. However,

these videos do not offer any indication that Putman was the child rapist

on the night in question or that the crime he allegedly did was in the

same manner as the acts committed in the videos.

      The court’s opinion also relies on State v. Butler, 415 N.W.2d 634

(Iowa 1987), and State v. Walsh, 318 N.W.2d 184 (Iowa 1982).          Both

cases are distinguishable.     In Butler, the burglar’s tool used by the

defendant in previous crimes and the tool used in the case on appeal

were strikingly similar to permit admission of the other-acts evidence for

the purpose of proving identity. 415 N.W.2d at 636. In Walsh, there was

a sufficient similarity between circumstances of a homicide for which the

defendant was previously convicted and the homicide for which the

defendant was on trial to admit the evidence for the purpose of proving

identity. 318 N.W.2d at 186–87. Thus, these cases are distinguishable

because the act for which the State charged each defendant was similar

and unique to other acts done by each defendant.

      Here, we have no other act done by Putman.             There is no

connection between the videos or the crime charged. Rather the alleged

other act is merely possessing certain titles of child pornography that, on

their face, appear to be similar to the crime.
                                     32

      Other states faced with similar facts would not let the video titles

or pornography into the record. Kentucky is one such state. There, the

Commonwealth charged a defendant with sodomy in the first degree

committed on a boy under the age of twelve. Dyer v. Commonwealth, 816

S.W.2d 647, 648 (Ky. 1991), overruled in part on other grounds by Baker

v. Commonwealth, 973 S.W.2d 54 (Ky. 1998).            The jury found the

defendant guilty of the crime. Id. at 650. At trial, the court admitted

evidence that graphically illustrated and described homosexual activity,

among other sexually explicit materials. See id. at 648–49.

      The   Supreme     Court   of   Kentucky   reversed   the   defendant’s

conviction, finding the materials were inadmissible to profile the

defendant as a pedophile. See id. at 652–54. In doing so, the court said,

“We declare, unqualifiedly, that citizens and residents of Kentucky are

not subject to criminal conviction based upon the contents of their

bookcase unless and until there is evidence linking it to the crime

charged.” Id. at 652.

      The Supreme Court of South Carolina came to the same

conclusion. See State v. Nelson, 501 S.E.2d 716, 724 (S.C. 1998). There,

the defendant was convicted of four counts of first-degree criminal sexual

conduct with a three-year-old child and four counts of lewd act on a

three-year-old child. Id. at 717. The district court admitted materials at

the defendant’s trial including children’s toys, testimony about certain

videos, photographs depicting young girls, and other evidence seized

from the defendant’s bedroom. Id. at 717–18. Additionally, the district

court admitted the defendant’s statements to police that he had fantasies

about children. Id. at 723. The Supreme Court of South Carolina found

this evidence not only inadmissible to establish identity, but also

inadmissible to establish motive, intent, absence of mistake or accident,
                                    33

or a common scheme or plan. Id. at 718–19, 724. The court reasoned

that although the defendant had materials reflecting the defendant was a

pedophile, the jury did not have the option to infer the defendant was

acting in conformity with his alleged classification as a pedophile when

he committed the crimes with which he was charged. Id. at 719. The

court went on to say making such an inference was an improper basis to

determine guilt; thus, the evidence should not have been admitted. Id.

The court cited cases from Florida, Idaho, New York, Texas, Kentucky,

Ohio, and Tennessee that reached similar conclusions. Id. at 719–22.

      Some states allow such materials to be admissible as the complete

story of the crime if the defendant showed the objects to the child. E.g.,

State v. Ericson, 986 A.2d 488, 496 (N.H. 2009). Another jurisdiction has

allowed such materials to be admissible as evidence of intent in a

prosecution for traveling across state lines with the intent to engage in a

sexual act with a minor and using an interstate facility to attempt to

persuade a minor to engage in sexual acts. See Curtin, 489 F.3d at 936,

958–59.

      I am unable, however, to find any authority saying the prosecutor

can use the mere possession of pornography depicting similar acts to

those of the alleged crime to prove identity.    There is nothing in the

record to show any connection between the pornography and the video

titles introduced into evidence in this case.    If this really is the law,

people of the State of Iowa must be careful in what they watch or read.

The State can use a person’s reading of the book Lolita to convict that

person of underage sexual abuse.         The State can use a person’s

fascination with crime shows to convict that person of murder.

      There is no showing Putman acted upon his fascination with child

pornography at the time of the crime.       Without that link, the court
                                    34

impermissibly allowed the jury to infer Putman was acting in conformity

with this character trait when he committed the crimes with which he

was charged.    I would borrow a phrase from the Supreme Court of

Kentucky and declare, unqualifiedly, that citizens and residents of Iowa

are not subject to criminal conviction based upon the contents of their

bookcase unless and until there is evidence linking it to the crime

charged.

      Finally, the prosecutor did not limit her final argument to the two

video titles the court held admissible in her final argument. Instead, she

waited until her rebuttal argument and argued the child pornography on

the defendant’s computer and on every single item taken from the

defendant’s home linked him to the crime. By not limiting her argument

to the two video titles and using in her argument the pornography found

on the computer and other drives, she used the totality of the

pornography for propensity rather than identity.    Accordingly, I would

reverse Putman’s conviction and remand for a new trial.

      Hecht and Appel, JJ., join this dissent.
                                      35

                                                      #12–0022, State v. Putman

HECHT, Justice (dissenting).

         Although I join the dissent of Justice Wiggins because I am not

persuaded      Putman’s     possession     of   the    pornographic   materials

constituted an “act” under Iowa Rule of Evidence 5.404(b), I write

separately because I conclude the evidence should have been excluded

for another reason. Even assuming only for the sake of analysis that the

evidence was offered for the legitimate purpose of proving identity, I

believe it should have been excluded because the danger of unfair

prejudice attending its admission substantially outweighed its probative

value.

         The factors we consider in assessing the probative force of evidence

in relationship to the resulting danger of unfair prejudice are:

         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.

State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004). I will address each of

these factors in turn.

         I. The State’s Need for the Evidence.

         The victim in this tragic case was an infant who could not testify

and identify the person who brutally injured her. Yet, I do not believe

this fact weighs strongly in favor of admission of the challenged evidence.

There was substantial evidence other than the pornography tending to

link Putman to the crime. For example, there was evidence supporting a

finding that Putman was the only adult who slept upstairs on the same

level of the house where L.R. slept on the night of the sexual assault.

The State also offered evidence that Putman had twice behaved in a
                                     36

sexually aggressive manner toward L.R.’s mother earlier in the evening

before the crime occurred. More importantly, L.R.’s father testified that

Putman had blood on his hands and shirt in temporal proximity to the

time when blood was observed on L.R.’s body and the crime was

discovered.    Other evidence offered by the State tended to prove that

when L.R. saw Putman after the crime was committed, she cowered from

him.     These pieces of evidence suggest the State proffered other

substantial evidence of Putman’s guilt, and thus the prosecution’s need

of the pornographic evidence was not extraordinarily strong.

        It should be noted that even when the State’s need for the evidence

is great, “the need for the evidence does not make the evidence more

likely to prove that which it is offered to prove.” United States v. Stout,

509 F.3d 796, 800 (6th Cir. 2007). My analysis of the probative value of

the pornographic evidence is found below.

        II. Clarity of Proof the Defendant Committed the Prior Bad
Acts.

        The State presented clear evidence that Putman’s computer and

related devices held a substantial quantity of pornographic images

including two titles involving rape of infants. For the reasons stated in
the dissent of Justice Wiggins, I am not persuaded Putman’s possession

of pornography is an “act” within the meaning of rule 5.404(b).

Accordingly, I shall not further address this factor here.

     III. The Strength or Weakness of the Evidence on the
Relevant Issue.

        Although Putman’s possession of pornography including two titles

involving rape of infants might suggest some positive correlation between

Putman’s interest in a specific genre of pornography and the peculiar

facts of the crime, social science literature suggests the correlation might
                                      37

be weak at best.       See Melissa Hamilton, The Efficacy of Severe Child

Pornography Sentencing: Empirical Validity or Political Rhetoric?, 22 Stan.

L. & Pol’y Rev. 545, 579–80 (2011) (“Social science studies considering

the correlation between viewing child pornography and contact sexual

offenses against children are not consistent, though there is much

evidence that only a subset of offenders who use child pornography also

sexually    offend   against   children.     To   support    this,   researchers

conducting comprehensive reviews of empirical literature often conclude

there is little evidence of any direct impact of viewing child pornography

on the commission of contact sexual offenses. . . .            In general, the

literature supports the view that while child molesters may possess child

pornography, those that possess child pornography are generally not

likely to engage in contact offenses against children.           Instead, child

molesters are merely a small subset of child pornographers.”). Given the

available social science, I cannot conclude the evidence of Putman’s

possession of child pornography is strong evidence identifying him as the

person who raped L.R.

     IV. Degree to Which Jurors Will Be Motivated to Decide on
Improper Basis.

        On this element of the analysis, I share the view of Chief Justice

Hannah of the Arkansas Supreme Court who characterized the

overwhelming prejudice occasioned by the admission of evidence that

pornography was found on a defendant’s computer: “When the circuit

court    erroneously    admitted   into    evidence   the   repugnant    deviant

pornographic pictures and titles that were found on the appellant’s

computer, this case was over.” Johnston v. State, No. CR–13–371, 2014

WL 1096142, ___ S.W.3d ____, _____ (2014) (Hannah, C.J., dissenting). It

is beyond dispute in my view that when the jury heard evidence that
                                     38

Putman’s computer held extraordinarily repugnant images of infants

being raped, Putman’s conviction was guaranteed. The subject matter of

this evidence was so repugnant and exquisitely prejudicial that the

jurors were almost certainly highly motivated to convict Putman on that

propensity evidence alone.     Cf. State v. Wright, 203 N.W.2d 247, 251

(Iowa 1972) (noting risk of inflammatory and corrosive other-crimes

evidence is its tendency to “stir such passion in the jury as to sweep

them beyond a rational consideration of guilt or innocence of the crime

on trial” (citation omitted) (internal quotation marks omitted)); see also

United States v. LeCompte, 131 F.3d 767, 770 (8th Cir. 1997) (stating

“the danger of unfair prejudice . . . presented by the ‘unique stigma’ of

child sexual abuse . . . is one that all propensity evidence in such trials

presents”). As Chief Justice Hannah aptly suggested, when that evidence

was admitted, Putman’s trial was over.

      In my view, this case presents a classic example of the type of

evidence rule 5.404(b) is intended to exclude in furtherance of a fair trial.

Even if it is assumed for the sake of analysis that the evidence was

probative of identity—and not merely of propensity—it should have been

excluded because it was so uniquely and extraordinarily prejudicial as to

deny Putman a fair trial on the crime charged in this case. Cf. United

States v. Fawbush, 634 F.3d 420, 423 (8th Cir. 2011) (“Had the

testimony been relevant to a material issue, we believe it still should not

have been admitted. Under our standard, relevant other act evidence is

admissible only if its probative value outweighs its potential for unfair

prejudice. ‘ “Unfair prejudice” . . . means an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily, an

emotional one.’    We believe the evidence that Fawbush had sexually

abused his daughters and had fathered a child with one of them to have
                                     39

been so inflammatory on its face as to divert the jury’s attention from the

material issues in the trial. Consequently, the prejudicial effect of this

evidence outweighed any legitimate probative value it may have had.”

(Citations omitted.)). Accordingly, I conclude the district court abused its

discretion in admitting the evidence, and I would reverse and remand for

a new trial. I therefore respectfully dissent.
