               IN THE SUPREME COURT OF IOWA
                              No. 07–2083

                           Filed April 30, 2010


STATE OF IOWA,

      Appellee,

vs.

MATTHEW EARL COX,

      Appellant.



      Appeal from the Iowa District Court for Linn County, Robert E.

Sosalla, Judge.



      Defendant challenges admissibility of evidence of incidents of prior

sexual abuse with other victims. JUDGMENT REVERSED AND CASE

REMANDED.



      Mark C. Smith, State Appellate Defender and David Arthur Adams,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, Harold Denton, Linn County Attorney, and Jerry

Vander Sanden, Assistant County Attorney, for appellee.
                                     2

STREIT, Justice.

      Matthew Cox was convicted pursuant to Iowa Code sections 709.1,

709.3(2), and 709.4(2)(b) (2005) of one count of sex abuse in the second

degree and one count of sex abuse in the third degree for sexually

abusing his younger cousin. The State presented evidence of Cox’s prior

sexual abuse of two other cousins. Cox appealed, asserting the district

court erred by admitting the instances of sexual abuse against other

victims pursuant to Iowa Code section 701.11 (2007). Admission of prior

bad acts solely to show a general propensity instead of a legitimate issue

violates the due process clause of the Iowa Constitution. Because Cox’s

prior bad acts with different victims are not relevant to a legitimate issue,

section 701.11 is unconstitutional as applied to the facts of this case and

we reverse.

      I. Background Facts and Prior Proceedings.

      Fourteen-year old J.M. accused her cousin Matthew Cox of

fondling her on several occasions beginning when she was between four

and six years old in about 1996–1998 and raping her beginning when

she was a pre-teen in about 2003.        According to J.M., most of these

incidents took place at her grandmother’s house, where Cox lived. The

State charged Cox with sexual abuse in the second degree for acts

between January 1, 2003, and October 31, 2005, and later added a

charge of sexual abuse in the third degree for acts after J.M. turned

twelve.

      At trial, T.C. and A.L., two of Cox’s other cousins, testified to prior

sexual contact with Cox. T.C., a female, described two occasions when

Cox forcibly fondled her, once at her grandmother’s house when she was

ten, in about 1998, and once in a car when she was thirteen, in about

2001. A.L., a male and J.M.’s half-brother, described a pattern of abuse
                                           3

that began with inappropriate touching and forced oral sex when he was

around age six, in about 1992, and escalated to incidents during which

Cox forcibly performed anal intercourse with him. A.L. testified some of

these alleged acts took place at his grandmother’s house.

       Charges had been filed jointly based on Cox’s alleged abuse of A.L.,

but these charges were severed from those relating to J.M. prior to trial 1.

Cox then filed a motion in limine seeking to exclude prior-bad-acts

evidence under Iowa Rules of Evidence 5.404(b) and 5.403. The State

asserted such evidence was admissible under Iowa Code section 701.11.

Cox argued that section 701.11 only applies to evidence of other sexual

abuse with the same victim and application of section 701.11 here would

be unconstitutional under the Iowa Constitution.

       The State argued the prior acts of sexual abuse should be admitted

under section 701.11 because of “common threads” in the testimony: all

of the alleged victims were cousins of the defendant, all were abused as

children or young adults, and all testified to some abuse at the

grandmother’s house.        The State also argued the evidence showed the

“defendant’s MO” and “a pattern of behavior,” making it admissible even

under rule 5.404(b).
       Ruling in favor of the State, the court concluded the evidence was

admissible under section 701.11 because “the Legislature found it

necessary in sexual abuse cases to make an exception.                   [The statute]

doesn’t limit it to other sexual abuse against the same victim.” The court

found the evidence relevant and also found the probative value of the

evidence outweighed the prejudicial effect because of the arguments put

forth by the State, including “the similarities,” and because the testimony


       1Cox was tried separately for offenses against A.L. and convicted of sexual abuse
in the second degree.
                                     4

“bolsters [J.M.’s] credibility as to . . . her recitation as to the events as

occurred.”

      The district court ordered the State to lay the foundation for these

witnesses outside the presence of the jury and again determined the

testimony was admissible. The court gave a limiting jury instruction that

“[e]vidence of another offense for which a defendant is not on trial does

not mean that the defendant is guilty of the charges for which he is on

trial.” The jury returned a guilty verdict, and Cox appealed.

      II. Scope of Review.

      We review a district court’s evidentiary rulings regarding the

admission of prior bad acts for abuse of discretion. State v. Parker, 747

N.W.2d 196, 203 (Iowa 2008). “An abuse of discretion occurs when the

trial court exercises its discretion ‘on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’ ” State v. Rodriquez, 636

N.W.2d 234, 239 (Iowa 2001) (quoting State v. Maghee, 573 N.W.2d 1, 5

(Iowa 1997)). However, to the extent a challenge to a trial court ruling on

the admissibility of evidence implicates the interpretation of a statute or

a rule of evidence, our review is for errors at law. See State v. Stone, 764

N.W.2d 545, 548 (Iowa 2009); State v. Jordan, 663 N.W.2d 877, 879

(Iowa 2003). We review constitutional claims de novo. State v. Bumpus,

459 N.W.2d 619, 622 (Iowa 1990).

      III. Merits.

      A. Prior Bad Acts Evidence. Cox asserts the district court erred

by admitting evidence of his prior acts of sexual abuse under Iowa Code

section 701.11. Cox argues if section 701.11 is read to allow prior bad

acts against individuals other than the victim, it violates the due process

clause of the Iowa Constitution.
                                     5

      Under Iowa Rule of Evidence 5.404(b), “[e]vidence 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).     Therefore, such evidence “is not admissible to

demonstrate the defendant has a criminal disposition and was thus more

likely to have committed the crime in question.” State v. Reynolds, 765

N.W.2d 283, 289 (Iowa 2009). The public policy for this rule

      “is founded not on a belief that the evidence is irrelevant, but
      rather on a fear that juries will tend to give it excessive
      weight, and on a fundamental sense that no one should be
      convicted of a crime based on his or her previous misdeeds.”

State v. Sullivan, 679 N.W.2d 19, 24 (Iowa 2004) (quoting United States v.

Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985)).

      However, prior bad acts are admissible if offered for the purpose of

establishing “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Iowa R. Evid. 5.404(b). “The

purposes listed in [rule 5.404(b)] are not exclusive.” State v. Plaster, 424

N.W.2d 226, 228 (Iowa 1988). A court may admit evidence of prior bad
acts when it determines (1) the evidence is “ ‘relevant and material to a

legitimate issue in the case other than a general propensity to commit

wrongful acts,’ ” and (2) the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice to the

defendant.   Reynolds, 765 N.W.2d at 289–90 (quoting Sullivan, 679

N.W.2d at 25).

      Iowa Code section 701.11 applies specifically to prior acts of sexual

abuse and provides:

      In a criminal prosecution in which a defendant has been
      charged with sexual abuse, evidence of the defendant’s
      commission of another sexual abuse is admissible and may
      be considered for its bearing on any matter for which the
      evidence is relevant. This evidence, though relevant, may be
                                           6
       excluded if the probative value of the evidence is
       substantially outweighed by the danger of unfair prejudice,
       confusion of the issues, or misleading the jury, or by
       considerations of undue delay, waste of time, or needless
       presentation of cumulative evidence. This evidence is not
       admissible unless the state presents clear proof of the
       commission of the prior act of sexual abuse.

Iowa Code § 701.11(1). Section 701.11 appears to allow introduction of
prior sexual abuse without limiting such evidence to the specific

categories in Iowa Rule of Evidence 5.404(b):                 “motive, opportunity,

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

accident.”

       B. Constitutionality of Iowa Code Section 701.11. Cox argues

Iowa Code section 701.11 violates the due process clause of the Iowa

Constitution by allowing a defendant to be tried and convicted based on

a general propensity instead of the charged offense. 2 Article I, section 9
of the Iowa Constitution guarantees that “no person shall be deprived of

life, liberty, or property without due process of law.” Iowa Const. art. I,

§ 9. Although in the past we have interpreted the United States and Iowa

Constitutions “in a similar fashion,” State v. Seering, 701 N.W.2d 655,

662 (Iowa 2005), we “ ‘jealously guard our right and duty to differ in

appropriate cases.’ ”      State v. Cline, 617 N.W.2d 277, 285 (Iowa 2000)

(quoting State v. Olsen, 293 N.W.2d 216, 220 (Iowa 1980)), overruled on

other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001).

Cox asserts the history and case law of our state supports an

interpretation     of   the    Iowa     Constitution      that    differs   from     the

       2The   State argues this constitutional claim is not preserved because it was not
raised below in the district court. We disagree. Before the district court, defense trial
counsel argued that: (1) the State was seeking to admit the prior bad acts evidence as
propensity evidence to suggest “he did it to others; therefore, he did it here;” (2) Iowa
Code section 701.11 should be interpreted to only apply to allegations of prior sex
abuse against the same victim; and (3) section 701.11 violates due process because it is
overly broad and vague. We hold that counsel’s arguments were sufficient to preserve
this issue for appellate review.
                                      7

interpretation federal courts have afforded the United States Constitution

with regard to this specific issue.   Although decisions interpreting the

Federal Constitution are not binding on us with respect to the Iowa

Constitution, such cases may be persuasive.         State v. Hoskins, 711

N.W.2d 720, 725 (Iowa 2006).

      In State v. Reyes, 744 N.W.2d 95 (Iowa 2008), we examined the

constitutionality of Iowa Code section 701.11 with respect to the

admissibility of other sexual abuse involving the same victim.          We

reasoned the evidence was relevant to a legitimate issue because it

“shows the nature of the relationship between the alleged perpetrator

and the victim.” Reyes, 744 N.W.2d at 102. “The evidence was thus not

offered to show a general propensity to be attracted sexually to young

girls, but instead to demonstrate the nature of the defendant’s

relationship and feelings toward a specific individual.” Id. at 103. We

determined the “admission of prior sexual abuse involving the same

victim does not amount to a constitutional violation of due process.” Id.

Reyes relied on our prior case law, which “held that prior sexual abuse

was admissible ‘ “to show a passion or propensity for illicit sexual

relations with the particular person concerned in a criminal trial.” ’ ” Id.

at 102 (quoting State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981)).

      The holding in Reyes was limited to prior incidents involving the

same victim.    Id. at 102 n.1.     Reyes expressly declined to address

situations involving a different victim.   As stated in a footnote, “[w]e

express no view regarding the constitutionality of Iowa Code section

701.11 where the prior acts of sexual abuse involve persons other than

the current alleged victim.” Id. Today, we address the issue purposefully

left unanswered in Reyes: whether admitting a defendant’s other acts of

sexual abuse with a different victim violates due process. We hold the
                                     8

Iowa Constitution prohibits admission of prior bad acts evidence

involving a different victim when admitted solely for the purpose of

demonstrating propensity. Instead, the evidence must be relevant to a

“legitimate issue.”

       The United States Supreme Court has not reached, and instead

has expressly reserved, the question of whether a state law admitting

propensity evidence violates the Federal Due Process Clause. Estelle v.

McGuire, 502 U.S. 62, 75 n.5, 112 S. Ct. 475, 484 n.5, 116 L. Ed. 2d

385, 401 n.5 (1991). The United States Supreme Court has explained,

however, that admitting propensity evidence raises questions of fair play:

             Courts that follow the common-law tradition almost
       unanimously have come to disallow resort by the
       prosecution to any kind of evidence of a defendant’s evil
       character to establish a probability of his guilt. . . . The
       inquiry is not rejected because character is irrelevant; on the
       contrary, it is said to weigh too much with the jury and to so
       overpersuade them as to prejudge one with a bad general
       record and deny him a fair opportunity to defend against a
       particular charge.

Michelson v. United States, 335 U.S. 469, 475–76, 69 S. Ct. 213, 218, 93

L. Ed. 168, 173–74 (1948) (footnotes omitted). Similarly, in Old Chief v.

United States, 519 U.S. 172, 191, 117 S. Ct. 644, 655, 136 L. Ed. 2d

574, 594–95 (1997), the Supreme Court held a trial court abused its

discretion by admitting the name and factual circumstances of a

previous conviction, even though a prior felony conviction was an

element of the crime charged.       The court, citing Michelson, held the

evidence was unfairly prejudicial, explaining, “[t]here is, accordingly, no

question that propensity would be an ‘improper basis’ for conviction.”

Old Chief, 519 U.S. at 181–82, 117 S. Ct. at 650–51, 136 L. Ed. 2d at

588.
                                          9

      The Federal Rules of Evidence previously referred to prior bad acts

only in section 404(b), a provision similar to Iowa Rule of Evidence

5.404(b), which prohibited introduction of prior bad acts except in

certain circumstances.          Fed. R. Evid. 404(b).         In 1994, Congress

expanded the scope of admissible evidence by enacting Federal Rules of

Evidence 413 and 414.          Similar to Iowa Code section 701.11, Federal

Rule of Evidence 413(a) provides:

      In a criminal case in which the defendant is accused of an
      offense of sexual assault, evidence of the defendant’s
      commission of another offense or offenses of sexual assault
      is admissible, and may be considered for its bearing on any
      matter to which it is relevant.

Fed. R. Evid. 413(a). Rule 414 applies to child molestation cases and

permits evidence of the defendant’s commission of other offenses of child

molestation. Fed. R. Evid. 414(a). The United States Supreme Court has

not addressed the constitutionality of these rules. 3            However, federal

courts have generally upheld the admission of evidence under rules 413

and 414. See, e.g., United States v. Castillo, 140 F.3d 874, 881–83 (10th

Cir. 1998).

      In United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998),
the Tenth Circuit held rule 413 does not on its face violate the due

process rights of a defendant, and in Castillo, 140 F.3d at 880, it reached

the same determination with regard to rule 414.                In both cases, the

federal rule admitting prior sexual abuse was held to be constitutional

      3Federal   Rules 413 and 414 were controversial when enacted:
      [T]he members of two committees, consisting of 40 persons in all, and
      appointed by the Judicial Conference of the United States to examine
      Fed. R. Evid. 413 before its passage, all but unanimously urged that
      Congress not adopt the rule because of deep concerns about its
      fundamental fairness.
United States v. Mound, 157 F.3d 1153, 1153 (8th Cir. 1998) (Arnold, J., dissenting
from denial of rehearing en banc).
                                      10

because of the safeguard of Federal Rule of Evidence 403, which directs

the court to exclude the evidence if it “concludes the probative value of

the similar crimes evidence is outweighed by the risk of unfair prejudice.”

Enjady, 134 F.3d at 1433. In Castillo, the Tenth Circuit held that when

evidence is “so prejudicial that it violates the defendant’s fundamental

right to a fair trial . . . [a]pplication of Rule 403 . . . should always result

in the exclusion of [such] evidence.” Castillo, 140 F.3d at 883 (emphasis

added).

      Similarly, in United States v. LeMay, 260 F.3d 1018 (9th Cir.

2001), the Ninth Circuit determined the admission of the defendant’s

other instances of molestation did not violate his due process rights.

LeMay, 260 F.3d at 1026–27. Holding rule 414 does not violate the Due

Process Clause of the Constitution, the court stated, “[a]s long as the

protections of Rule 403 remain in place to ensure that potentially

devastating evidence of little probative value will not reach the jury, the

right to a fair trial remains adequately safeguarded.” Id. at 1026.

      State courts have also confronted statutes similar to Iowa Code

section 701.11. Most courts have followed the federal courts’ lead and

held the balancing tests in the state equivalents of Federal Rule of

Evidence 403 maintain the constitutionality of statutes admitting

evidence of prior sexual offenses. See, e.g., People v. Falsetta, 986 P.2d

182, 189–93 (Cal. 1999) (holding state statute admitting propensity

evidence of sex crimes does not violate due process); People v. Donoho,

788 N.E.2d 707, 720–21 (Ill. 2003) (holding state statute admitting

propensity evidence of sex crimes constitutional under the Federal and

Illinois Constitutions).

      The Supreme Court of Missouri, however, has declared a law

similar to Iowa Code section 701.11 unconstitutional.            See State v.
                                           11

Ellison, 239 S.W.3d 603, 607–08 (Mo. 2007). In Ellison, the court held a

Missouri statute allowing admission of evidence of prior sexual crimes

unconstitutional under the Missouri Constitution even though the

statute contained a balancing clause similar to Federal Rule of Evidence

403.       Id. at 606.   The court based its holding on two clauses in the

Missouri Constitution which together guarantee “the right to be tried

only on the offense charged.” 4 Id. at 605–06. The court noted the long

line of Missouri cases prohibiting admission of prior criminal acts as

propensity evidence and held “[e]vidence of prior criminal acts is never

admissible for the purpose of demonstrating the defendant’s propensity

to commit the crime with which he is presently charged. There are no

exceptions to this rule.” Id. at 606 (citation omitted).

       When we evaluate the constitutionality of rules of evidence based

on due process considerations, “the traditional approach has been to

invalidate an evidentiary rule only if it ‘violates those “fundamental

conceptions of justice which lie at the base of our civil and political

institutions,” which define “the community’s sense of fair play and

decency.” ’ ” Reyes, 744 N.W.2d at 101 (quoting United States v. Lovasco,

431 U.S. 783, 790, 97 S. Ct. 2044, 2049, 52 L. Ed. 2d 752, 759 (1977)).
Cox argues Iowa courts have generally refused to accept the admission of

propensity evidence, and therefore, Iowa Code section 701.11 violates a

fundamental conception of justice under the Iowa Constitution.

       The general rule prohibiting propensity evidence was firmly

established in Iowa courts at common law. See State v. Vance, 119 Iowa

685, 686, 94 N.W. 204, 204 (1903) (“The rule as to evidence of similar


       One clause provides that “no person shall be prosecuted criminally for felony or
       4

misdemeanor otherwise than by indictment or information.” Mo. Const. art. 1, § 17.
The other provides that “in criminal prosecutions the accused shall have the right . . . to
demand the nature and cause of the accusation.” Mo. Const. art. 1, § 18(a).
                                    12

acts at other times and with other persons than those charged in the

indictment is well understood.       The state cannot prove against a

defendant any crime not alleged in the indictment, either as foundation

for separate punishment or as aiding the proofs that he is guilty of the

crime charged.”). The courts developed a requirement that evidence of

prior bad acts be relevant “ ‘ “to prove some fact or element in issue other

than the defendant’s criminal disposition” ’ ” and therefore relevant “for a

legitimate purpose” other than propensity to be admissible. Rodriquez,

636 N.W.2d at 239–40 (quoting State v. Castaneda, 621 N.W.2d 435, 440

(Iowa 2001)). After codification of the general prohibition on propensity

evidence in rule 5.404(b), this requirement remains. To be admissible

the evidence must be “ ‘relevant and material to a legitimate issue in the

case other than a general propensity to commit wrongful acts.’ ”        See

Reynolds, 765 N.W.2d at 289 (quoting Sullivan, 679 N.W.2d at 25). An

early United States Supreme Court case explained that the common law

rejects prior bad acts as evidence because

      [p]roof of them only tended to prejudice the defendants with
      the jurors . . . . However depraved in character, and however
      full of crime [the defendants’] past lives may have been, the
      defendants were entitled to be tried upon competent
      evidence, and only for the offense charged.

Boyd v. United States, 142 U.S. 450, 458, 12 S. Ct. 292, 295, 35 L. Ed.

1077, 1080 (1892).

      Although    historical   practice   generally   excluded   propensity

evidence, “[t]he historical practice with respect to the admissibility of

prior sexual acts is ambiguous at best.” Reyes, 744 N.W.2d at 101. We

noted in Reyes that some jurisdictions have developed exceptions that

allow evidence of prior sexual abuse involving children to be admitted,

whereas other states exclude all evidence of prior sexual abuse.        See
                                     13

Lannan v. State, 600 N.E.2d 1334, 1338 (Ind. 1992) (overruling Indiana’s

prior use of the “depraved sexual instinct exception” and citing cases

from other jurisdictions both adopting and rejecting the exception); Mary

Christine Hutton, Commentary:       Prior Bad Acts Evidence in Cases of

Sexual Contact with a Child, 34 S.D. L. Rev. 604, 614–17 (1989) (noting

states’ different treatment of prior sex acts with children); cf. David P.

Leonard, The New Wigmore: Evidence of Other Misconduct and Similar

Events § 8.5.3, at 543 (2009) (“[C]ourts have long approved admission of

[prior bad acts] evidence in sexual crime and child molestation cases for

at least three reasons, all of which tend toward the same conclusion:

that proof of the crime’s occurrence is exceedingly difficult to muster.”).

      This court traced the history of a “lewd disposition” exception in

Iowa in State v. Cott, 283 N.W.2d 324, 327 (Iowa 1979).              As Cott

explained:

      [E]vidence tending to prove a lewd disposition of the
      defendant charged with lascivious acts with a minor was
      originally considered relevant only insofar as it showed his
      intent solely toward the prosecuting witness.         Almost
      imperceptibly, the lewd disposition exception was
      overextended to permit evidence of the defendant’s acts with
      other victims. First, in [State v. Schlak, 253 Iowa 113, 116,
      111 N.W.2d 289, 291 (1961)], it crept in as a synonym for
      motive. Then, in [State v. Maestas, 224 N.W.2d 248, 250–51
      (Iowa 1974)], it was used as an alternative rationale to the
      common scheme exception.             However, proving lewd
      disposition has never been the sole purpose for which this
      court has approved the admission of testimony concerning
      prior acts with persons other than the prosecutrix.

Id. (emphasis added).    Instead of relying solely on a “lewd disposition”

exception, when faced with prior sexual offenses towards one other than

the victim, this court has typically required the challenged evidence to be

“ ‘relevant and material to some legitimate issue other than a general

propensity to commit wrongful acts.’ ” State v. Casady, 491 N.W.2d 782,
                                    14

785 (Iowa 1992) (quoting Plaster, 424 N.W.2d at 229).         For example,

evidence of prior sexual abuse of a different victim is admissible when

the identity of an attacker—alleged to be the defendant—is in dispute

and a prior act by the defendant was “strikingly similar” or of a “unique

nature.” State v. Walsh, 318 N.W.2d 184, 185–86 (1982). Such evidence

is also admissible when the defendant is charged for assault with intent

to commit sex abuse and prior similar crimes are used to demonstrate

the element of sexual intent.      See Casady, 491 N.W.2d at 785–86

(admitting prior instances of defendant pulling young women into his car

and sexually assaulting them when defendant was charged with intent to

commit sexual assault for a failed attempt to pull a girl into his car);

State v. Spargo, 364 N.W.2d 203, 205, 209 (1985). This court has also

admitted prior sexual acts to rebut a defendant’s claim that the charged

sexual activity was consensual. See State v. Bayles, 551 N.W.2d 600,

604–05 (1996); State v. Tillman, 514 N.W.2d 105, 108–09 (Iowa 1994)

(admitting defendant’s statement to victim that he had previously killed a

woman to rebut claim that sex acts were consensual); Plaster, 424

N.W.2d at 229–31.

      This court did allow admission of a prior sexual offense against an

individual other than the particular victim without tying it to a legitimate

issue other than general propensity in State v. Spaulding, 313 N.W.2d

878, 881 (1981). In Spaulding, the court held testimony by the victim’s

sister regarding an incident of sexual abuse could be admitted. Id. This

court referenced a quotation from a renowned treatise stating: “ ‘[C]ertain

unnatural sex crimes are in themselves so unusual and distinctive that

any previous such acts by the accused with anyone are strongly

probative of like acts upon the occasion involved in the charge.’ ”

Spaulding, 313 N.W.2d at 881 (quoting Edward W. Cleary, McCormick’s
                                    15

Handbook on the Law of Evidence § 190, at 449 (2d ed. 1972)).           The

dissent in Spaulding noted the quoted passage from McCormick had been

taken out of context and the following sentence was more equivocal,

stating:   “ ‘but the danger of prejudice is likewise enhanced here, and

most courts have in the past excluded such acts with other persons for

this purpose. More recent cases show signs of lowering this particular

barrier to admission.’ ”     Id. at 883 (quoting Edward W. Cleary,

McCormick’s Handbook on the Law of Evidence § 190, at 449–50) (Allbee,

J. dissenting).

      Notably, after Spaulding, this court continued to identify a

legitimate and independent issue on which to base admission of prior

sexual offenses towards one other than the particular victim.           See

Bayles, 551 N.W.2d at 604–05 (consent); Casady, 491 N.W.2d at 785–86

(intent); Plaster, 424 N.W.2d at 229–31 (consent); Spargo, 364 N.W.2d at

205, 209 (intent); Walsh, 318 N.W.2d at 185–86 (identity). In State v.

Mitchell (Mitchell I), 633 N.W.2d 295 (Iowa 2001), this court clarified that

testimony of prior sexual abuse of a different victim was not admissible

to bolster the particular victim’s credibility because it was essentially

propensity evidence and therefore did not have an “independent

relevancy.” Mitchell, 633 N.W.2d at 300.

      Case law recognizes deep concerns over admission of propensity

evidence, including prior sexual abuse against a victim other than the

one involved in the charged conduct; however, we must determine

whether those concerns are rooted in constitutional protections or simply

an example of the court’s supervisory authority over evidentiary rules.

As noted above, an evidentiary rule violates due process if it “ ‘violates

those “fundamental conceptions of justice which lie at the base of our

civil and political institutions,” which define “the community’s sense of
                                          16

fair play and decency.” ’ ” Reyes, 744 N.W.2d at 101 (quoting Lovasco,

431 U.S. at 790, 97 S. Ct. at 2049, 52 L. Ed. 2d at 759).

       In Enjady, the Tenth Circuit summarized the due process

arguments against Federal Rule of Evidence 413: 5 (1) the ban against

propensity evidence has been honored by the courts for a long period of

time, (2) such evidence creates a presumption of guilt undermining the

prosecution’s burden, and (3) the evidence licenses the jury to punish a

defendant for past acts which erodes the fundamental presumption of

innocence. Enjady, 134 F.3d at 1432 (citing Hurtado v. California, 110

U.S. 516, 528, 4 S. Ct. 111, 117, 28 L. Ed. 232, 236 (1884); Estelle, 502

U.S. at 78, 112 S. Ct. at 485, 116 L. Ed. 2d at 403 (O’Connor, J.,

concurring)). The presumption of innocence has been described as “that

bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at

the foundation of the administration of our criminal law.’ ” In re Winship,

397 U.S. 358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368, 375 (1970)

(quoting Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 403,

39 L. Ed. 481, 491 (1895)).               Chief Justice Warren explained the

connection to prior-bad-acts evidence:

       While this Court has never held that the use of prior
       convictions to show nothing more than a disposition to
       commit crime would violate the Due Process Clause of the
       Fourteenth Amendment, our decisions exercising supervisory
       power over criminal trials in federal courts, as well as

       5
         Scholars and commentators have argued that admitting propensity evidence in
sexual abuse or assault cases deprives a defendant of his constitutional right to a fair
trial. See, e.g., William E. Marcantel, Protecting the Predator or the Prey? The Missouri
Supreme Court’s Refusal to Allow Past Sexual Misconduct as Propensity Evidence, 74 Mo.
L. Rev. 211, 230–33 (2009) (arguing the U.S. Supreme Court should follow the Missouri
court’s reasoning in rejecting propensity evidence); Jason L. Mccandless, Prior Bad Acts
and Two Bad Rules: The Fundamental Unfairness of Federal Rules of Evidence 413 and
414, 5 Wm. & Mary Bill Rts. J. 689, 711–14 (1997); Louis M. Natali, Jr. & R. Stephen
Stigall, “Are You Going to Arraign His Whole Life?”: How Sexual Propensity Evidence
Violates the Due Process Clause, 28 Loy. U. Chi. L.J. 1 (1996).
                                      17
      decisions by courts of appeals and of state courts, suggest
      that evidence of prior crimes introduced for no purpose other
      than to show criminal disposition would violate the Due
      Process Clause.      Evidence of prior convictions has been
      forbidden because it jeopardizes the presumption of innocence
      of the crime currently charged.

Spencer v. Texas, 385 U.S. 554, 572–75, 87 S. Ct. 648, 658–59, 17 L. Ed.

2d 606, 619–20 (1967) (Warren, C.J., concurring in part and dissenting

in part) (emphasis added) (footnotes omitted).          Other courts have

similarly pointed to the fundamental principle excluding propensity

evidence:

      “ ‘there  are    few  principles   of   American  criminal
      jurisprudence more universally accepted than the rule that
      evidence which tends to show that the accused committed
      another crime independent of that for which he is on trial,
      even one of the same type, is inadmissible.’ ”

Hurst v. State, 929 A.2d 157, 162 (Md. 2007) (quoting State v. Taylor, 701

A.2d 389, 392 (Md. 1997)).

      Iowa courts similarly ground the rejection of propensity evidence

on   “fundamental”   concerns    of   fairness   and   the   presumption   of

innocence.    The policy against admissibility of general propensity

evidence stems from “ ‘a fundamental sense that no one should be

convicted of a crime based on his or her previous misdeeds.’ ” Sullivan,

679 N.W.2d at 24 (quoting Daniels, 770 F.2d at 1116). “ ‘A concomitant

of the presumption of innocence is that a defendant must be tried for

what he did, not for who he is.’           This concept is ‘fundamental to

American jurisprudence.’ ” Id. at 23–24 (quoting United States v. Myers,

550 F.2d 1036, 1044 (5th Cir. 1977); United States v. Foskey, 636 F.2d

517, 523 (D.C. Cir. 1980)).

      This court has also applied the reasoning that general propensity

evidence is fundamentally unfair in the context of prior sexual abuse

involving a different victim. In Cott, this court based its rejection of the
                                     18

“lewd disposition exception” on concerns of “unfairness.” As the court

explained:

      A focus on the criminal or aberrant disposition of the
      defendant with regard to various victims is exactly the sort of
      prejudice which the general rule seeks to avoid. By creating
      an exception of this kind, we would seriously erode the
      impact of the general rule, proscribing evidence of prior
      criminal conduct, in the context of sex crimes. The resultant
      unfairness to those accused of sex crimes is self-evident.

Cott, 283 N.W.2d at 327 (footnotes omitted). As one treatise explains,

there is no rationale for treating prior sexual offenses differently than all
other offenses:

            Unlike the other purposes for other-crimes evidence,
      the sex-crime exception flaunts the general prohibition of
      evidence whose only purpose is to invite the inference that a
      defendant who committed a previous crime is disposed
      toward committing crimes, and therefore is more likely to
      have committed the one at bar.

1 Kenneth S. Broun, McCormick on Evidence § 190, at 764 (6th ed. 2006)

[hereinafter McCormick on Evidence].

      Based on Iowa’s history and the legal reasoning for prohibiting

admission of propensity evidence out of fundamental conceptions of

fairness, we hold the Iowa Constitution prohibits admission of prior bad

acts evidence based solely on general propensity. Such evidence may,

however, be admitted as proof for any legitimate issues for which prior

bad acts are relevant and necessary, including those listed in rule

5.404(b) and developed through Iowa case law. For example, after this

court held in Mitchell I that evidence of prior sexual abuse of two other

victims could not be admitted to demonstrate witness credibility because

it was “ ‘ “merely a synonym for propensity,” ’ ” see Mitchell I, 633 N.W.2d

at 299 (quoting State v. Glodgett, 749 A.2d 283, 289 (N.H. 2000)),

evidence of that prior sexual abuse was properly admitted on retrial for
                                     19

the legitimate issue of rebutting a defense theory. See State v. Mitchell

(Mitchell II), 670 N.W.2d 416, 421–22 (Iowa 2003).

         Our holding today is consistent with Reyes.         Prior bad acts

evidence involving the same victim “has relevance on the underlying

criminal charge because it shows the nature of the relationship between

the alleged perpetrator and the victim.” Reyes, 744 N.W.2d at 102. For

example, within the domestic violence context, “the defendant’s prior

conduct directed to the victim of a crime, whether loving or violent,

reveals the emotional relationship between the defendant and the victim

and is highly probative of the defendant’s probable motivation and intent

in subsequent situations.” State v. Taylor, 689 N.W.2d 116, 125 (Iowa

2004). Evidence of prior crimes against the same victim “ ‘furnishes part

of the context of the crime’ or is necessary to a ‘full presentation’ of the

case.”    See United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)

(quoting United States v. Smith, 446 F.2d 200, 204 (4th Cir. 1971); United

States v. Weems, 398 F.2d 274, 275 (4th Cir. 1968)).          Reyes warned,

however, that “[i]n settings involving prior sexual abuse with persons

other than the alleged victim, there is a substantial risk that ‘ “a jury will

convict for crimes other than those charged—or that, uncertain of guilt,

it will convict anyway because a bad person deserves punishment.” ’ ”

Reyes, 744 N.W.2d at 102 n.1 (quoting Old Chief, 519 U.S. at 181, 117 S.

Ct. at 650, 136 L. Ed. 2d at 588). Prior crimes against the same victim

are relevant to a legitimate issue because the later crimes “ ‘do not occur

single and independent—isolated from all others—but each is connected

with some antecedent fact,’ ” whereas acts against a different victim are

“not part of the principal transaction.” People v. Jones, 335 N.W.2d 465,

466–67 (Mich. 1983) (quoting People v. Jenness, 5 Mich. 305, 323–24,

1858 WL 2321, at *11 (1858)).
                                      20

         Unlike the federal courts that have considered this issue, we do

not believe evidence of prior bad acts can be admitted for the sole

purpose of showing general propensity even if a trial judge considers the

balancing test found in Iowa Code section 701.11. See, e.g., LeMay, 260

F.3d at 1026. Under the traditional balancing applied when evidence of

prior bad acts is admitted for a legitimate issue other than propensity,

the trial court must weigh the probative value of the evidence as it relates

to the legitimate issue, compared with the unfair prejudice that results

from evidence which may inevitably be considered as demonstrating

propensity. Under the federal courts’ rulings, a trial judge must balance

the probative value of general propensity evidence against the prejudicial

effect of general propensity evidence.        Stated another way, that which

makes the evidence more probative—the similarity of the prior act to the

charged act—also makes it more prejudicial.              As we explained in

Reynolds, where a prior bad act is “similar to the incident in question, ‘it

would be extremely difficult for jurors to put out of their minds

knowledge that the defendant had assaulted the victim in the past and

not allow this information to consciously or subconsciously influence

their decision.’ ”    765 N.W.2d at 292 (quoting State v. Henderson, 696

N.W.2d 5, 13 (Iowa 2005)).

         Iowa Code section 701.11 violates the due process clause of the

Iowa Constitution as applied in this case because it permits admission of

prior bad acts against an individual other than the victim in the case to

demonstrate general propensity.            See War Eagle Vill. Apartments v.

Plummer, 775 N.W.2d 714, 721–22 (Iowa 2009) (holding statute

unconstitutional both as applied based on the facts of the case and on its

face).      As   we   previously   held,    however,   the   prosecution   may

constitutionally introduce relevant history with the same victim under
                                       21

section 701.11. Reyes, 744 N.W.2d at 103. Also, the prosecution may

introduce evidence of prior relevant sexual abuse against a different

victim where the evidence is used to demonstrate a legitimate issue.

      C. Applicability to Cox. Here, the evidence of prior sexual abuse

was improperly admitted into evidence as propensity evidence. However,

we must decide whether it could be admitted for a “legitimate issue.” If a

legitimate issue can be identified, we then consider whether the evidence

is unfairly prejudicial compared with the probative value of the legitimate

issue. We address these issues because we do not reverse when evidence

was improperly admitted based on one particular reason if the evidence

could be admitted for other reasons on retrial.       DeVoss v. State, 648

N.W.2d 56, 62 (Iowa 2002).

      Before the trial court, the State suggested the evidence would be

admissible to show “proof of motive, opportunity, intent, preparation,

plan and some of the other purposes for which prior bad acts are

admissible.” Therefore, to determine whether these prior bad acts were

admissible, we must consider whether they were relevant to one of these

legitimate issues other than propensity.

      1.   Opportunity, preparation.    Before the district court, the State

listed the exceptions found in rule 5.404(b) and “some other purposes for

which prior bad acts are admissible.”           It does not appear that

opportunity and preparation were legitimate issues in this particular

case. The testimony of A.L. and T.C. does not establish opportunity or

preparation for the offense allegedly committed against J.M. because A.L.

and T.C. testified regarding separate incidents at separate times.

      2. Common scheme or plan. The State argued to the trial court

that because the victims of the charged and uncharged conduct were all

cousins, and some of the abuse took place at the same location and stage
                                     22

in their lives, it demonstrated a common scheme or plan.           The State

argued that although this was not a “signature crime,” it shows a

“pattern of behavior.”

      The test for a common scheme or plan is not simply a pattern of

prior bad acts.     “Common scheme or plan means more than the

commission of two similar crimes by the same person.” State v. Wright,

191 N.W.2d 638, 641 (Iowa 1971).          “Evidence of other crimes should

never be admitted when it appears the defendant committed them wholly

independent of the one for which he is then on trial.” Id. “There must be

some connection between the crimes.”          Id; see also 1 McCormick on

Evidence § 190, at 755 (“Although some courts construe ‘common plan’

more broadly, each crime should be an integral part of an overarching

plan explicitly conceived and executed by the defendant or his

confederates.”); Brett v. Berkowitz, 706 A.2d 509, 516 (Del. 1998) (“Mere

repetition of sexual behavior is not evidence of a plan or scheme . . . .”)

      In Cott, this court addressed whether sexual abuse of someone

other than the victim of the charged crime could be considered a

common scheme or system of criminal activity. The court rejected that

argument because “[t]he fact that defendant committed crimes of the

same nature against the two girls is insufficient to bring the testimony

within that exception.” Cott, 283 N.W.2d at 328. Such testimony did not

show that one crime “was ‘dependent upon or connected with’ the other,

nor would it ‘complete the story of the crime on trial by proving its

immediate context of happenings near in time and place.’ ” Id. (quoting

Wright, 191 N.W.2d at 641; State v. Wright, 203 N.W.2d 247, 251 (Iowa

1972)).

      Here there has been no suggestion of a common scheme or plan

that would necessitate the admissibility of A.L.’s and T.C.’s testimony to
                                     23

complete the story of the crime against J.M. The evidence demonstrates

Cox essentially committed crimes of availability against his cousins,

which demonstrates nothing more than propensity. J.M., T.C., and A.L.

all testified to a pattern of abuse they suffered as children and young

adults, but none of the incidents of abuse against T.C. or A.L. are alleged

to have occurred on the same day or connected to an incident of abuse

against J.M.    None of the testimony by T.C. or A.L. was necessary to

“complete the story” of the crimes against J.M. or to provide the

“ ‘immediate context of happenings near in time and place.’ ” Id. (quoting

Wright, 203 N.W.2d at 251).

      3. Modus operandi. Although the State stated before the district

court that the additional evidence was “not exactly, I guess, what we

would refer to as a signature crime,” we consider the modus operandi

exception.     “Modus operandi is ‘ “a distinct pattern or method of

procedure thought to be characteristic of an individual criminal[] and

habitually followed by him.” ’ ”    Plaster, 424 N.W.2d at 231 (quoting

Youngblood v. Sullivan, 628 P.2d 400, 402 (Or. Ct. App. 1981)). Modus

operandi is typically relevant as a subset of identity.      Id. at 231 n.1

(“Modus operandi is usually used to establish identity.”); United States v.

Williams, 985 F.2d 634, 637 (1st Cir. 1993) (“Evidence of modus operandi

is admissible under Rule 404(b) to prove identity . . . .”)); Hurst v. State,

929 A.2d 157, 166 (Md. 2007) (“The modus operandi exception is a

subset of the identity exception under Rule 5-404(b).”).

      We have also used modus operandi to admit evidence for the

legitimate issue of countering a defense of consent in a sexual assault

case. Plaster, 424 N.W.2d at 231. However, to expand modus operandi

to all similar crimes without requiring that they be offered to

demonstrate a legitimate issue would simply admit prior bad acts to
                                    24

show propensity.   See State v. Vorhees, 248 S.W.3d 585, 590–91 (Mo.

2008) (holding modus operandi is only appropriate to demonstrate

identity because modus operandi used to corroborate the victim is “at

base, propensity evidence masquerading under the well-recognized

identity exception”). When modus operandi is used to admit evidence of

prior bad acts as a subset of identity or to negate a defense of consent,

the evidence is relevant to a legitimate issue. When a defendant argues a

crime was committed by another person or when the victim is unable to

identify the defendant, a strikingly similar crime may be admitted to

demonstrate it was the defendant who committed the charged crime.

Here, identity was not at issue because J.M. was able to identify Cox,

and Cox did not raise a defense of mistaken identity. Further, consent

was not an available defense in this particular case, and Cox did not

allege the acts were consensual.

      4. Motive, intent. There are numerous ways in which prior sexual

abuse of one other than the victim may become relevant to motive or

intent; however, there is no argument that they are present in this case.

For example, prior bad acts may be relevant to demonstrate motive or

intent when a defendant claims touching was accidental.      Cf. State v.

Elston, 735 N.W.2d 196, 200 (Iowa 2007) (noting within the context of a

motion to sever that pornographic images of young females tended to

prove touching of victim was not accidental). Similarly, this court has

allowed evidence of prior bad acts when an individual is charged with

assault with intent to commit sexual abuse. In Casady, 491 N.W.2d at

785–86, this court allowed admission of evidence showing the defendant

had previously pulled women into his car and sexually assaulted them in

order to demonstrate the defendant’s intent when he unsuccessfully tried

to pull a girl into his car.   In Spargo, 364 N.W.2d at 209, this court
                                      25

admitted evidence of the defendant’s previous sexual activities with

adolescents to support a charge of assault with intent to commit sexual

abuse.   Here, however, the State was not required to prove specific

intent, only that the alleged sexual conduct occurred with J.M.             See

Lamphere v. State, 348 N.W.2d 212, 217 (Iowa 1984) (“Second-degree

sexual abuse . . . is not a specific intent crime . . . .”); State v. Tague, 310

N.W.2d 209, 211 (Iowa 1981) (rejecting defendant’s argument that intent

is an element of sexual abuse in the third degree); compare Iowa Code

§ 709.8 (elements of lascivious acts with a child include that such acts

were committed or permitted “for the purpose of arousing or satisfying

the sexual desires of either of [the offender or the child]”). The State has

not demonstrated any way in which motive or intent would be supported

by the prior bad acts evidence.

      D. Harmless Error. Because we hold the testimony of A.L. and

T.C. was improperly admitted at trial, we consider whether the error was

harmless. To establish harmless error when a defendant’s constitutional

rights have been violated, the State must prove beyond a reasonable

doubt that the error complained of did not contribute to the verdict

obtained. State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009). Cox was

prosecuted for incidents of vaginal rape against J.M. occurring between

January 1, 2003, and October 31, 2005. T.C. testified to two separate

acts of fondling by Cox. A.L. testified to at least five instances of prior

sexual abuse by Cox, including forced oral sex and anal rape. The large

number and variety of prior sex abuse admitted into evidence leads us to

conclude that their admission was not harmless error.           Therefore, we

reverse Cox’s conviction and remand for retrial.

      Although it does not appear the testimony of A.L. and T.C. was

relevant to any “legitimate issue” and therefore was not appropriately
                                    26

admitted, we express no opinion regarding whether the evidence may

become relevant to a legitimate issue and be admissible on retrial. In

Mitchell I, this court held that evidence of prior sex abuse of individuals

other than the victim of the charged crime could not be admitted under

the theory that it bolstered the witness’ credibility or a lewd disposition

exception.   Mitchell I, 633 N.W.2d at 299.    However, after retrial, this

court held evidence of prior sex abuse of other individuals was properly

admitted in response to a specific defense theory. See Mitchell II, 670

N.W.2d at 421–22. Based on the record before this court, we hold the

testimony of A.L. and T.C. was not relevant to the legitimate issues

identified in rule 5.404(b); however, we do not opine on whether that may

change as the case proceeds on retrial.

      IV. Conclusion.

      Admitting evidence of a defendant’s sexual abuse of other victims

under Iowa Code section 701.11 based only on its value as general

propensity evidence violates the due process clause of the Iowa

Constitution. Therefore, it was improper for individuals other than the

victim J.M. to testify regarding prior acts of sexual abuse where there

was no legitimate issue other than propensity to which they were

relevant.

      JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Baker, J., who takes no part.
