               IN THE SUPREME COURT OF IOWA
                              No. 08–1384

                        Filed December 10, 2010


STATE OF IOWA,

      Appellee,

vs.

CALVIN CLARENCE NELSON, JR.,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Don C.

Nickerson, Judge.



      The State seeks further review of a decision of the court of appeals

reversing the defendant’s conviction for first-degree murder. DECISION

OF    THE   COURT     OF   APPEALS      VACATED;     DISTRICT     COURT

JUDGMENT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Nan Jennisch,

Assistant State Appellate Defender, for appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Stephanie L.

Cox and James P. Ward, Assistant County Attorneys, for appellee.
                                    2

WIGGINS, Justice.

      The State seeks further review of a court of appeals decision

reversing a defendant’s first-degree murder conviction. A jury found the

defendant guilty of first-degree murder. On appeal, the court of appeals

reversed the conviction because it concluded the district court should

not have admitted evidence of the defendant’s drug dealing. On further

review, we find the evidence is not excludable under Iowa Rule of

Evidence 5.404(b).   Therefore, we vacate the decision of the court of

appeals and affirm the judgment of the district court.

      I. Background Facts and Proceedings.

      On the evening of June 26, 2007, Michael Collins and his

girlfriend, Tracy Lewis, bought some crack and smoked it at a friend’s

house.   Afterwards, Collins and Lewis left to purchase more crack.

Eventually, they parked at the intersection of Seventh Street and

Hickman Road in Des Moines.

      Collins was willing to approach strangers to purchase crack. At

approximately midnight, Collins got out of the car, took Lewis’s cell

phone, and told her he was going to walk to an apartment complex

located at the intersection of Eighth Street and Jefferson Avenue where

he had previously purchased crack. Accordingly, Collins began to walk

south on Seventh Street while Lewis waited in the car. Lewis waited for

approximately fifteen to twenty minutes and began to worry. Just as she

was about to start the car and go looking for Collins, she heard two “pop

pop” sounds.    Lewis drove to the intersection of Seventh Street and

Franklin Avenue and saw Collins lying in the grass.

      Earlier, at approximately 11 or 11:30 p.m. the same day, Calvin

Nelson Jr. and his paramour, Dody Lester, were at the Double Deuce

bar. While there, Nelson received a phone call and told Lester that he
                                     3

had to “go make things right with a friend of his.” Nelson told Lester his

friend “wanted some stuff,” but all he had was gank, which is fake crack.

Eventually, Nelson and Lester drove to a house located at Seventh Street

and Franklin Avenue, where Nelson’s friend lived. When they pulled up

to the house, there were a large number of people standing in the yard.

Nelson repeatedly tried to call his friend but he would not answer. While

there, Lester observed a white male talking on a cell phone on the corner

of Seventh Street and Franklin Avenue. The white male was Collins.

      Nelson finally got in touch with his friend and told him to meet

Nelson on Eighth Street.    Lester parked their vehicle on Washington

Avenue between Seventh and Eighth Street; Nelson got out and waited in

the road for his friend to arrive.   His friend never arrived, but Collins

approached Nelson and the two began to converse.          In response to

Collins’ statements, Lester heard Nelson say twice, “I don’t know what

you’re talking about.”   Subsequently, Nelson got back into the vehicle

with Lester, and they again headed towards Seventh Street and Franklin

Avenue.

      As they pulled up to Seventh Street and Franklin Avenue, Nelson

saw his friend standing outside. Nelson exited the vehicle, while Lester

waited inside. Nelson and the friend talked for a few minutes, and then

Collins approached Nelson again.      Nelson said, “Who are you, dude?”

Nelson’s friend then said, “I don’t know who he is.” Nelson pulled a gun

out of his pocket and pointed it at Collins. Collins put his hands in the

air and said, “I am nobody, I am nobody.” Nelson then shot Collins in

the face, and he fell to the ground. Collins was on all fours, trying to

crawl away. Nelson walked towards Collins and shot him again in the

back of the head. Lester witnessed the entire incident between Nelson

and Collins.   After the shooting, Nelson got back into the vehicle with
                                     4

Lester and drove away.     Paramedics rushed Collins to Mercy Medical

Center, where he was pronounced dead.

      Lester saw Nelson again later the next day. Nelson told her he did

not want to kill Collins, but he thought Collins was a police officer trying

to apprehend him for drugs and he had to kill Collins because Collins

had seen his face. Nelson also threatened to kill Lester if she told anyone

about the shooting.

      At approximately 2:30 p.m. the next day, a seven-year-old boy

found a gun under a rock in his backyard. The boy’s mother called the

police and turned the gun over to them. A firearms specialist from the

Iowa Division of Criminal Investigation later confirmed the two cartridge

cases found at the scene of the Collins’ shooting were fired from the

recovered gun. Nelson’s girlfriend used to live at the duplex where the

boy discovered the gun. Moreover, Nelson began calling the boy’s mother

numerous times the day after the shooting, urgently requesting to speak

with her in person and asking if she had seen him in her backyard

earlier that morning. After reporting this to the police, the mother agreed

to meet Nelson at her home.           When Nelson arrived, the police

immediately arrested him. The State charged Nelson with the crime of

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

707.2 (2005).

      Nelson filed a pro se motion in limine seeking to prohibit the

testimony of narcotics officer Chad Nicolino.          Nicolino’s expected

testimony concerned his general knowledge of crack and drug trafficking,

which Nelson argued would be highly prejudicial.          Nelson’s counsel

supplemented the pro se motion by filing an additional motion in limine.

The motion sought to preclude the State from mentioning in voir dire and
                                      5

opening statement or offering any evidence at trial regarding Nelson’s

prior criminal record as well as to prohibit the testimony of Nicolino.

        In considering the motion in limine, the court stated it was more

inclined to allow Nicolino to testify about specific drug trafficking in the

area where the crime occurred but not about the general nature of drug

trafficking due to the prejudice it would engender. However, the court

decided to reserve its ruling on the motion until it heard more about the

evidence in the case.

        The State never called Nicolino as a witness.     Instead, the State

called Sergeant Chris Hardy to testify against Nelson. Before he became

a detective, Hardy worked as a plainclothes undercover narcotics officer.

After Hardy described his involvement in the present case, the State

asked to take up a legal issue with the court outside the presence of the

jury.   Subsequently, the State notified the court that the police found

plastic bags and marijuana in Nelson’s vehicle as well as an empty

cardboard box for a digital scale in Nelson’s home. The State informed

the court that it planned to ask Hardy whether these items were

consistent with drug dealing. Nelson’s counsel argued this evidence was

irrelevant and an attempt by the State to improperly show Nelson’s bad

character.    In response, the State argued this evidence corroborated

Lester’s testimony, explained the context in which the crime took place,

and explained why the crime occurred. The court requested the State to

make an offer of proof.

        After the offer of proof, Nelson’s counsel again argued this evidence

was not relevant. The court refused to allow Hardy to testify about the

marijuana. As for the plastic bags and the empty cardboard digital scale

box, the court ruled, “To the extent that the paraphernalia found in the

van [and home] could be used in connection with crack sales, I will allow
                                    6

that testimony.” Hardy then testified that, based on his experience as an

undercover narcotics officer, he was knowledgeable about the items

consistently found with crack dealers. Hardy testified plastic bags are

consistent with crack sales. He stated that after the crack is weighed, it

is placed inside a plastic bag, and a knot is tied so the crack can be kept

in a person’s pocket or mouth without dissolving. Hardy also testified

crack dealers commonly use a gram or digital scale to weigh the drugs

before they sell them.

      The State also called identification technician Nancy Lamasters,

who searched Nelson’s vehicle pursuant to a search warrant. Through

Lamasters, the State introduced pictures of the plastic bags and the

plastic bags themselves into evidence. After each offer to introduce the

pictures and plastic bags into evidence, Nelson’s counsel renewed his

previous relevance objection. In addition, the State called officer Jason

Halifax, who assisted in the execution of a search warrant at Nelson’s

residence. Through Halifax, the State introduced pictures of the empty

cardboard digital scale box and the box itself into evidence. After each

offer to introduce the pictures and the box into evidence, Nelson’s

counsel again renewed his previous relevance objection.

      The jury returned a verdict finding Nelson guilty of first-degree

murder. Nelson filed a notice of appeal, and we transferred the case to

the court of appeals. Considering Iowa Rule of Evidence 5.404(b), the

court of appeals concluded the evidence linking Nelson to drug dealing

was marginally relevant to complete the story of the crime but not

relevant to Nelson’s motive or intent because these elements could be

inferred from Nelson’s use of a deadly weapon to commit the crime.

Although determining the evidence was marginally relevant to complete

the story of the crime, the court of appeals concluded this evidence
                                    7

primarily served to paint Nelson as a bad person. Therefore, the court of

appeals concluded the evidence’s probative value was far outweighed by

its prejudicial effect.   Consequently, the court of appeals held the

admission of the drug-dealing evidence was not harmless error, reversed

the judgment of the district court, and remanded the case for a new trial.

Subsequently, the State sought further review, which we granted.

      II. Issue.

      The issue we must decide on this further review is whether the

admitted testimony of a narcotics officer detailing the sale and

distribution of crack as well as the evidence of the plastic bags and the

empty digital scale box, which the officer explained are consistently

found with crack-drug dealers, requires us to reverse Nelson’s conviction.

      III. Scope of Review.

      We review evidentiary rulings for an abuse of discretion. State v.

Stone, 764 N.W.2d 545, 548 (Iowa 2009).       When a trial court admits

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

clearly unreasonable, the court has abused its discretion.        State v.

Maghee, 573 N.W.2d 1, 5 (Iowa 1997).       When the trial court makes a

ruling based on an erroneous application of the law, its ruling is clearly

untenable. In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005).

      IV. Analysis.

      A.   Admissibility as Intrinsic Evidence that Completes the

Story of the Crime. At trial, the State claimed it was not offering the

testimony of the narcotics officer and the introduction of the plastic bags

and empty scale box as character evidence. Rather, it sought to admit

this evidence to give the jury the complete story of the crime and show

Collins was in the area to purchase drugs. It was on this basis that the
                                            8

court admitted the testimony of the narcotics officer and permitted the

introduction of the plastic bags and empty scale box into evidence.

       1. The inextricably intertwined doctrine. Not all evidence of other

crimes, wrongs, or acts falls within the scope of rule 5.404(b).                     One

category of other crimes, wrongs, or acts evidence not covered by rule

5.404(b) is evidence deemed inextricably intertwined with the crime

charged. 1 See, e.g., United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir.

2000); State v. Walters, 426 N.W.2d 136, 140–41 (Iowa 1988).

“Inextricably intertwined evidence is evidence of the surrounding

circumstances of the crime in a causal, temporal, or spatial sense,

incidentally revealing additional, but uncharged, criminal activity.”

Jennifer Y. Schuster, Uncharged Misconduct Under Rule 404(b):                        The

Admissibility of Inextricably Intertwined Evidence, 42 U. Miami L. Rev.

947, 973 (1988) [hereinafter Schuster]; see also State v. Garren, 220

N.W.2d 898, 900 (Iowa 1974) (citing Iowa law dating back to 1915 that

repeatedly recognized “events and circumstances which immediately

surround an offense may be shown even though they may incidentally

show commission of another crime”).                  The inextricably intertwined

doctrine bypasses rule 5.404(b) because rule 5.404(b), by its express

terms, is only applicable to evidence of other crimes, wrongs, or acts,

which is considered to be extrinsic evidence. Edward J. Imwinkelried,


       1The   inextricably intertwined doctrine developed in the federal circuit courts in
relation to Federal Rule of Evidence 404(b). However, since its conception, it has gained
widespread acceptance in every federal circuit court as well as among the states.
Edward J. Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach to
Untangling the “Inextricably Intertwined” Theory for Admitting Evidence of an Accused’s
Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 723 (2010). Moreover, we have
recognized that Iowa Rule of Evidence 5.404(b) is “similar” and “the counterpart to”
Federal Rule of Evidence 404(b). State v. Cox, 781 N.W.2d 757, 762 (Iowa 2010); State
v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004). Thus, for purposes of this opinion, we will
generally refer to Iowa Rule of Evidence 5.404(b) when discussing the inextricably
intertwined doctrine.
                                     9

The Second Coming of Res Gestae: A Procedural Approach to Untangling

the “Inextricably Intertwined” Theory for Admitting Evidence of an

Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 724–25 (2010)

[hereinafter Imwinkelried].

      The inextricably intertwined doctrine holds other crimes, wrongs,

or acts evidence that is inextricably intertwined with the crime charged is

not extrinsic evidence but, rather, intrinsic evidence that is inseparable

from the crime charged.       Bowie, 232 F.3d at 927; Jason M. Brauser,

Intrinsic or Extrinsic?:   The Confusing Distinction Between Inextricably

Intertwined Evidence and Other Crimes Evidence Under Rule 404(b), 88

Nw. U. L. Rev. 1582, 1584–85 (1994) [hereinafter Brauser]; Imwinkelried,

59 Cath. U. L. Rev. at 722, 724–25. Therefore, although there are two

separate offenses, the testimony about the two offenses is so closely

intertwined and indivisible that the court must admit the evidence of the

technically uncharged crime. Imwinkelried, 59 Cath. U. L. Rev. at 725.

Furthermore, because rule 5.404(b) is inapplicable to inextricably

intertwined evidence, the court admits the technically uncharged-crime

evidence without limitation and irrespective of its unfair prejudice or its

bearing on the defendant’s bad character. Brauser, 88 Nw. U. L. Rev. at

1585; Milton Hirsch, “This New-Born Babe an Infant Hercules”:          The

Doctrine of “Inextricably Intertwined” Evidence in Florida’s Drug Wars, 25

Nova L. Rev. 279, 289–90 (2000) [hereinafter Hirsch].         Instead, the

inextricably intertwined evidence is subject to the same general

admissibility requirements as other evidence that is used to provide the

fact finder with a complete picture of the charged crime. Schuster, 42 U.

Miami L. Rev. at 973.

      In summary, the inextricably intertwined doctrine permits the

admission of other crimes, wrongs, or acts evidence based on a special
                                     10

relationship between this evidence and the charged crime, regardless of

the strictures of rule 5.404(b). Imwinkelried, 59 Cath. U. L. Rev. at 725–

26.

      2. History and criticism of the inextricably intertwined doctrine. The

inextricably intertwined doctrine grew out of the inseparable crimes

exception.   Brauser, 88 Nw. U. L. Rev. at 1600.      Common law courts

generally refused to admit evidence of other crimes, wrongs, or acts

because they viewed such evidence as irrelevant and unfair. Hirsch, 25

Nova L. Rev. at 281–82.      The common law, however, made certain

exceptions to this general rule, including the “inseparable crimes”

exception.   Brauser, 88 Nw. U. L. Rev. at 1594.      “This exception was

invoked [and evidence of an uncharged crime was admitted] whenever a

court found that the charged crime could not be proved without mention

of another [uncharged] crime.”    Id. at 1594–95.    From this exception,

courts began to develop a doctrine

      that evidence of uncharged misconduct was admissible when
      it was “so [closely] blended or connected with the one on trial
      . . . that proof of one incidentally involves the other; or
      explains the circumstances thereof.”          This exception
      broadened the class of admissible other crimes evidence by
      permitting not only the introduction of uncharged
      misconduct evidence when it was impossible to prove the
      crime charged without revealing the uncharged misconduct,
      but also when the uncharged misconduct evidence explained
      the circumstances surrounding the charged crime.

Schuster, 42 U. Miami L. Rev. at 955 (quoting Bracey v. United States,

142 F.2d 85, 88 (D.C. Cir. 1944)). Courts began to refer to other crimes,

wrongs, or acts evidence that explained the circumstances of the crime

charged, or was necessarily revealed in proving the crime charged, as

res gestae. Id. at 955–56. Thus, the inseparable crimes exception was

enlarged by the courts when they began to use the amorphous phrase
                                     11

res gestae. Brauser, 88 Nw. U. L. Rev. at 1600. “The courts developed

the res gestae or ‘completes the story’ doctrine in order to ensure that

otherwise relevant evidence would not be excluded when it incidentally

involved uncharged criminal activity . . . .” Schuster, 42 U. Miami L. Rev.

at 971.

      Shortly after the passage of Federal Rule of Evidence 404(b), courts

began to characterize certain other crimes, wrongs, or acts evidence as

inextricably intertwined with the crime charged in order to avoid the

limitations of rule 404(b). Id. at 970–71. “The inextricably intertwined

doctrine is arguably the second coming of the common-law res gestae

principle.”   Imwinkelried, 59 Cath. U. L. Rev. at 728–29 (arguing the

inextricably intertwined doctrine is the “modern de-Latinized” equivalent

of res gestae). As one commentator has explained:

             Inextricably intertwined evidence stands in a different
      relationship to the crime charged than does evidence of
      wholly independent crimes. The inextricably intertwined
      evidence is causally, temporally, or spatially connected to the
      crime charged, and the crime charged and the uncharged
      acts both involved the defendant.               The uncharged
      misconduct evidence is not offered to prove the defendant’s
      character in order to imply that it was more likely that the
      defendant committed the crime charged, although in some
      cases an exact independent theory of relevance may be
      difficult, if not impossible, to articulate. Rather, the evidence
      is introduced to facilitate the jury’s understanding of the
      context within which the charged crime occurred, because
      without this contextual setting the jury would be forced to
      reach a verdict in a vacuum.

Schuster, 42 U. Miami L. Rev. at 971–72. The federal appellate courts

have attempted to define the vague term “inextricably intertwined” in

various ways.    Compare United States v. Ramirez, 45 F.3d 1096, 1102

(7th Cir. 1995), with United States v. Carboni, 204 F.3d 39, 44 (2d Cir.

2000).    Moreover, at least one commentator has discovered five broad
                                   12

categories of other crimes, wrongs, or acts evidence, which has been

found admissible under the federal inextricably intertwined doctrine.

See Schuster, 42 U. Miami L. Rev. at 961–62.        These five categories

include:   (1) uncharged misconduct that was a “necessary preliminary

step toward completing the crime charged,” (2) uncharged misconduct

that is “directly probative of the crime charged,” (3) uncharged

misconduct that arises from the “same transaction or transactions as the

crime charged,” (4) uncharged misconduct that forms “an integral part of

a particular witness’ testimony concerning the crime charged,” and (5)

uncharged misconduct that “complete[s] the story of the crime charged.”

Id. at 962 (emphasis added).

      Although Iowa has never referred to other crimes, wrongs, or acts

evidence as inextricably intertwined, we have long recognized the rule

that, “[w]hen acts are so closely related in time and place and so

intimately connected that they form a continuous transaction, the whole

transaction may be shown to complete the story of what happened [even

though they may incidentally show the commission of another uncharged

crime].”   State v. Oppelt, 329 N.W.2d 17, 19 (Iowa 1983) (emphasis

added); accord Walters, 426 N.W.2d at 140–41; State v. Hood, 346

N.W.2d 481, 483–84 (Iowa 1984); State v. Nowlin, 244 N.W.2d 596, 601

(Iowa 1976); State v. Fryer, 243 N.W.2d 1, 6 (Iowa 1976); Garren, 220

N.W.2d at 900; State v. Drake, 219 N.W.2d 492, 494 (Iowa 1974); State v.

Lyons, 210 N.W.2d 543, 546–47 (Iowa 1973); State v. Wright, 203 N.W.2d

247, 251 (Iowa 1972); State v. Holoubek, 246 Iowa 109, 112–13, 66

N.W.2d 861, 863 (1954); State v. Robinson, 170 Iowa 267, 276, 152 N.W.

590, 593 (1915).    Although Iowa courts have variably referenced the

inseparable crimes, res gestae, and complete the story doctrines in

support of this rule, these three doctrines really consist of one evolving
                                       13

principle. See, e.g., State v. Bowers, 656 N.W.2d 349, 354 (Iowa 2002)

(reciting the inextricably intertwined test and citing federal eighth circuit

cases for support); Oppelt, 329 N.W.2d at 19 (referencing the inseparable

crimes doctrine when concluding the trial court did not abuse its

discretion by admitting other crimes, wrongs, or acts evidence); Fryer,

243 N.W.2d at 6 (admitting uncharged evidence of a rape to complete the

story of multiple charged homicides); Lyons, 210 N.W.2d at 545–47

(allowing res gestae evidence to help describe what actually happened at

the time of the commission of the charged crime, even though it was not

directly relevant to the elements of the charged crime). Accordingly, we

appear to follow the inextricably intertwined doctrine. However, because

most of our cases applying the doctrine simply recite the doctrine, the

applicability and scope of the doctrine under our case law has never been

well-defined.

      Although    the   inextricably    intertwined   doctrine   has   gained

widespread acceptance, it has also become the target of intense scholarly

criticism. Imwinkelried, 59 Cath. U. L. Rev. at 723. This doctrine has

been criticized for two principal reasons. Id. at 728. First, the phrasing

“inextricably intertwined” is extremely vague and amorphous. Id. at 728–

30. Critics argue this vagueness has allowed courts to engage in result-

oriented decision-making and invites abuse.           Id. at 729–30 (stating

courts can justify the admission of other crimes, wrongs, or acts evidence

by the simple expedient of describing it as inextricably intertwined with

the charged offense).    Second, critics claim courts have abused the

doctrine by applying it in an overly broad manner. Id. at 730. “In case

after case, the courts have invoked the doctrine even though, on careful

scrutiny, the testimony about the charged and uncharged offenses could

readily have been separated.” Id.
                                      14

        Of all the different categories of inextricably intertwined evidence,

none has received as harsh criticism as evidence found to be admissible

because it completes the story of the crime charged. See, e.g., Brauser,

88 Nw. U. L. Rev. at 1606; Hirsch, 25 Nova L. Rev. at 300–05. Evidence

that completes the story of the crime charged is admissible under the

inextricably intertwined doctrine simply to put the crime charged into

context, provide background, and generally explain or set up the charged

crime. Brauser, 88 Nw. U. L. Rev. at 1606; Hirsch, 25 Nova L. Rev. at

300; see also Old Chief v. United States, 519 U.S. 172, 187–89, 117 S. Ct.

644, 653–54, 136 L. Ed. 2d 574, 592–93 (1997) (recognizing the

importance of telling a “colorful story with descriptive richness” when

presenting evidence to prove a crime). Thus, to complete the story of the

crime, the other crimes, wrongs, or acts evidence need only pertain, in

some fashion, to the chain of events explaining the context, background,

or set-up of the crime charged. Hirsch, 25 Nova L. Rev. at 300. Critics

argue almost any uncharged conduct could meet this lax test. Brauser,

88 Nw. U. L. Rev. at 1606 (“Under the ‘completing the story’ doctrine,

almost any uncharged misconduct is admissible if it somehow explains

how the charged crime occurred.”); Hirsch, 25 Nova L. Rev. at 300 (“Is it

possible to imagine any evidence so evanescent in any given case as not

to pass this test?”). Moreover, at least one commentator has warned that

this category of inextricably intertwined evidence poses the greatest

threat of eviscerating rule 5.404(b) and has led to the admission of other

crimes, wrongs, or acts evidence that is neither closely related to the

charged crime nor necessary to prove it. Brauser, 88 Nw. U. L. Rev. at

1606.

        3. Application of the inextricably intertwined doctrine in Iowa.

Critics of the inextricably intertwined doctrine argue the doctrine must
                                   15

be narrowed and toughened to ensure prejudicial other crimes, wrongs,

or acts evidence that is severable from the crime charged is excluded.

See, e.g., Hirsch, 25 Nova L. Rev. at 312–15; Imwinkelried, 59 Cath. U. L.

Rev. at 737–41. These commentators argue the court should only admit

evidence of uncharged conduct under the inextricably intertwined

doctrine when the evidence cannot be severed from the narrative of the

charged    crime    without    leaving   the   narrative    unintelligible,

incomprehensible, confusing, or misleading. Hirsch, 25 Nova L. Rev. at

312–15; Imwinkelried, 59 Cath. U. L. Rev. at 737–41. Accordingly, these

commentators urge, “ ‘Inextricably intertwined’ evidence should be

received infrequently, as a narrow exception to the general rule against

the admission of evidence of uncharged crimes.” Hirsch, 25 Nova L. Rev.

at 313. We agree the inextricably intertwined doctrine should be used

infrequently and as a narrow exception to the general rule against

admitting evidence of other crimes, wrongs, or acts.

      To ensure a court does not admit unnecessary and prejudicial

evidence of other crimes, wrongs, or acts, we reaffirm the language from

one of our earlier cases and hold we will only allow such evidence to

complete the story of what happened when the other crimes, wrongs, or

acts evidence is so closely related in time and place and so intimately

connected to the crime charged that it forms a continuous transaction.

Oppelt, 329 N.W.2d at 19.     Thus, the charged and uncharged crimes,

wrongs, or acts must form a continuous transaction. Id. Moreover, we

will only allow the admission of other crimes, wrongs, or acts evidence to

complete the story of the charged crime when a court cannot sever this

evidence from the narrative of the charged crime without leaving the

narrative unintelligible, incomprehensible, confusing, or misleading. In

this way, we can be sure rule 5.404(b) remains the standard for the
                                        16

admission of evidence of other crimes, wrongs, or acts and the

inextricably intertwined doctrine is construed as a narrow and limited

exception to rule 5.404(b). Therefore, under this narrow interpretation of

Iowa’s inextricably intertwined doctrine that completes the story of the

crime, we must analyze the State’s argument that the evidence the

defendant was a drug dealer is not evidence of other crimes, wrongs, or

acts but is, in fact, intrinsic evidence completing the story of the charged

crime of murder in the first degree.

        It is clear that omitting evidence of the plastic bags, empty digital

scale box, and the testimony linking these items to crack-drug dealing

would     not   have   left   the   narrative   of   this   crime   unintelligible,

incomprehensible, confusing, or misleading. The State argues the story

of the murder cannot be intelligibly told without explaining why Nelson

would shoot someone who merely approached him and asked him for

drugs. However, Lester had already testified that Nelson was in the area

where the murder occurred because “somebody wanted some stuff.”

Lester also testified Nelson told her the day after the murder that he

killed Collins because he thought Collins was a police officer trying to

apprehend him for selling drugs and because Collins had seen his face.

The evidence of the plastic bags, empty digital scale box, and testimony

linking these items to drug dealing simply permitted the jury to make the

general inference that Nelson was involved in drug trafficking.               This

evidence did not fill in any gaping holes in the narrative of the story of

the crime. Additionally, these items were not so closely related in time

and place and so intimately connected to the charged crime that they

formed a continuous transaction.

        At most, the plastic bags, empty digital scale box, and testimony

linking these items to drug dealing support the State’s proposed motive
                                    17

for the killing—Nelson was a drug dealer who believed Collins was an

undercover narcotics officer attempting to apprehend him for selling

crack, and he decided to kill Collins because Collins had seen his face. If

this evidence was offered for the noncharacter purpose of establishing

motive, it must be subjected to a rule 5.404(b) analysis. Accordingly, we

hold the evidence of the plastic bags, the empty digital scale box, and the

testimony linking these items to crack-drug dealing was not admissible

as inextricably intertwined evidence offered to complete the story of the

crime.

      B. Admissibility Under Rule 5.404(b). At trial, the State did not

claim the plastic bags, the empty digital scale box, and the testimony

linking these items to crack-drug dealing was admissible under Iowa

Rule of Evidence 5.404(b). On appeal, the State claims for the first time

the evidence is admissible under rule 5.404(b). Normally, we would not

reach this claim because the State failed to preserve error by not arguing

this evidence is admissible under rule 5.404(b) in the trial court. DeVoss

v. State, 648 N.W.2d 56, 60–61 (Iowa 2002). However, we have adopted

an exception to the general rule of error preservation when dealing with

evidentiary rulings. Id. at 62–63. Therefore, we will address the State’s

claim regarding the admissibility of this evidence under rule 5.404(b).

      1. General legal principles concerning rule 5.404(b). Iowa Rule of

Evidence 5.404(b) governs the admissibility of evidence of other crimes,

wrongs, or acts. It provides:

      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. It may, however, be
      admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity,
      or absence of mistake or accident.
                                   18

Iowa R. Evid. 5.404(b).   Rule 5.404(b) is a rule of exclusion.   State v.

Sullivan, 679 N.W.2d 19, 24 (Iowa 2004). The public policy for excluding

other crimes, wrongs, or acts evidence is not that the evidence is

irrelevant. Id. Rather, the public policy for excluding such evidence is

based on the premise that a jury will tend to give other crimes, wrongs,

or acts evidence excessive weight and the belief that a jury should not

convict a person based on his or her previous misdeeds. Id.

      Other crimes, wrongs, or acts evidence cannot be used to show the

defendant has a criminal disposition and, therefore, was more likely to

have committed the crime in question. State v. Reynolds, 765 N.W.2d

283, 289 (Iowa 2009). However, other crimes, wrongs, or acts evidence is

admissible if it is probative of some fact or element in issue other than

the defendant’s general criminal disposition. State v. Taylor, 689 N.W.2d

116, 123 (Iowa 2004). Rule 5.404(b) lists several examples of when prior

conduct can be probative of some fact or element in issue other than the

defendant’s general criminal disposition. The examples included in rule

5.404(b) are “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Iowa R. Evid.

5.404(b). The examples listed in rule 5.404(b) are not exclusive; rather,

“[t]he important question is whether the disputed evidence is ‘relevant

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

commit wrongful acts.’ ” State v. Mitchell, 633 N.W.2d 295, 298 (Iowa

2001) (quoting State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987)).

      To be admissible, the prosecutor must articulate a noncharacter

theory of relevance. Sullivan, 679 N.W.2d at 28. The court then must

determine whether the other crimes, wrongs, or acts evidence is relevant

and material to a legitimate issue in the case, other than a general

propensity to commit wrongful acts. State v. Cox, 781 N.W.2d 757, 761
                                         19

(Iowa 2010).         If the court determines the evidence is relevant to a

legitimate issue in dispute, the court must determine whether the

probative value of the other crimes, wrongs, or acts evidence is

substantially outweighed by the danger of unfair prejudice to the

defendant.     Id.     In determining whether the probative value of other

crimes, wrongs, or acts evidence is substantially outweighed by the

danger of unfair prejudice, the court should 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 evidence’s probative value is

substantially outweighed by its unfair prejudice, it must be excluded.

Mitchell, 633 N.W.2d at 298–99.

      2. Application       of   rule   5.404(b).   The   State   articulates   a
noncharacter theory of relevance—the evidence of drug dealing is

probative to motive and intent.         To the extent the challenged evidence

tends to support the general inference that Nelson is a crack-drug dealer,

it is relevant to the issues of Nelson’s motive and intent for killing

Collins.   The evidence of drug dealing is relevant to motive because a

drug dealer would be more inclined to shoot an individual seeking to

purchase crack if they believed the person was an undercover narcotics

officer. Motive can be relevant to whether a defendant acted with malice

aforethought.        See State v. Hoffer, 383 N.W.2d 543, 549 (Iowa 1986)

(“Although motive is not a necessary element of murder, lack of motive

may be considered in determining whether an assailant acted with

malice aforethought.”).         Additionally, the evidence is also relevant to
                                    20

intent because a drug dealer would be more inclined to intentionally kill

an undercover narcotics officer who could later identify and apprehend

him or her. Thus, the challenged evidence is relevant to the legitimate

issues of Nelson’s motive and intent.

      The State next claims the probative value of the drug-dealing

evidence is not substantially outweighed by the danger of unfair

prejudice to Nelson.    We agree, the evidence of drug dealing is not

substantially outweighed by the danger of unfair prejudice to Nelson.

      The record contains sufficient evidence to establish Nelson sold

drugs and was in the area on the night in question to engage in a drug

deal. Although, the court instructed the jury that it could infer malice

aforethought and intent from Nelson’s use of a dangerous weapon, the

jury was free to accept or reject that inference. On the other hand, the

challenged evidence of drug dealing is direct evidence supporting the

conclusion that Nelson intentionally and with malice aforethought killed

Collins because Nelson thought Collins was an undercover police officer

who saw Nelson’s face. The State needed this type of evidence to prove

its case.

      Finally, we doubt the jury decided the case on the basis Nelson

was a drug dealer. Lester witnessed the shooting. The next day, Nelson

told Lester he shot Collins because Collins saw his face and he thought

Collins was a police officer. A child found the murder weapon in the yard

of a duplex where Nelson’s prior girlfriend used to live. Nelson repeatedly

made contact with the child’s mother, inquiring whether she had seen

him in the yard. The evidence was replete with testimony regarding drug

dealing in the area where the charged crime took place. In light of all

this evidence, the mere fact Nelson was a drug dealer does not lead us to

believe the jury decided the case on that basis.
                                   21

      Therefore, the plastic bags, the empty digital scale box, and the

testimony linking these items to drug dealing were not excludable under

rule 5.404(b).

      V. Disposition.

      We vacate the decision of the court of appeals and affirm the

judgment of the district court because the plastic bags, the empty digital

scale box, and the testimony linking these items to drug dealing were not

excludable under rule 5.404(b).

      DECISION OF THE COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.
