                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0019
                            Filed February 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TOBY RYAN RICHARDS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



      The defendant maintains the district court abused its discretion by

admitting prior bad acts evidence. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Michael J. Walton, County Attorney, and Elizabeth Cervantes, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.

          Toby Richards appeals from the judgment and sentence following his

conviction for domestic abuse assault resulting in bodily injury, in violation of

Iowa Code section 708.2A(2)(b) (2013). Richards maintains the district court

abused its discretion in admitting evidence of his alleged prior bad acts at trial.

Regarding the three alleged incidents of domestic abuse involving Trish Poell, we

find they were relevant to a legitimate, disputed fact, there was clear proof

Richards committed the prior bad acts, and the evidence was substantially more

probative than prejudicial. Thus, the district court did not abuse its discretion in

admitting the evidence. Additionally, although we find the alleged altercation

between Richards and Poell’s family was not relevant and the district court

abused its discretion in admitting the evidence, we find the admission was

harmless error. We affirm.

I. Background Facts and Proceedings.

          On February 14, 2013, Richards was charged by trial information with

domestic abuse assault resulting in bodily injury. Richards filed a self-defense

notice.

          On October 23, 2013, the State filed a notice of intent to offer evidence

under Iowa Rule of Evidence 5.404(b). The State sought to admit evidence of

prior uncharged acts of domestic violence perpetrated by Richards against the

victim, Poell. Richards objected.

          Before the hearing on the matter, Richards’ attorney questioned Poell

about the alleged previous instances of abuse in a deposition. Poell testified

about four previous incidents.       Three of the allegations involved Richards
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assaulting Poell. The fourth allegation involved an altercation between Richards

and Poell’s family. During the deposition, Poell stated that Richards’ mother

witnessed some of the events and was told about others. She also stated she

had photographs of some injuries resulting from the abuse, two instances

resulted in the police being called and police reports being prepared, and some

of the instances were witnessed by members of her family.

         A hearing was held on the matter on December 3, 2013. At the hearing,

Richards’ attorney argued that it was not clear Richards had committed the

alleged prior bad acts, arguing:

         None of the incidents complained of here resulted in any prior
         convictions or adjudication of any kind. None of them resulted even
         in any formal police reports having been filed as far as we know, at
         least I haven’t gotten any kind of copies or anything that resulted in
         that. There’s no corroborating evidence. These are basically bare
         allegations at this time . . . .

Following the hearing and the court’s review of Poell’s deposition, the district

court found “there is clear proof that prior acts occurred. In her deposition the

alleged victim claims other family members witnessed these prior acts.” The

court ruled that the prior uncharged instances of domestic abuse were relevant to

the current charge because intent was “directly at issue.” To limit the possible

prejudice, the court ordered that “the State will not be allowed to elicit endless

details about the prior assaults and must limit their questioning to questions that

will provide short, concise answers that will only inform the jury of the prior bad

acts.”

         At trial, Poell testified that she and Richards were in a relationship during

2012 and early 2013. During part of their relationship, they lived together and
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were in engaged.       Over Richards’ objections that it was not relevant, the

following line of questioning occurred:

              Q. Now, on or about July, end of July, beginning of August,
       was there an incident between you and Mr. Richards where he
       slapped you? A. Yes.
              Q. So there was an incident? A. Yes.
              Q. And did you remain in a relationship with him after this
       incident? A. Yes.
              Q. Now, in September was there an incident where he threw
       a cellphone at you? A. Yes.
              Q. Okay. And did you remain in a relationship with him after
       that? A. Yes. Can I explain why or—
              Q. Not at this point. On October 30 was there an altercation
       with Mr. Richards and your family at the home?
              Q. I’m sorry. I didn’t hear your answer. A. Yes.
              Q. Is this the incident where you asked him to leave your
       residence? A. Yes.
              ....
              Q. Okay. And in November was there an incident where Mr.
       Richards threw you up against a refrigerator? A. Yes.
              Q. And did he throw you to the floor and kick you? A. Yes.
              Q. Okay. And you remained in the relationship at that point
       as well? A. I took a couple weeks break, but yes.
              Q. Okay. And there was no further incidences until [the
       incident in question], correct? A. Correct.

The prosecutor did not reference the prior acts in the closing argument. The

court provided a limiting instruction to the jury, which stated:

               Evidence has been received concerning other wrongful acts
       alleged to have been committed by the defendant. The defendant
       is not on trial for these acts. This evidence must be shown by clear
       proof and can only be used to show motive or intent.
               If you find other wrongful acts:
               1) occurred;
               2) were so closely connected in time; and
               3) were committed in the same or similar manner as the
       crime charged, so as to form a reasonable connection between
       them, then and only then may such other wrongful acts be
       considered for the purposes of establishing motive or intent.

The jury found Richards guilty of domestic abuse assault causing bodily injury.

Richards appeals.
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II. Standard of Review.

      The court reviews the district court’s evidentiary rulings regarding the

admission of prior bad acts for abuse of discretion.     State v. Reynolds, 765

N.W.2d 283, 288 (Iowa 2009). 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. Id. If an abuse of discretion occurred, reversal will

not be warranted if the error was harmless. Id.

III. Discussion.

      Richards contends the district court abused its discretion when it permitted

the State to introduce evidence that Richards had assaulted either Poell or

members of her family four times in the past. The court ruled that the evidence

was admissible to prove intent. Under Iowa Rule of Evidence 5.404(b):

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show that the person acted in
      conformity therewith. 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.

“In determining whether to admit prior-bad-acts evidence, we rely on a three-step

analysis.” State v. Putnam, 848 N.W.2d 1, 8 (Iowa 2014). To be admissible, the

evidence must be (1) relevant to a legitimate, disputed factual issue, such as

identity, intent, or motive; (2) supported by clear proof the individual against

whom the evidence is offered committed the bad act or crime; and

(3) substantially more probative then prejudicial.   Id. at 9–10.   “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.” Id. at 9 (citing Iowa R. Evid. 5.401). “In
                                        6


assessing whether clear proof of misconduct exists, the prior act need not be

established beyond a reasonable doubt, and corroboration is unnecessary.” Id.

Testimony of a credible witness can satisfy the clear-proof requirement. See

State v. Jones, 464 N.W.2d 241, 243 (Iowa 1990) (concluding the victim’s

testimony of prior sexual abuse was “sufficiently credibly and detailed” to

constitute clear proof of the acts without corroboration). Finally, in determining

whether the evidence is substantially more probative than prejudicial, we weigh a

series of factors:

       [T]he 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.

Putnam, 848 N.W.2d at 9–10. If the danger of the evidence’s prejudicial effect

substantially outweighs its probative value, the evidence must be excluded. Id.

at 10. Because weighing the factors “is not an exact science,” “we give a great

deal of leeway to the trial judge who must make the judgment call.” Id. (citing

State v. Newell, 710 N.W.2d 6, 20–21 (Iowa 2006)).

       A. Incidents between Richards and Poell.

       Our case law demonstrates that evidence of a defendant’s prior assaults

on a victim is relevant to the issue of intent. In State v. Taylor, 689 N.W.2d 116,

125 (Iowa 2004), our supreme court recognized:

       [T]here is a logical connection between a defendant’s intent at the
       time of a crime, when the crime involves a person to whom he has
       an emotional attachment, and how the defendant has reacted to
       disappointment or anger directed at that person in the past,
       including acts of violence, rage, and physical control. In other
       words, the defendant’s prior conduct directed to the victim of the
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       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 situation.

As the defendant did in Taylor, Richards maintained he did not have the requisite

intent to injure Poell, instead claiming he was acting in self-defense. See Taylor,

689 N.W.2d at 124–25. We believe the alleged prior bad acts that involved

Richards and Poell were relevant to a legitimate, disputed fact. See id. at 128

(“The defendant’s prior acts of violence toward his wife, while certainly illustrative

of a propensity to use violence, also reflect his relationship with his wife, which as

our discussion shows, is a circumstance relevant to his motive and intent on the

day in question.”).

       We next consider whether there was clear proof Richards committed the

alleged assaultive behaviors towards Poell. “[P]roof of prior bad acts is clear if it

prevents the jury from speculating or inferring from mere suspicion.” Putnam,

848 N.W.2d at 13.      A victim’s “sufficiently credibl[e] and detailed” testimony

constitutes clear proof without corroboration. See Jones, 464 N.W.2d at 243.

Here, Poell gave a detailed account of the three allegations, including timing and

location. She also identified individuals who could corroborate her account. This

constitutes clear proof.

       Lastly, we consider whether the evidence was substantially more

probative then prejudicial. Here, the need for the evidence regarding Richards’

intent was high, especially when we consider Richards’s claim of self-defense.

Additionally, the court narrowly limited the testimony the State was allowed to

present on the prior acts. Poell was only allowed to answer whether certain

altercations took place and when they occurred. See Putnam, 848 N.W.2d at 15
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(indicating “that concerns about prejudice to a defendant might be eased by

narrowing the scope of the prior-bad-acts evidence presented to the jury”). The

district court disallowed more-detailed testimony that was more likely to evoke

strong emotions in the jurors. See id. at 14 (“Evidence is unfairly prejudicial if it

has an undue tendency to suggest decisions on an improper basis commonly,

though not necessarily, an emotional one.” (internal citation and quotation marks

omitted)). Also, the district court gave a limiting instruction, which informed the

jury of the limited purpose for which the evidence could be used. See id. (“[I]n

most cases a limiting instruction such as this is an antidote for the danger of

unfair prejudice.”). After balancing the probative value of the evidence against

the prejudicial impact, we cannot conclude the district court abused its discretion

in admitting limited evidence of the three alleged incidents of domestic abuse

involving Poell.

       B. Incident Involving Poell’s Family.

       We next consider the admissibility of evidence regarding the altercation

between Richards and Poell’s family.

       In adult abuse cases, a defendant’s history of threatening or violent
       conduct involving the same victim can be especially probative.
       Considered in isolation, a defendant’s outward conduct may be
       ambiguous or entirely lawful. Only by showing that history can the
       [S]tate establish the justifiable inference that a defendant’s charged
       conduct was in fact intended to engender fear on the part of the
       victim and that the defendant knew it was likely to do so.

Taylor, 689 N.W.2d at 128 (citing State v. Andrich, 943 S.W.2d 841, 844 (Mo. Ct.

App. 1997) (emphasis added)).        Here, the allegation did not reference any

assaultive behavior towards Poell, and we will not speculate that Richards’ anger

was directed at her. We do not believe the altercation between Richards and
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Poell’s family is relevant to show Richards’ intent towards Poell. Thus, admission

of the evidence at trial was an abuse of discretion. However, reversal will not be

warranted if the error was harmless. Reynolds, 765 N.W.2d at 288.

       In determining the prejudicial effect of evidence, we review the other

evidence presented and weigh it against any prejudicial effect.            State v.

Rodriguez, 636 N.W.2d 234, 243 (Iowa 2001). Here, admission of the evidence

was harmless. The irrelevant testimony was very limited with only one reference

to an “altercation” between Richards and Poell’s family. The prosecutor did not

reference the alleged prior bad act in the State’s closing argument. Moreover,

the evidence properly admitted at trial “overwhelmingly establishes the

defendant’s guilt.” See Rodriguez, 636 N.W.2d at 244.

IV. Conclusion.

       Regarding the three alleged incidents of domestic abuse involving Poell,

we find they were relevant to a legitimate, disputed fact, there was clear proof

Richards committed the prior bad acts, and the evidence was substantially more

probative than prejudicial. Thus, the district court did not abuse its discretion in

admitting the evidence. Additionally, although we find the alleged altercation

between Richards and Poell’s family was not relevant and the district court

abused its discretion in admitting the evidence, we find the admission was

harmless error. We affirm.

       AFFIRMED.
