               IN THE SUPREME COURT OF IOWA
                                 No. 07–1617

                               Filed May 1, 2009


STATE OF IOWA,

      Appellee,

vs.

BRADLEY ALLEN REYNOLDS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal      from   the   Iowa   District   Court   for   Lyon   County,

Robert J. Dull, Judge.



      Defendant challenges district court’s admission of prior-bad-acts

evidence and its jury instructions. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.



      Martha M. McMinn, Sioux City, for appellant.



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

Attorney General, and Carl J. Petersen, County Attorney, for appellee.
                                    2

STREIT, Justice.

      Outside of the pool hall in Rock Rapids, Brad Reynolds and Dan

Kramer got into a fight. Kramer was injured, and Reynolds was arrested

for assault. Before trial, the district court entered an evidentiary ruling

allowing the State to introduce evidence that Reynolds had previously

threatened and assaulted Kramer.        At trial, Kramer testified to eleven

past incidents with Reynolds. Before the submission of the case to the
jury, Reynolds requested jury instructions regarding the prior-bad-acts

evidence and his character for peacefulness. The court denied Reynolds’

request for the instruction on character and gave a modified version of

the prior-bad-acts instruction. The jury found Reynolds guilty of assault

causing bodily injury.    Reynolds appealed, and the court of appeals

reversed.   Even though the prior-bad-acts evidence was relevant to

Reynolds’ motive on the night in question, it was prejudicial error to

admit the prior bad acts since the danger of unfair prejudice outweighs

their probative value. We therefore vacate the court of appeals’ decision,

reverse the judgment of the district court, and remand the case.

      I. Background Facts and Prior Proceedings.

      On September 27, 2006, Dan and Maggie Kramer were at the pool
hall in Rock Rapids drinking beer and playing pool.         Brad Reynolds,

Maggie’s ex-husband, stopped in to chat with a friend. Dan Kramer and

Reynolds had a history of animosity between them because Maggie had

started dating Kramer while she was still married to Reynolds. Kramer

approached Reynolds to ask him a question about Reynolds’ and

Maggie’s son.   Reynolds indicated he did not want to talk to Kramer.

Later, Reynolds and Kramer got into an altercation outside the pool hall.

Reynolds invited Kramer to take a swing at him.        Reynolds claims he

turned to leave and Kramer hit him in the back of the head. Reynolds hit
                                    3

Kramer three times, and Kramer called 911.        Kramer sought medical

treatment and was diagnosed with a sprained jaw, a minor concussion,

and a probable broken nose. Reynolds was charged with assault causing

bodily injury.

      Before trial, the State requested an evidentiary ruling permitting it

to present evidence Reynolds had “harassed, threatened, assaulted, and

intimidated” Kramer on several occasions in the past in order to
demonstrate Reynolds’ “motive, intent, and opportunity.” Reynolds filed

a resistance.    The court granted the motion, concluding “a logical

connection between a defendant’s intent at the time of a crime (assault)

and his prior acts of violence existed and that evidence of prior bad acts

was relevant and admissible.” At trial, Kramer testified to eleven past

incidents involving Reynolds.

             1. February 2002: Reynolds pushed Kramer outside
      the Sportsman’s and told Kramer that (i) the only thing
      keeping Reynolds from beating Kramer up is the fact that
      Reynolds is a lawyer and Kramer was not worth his license
      to practice law, and (ii) if Reynolds ever saw Kramer within
      five feet of his wife, he would beat Kramer senseless.

            2. May 2002: At the country club golf course,
      Reynolds shook his fist at Kramer and said he would be
      waiting for him.

            3. May 2002: Reynolds went into a Todd’s Cafe and
      said that he should have thrown Kramer off the balcony the
      other day at the golf course.

            4. Summer 2002: Kramer was walking his dog in
      front of the old high school, and Reynolds pushed Kramer
      down and said some obscene things to him.

            5. September 2002: In front of the Sportsman’s,
      Reynolds got in Kramer’s face, pushed him down, and poked
      him in the eye.

            6. June 15, 2003: Reynolds approached Kramer while
      he and his son were sitting in his car in front of the Dollar
      General. Reynolds threatened Kramer, punched him, and
      then asked Kramer’s son whether he was “going to grow up
                                   4
      to be a pussy like his dad.” In exchange for dropping the
      assault charge, Reynolds agreed to abide by a no-contact
      order for one year and to undergo an anger management
      evaluation.

           7. February 2005: At a wrestling meet, Reynolds and
      Kramer were both in the concession lunch line, and
      Reynolds blew up at Kramer and cursed at him.

            8.   February 2005:       At another wrestling meet,
      Reynolds tried to start a fight with Kramer in the bathroom,
      but someone came in.

             9. July 2005: While Kramer and his son were riding
      their bikes, Reynolds drove by in his car, rolled down the
      window, and tried to spit at Kramer, but missed and hit his
      son’s leg instead.

             10. January 2006: Reynolds spit at Kramer outside of
      the West Sioux High School and said to Kramer, “come on,
      let’s do something.”

            11. March 2006: Kramer and his son walked into the
      grocery store and Reynolds was there. Reynolds cursed at
      them.

The first five incidents, which involved Reynolds pushing and threatening

Kramer, occurred in 2002 after Reynolds discovered his wife Maggie was

having an affair with Kramer. The sixth incident occurred in 2003 while

Reynolds and Maggie were in the midst of getting a divorce. All six of

these incidents occurred more than three years before the incident in

question. The incidents resumed over a year and a half later in 2005.

The remaining five incidents involved Reynolds spitting at Kramer and/or

cursing at him.   The most recent incident occurred about six months

before the incident in question. Defense counsel objected on relevance

and hearsay grounds.    A few witnesses testified to Reynolds’ peaceful

character.

      Before submission of the case to the jury, Reynolds requested the

court include Iowa Criminal Jury Instructions 200.34, concerning prior-

bad-acts evidence, and 200.38, concerning character and reputation.
                                      5

The court denied Reynolds’ request for the instruction on character and

reputation and gave a modified version of the prior-bad-acts instruction.

The jury found Reynolds guilty of assault causing bodily injury.

Reynolds appealed, asserting the court erred in admitting prior-bad-acts

evidence, giving the modified prior-bad-acts instruction, and refusing to

give the requested character instruction. The court of appeals reversed

as to the prior-bad-acts instruction and, without determining whether
any of the acts were admissible or not, concluded the district court

abused its discretion in issuing a blanket ruling admitting all prior bad

acts.    The court of appeals did not address the character instruction.

The State 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)).    If an abuse of discretion occurred, reversal will not be
warranted if error was harmless. State v. Henderson, 696 N.W.2d 5, 10

(Iowa 2005).

        We review challenges to jury instructions for correction of errors at

law. State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006). We review a

district court’s failure to give a jury instruction for an abuse of

discretion. State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003). “Error in

giving a jury instruction does not merit reversal unless it results in

prejudice to the defendant.”     State v. Fintel, 689 N.W.2d 95, 99 (Iowa

2004).
                                    6

      III. Merits.

      A.   Admissibility of Prior Bad Acts.       Reynolds contends the

district court erred when it permitted the State to introduce evidence that

Reynolds had “harassed, threatened, assaulted, and intimidated” Kramer

in the past. 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 he
      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.

Thus, 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. Castaneda, 621 N.W.2d 435, 439–40 (Iowa

2001).

      [T]he public policy for excluding bad-acts evidence “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)).

      This case concerns a wide variety of prior bad acts, ranging from

an assault to cursing.    We have yet to define what types of acts are

excluded under rule 5.404(b).     Although courts in other jurisdictions

have been faced with the issue of whether a certain act should be

considered a prior bad act, few have actually defined what a prior bad act

is. See, e.g., United States v. Robinson, 978 F.2d 1554, 1562–64 (10th

Cir. 1992) (membership in a gang admissible as prior bad act); Gattis v.

State, 637 A.2d 808, 818–19 (Del. 1994) (the act of the defendant

following the victim back to her apartment was not considered a prior
                                       7

bad act). The Sixth Circuit has stated, “[c]onceivably within the broad

language of the rule is any conduct of the defendant which may bear

adversely on the jury’s judgment of his character.”          United States v.

Cooper, 577 F.2d 1079, 1087–88 (6th Cir. 1978). Maryland has defined a

bad act as “an activity or conduct, not necessarily criminal, that tends to

impugn     or   reflect   adversely   upon   one’s   character,   taking   into

consideration the facts of the underlying lawsuit.” Klauenberg v. State,
735 A.2d 1061, 1072 (Md. 1999); see also United States v. Rawle, 845

F.2d 1244, 1247 (4th Cir. 1988) (“To fall within the scope of Rule 404(b),

an act need not be criminal, so long as it tends to impugn a defendant’s

character.”). We find these definitions to be instructive.

      Even though several of the incidents between Reynolds and

Kramer cannot be classified as a crime, such as Reynolds cursing at

Kramer or trying to spit on him, all of the incidents do “reflect adversely

upon [Reynolds’] character, taking into consideration the facts of [this

case].”   Klauenberg, 735 A.2d at 1072.       All eleven incidents are thus

potentially excluded as prior bad acts under rule 5.404(b).

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

establishing motive or intent. Iowa R. Evid. 5.404(b). Before evidence of
prior bad acts can be considered admissible, the court must (1) find the

evidence is “relevant and material to a legitimate issue in the case other

than a general propensity to commit wrongful acts,” Sullivan, 679 N.W.2d

at 25, and (2) determine whether the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice to the

defendant, Castaneda, 621 N.W.2d at 440; Iowa R. Evid. 5.403.

Evidence is relevant when it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Iowa
                                           8

R. Evid. 5.401. When evidence of prior bad acts is offered “to establish

an ultimate inference of mens rea, the court should require the

prosecutor to ‘articulate a tenable noncharacter theory of logical

relevance.’ ”      Sullivan,    679    N.W.2d     at   28    (quoting    Edward      J.

Imwinkelried, The Use of Evidence of an Accused’s Uncharged Conduct to

Prove Mens Rea: The Doctrine Which Threatens to Engulf the Character

Evidence Prohibition, 51 Ohio St. L.J. 575, 585 (1990)).
       Once the court determines the evidence is relevant, then it must

balance the evidence’s probative value with the danger of unfair

prejudice under Iowa Rule of Evidence 5.403. “Unfair prejudice arises

when the evidence would cause the jury to base its decision on

something other than the proven facts and applicable law, such as

sympathy for one party or a desire to punish a party.” State v. Taylor,

689 N.W.2d 116, 124 (Iowa 2004).               In balancing the probative value

against the danger of unfair prejudice, the court should consider the

following factors:

       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.

Id.

       Here, the district court granted the State’s pretrial motion and

issued a blanket ruling determining Reynolds’ prior bad acts, as listed in

the minutes of evidence, were admissible.1 It is generally impossible to

       1
         No one argues that error was not preserved or that the court’s ruling was not a
final ruling as to the admissibility of evidence. See State v. Schaer, 757 N.W.2d 630,
634 (Iowa 2008) (objection at trial not required to preserve error “where a motion in
limine is resolved in such a way it is beyond question whether or not the challenged
evidence will be admitted during trial”) (quoting State v. Daly, 623 N.W.2d 799, 800
(Iowa 2001)).
                                     9

rule on the admissibility of prior bad acts before trial because their

admissibility is so contingent on what “legitimate issue[s] [are] in the

case.” Sullivan, 679 N.W.2d at 25. We do not think it is good practice to

make a final ruling on admissibility of prior bad acts before evidence is

received at trial. This is not to say a preliminary ruling, or a grant of a

motion in limine, should not be used. We are merely cautioning the trial

court not to give a final ruling on such extensive and varied evidence.
Here, the court did not examine whether each incident would be

admissible under Iowa Rules of Evidence 5.404(b) and 5.403. With so

many different and varied types of evidence with different and varied

levels of probative value and danger for unfair prejudice, the blanket

ruling does not adequately address the admissibility of each incident.

Although it is imperative that the parties preserve error as to any

particular item of evidence, it is also important for the trial court to rule

with some specificity. The court ventured on thin ice when it made such

an all-inclusive ruling.

      Reynolds’ prior threats and assaults towards Kramer are relevant

because they reveal his motive on the night in question. The evidence

was offered to demonstrate Reynolds’ personal animus toward Kramer.
In sexual assault and domestic violence cases, we have recognized that

the prior relationship between the defendant and the victim is relevant in

establishing intent and/or motive. See State v. Reyes, 744 N.W.2d 95,

103 (Iowa 2008) (holding admission of prior sexual abuse involving the

same victim was relevant “to demonstrate the nature of the defendant’s

relationship and feelings toward a specific individual”); Taylor, 689

N.W.2d at 128 n.6 (“ ‘[E]vidence of prior bad acts is especially relevant

and probative in domestic violence cases because of the cyclical nature of

domestic violence.’    The relationship between the defendant and the
                                   10

victim, especially when marked by domestic violence, sets the stage for

their later interaction.” (quoting Jane H. Aiken & Jane C. Murphy,

Evidence Issues in Domestic Violence Civil Cases, 34 Fam. L.Q. 43, 56

(2000))); State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981) (“The prior

acts with the victim were admissible under a generally recognized

exception to the above ‘exclusionary rule’ in order ‘to show a passion or

propensity for illicit sexual relations with the particular person
concerned in the crime on trial.’ ” (quoting McCormick’s Handbook on the

Law of Evidence, § 190, at 449 (2d ed. E. Cleary 1972))). Although this

case is not an example of domestic violence or sexual assault, we find the

prior relationship between Reynolds and Kramer relevant in establishing

Reynolds’ motive on the night in question. The evidence was not offered

to show a general propensity towards violence but rather “to demonstrate

the nature of [Reynolds’] relationship and feelings toward a specific

individual.” Reyes, 744 N.W.2d at 103. Although some of the incidents,

such as the cursing, may not be relevant standing alone, a certain

commonality of all incidents weaves them together and demonstrates

Reynolds’ motive—his hatred of Kramer.

      Despite the fact that many of the prior bad acts were relevant, the
danger of unfair prejudice in admitting all eleven incidents outweighs

their probative value, and therefore, they should not have been admitted.

Five of the incidents occurred in 2002, more than four years before the

incident in question, and immediately after Reynolds discovered his wife

Maggie was having an affair with Kramer. On five separate occasions,

Reynolds pushed and threatened Kramer, twice telling him that if he ever

saw Kramer near his wife again, he would beat him up. After applying

the four factors set forth in Taylor, it becomes clear each of these early

incidents does have some probative value, but admitted together, they
                                        11

have a high danger unfair prejudice. Taylor, 689 N.W.2d at 124. First,

there was little need for this evidence, as the fact that Kramer began

having an affair with Maggie while she was still married to Reynolds had

already been disclosed.           Second, although Reynolds admitted to

threatening Kramer on several occasions, the parties did not agree on

exactly what transpired on each occasion.           Third, the incidents do

demonstrate Reynolds’ motive on the night in question—his hatred of
Kramer. However, because they occurred at different times and under

different circumstances, (after Reynolds had learned Kramer was having

an affair with his wife, Maggie), they are not necessarily probative of

Reynolds’ intent or motive four years later.       Lastly, it is unclear “the

degree to which the fact finder will be prompted to decide the case on an

improper basis.”      Id.    Most people would not consider threatening the

man who cuckolded him to be indicative of aggressive behavior on the

night in question. However, considering all five incidents together, a jury

may conclude Reynolds was the aggressor at the pool hall because he

had threatened and pushed Kramer several times in the past.

      The assault in the Dollar General parking lot is also not

admissible.   Under the factors listed in Taylor, the danger of unfair
prejudice substantially outweighs the probative value. Id. First, there

was little need for this evidence. The fact that Kramer began having an

affair with Maggie while she was still married to Reynolds establishes

Reynolds’ personal animus toward Kramer. Although there is clear proof

Reynolds committed the assault, and this assault is relevant to Reynolds’

intent or motive on the night in question, admitting the assault would be

highly prejudicial.         As the Dollar General assault is similar to the

incident in question, “[i]t would be extremely difficult for jurors to put out

of their minds knowledge that the defendant had [assaulted the victim] in
                                    12

the past and not allow this information to consciously or subconsciously

influence their decision.” Henderson, 696 N.W.2d at 13. Anyone hearing

of the Dollar General incident could easily conclude Reynolds probably

started this fight too, because of his propensity.    Thus the probative

value of the Dollar General assault is substantially outweighed by the

danger of unfair prejudice.

      Lastly, the more recent incidents occurring in 2005 and early
2006, where Reynolds either spit at Kramer or cursed at him, are neither

highly probative of Reynolds’ motive on the night in question nor unfairly

prejudicial on an individual basis.   Although individually, some of the

incidents may be admissible, admitting all five tips the scale toward

unfair prejudice outweighing their probative value.    First, even though

there is little need for this evidence since the personal animus has

already been established, these incidents do demonstrate that Reynolds

still harbors hatred for Kramer five years later.       Second, although

Reynolds admits cursing at Kramer and being generally hostile towards

him whenever they encountered each other, the parties do not agree on

the details. Third, while cursing at someone reveals a personal animus,

it not highly probative of the motive or intent to assault that same
person.   Although it is unlikely that the fact finder would determine

Reynolds assaulted Kramer because he had cursed at him a single time

in the past, five incidents of cursing (and spitting) in the year preceding

the incident in question may convince a jury otherwise. The danger of

the jury concluding he had a propensity for assault, and therefore he

committed this crime, is high.

      The admission of the eleven prior bad acts was not harmless.

“Reversal is required in cases of nonconstitutional error when it appears

‘that the rights of the complaining party have been injuriously affected by
                                     13

the error or that he has suffered a miscarriage of justice.’ ”    Id. at 12

(quoting Sullivan, 676 N.W.2d at 29). We presume prejudice and “reverse

unless the record affirmatively establishes otherwise.”       Sullivan, 676

N.W.2d at 30. Although it could be easily argued that admitting each

individual incident would have been harmless error, all eleven incidents

stacked together would likely lead a jury to conclude Reynolds had a

propensity for initiating fights with Kramer.
        It was an abuse of discretion to admit evidence of the prior bad

acts.    Here the court improperly admitted eleven incidents where

Reynolds pushed, threatened, or cursed at Kramer. As we have stated,

        “When prior acts evidence is introduced, regardless of the
        stated purpose, the likelihood is very great that the jurors
        will use the evidence precisely for the purpose it may not be
        considered[:] to suggest that the defendant is a bad person, a
        convicted criminal, and that if he ‘did it before he probably
        did it again.’ ”

Castaneda, 621 N.W.2d at 441–42 (quoting United States v. Johnson, 27

F.3d 1186, 1193 (6th Cir. 1994)). When the prior bad act is the same

type of crime as the one at issue, “[i]t 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.” Henderson, 696

N.W.2d at 13.

        In its closing argument, the State encouraged the jury to conclude

Reynolds had assaulted Kramer because he had done so in the past.

        Again, you need to look at the history. The history is Mr. Reynolds
        has always been the aggressor. Dan Kramer has always been the
        person trying to get behind this and not live in fear.

        ....

        So, again, history foretells the future. And the last five years of
        history foretold what was going to happen September 27, 2006.
                                    14

Even though we have determined the prior bad acts to be “relevant and

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

to commit wrongful acts,” the State nevertheless used them as

propensity evidence, which could very well influence a jury’s decision to

find Reynolds guilty of assault. Sullivan, 679 N.W.2d at 25. At best, this

case demonstrates the dangers of allowing this type of evidence for the

very limited purpose for which it is admissible. If prior-bad-acts evidence
is admitted for a permissible purpose, such as motive or intent, it cannot

be used by the State for impermissible purposes, such as propensity.

The State should not have offered the evidence to demonstrate Reynolds’

intent or motive and then use it to show his propensity towards starting

fights with Kramer. The record does not affirmatively establish a lack of

prejudice. Id. at 30. Therefore, we reverse and remand.

      B. Jury Instructions.

      Although we have reversed and remanded based on prejudicial

error in admitting the prior bad acts, we address the jury instruction

claims to provide guidance in a new trial, should any evidence of prior

bad acts be deemed admissible.

      1. Prior bad acts.   Reynolds contends the district court erred in
refusing to give Iowa Criminal Jury Instruction 200.34, concerning prior-

bad-acts evidence. Reynolds requested the court use Iowa Criminal Jury

Instruction 200.34, which provides:

      Evidence has been received concerning other wrongful acts
      alleged to have been committed by the defendant. The
      defendant is not on trial for those acts.

      This evidence must be shown by clear proof, and can only be
      used to show [motive] [intent] [absence of mistake] [common
      scheme] [identity of person charged].

      If you find other wrongful acts (1) occurred; (2) were so
      closely connected in time; and (3) were committed in the same
                                    15
      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 purpose
      of establishing [motive] [intent] [absence of mistake]
      [common scheme] [identity of person charged].

Iowa Criminal Jury Instruction 200.34 (2006) (emphasis added).

Instead, the court gave the following modified instruction:

      Evidence has been received concerning other wrongful acts
      alleged to have been committed by the defendant. The
      defendant is not on trial for those acts.

      This evidence must be shown by clear proof, and can only be
      used to show intent.

      If you find other wrongful acts occurred, then and only then
      may such other wrongful acts be considered for the purpose
      of establishing intent.

      Reynolds challenges the omission of the phrase “were so closely

connected in time” in light of the fact over half of the incidents occurred

at least three years prior to the fight at issue. The length of time between

a prior bad act and the crime charged is a factor that speaks to the

weight of the evidence. See State v. Casady, 491 N.W.2d 782, 785 (Iowa

1992) (“The remoteness of evidence generally affects the weight rather

than admissibility of the remote evidence.”). However, a prior act may be

so remote that it is irrelevant, and therefore, inadmissible, and that

determination is made by a court, not a jury.       State v. Maestas, 224

N.W.2d 248, 251 (Iowa 1974). Although courts use temporal proximity
as a factor in determining whether to admit prior bad acts, the jury

should use remoteness only to determine how much weight to afford the

evidence.

      The proposed instruction directs the jury to evaluate whether to

use the prior-bad-acts evidence, not how to weigh the evidence. As the

proposed instruction states, “if you find other wrongful acts . . . were so

closely connected in time . . . then and only then may such other
                                    16

wrongful acts be considered. . . .” (Emphasis added.) Under Iowa Rule of

Evidence 5.104(a), the court determines issues of admissibility and the

jury determines the weight to give the evidence.      There is a difference

between admissibility and instructing the jury on how to use the

evidence once it is admitted. The instruction should not have directed

the jury to determine whether to use the evidence but how to weigh the

evidence. The given instruction was a correct statement of the law, and
the court did not err in refusing to give Reynolds’ proffered instruction.

See Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000) (“Under Iowa law,

a court is required to give a requested instruction when it states a correct

rule of law having application to the facts of the case and when the

concept is not otherwise embodied in other instructions.”); David P.

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

Events § 4.5.1(4) (2009).

      2. Character. Reynolds also contends the court erred in refusing

to give Iowa Criminal Jury Instruction 200.38, which, if edited for this

case, reads:

      Evidence has been received concerning the defendant’s
      character for peacefulness.     This evidence should be
      considered with all other evidence in determining whether
      the defendant is guilty or not.

      If you find the defendant’s character as to peacefulness is
      good, you may consider this evidence in determining whether
      a person of such character for peacefulness would likely to
      commit the crime charged.

      If the evidence of such good character as to peacefulness is
      good enough, together with all of the other evidence, to raise
      a reasonable doubt as to the defendant’s guilt, he must be
      acquitted, even though without such proof of good character
      the jury would convict.

      However, the defendant’s previous good character as to
      peacefulness is not a defense if you find by evidence beyond
      a reasonable doubt that the defendant committed the crime.
                                    17

As Reynolds asserted he hit Kramer in self-defense and evidence was

offered as to Reynolds’ peaceful character, Reynolds’ character for

peacefulness was an issue. See State v. Martinez, 679 N.W.2d 620, 624–

25 (Iowa 2004) (determining the trait of peacefulness is pertinent to the

crime of assault and it was not error to refuse character instruction

where character trait was not pertinent to the crime charged).         The

requested instruction on Reynolds’ character for peacefulness should
have been given.

      IV. Conclusion.

      It was prejudicial error to admit the prior bad acts, even though

the evidence was relevant to Reynolds’ motive. We therefore vacate the

court of appeals’ decision, reverse the judgment of the district court, and

remand the case for a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Wiggins and Baker, JJ., who concur

specially.
                                    18

                                               #07–1617, State v. Reynolds

WIGGINS, Justice (specially concurring).

      I write to concur in the result reached by the majority in this case.

We apply a two-part test to determine if other acts are admissible under

Iowa Rule of Evidence 5.404(b). The court must first decide whether the

other-acts evidence is relevant to a legitimate factual issue in dispute

other than a general propensity to commit wrongful acts.          State v.
Sullivan, 679 N.W.2d 19, 25 (Iowa 2004).           Next, the court must

determine if its probative value is substantially outweighed by the danger

of unfair prejudice to the defendant.    Id.   The majority concludes the

other-acts evidence is relevant to a legitimate factual issue in this case,

motive, but its probative value is substantially outweighed by the danger

of unfair prejudice to the defendant. Therefore, the majority precluded

its admissibility.

      I would find the evidence inadmissible because it is not relevant to

a legitimate factual issue in this case. Reynolds admits he assaulted the

victim, but raises the defense of self-defense. When the defendant raises

the issue of self-defense, the State must prove beyond a reasonable

doubt any of the following to defeat the claim of self-defense: (1) the
defendant initiated or continued the incident resulting in injury; (2) the

defendant did not believe he was in imminent danger of death or injury

and that the use of force was not necessary to save him; (3) the

defendant did not have reasonable grounds for the belief he was in

imminent danger of injury or death and that the use of force was not

necessary to save him; or (4) the defendant used unreasonable force.

State v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999).

      In this case, the only legitimate factual issue in dispute was who

initiated the incident that resulted in injury to the victim. None of the
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other-acts evidence the State attempted to introduce into evidence is

relevant to who initiated the incident. Neither Reynolds nor the victim

liked each other. It is just as logical the victim had enough of Reynolds’

antics that the victim initiated the incident. The fact a person does not

like another person is not relevant evidence as to who initiated the fight.

Consequently, the only purpose of the other-acts evidence was to show

propensity.   Sullivan, 679 N.W.2d at 25.      The State cannot use this
other-acts evidence for that purpose. Accordingly, I would find the other-

acts evidence inadmissible because they are not relevant to a legitimate

factual issue in dispute. I, therefore, concur in the opinion of the court.

      Baker, J., joins this special concurrence.
