                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1306
                            Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRETT GRAHAM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Steven J. Oeth,

Judge.



      A defendant appeals his conviction for second-degree arson. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, and Dan Kolacia, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VAITHESWARAN, P.J.

        Brett Graham confessed to taking a lighter to a barn in Boone County.

The resulting fire destroyed the barn and its contents.

        The State charged Graham with second-degree arson, and a jury found

him guilty as charged. On appeal, Graham contends (I) the district court abused

its discretion in admitting prior bad acts evidence and (II) his trial attorney was

ineffective in failing to request a uniform jury instruction on the treatment of the

prior bad acts evidence in lieu of the instruction that was given.

   I.      Prior Bad Acts Evidence

        A key issue at trial was the admission of evidence of prior crimes allegedly

committed by Graham. Specifically, police learned that Graham may have set

three fires in Story County before setting the fire in Boone County.           They

questioned Graham about these fires and sought to admit recordings of the

interviews in his Boone County trial.

        Graham filed a motion in limine seeking to exclude the recordings. He

contended the evidence served a single impermissible purpose: to show he had

the propensity to light fires and acted in conformity with this propensity in setting

the Boone County fire. The State countered that the evidence would address a

fighting issue in the case—whether Graham intended to damage or destroy the

Boone County barn.

        The district court excluded evidence of two of the Story County fires but

admitted evidence of a fire at a Story County golf center eight days prior to the

Boone County fire. In admitting this evidence, the court reasoned as follows:
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      [T]he court finds that the evidence is relevant. The issue of specific
      intent is really the fighting issue in this case, especially given the
      allegations of the defendant’s conduct relative to trying to put out
      the Boone County barn fire by urinating on the smoldering hay.
      The court also finds that it is similar in kind and time to the conduct
      in Boone County. Specifically, there was a lighter involved to a
      building. In the Boone County case there was a lighter to hay in a
      building. And the conduct is alleged to have been close in time, a
      week or eight days before. Finally, the court finds there is sufficient
      evidence at least allegedly in—based on the minutes of testimony
      to support that the defendant committed the Story County conduct
      based on his alleged admissions. And finally, the court finds that
      the probative value, again given what I perceive to be the fighting
      issue in this case relative to the specific intent and again
      considering defendant’s conduct on urinating on the smoldering
      hay, I find that based on that the probative value substantially
      outweighs the danger of unfair prejudice.

Our review of this ruling is for an abuse of discretion. State v. Putman, 848

N.W.2d 1, 8 (Iowa 2014).

      The admission of prior bad acts evidence is governed by Iowa Rule of

Evidence 5.404(b), which states:

      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.

The rule “exclude[s] evidence that serves no purposes except to show that the

defendant is a bad person, from which the jury is likely to infer he or she

committed the crime in question.” State v. Rodriquez, 636 N.W.2d 234, 239

(Iowa 2001).

      To be admissible, prior bad acts 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
                                         4


committed the bad act or crime; and (3) substantially more probative than

prejudicial. Putman, 848 N.W.2d at 9-10.

       We begin and end with the relevancy requirement. “‘Relevant evidence’

means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence.”       Iowa R. Evid. 5.401; Putman, 848

N.W.2d at 9. According to the Advisory Committee’s note to the comparable

federal rule, “[t]he fact to which the evidence is directed need not be in dispute.”

Fed. R. Evid. 401 advisory committee’s note.

       The jury was instructed that the State would have to prove the following

elements of second-degree arson:

   1. On or about the twenty-fifth day of January, 2013, the defendant
      caused a fire or explosion or placed burning material in or near
      property.
   2. The defendant intended to destroy or damage the property or knew
      the property would probably be destroyed or damaged.
   3. The property was a building, structure or personal property, the
      value of which exceeded five hundred dollars.

On appeal, the State reiterates that the evidence of the prior fire was relevant to

establish intent, which is an exception to the prohibition on admission of prior bad

acts evidence.

       We agree rule 5.404(b) lists intent as an element on which prior conduct

may be probative. Iowa R. Evid. 5.404(b); Putman, 848 N.W.2d at 10; State v.

Nelson, 791 N.W.2d 414, 425 (Iowa 2010). We also agree that, assuming a

dispute is required, intent was a disputed element in this case; Graham’s

proposed jury instruction on the lesser included offense of “reckless use of fire”

made this clear. It would seem like a small step, then, to conclude that, under
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the broad definition of relevance set forth in rule 5.401, Graham’s role in the

Story County fire made it more probable he intended to destroy the barn in

Boone County.      In other words, it could be argued that the prior crime was

“logically relevant” to the present crime. See State v. Knox, 18 N.W.2d 716, 723

(Iowa 1945) (“‘Logical relevancy’ may be defined as the existence of such a

relationship in logic between the fact of which evidence is offered and a fact in

issue that the existence of the former renders probable or improbable the

existence of the latter.”).

       However, even if evidence is “logically relevant” under rule 5.401, the

evidence may not be legally relevant under the remaining rules of evidence. See

12 Barry A. Lindahl, Iowa Practice Series, Civil & Appellate Procedure § 36:42, at

55-56 (2014 ed.). To meet the test for legal relevance under rule 5.404(b), the

State was obligated to “articulate a valid, noncharacter theory of admissibility for

admission of the bad-acts evidence.” State v. Sullivan, 679 N.W.2d 19, 28 (Iowa

2004); accord Nelson, 791 N.W.2d at 425 (quoting State v. Mitchell, 633 N.W.2d

295, 298 (Iowa 2001), “The 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. Cox, 781 N.W.2d 757, 769 (Iowa 2010) (“We

must decide whether [the evidence] could be admitted for a ‘legitimate issue.’”); 7

Laurie Kratky Doré, Iowa Practice Series, Evidence § 5.404:6, at 225 (2011-2012

ed.) (stating that to be legally relevant, prior bad acts evidence must be “relevant

to a legitimate non-character issue in the case even though such evidence may

reveal character traits of the accused”). For the Story County evidence to be

legally relevant, the State could not simply argue that if Graham entertained the
                                        6


intent to destroy a building in the past, “he probably harbored the same intent at

the time of the charged offense.”     Sullivan, 679 N.W.2d at 29.       Yet, this is

precisely what the State argued. The prosecutor stated:

      We can use 404B evidence to prove intent . . . . They are both
      unoccupied dwellings. He used a lighter in the golf center. He
      used a lighter at the barn. And also he drove and hid. In both
      instances he went back almost two days later.

The State’s argument was nothing more than an assertion that Graham had the

propensity to take lighters to buildings and acted on the propensity in setting the

Boone County fire. As in Sullivan, the prosecutor offered a prior, unproven act of

arson “unconnected to the charge for which [Graham] was being tried without

articulating a valid, non-character theory of logical relevance to support an

ultimate inference of intent.” Id. This was impermissible.

      In reaching this conclusion, we have considered several opinions cited by

the State. In our view, these opinions are inapposite.

      In State v. Reynolds, 765 N.W.2d 283, 290-91 (Iowa 2009), an appeal

from a conviction for assault causing bodily injury, the court found prior threats

and assaults toward the complaining witness relevant to show the defendant’s

“personal animus toward” the complaining witness.        The court took pains to

explain that 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.’” Reynolds, 765 N.W.2d at 291.

      Similarly, in State v. Taylor, 689 N.W.2d 116 (Iowa 2004), an appeal from

convictions for domestic abuse assault causing bodily injury and first-degree
                                          7


burglary arising out of Taylor’s altercation with his wife, the court found the prior

relationship important to determining intent. The court stated:

              We also think there 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.

Taylor, 689 N.W.2d at 125. The court concluded,

              The defendant’s prior acts of violence toward his wife, while
       certainly illustrative of a propensity to use violence, also reflect his
       emotional relationship with his wife, which as our discussion shows,
       is a circumstance relevant to his motive and intent on the day in
       question.

Id. at 128. The court distinguished this situation from cases in which the State

sought to introduce evidence of unconnected prior crimes. Accepting Sullivan’s

statement that “evidence of an unconnected prior crime is always evidence of

propensity and never evidence of a specific intent to commit the crime charged,”

the Taylor court noted that “[d]omestic violence is never a single isolated

incident.” Taylor, 689 N.W.2d at 129 n.6 (citation omitted). The court stated,

“[e]vidence of prior bad acts is especially relevant and probative in domestic

violence cases because of the cyclical nature of domestic violence.” Id. (citation

omitted); see also Rodriquez, 636 N.W.2d at 242 (“The fact that the defendant

had cruelly assaulted Enriquez in the past when she tried to leave him makes it

more probable that his mere presence in the bedroom was intended—and

perceived—to be a threat of harm calculated to prevent her from leaving. In

addition, evidence of the defendant’s prior intentional, violent acts towards the

victim coupled with his prior threats to kill her if she left him also makes it more
                                        8


probable that he intended to cause her serious injury on October 11, in contrast

to his claim that the injuries he inflicted that day were merely unintended,

incidental consequences of his anger.”); State v. Little, No. 08-1125, 2010 WL

786011, at *11-12 (Iowa Ct. App. Mar. 10, 2010) (distinguishing case from those

such as Taylor by stating “[i]f the conduct had involved the same victim . . . this

would of course be a different case” and stating “intent is almost always an issue

in a criminal case. So that the 5.404(b) exception does not swallow the rule, it is

important the evidence bear directly on intent, rather than passing through the

filter of character or propensity”).

       In State v. Plaster, 424 N.W.2d 226, 230 (Iowa 1988), the court

considered whether evidence of past sexual abuse of a different woman was

relevant on the issue of consent. The court stated “Plaster’s prior sexual conduct

toward [a different woman] tends to show the same peculiar and characteristic

behavior pattern manifested in the crime charged” and “tends to rebut his

consent theory of defense.” Plaster, 424 N.W.2d at 230. The court ultimately

held that the probative value of this evidence outweighed the danger of unfair

prejudice. Id. at 233. The Iowa Supreme Court called this holding into question

in Mitchell, 633 N.W.2d at 299. In an appeal from a conviction for second-degree

sexual abuse, the court held the district court abused its discretion in admitting

testimony concerning a defendant’s prior bad acts with different people. Mitchell,

633 N.W.2d at 300. The court specifically stated, “[t]he future applicability of

Plaster in a factual situation similar to the one in that case now remains an open

question.” Id. at 299.
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       In this case, the Story County fire was unconnected to the Boone County

fire. The setting of the Story County fire showed nothing more than Graham’s

propensity to commit the Boone County fire.1 See Sullivan, 679 N.W.2d at 29.

       The court’s recent opinion in Putman also does not alter our conclusion.

The court there held that certain evidence of a sexual nature was relevant to

establish identity. Putman, 848 N.W.2d at 13. The court stated the relevancy

test was different in the context of proving identity, requiring a showing that the

prior bad acts were “strikingly similar” or of a “unique nature.” Id. at 11. Here the

focus is on intent. The pertinent test for evaluating legal relevancy in this context

was set forth in Sullivan. But even if the relevancy test summarized in Putnam

were applicable to prior bad acts offered to prove intent, we are not persuaded

that the use of lighters to start fires rendered the prior bad act “strikingly similar”

or of a “unique nature.”       See Putman, 848 N.W.2d at 12 (“[W]e have held

generally similar prior-bad-acts evidence inadmissible.”).

       Finally, the closeness in time of the Story County fire did not enhance the

probative value of the evidence because “temporal separation” of the prior bad

act goes to the weight of the evidence rather than its admissibility. See Sullivan,

679 N.W.2d at 29 (noting three-year time span between past and present act

“cast[] doubt on the weight of th[e] evidence”).




1
 Although the State introduced Graham’s statement to police in which Graham indicated
he started fires to gain the attention of his father, an assistant fire chief, the State does
not now argue that the prior bad acts evidence was admissible to establish the
alternative non-propensity purposes of motive or plan.
                                         10


         In sum, we conclude the evidence of the Story County fire was not legally

relevant, and accordingly, the evidence was inadmissible. See Iowa R. Evid.

5.402.

         This brings us to the question of whether the district court’s admission of

the evidence was harmless.         On this question, we presume prejudice and

reverse unless the record affirmatively establishes otherwise.         Sullivan, 679

N.W.2d at 30.

         The record affirmatively establishes otherwise. The owner of the barn

testified she previously employed Graham in cutting and stacking hay. Graham

told police that several checks he received in payment for the work bounced. On

the night of the fire, he was angry about the bounced checks.            Early in the

morning, he pulled into the barn, knowing the door would be open and the hay

would be highly combustible. He pulled out his lighter and held it to the hay. He

was surprised when the hay did not instantly ignite because he knew “how dry

that hay was when [he] put it in there.” He said if he “would have lit a cigarette, it

would have . . . [w]oof.” Because the hay did not immediately ignite he “just . . .

held [the lighter] there.” The hay still did not ignite, and at this point, Graham

experienced a touch of remorse, urinated on the hay in an effort to keep the

smoldering fire from bursting into flames, and left.

         Notwithstanding Graham’s belated pang of conscience, this evidence

overwhelmingly establishes that he “intended to destroy or damage the property

or knew the property would probably be destroyed or damaged.” Accordingly,

any error in admitting the evidence of the Story County fire was harmless.
                                        11


   II.      Ineffective Assistance of Counsel Claim

         Graham contends his trial attorney was ineffective in failing to seek a

uniform jury instruction on prior bad acts evidence which, unlike the instruction

that was given, requires establishment of the prior bad acts by “clear proof.” To

succeed, Graham must show counsel breached an essential duty, and prejudice

resulted.    Strickland v. Washington, 466 U.S. 668, 687 (1984).        Ordinarily,

ineffective-assistance-of-counsel claims are best preserved for postconviction-

relief proceedings, where the record of trial counsel’s motivations can be more

completely developed. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990).

Here, we find the record adequate to address the issue.

         As discussed, the evidence of Graham’s guilt was overwhelming.

Accordingly, there is no reasonable probability of a different outcome had

Graham’s attorney requested the uniform jury instruction. See State v. Davis,

584 N.W.2d 913, 919 (Iowa Ct. App. 1998) (“Davis cannot prove he was

prejudiced” by his attorney’s failure to propose a more detailed instruction

because “[t]he evidence was so overwhelming”); see also State v. Maxwell, 743

N.W.2d 185, 197 (Iowa 2008) (“When the submission of a superfluous jury

instruction does not give rise to a reasonable probability the outcome of the

proceeding would have been different had counsel not erred, in the context of an

ineffective-assistance-of-counsel claim, no prejudice results.”).       Graham’s

ineffective-assistance-of-counsel claim fails on the prejudice prong.

         We affirm Graham’s judgment and sentence for second-degree arson.

         AFFIRMED.
