                   IN THE SUPREME COURT OF IOWA

                            No. 54 / 07–0178

                           Filed July 25, 2008


STATE OF IOWA,

      Appellant,

vs.

ROBERT GLEE HELMERS,

      Appellee.


      Appeal from the Iowa District Court for Story County, Lawrence E.

Jahn, District Associate Judge.



      State appeals district court’s ruling to bifurcate trial. AFFIRMED

IN PART; REVERSED IN PART; CASE REMANDED.



      Thomas J. Miller, Attorney General, Kevin Cmelik and Laura M.

Roan, Assistant Attorneys General, and Stephen H. Holmes, County

Attorney, for appellant.


      William T. Talbot of Newbrough, Johnston, Brewer, Maddux &

Howell, L.L.P. Ames, for appellee.
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STREIT, Justice.

      Robert Helmers was charged with stalking a woman while subject

to a no-contact order. The existence of a no-contact order elevates the

crime of stalking from an aggravated misdemeanor to a class “D” felony.

Helmers moved to bifurcate the trial so that evidence of the no-contact

order would not be presented to the jury unless it first found him guilty

of stalking. The district court granted Helmers’ motion, and the State

sought interlocutory appeal.    We find the district court abused its

discretion in bifurcating the trial because the probative value of the no-

contact order is not substantially outweighed by the danger of unfair

prejudice. We also conclude the district court appropriately postponed

ruling on the admissibility of Helmers’ other alleged prior bad acts

toward the woman because specific misconduct was not presented to the

court to review.

      I.      Facts and Prior Proceedings.

      Rosemary Swenson and Helmers had a relationship, which she

apparently ended. At some point, Helmers began to bother Swenson who

reported Helmers’ conduct to the police.     In April 2005, Helmers was

charged with harassment, a simple misdemeanor, for giving Swenson

“the finger” at the local Wal-Mart store. In June, the State also charged

Helmers with stalking Swenson, an aggravated misdemeanor. Helmers

pled guilty to harassment in September 2005, and the stalking charge

was dropped. Helmers was placed on probation, and a no-contact order

was issued.

      A year later, Helmers was arrested again for stalking Swenson.

This time the stalking charge was a class “D” felony because Helmers

allegedly committed stalking while subject to the restrictions of a

protective order. See Iowa Code § 708.11(3)(b)(1) (2005). Helmers filed
                                       3

several motions to exclude evidence and asked for his trial to be

bifurcated.   Helmers sought to exclude from trial evidence of the no-

contact order, evidence of the harassment conviction, as well as evidence

of his “unproven” conduct prior to the filing of charges in 2005.         He

argued the State should only be allowed to present evidence of the no-

contact order if the jury first finds him guilty of stalking.

      The district court granted Helmers’ motion to bifurcate the trial

and further held the State may not present any evidence of Helmers’

prior conviction for harassment or the existence of the no-contact order.

The district court declined to rule before trial on the admissibility of

Helmers’ alleged prior conduct.

      We granted the State’s request for discretionary review on the

ruling to bifurcate the trial. We also granted Helmers’ cross-appeal on

the ruling regarding his past conduct. For the reasons that follow, we

reverse the decision to bifurcate the trial and affirm the decision to

postpone ruling on the admissibility of the prior conduct.

      II.     Scope of Review.

      We review decisions on bifurcation for abuse of discretion.        See

Briner v. Hyslop, 337 N.W.2d 858, 870 (Iowa 1983).              Similarly, we

generally review evidentiary rulings for abuse of discretion. Vasconez v.

Mills, 651 N.W.2d 48, 55 (Iowa 2002).         But see State v. Musser, 721

N.W.2d 734, 751 (Iowa 2006) (stating the standard of review for

admission of alleged hearsay evidence is for correction of errors at law).

“A court abuses its discretion when it exercised its discretion on ‘grounds

or for reasons clearly untenable or to an extent clearly unreasonable.’ ”

In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005) (quoting State v. Maghee,

573 N.W.2d 1, 5 (Iowa 1997)).
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      III.     Merits.

      A. Whether it was an abuse of discretion to bifurcate the trial.

      A person commits stalking when all of the following occur:

            a. The person purposefully engages in a course of
      conduct directed at a specific person that would cause a
      reasonable person to fear bodily injury to, or the death of,
      that specific person or a member of the specific person’s
      immediate family.
             b. The person has knowledge or should have
      knowledge that the specific person will be placed in
      reasonable fear of bodily injury to, or the death of, that
      specific person or a member of the specific person’s
      immediate family by the course of conduct.
             c. The person’s course of conduct induces fear in the
      specific person of bodily injury to, or the death of, the
      specific person or a member of the specific person’s
      immediate family.

Iowa Code § 708.11(2).           “ ‘Course of conduct’ means repeatedly

maintaining a visual or physical proximity to a person without legitimate

purpose or repeatedly conveying oral or written threats, threats implied

by conduct, or a combination thereof, directed at or toward a person.”

Id. § 708.11(1)(b).

      A      person   who   satisfies   these   three    elements   commits   an

aggravated misdemeanor. Id. § 708.11(3)(c). The crime is elevated to a

class “D” felony if “[t]he person commits stalking while subject to

restrictions contained in a criminal or civil protective order or injunction,

or any other court order which prohibits contact between the person and

the victim.” Id. § 708.11(3)(b)(1).

      The State contends it is not appropriate to bifurcate elements of a

single offense. Thus, we must first determine whether the existence of a

no-contact order is an element of stalking.             In State v. Beecher, 616

N.W.2d 532 (Iowa 2000), we said the existence of a no-contact order is

“simply a sentencing enhancement” and not an element of stalking.
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Beecher, 616 N.W.2d at 538.         This holding is not valid in light of

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed 2d

435 (2000).       There, the Supreme Court effectively eliminated the

distinction between “elements” and “sentencing factors,” calling the

distinction “novel and elusive.”     Id. at 494, 120 S. Ct. at 2365, 147

L. Ed. 2d at 457.      The Court held “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Id. at 490, 120 S. Ct. at 2362–63, 147 L.

Ed. 2d at 455. Thus, the existence of a no-contact order is an element of

the crime for which Helmers was charged.

         Apprendi, however, did not address bifurcating elements of a single

offense. Our rules of criminal procedure do not address this issue either.

Rule 2.6(1) only provides the district court with discretion to bifurcate

multiple offenses. Rule 2.19(9) requires a prior conviction be submitted

to the jury after conviction of the primary or current offense if the prior

conviction subjects the defendant to an increased sentence.          A no-

contact order is not a prior conviction although, as in this case, it may

stem from one. For purposes of this case, we need not decide whether it

is ever appropriate to bifurcate elements of a single offense. Assuming

arguendo courts have inherent authority to do so, we find the district

court abused its discretion in granting Helmers’ request to bifurcate the

trial.

         According to the court’s ruling, the fact finder would have to find

the State proved the first three elements of stalking beyond a reasonable

doubt before hearing any evidence regarding the existence of the no-

contact order. The court reasoned this was necessary because “the jury

might infer, from the existence of the no-contact order, that [Helmers]
                                    6

was guilty on a prior occasion of stalking or other proscribed acts against

the accuser and thus is more likely to have committed the act for which

he is being tried.”   Although acknowledging the no-contact order was

relevant to the stalking charge, the court found “the probative value of

such evidence would, in this case, be outweighed by the danger of unfair

prejudice.” We disagree.

      The district court’s refusal to allow the State to use the no-contact

order to prove stalking was clearly unreasonable. Certainly evidence is

not admissible if it is only relevant to show a defendant “is a bad person

and worthy of conviction.” State v. Delaney, 526 N.W.2d 170, 175 (Iowa

Ct. App. 1994) (citing State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979)).

However, “[e]vidence of other crimes, wrongs, or acts” may be admissible

“for other purposes, such as proof of motive, opportunity, intent,

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

accident.” Iowa R. Evid. 5.404(b). Here, the no-contact order was more

than just a basis to enhance punishment. It was a key piece of evidence

to prove one of the elements of stalking—i.e., Helmers “ha[d] knowledge

or should have [had] knowledge that [Swenson] [would] be placed in

reasonable fear of bodily injury . . . by [his] course of conduct.” Iowa

Code § 708.11(2); see Iowa R. Evid. 5.401 (defining relevant evidence as

“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”).      “ ‘A stalker should

know that his actions are unappreciated if he was served with a court

order or if he was told by the victim that she no longer wishes to be

contacted.’ ” State v. Neuzil, 589 N.W.2d 708, 712 (Iowa 1999) (quoting

Christine B. Gregson, Comment, California’s Antistalking Statute:      The

Pivotal Role of Intent, 28 Golden Gate U. L. Rev. 221, 245 (1998)); see
                                    7

also State v. Taylor, 689 N.W.2d 116, 123 n.4 (Iowa 2004) (stating the

defendant’s awareness of a no-contact order, “which was sought by his

wife and prohibited him from having contact with his wife and children,

is highly probative of whether he knew his actions would be insulting or

offensive to his wife”).   Thus, we agree with the district court this

evidence was relevant for purposes other than proving Helmers’

character.

      However, we disagree with the district court’s rule 5.403 balancing

analysis.    Under rule 5.403, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice . . . .” “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.” Taylor, 689 N.W.2d at 124. When making the determination

whether unfair prejudice generated by the evidence of defendant’s prior

misconduct substantially outweighs the probative value of the evidence,

we 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.

Id.

      As we have already indicated, the evidence at issue here is likely

the best evidence to prove Helmers knew or should have known Swenson

would be placed in reasonable fear of bodily injury or death with his

course of conduct. Thus, it is highly probative in the stalking trial. The

likelihood the jury will use the evidence improperly can be lessened with

a jury instruction on the limited use of the no-contact order. Delaney,
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526 N.W.2d at 176 (citing State v. Conner, 314 N.W.2d 427, 429 (Iowa

1982)).   We find the district court acted unreasonably by denying the

State the use of this evidence.

      B. Whether it was an abuse of discretion to deny Helmers’

motion in limine regarding prior bad acts.        Helmers complains the

district court should have held his alleged prior bad acts were not

admissible at trial. He claims his first stalking charge in 2005 was based

on a series of “unproven” misconduct.      He argues, “if the alleged and

unproven conduct comes before the jury and [he] is convicted, he will

have been convicted twice for the same conduct and then punished twice

for the same conduct”, in violation of the Fifth Amendment’s Double

Jeopardy Clause. We find this argument wholly without merit.

      Before going any further, we must first explain the record lacks

reference to specific instances of alleged prior bad acts. In his motion in

limine, Helmers simply claimed any alleged misconduct that occurred

prior to the State charging him with harassment and stalking in 2005 is

inadmissible because that conduct was part of his guilty plea.

      The Fifth Amendment provides no person “shall be subject for the

same offense to be twice put in jeopardy of life or limb.”    U.S. Const.

amend. V.    This clause protects against the following:     “(1) a second

prosecution for the same offense after acquittal; (2) a second prosecution

for the same offense after conviction; and (3) multiple punishments for

the same offense.” State v. McKettrick, 480 N.W.2d 52, 56 (Iowa 1992)

(citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076,

23 L. Ed. 2d 656, 664–65 (1969)). The Double Jeopardy Clause applies

to state criminal proceedings through the Fourteenth Amendment. State

v. Dixon, 534 N.W.2d 435, 439 (Iowa 1995) (citing Benton v. Maryland,

395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969)).
                                    9

      Assuming for the sake of argument Helmers has already been in

“jeopardy” for the prior misdeeds he seeks to exclude, the current charge

is not based on the same conduct. He pled guilty to harassment in 2005.

The current stalking charge stems from conduct that allegedly occurred

between April 2006 and July 2006. He has never been put in “jeopardy”

for this conduct. The State is not trying to convict him for conduct that

allegedly occurred in 2005 or earlier. Instead, it merely seeks to use the

evidence to prove Helmers’ conduct in 2006 would place a reasonable

person in fear. Evidence of previous interactions between Swenson and

Helmers may be helpful to demonstrate the escalation of Helmers’

behavior over time.   See State v. Evans, 671 N.W.2d 720, 726 (Iowa

2003).   Isolated instances of unwelcome conduct may not appear to a

fact finder to be frightening. However, that view may change once the

pattern of conduct and the victim’s previous attempts to stop it are

revealed.

      The district court rightly rejected Helmers’ double jeopardy

argument and appropriately postponed ruling on the admissibility of

Helmers’ alleged misconduct in 2005. Ruling in the abstract would not

have been appropriate. Once the specific instances of misconduct the

State wishes to admit are known, the district court may evaluate each

instance for relevance and potential unfair prejudice. We note the State

also has the burden of presenting “clear proof” Helmers committed the

acts in question. State v. Johnson, 224 N.W.2d 617, 620 (Iowa 1974).

      IV.   Conclusion.

      The district court abused its discretion when it granted Helmers’

motion to bifurcate his trial on stalking.   The court did not abuse its

discretion when it declined to rule on the admissibility of Helmers’

unknown alleged prior misconduct.
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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