                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-2036
                                  Filed June 7, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARCEL ROSE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      Defendant appeals the trial court’s ruling admitting testimony related to the

defendant’s alleged prior bad act of domestic violence. AFFIRMED.



      Jessica A. Millage of Millage Law Firm, P.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Potterfield, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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POTTERFIELD, Judge.

       Marcel Rose appeals the district court’s decision to admit testimony

related to an alleged prior act of domestic abuse. Because the testimony is

relevant to the intent element of the crime and the defendant’s defenses, the

prior act is supported by clear proof, and the prejudicial effect does not

substantially outweigh the probative value, we affirm.

I. Background Facts and Proceedings.

       Marcel Rose and Amanda Guzzle resided together and were involved in a

romantic relationship. Rose and Guzzle knew a mutual acquaintance, Sarah

Medina. On July 6, 2015, Rose and Guzzle were alone at Medina’s residence in

the living room when they began to argue. The argument then turned physical,

and according to Guzzle’s testimony, she ended up on the couch with Rose on

top of her. Guzzle covered her face because she did not want Rose to hit her,

and she subsequently “felt [her] ribs crack.” Even after Guzzle felt the blow to

her ribs, Rose remained on top of her, and she struggled to breathe. Guzzle did

not alert authorities or seek medical attention.      The pain in her chest and

shortness of breath continued for at least the next twenty-four hours.

       The following day, Rose called 911 and claimed Guzzle assaulted him.

Authorities were sent to the location, but Rose had left by the time they arrived.

Guzzle was still at the scene. Guzzle told police she was suffering from pain and

shortness of breath.     She was then taken to the hospital where medical

personnel confirmed Guzzle had five broken ribs and a punctured lung. She

eventually told the police that Rose caused the injuries.
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       On July 16, 2015, the State charged Rose by trial information with one

count of assault causing serious injury and one count of domestic abuse assault

causing injury, pursuant to Iowa Code sections 708.2(4)1 and 708.2A(3)(b)2

(2015), respectively.    The State and Rose filed motions in limine to exclude

certain evidence.     The State sought to exclude, in part, evidence related to

Guzzle’s methamphetamine use. The defendant’s motion in limine was centered

on testimony related to an alleged prior domestic assault of Guzzle by Rose.

Guzzle claimed that a few days before she was struck in the ribs, Rose

approached her and punched her in the face at her friend’s house. She also



1
  The penalties associated with section 708.2(4) are based on the following assault
definition:
                 2. A person commits an assault when, without justification, the
         person does any of the following:
                 a. Any act which is intended to cause pain or injury to, or which is
         intended to result in physical contact which will be insulting or offensive to
         another, coupled with the apparent ability to execute the act.
                 b. Any act which is intended to place another in fear of immediate
         physical contact which will be painful, injurious, insulting, or offensive,
         coupled with the apparent ability to execute the act.
                 c. Intentionally points any firearm toward another, or displays in a
         threatening manner.
Iowa Code § 708.1(2).
2
  “For the purposes of this chapter, ‘domestic abuse assault’ means an assault, as
defined in section 708.1, which is domestic abuse as defined in section 236.2,
subsection 2, paragraph ‘a’, ‘b’, ‘c’, or ‘d’.” Iowa Code § 708.2A(1). Section 236.2 states
in relevant part:
         “Domestic abuse” means committing assault as defined in section 708.1
         under any of the following circumstances:
                 a. The assault is between family or household members who
         resided together at the time of the assault.
                 b. The assault is between separated spouses or persons divorced
         from each other and not residing together at the time of the assault.
                 c. The assault is between persons who are parents of the same
         minor child, regardless of whether they have been married or have lived
         together at any time.
                 d. The assault is between persons who have been family or
         household members residing together within the past year and are not
         residing together at the time of the assault.
Iowa Code § 236.2(2)(a)–(d).
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stated Rose “kicked all my stuff all over, broke my sunglasses, stomped on them,

then made me sit down and wait for him.” Guzzle stated she did not call the

police after the incident.

       The court held a hearing on the matter, and the State made an offer of

proof of Guzzle’s testimony about the event. The court ruled testimony related to

the alleged assault was admissible. The court determined the testimony elicited

in the offer of proof was sufficient to establish clear proof of the incident because

it was “fairly clear and specific,” and the evidence is “relevant to how the

relationship between the parties affects their credibility.” The court went on to

exclude testimony about more general accusations of prior domestic abuse

because “[t]here was not clear evidence offered.”

       At trial, Rose generally denied the charges. He claimed another individual

caused Guzzle’s injuries during a fight between Rose and the other person. In

the alternative, he suggested Guzzle’s erratic behavior as a methamphetamine

user caused the injuries. He also attacked the credibility of Guzzle’s testimony,

arguing her statements were inconsistent

       The jury found Rose guilty of assault causing bodily injury—a lesser-

included offense of count one—and count two, domestic abuse assault causing

injury. Rose appealed.

II. Standard of Review.

       We review a trial court’s ruling on the admissibility of evidence for an

abuse of discretion. State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004).
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III. Discussion.

       Rose argues the district court erred in allowing Guzzle and Medina to

testify Rose previously assaulted Guzzle.         He claims (1) the evidence was

inadmissible based on relevance, (2) the evidence was not supported by clear

proof, and (3) the testimony unfairly prejudiced Rose.

       Under Iowa Rule of Evidence 5.404(b)(1), “Evidence of a crime, wrong, or

other act is not admissible to prove a person’s character in order to show that on

a particular occasion the person acted in accordance with the character.” Such

evidence, however, “may be admissible for another purpose such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Iowa R. Evid. 5.404(b)(2).

       In order to evaluate the admissibility of prior-bad-acts evidence, we

determine whether: (1) “the evidence is relevant to a legitimate, disputed factual

issue”; (2) there is “clear proof the individual against whom the evidence is

offered committed the bad act or crime”3; and (3) the “probative value is

substantially outweighed by the danger of unfair prejudice to the defendant.”

Putman, 848 N.W.2d at 9.

       Rose first claims the testimony regarding the alleged prior assault on

Guzzle was not relevant to the question whether he assaulted her and caused

the rib fractures as charged.      The State argues Rose’s denial of the crime



3
  Our supreme court clarified that the clear-proof requirement is an independent step in
the prior-bad-acts analysis, but it is also a factor under the prejudice prong in that a
finding of clear proof supports admission. See State v. Putman, 848 N.W.2d 1, 14 (Iowa
2014) (“For purposes of clarity and consistency, whether clear proof exists should
remain as part of the balancing process, in addition to being analyzed as an independent
analytical step.”).
                                          6


required the State to prove every element, including intent; accordingly,

testimony related to Rose’s prior assault on Guzzle was relevant to establish

intent.

          “Evidence is relevant if: (a) It has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) The fact is of

consequence in determining the action.” Iowa R. Evid. 5.401. Generally, “[t]he

test to determine if evidence is relevant is ‘whether a reasonable [person] might

believe the probability of the truth of the consequential fact to be different if [such

person] knew of the proffered evidence.’” State v. Alberts, 722 N.W.2d 402, 410

(Iowa 2006) (alterations in original) (quoting State v. Plaster, 424 N.W.2d 226,

229 (Iowa 1988)). In the context of domestic violence, evidence of prior abuse in

the relationship is relevant to support the intent element and negate alternative

theories as to the cause of the injuries. See Taylor, 689 N.W.2d at 128 (“The

defendant’s prior acts of violence toward his wife . . . 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.”); State v. White, 668

N.W.2d 850, 854 (Iowa 2003) (“[Defendant’s] prior acts of banging [victim’s] head

against a wall and threatening to shoot her are undoubtedly relevant to the

charges before us.       Evidence of [defendant’s] prior intentional, violent acts

toward the victim, aggravated by his prior death threats, makes it more probable

[defendant] intended to cause [victim’s] serious injury on the day in question.”);

State v. Mitchell, 670 N.W.2d 416, 422 (Iowa 2003) (holding evidence of prior

acts was admissible to refute defense theory). Evidence regarding prior acts is
                                          7

also relevant if it reflects on the credibility of a witness. See Mitchell, 670 N.W.2d

at 411.

       Here, Rose denied the charges on several grounds, putting at issue all the

elements of the crime, including his identity and intent. Rose also attacked the

credibility of Guzzle by arguing her statements were inconsistent. Rose claimed

the injuries sustained by Guzzle were caused by another person.              He also

argued Guzzle’s erratic behavior due to her methamphetamine use could have

caused the injuries. In addition to the trial court’s determination that the facts

surrounding the alleged event are “relevant to how the relationship between the

parties affects their credibility,” we believe the testimony from Guzzle regarding

the prior assault had a tendency to prove identity and intent. The testimony was

probative on the intent element that Rose “intended to cause pain or injury.”

Accordingly, the admission of the prior-bad-act testimony was within the trial

court’s discretion in determining relevance.

       Clear proof must also establish the prior act before the State can offer

evidence of it. Rose argues clear proof was not established because the State

failed to introduce evidence of an arrest, prosecution, police report, photograph,

video, or medical record supporting the testimony about the alleged assault.

Rose, however, misstates the standard for clear proof. “[P]roof of prior bad acts

is clear if it prevents the jury from speculating or inferring from mere suspicion.”

Putman, 848 N.W.2d at 13. “The prior act need not be established beyond a

reasonable doubt, and corroboration is unnecessary.” Id. at 9; see also State v.

Rodriquez, 636 N.W.2d 234, 243 (Iowa 2001) (holding the victim’s testimony

combined with corroborating testimony established clear proof). For example,
                                        8

testimony from a credible witness can establish clear proof.        Putman, 848

N.W.2d at 9. Here Guzzle’s credible testimony of the events—as determined by

the judge in the offer of proof—combined with Medina’s corroborating testimony,

prevented the jury from “speculating or inferring from mere suspicion.” Id. at 13.

Clear proof supported the testimony.

      We next determine whether the “danger of unfair prejudice substantially

outweighed the evidence’s probative value.” Id. at 14. In doing so, we consider

“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. at 9–10 (quoting Taylor, 689 N.W.2d at 124). Our supreme court explained,

“If the danger of the evidence’s prejudicial effect substantially outweighs its

probative value, the evidence must be excluded.        Weighing probative value

against prejudicial effect ‘is not an exact science,’ so ‘we give a great deal of

leeway to the trial judge who must make this judgment call.’” Id. at 10 (quoting

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

      Here, clear proof of the prior act weighs in favor of admission. Putman,

848 N.W.2d at 14. The testimony supports the intent element of the crime and it

cuts against Rose’s claims that another individual caused the injuries.      The

evidence supporting the prior bad act is also strong. See State v. Greene, 592

N.W.2d 24, 32 (Iowa 1999) (considering strength of evidence in concluding no

prejudice warranting a mistrial). Two eyewitnesses corroborated the event, and

as the trial court found during the hearing on the defendant’s motion in limine,

“the evidence is fairly clear and specific.” Compare State v. Spaulding, 313
                                          9


N.W.2d 878, 881–83 (holding the probative value of prior acts testimony was

strengthened by testimony corroborating the victim’s claim), with State v.

Johnson, No. 99-0557, 2000 WL 1724871, at *4 (Iowa Ct. App. Nov. 20, 2000)

(finding the unfair prejudice of the prior-bad-acts evidence substantially

outweighed the probative value when the eyewitness was only able to testify the

defendant resembled the person associated with the prior act).

       There is also a limited danger of unfair prejudice in admitting the

testimony. While the evidence of domestic violence can inflame emotions, it was

not likely to compel the jury to “decide the case on an improper basis” under

these circumstances, as the district court limited the scope of the testimony.

Putman, 848 N.W.2d at 9–10; see State v. Richards, 879 N.W.2d 140, 152 (Iowa

2016) (holding the district court’s circumscription of the prior-bad-acts testimony

limited its prejudicial effect on the defendant); Taylor, 689 N.W.2d at 130

(“Certainly a fact finder, whether judge or jury, would have a tendency to

conclude from the defendant’s past misconduct that he has a bad character. But

that type of prejudice is inherent in prior-bad-acts evidence and will not

substantially outweigh the value of highly probative evidence.”).         Any unfair

prejudice caused by the prior-bad-acts testimony did not substantially outweigh

its probative value.

       After a careful review of the record, we hold the trial court did not abuse its

discretion in admitting the prior-bad-acts testimony. The testimony was relevant

to the intent element of the crime, and it refuted Rose’s defenses. Clear proof
                                      10


was also established by corroborating testimony, and the probative value of the

evidence was not substantially outweighed by unfair prejudice to Rose.

      AFFIRMED.
