                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2045
                             Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ONTERIER BROWN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.



      Onterier Brown appeals from convictions and sentences imposed after a

jury found him guilty of three counts of sexual abuse in the third degree and one

count of incest. AFFIRMED.




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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.

       Onterier Brown appeals from the convictions and sentences imposed after

a jury found him guilty of three counts of sexual abuse in the third degree, in

violation of Iowa Code section 709.4(1)(a), and one count of incest, in violation of

section 726.2, for conduct alleged to have occurred between June 2013 and May

2015.1 At trial, he admitted he fathered the complainant’s child, but denied the

sexual conduct was “against the will of” the complainant. The jury found otherwise,

and the court imposed consecutive sentences totaling thirty-five years.

       On appeal, Brown first contends the district court abused its discretion in

denying his objection made pursuant to Iowa Rule of Evidence 5.404(b) and

allowing the State to present evidence Brown had sexual intercourse with the

complainant on several more occasions than the charged offenses. Brown also

asserts the State failed to prove the sex acts were performed “by force or against

the will of” the complainant.

       Iowa Rule of Evidence 5.404(b)(1) prohibits the use of “[e]vidence of a

crime, wrong, or other act . . . to prove a person’s character in order to show that

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

However, such evidence “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). Moreover, Iowa Code

section 701.11 provides that in cases involving sexual abuse, other incidents of




1
 The relevant provisions of the code were substantively unchanged from 2013 to 2015 so
we refer to the 2015 version.
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sexual abuse may be introduced so long as the probative value is not substantially

outweighed by the danger of unfair prejudice.

       Brown acknowledged consent would be an issue and that the other sexual

conduct could be relevant to the issue of consent. See State v. Reyes, 744 N.W.2d

95, 102 (Iowa 2008) (concluding “[t]he existence of prior sexual abuse involving

the same alleged perpetrator and victim, however, has relevance on the underlying

criminal charge because it shows the nature of the relationship between the

alleged perpetrator and the victim”).      However, he argued the evidence was

unfairly prejudicial. The district court engaged in the appropriate balancing test

and determined the evidence was relevant to the issue of consent and the

relationship of the defendant to the complaining witness, and was not unfairly

prejudicial. See State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993)

(finding other acts of sexual abuse with same victim “did not involve conduct any

more sensational or disturbing” than the charged crime, and exclusion was not

warranted under rule 5.403). Although we would encourage the use of a limiting

instruction under these facts, we find no abuse of discretion. See State v. Putnam,

848 N.W.2d 1, 7 (Iowa 2014) (discussing standard of review).

       Brown argues there is insufficient evidence that the sexual acts were

“against the will of” the complaining witness. It is not necessary in Iowa to establish

physical resistance to show that an act of sexual abuse was committed by force or

against the will of the person. Iowa Code § 709.5. “[P]sychological force or inability

to consent based on the relationship and circumstance of the participants may give

rise to a conviction under the ‘against the will’ element of section 709.4(1). This

statutory element considers all circumstances that establish actual nonconsent,
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including any psychological circumstances particular to the participants.” State v.

Meyers, 799 N.W.2d 132, 146 (Iowa 2011); see also State v. Kelso-Christy, 911

N.W.2d 663, 667 (Iowa 2018) (“[I]n furtherance of the statute’s clear purpose, we

inquire into whether the victim gave meaningful consent and consider the

‘circumstances indicating any overreaching by the accused, together with

circumstances indicating any lack of consent by the other person.’”).

      The complaining witness testified she did not want to engage in sex acts

with Brown and told him “no” but felt compelled to accede to him. Brown denied

using force or threats to compel the complaining witness to have sex with him, but

he admitted he used corporal punishment in the past. Brown acknowledged the

victim never affirmatively agreed to have sex with him and never initiated any

sexual contact. There is substantial evidence from which the jury could find the

sexual intercourse was “against the will of” the complaining witness. See Meyers,

799 N.W.2d at 138, 146-47 (noting scope of review and finding substantial

evidence the sex acts were done “against the will of” the complainant).

      AFFIRMED.
