                 IN THE SUPREME COURT OF IOWA
                           No. 146 / 04-0404

                           Filed May 26, 2006


STATE OF IOWA,

      Appellee,

vs.

ROOSEVELT (NMN) MATLOCK,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County, Jon C.

Fister, Judge.



      Defendant appeals from conviction for willful injury and going armed

with intent. The court of appeals affirmed his convictions, but ordered

resentencing. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND REMANDED.



      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith,

Assistant County Attorney, for appellee.
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CARTER, Justice.

      Defendant, Roosevelt Matlock, appeals from his convictions for willful

injury in violation of Iowa Code section 708.4(1) (2003) and going armed

with intent in violation of Iowa Code section 708.8.         Both convictions

involved being a habitual offender pursuant to Iowa Code section 902.8.

The court of appeals affirmed defendant’s convictions, but ordered

resentencing because, in its view, the sentencing judge had improperly

considered an appellate reversal of defendant’s civil commitment. After

reviewing the record and considering the arguments presented, we disagree

with the reasoning of the court of appeals and the district court with respect

to an evidentiary issue that has been presented. We vacate the decision of

the court of appeals and reverse the judgment of the district court with

respect to both convictions. The case is remanded to that court for further

proceedings consistent with this opinion.

      The offenses with which defendant was charged grew out of a

confrontation between him and Joel Riley that began inside the Uptown

Lounge, located in Waterloo, and continued outside that establishment.

The State’s version of the events, as testified to by Riley and his friends, was

as follows. Defendant had repeatedly made incoherent remarks to Riley
inside the bar and bumped into him with his body. When defendant, who

was wearing a purple-violet suit, walked outside the lounge, Riley followed

him and accused defendant of stalking him. He specifically inquired of

defendant, “Why [are] you [stalking] me with that purple ass suit on?” In

addition, Riley referred to defendant as “Barney,” a purple dinosaur in a

children’s television program.

      A friend of Riley named Jay Jordan appeared on the scene and

attempted to tug Riley away from defendant. Jordan testified that he had

successfully moved Riley away from defendant when the latter suddenly
                                       3

moved close to them and raised and lowered his arm so as to inflict cuts on

Riley’s head and body. Neither Riley nor Jordan was able to see the weapon

that was used to inflict those injuries. Riley experienced a very substantial

quantity of blood spilling from his cheek as well as from cuts on his

forehead, right forearm, and left wrist. Examination revealed that his cheek

had been sliced from his ear to his mouth, and the cut went all the way

through, revealing his teeth through the resulting opening.

      Defendant’s version of the events differed from the State’s version.

Defendant testified that he had to separate a friend from a confrontation

with Riley inside the bar. Following this the friend went to the other side of

the bar, and Riley kept making threats toward that person and toward

defendant.   Defendant testified that he told Riley that his ranting was

annoying persons in the bar and that he should continue his discussion

outside. Defendant left the bar and was followed by Riley. Once outside the

bar, defendant claims to have backed up against the wall and listened to

more of Riley’s threats against him and his friend. According to defendant,

Riley reached in his pocket and lunged at him, causing him to fear for his

safety. He claims he defended himself by striking out at Riley with a beer

glass, which broke on contact with Riley’s face. He continued to strike Riley

with the broken glass.

      When defendant was later apprehended by police, no weapon was

located. At his trial, defendant testified that he had inflicted the injuries on

Riley with a broken beer glass. A physician who performed surgery on

Riley’s face testified that he believed Riley’s wounds were made with a knife

or a box cutter. In his opinion, the clean edges of the cuts negated the

likelihood that they were inflicted by broken glass. Defendant claimed

justification, testifying at trial that Riley had told him inside the Uptown

Lounge that he was a Vice Lord and that he intended to cause harm to
                                     4

defendant and a friend of defendant who was also in the bar. He stated that

Riley was backed up by two or three friends. The jury convicted defendant

on both counts. Additional facts will be discussed in our consideration of

the legal issues presented.

      I. Issues on Appeal.

      The issues raised by defendant on appeal are whether (1) the district

court erred in admitting evidence of other criminal acts by defendant, (2)

defendant’s trial counsel was ineffective for failure to object to the

prosecutor’s closing argument, and (3) the district court improperly

considered the appellate reversal of defendant’s civil commitment in the

process of sentencing him. The court of appeals affirmed the district court’s

action with respect to the first two issues, but agreed with defendant’s

contention on the third issue and ordered resentencing. We granted further

review. We need only consider the first issue.

      II. Evidence of Other Crimes.

      A. Scope of review.     We review district court rulings admitting

evidence of other bad acts for an abuse of discretion and will reverse only

when the rulings are untenable under the substantive limitations of the

rules to be applied. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996); State
v. Knox, 536 N.W.2d 735, 738 (Iowa 1995).

      B. Preservation of error. Prior to trial, the State moved to introduce

evidence of other bad acts by defendant notwithstanding the limitations

contained in Iowa Rule of Evidence 5.404(b). The defendant objected to the

use of this evidence, arguing that it was an attempt to convict defendant

based upon his propensity to commit bad acts and was not independently

relevant to resolve some legitimate issue in the case. To the extent that the

State urged the evidence was relevant to show the required specific intent

for the crimes alleged, defendant asserted that the evidence could only show
                                        5

that intent by improper resort to defendant’s propensity to act in a

particular manner. The district court ruled that the prior bad-acts evidence

was admissible. The State concedes that error has been preserved on

defendant’s challenge to that ruling.

      C. The bad-acts evidence sought to be excluded. The evidence sought

to be excluded by defendant involved two incidents. The first occurred

twelve days prior to the offenses that led to the present appeal. Defendant’s

niece and one Moses Childs had been involved in an argument over a

parking place. Defendant advised Childs that he did not approve of the way

that Childs had spoken to his niece. The defendant and Childs argued, and

defendant struck Childs in the side with a sharp object, cutting him. The

wound was approximately one-inch deep and seven inches in length. A

medical expert determined that it was caused by a sharp instrument such

as a knife or box cutter. In addition to allowing this evidence, the district

court permitted Childs’ sister to testify that she heard defendant state two

hours after the stabbing incident that he meant to kill Childs.

      The second incident occurred later on the same day as the offenses at

issue in the present appeal. The offenses on which defendant’s present

convictions were based allegedly occurred at approximately 1 a.m. At 1
p.m. on that date defendant was in a bar with Wayne Winters. Winters

challenged defendant over comments he had made concerning Winters’ wife.

Defendant removed a box cutter from his pocket. A bystander named

Frederick Burnside intervened and wrestled defendant to the floor. In the

ensuing scuffle, defendant cut Burnside in the back, chased him from the

bar, and stated that he was going to kill him. In allowing evidence of these

two incidents, the district court ruled that the bad acts were relevant to the

issues of motive, intent, opportunity, and knowledge, and the jury was
                                     6

instructed that they could consider the evidence as it pertained to those

matters.

      In State v. Sullivan, 679 N.W.2d 19 (Iowa 2004), we considered the use

of bad-acts evidence to show specific intent. We discussed and agreed with

the views of two commentators who considered the use of such evidence for

this purpose to be an unwarranted deviation from the evidentiary rule

excluding evidence of propensity to commit bad acts. Sullivan, 679 N.W.2d

at 26-27. The commentators whose conclusions were discussed in Sullivan

based their conclusions on the fact that, in most instances, the only way

the intent element of the crime on trial may be linked to prior unrelated bad

acts is to assume the accuser’s propensity to entertain the same intent in

similar situations. Id. at 26 (quoting Edward J. Imwinkelried, The Use of

Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The

Doctrines Which Threatened to Engulf the Character Evidence Prohibition, 51

Ohio St. L.J. 575, 583-84 (1990) [hereinafter Imwinkelried]).        Similar

considerations are expressed in Abraham P. Ordover, Balancing the

Presumption of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38

Emory L.J. 135, 158 (1989). Both of these commentators discuss Federal

Rule of Evidence 404(b), which is the equivalent of Iowa Rule of Evidence

5.404(b).

      We concluded in Sullivan that the use of propensity evidence to show

intent is contrary to the purposes of rule 5.404(b). Id. at 29. We held (and

in so doing overruled existing precedent) that other bad acts may only be

allowed as evidence of the required mens rea for the crime charged if the

acts are probative of that intent in a manner other than a propensity of the

accused to act in a particular manner. Id. at 28.

      1. The willful injury charge. Under the district court’s instructions,

the elements of the willful injury charge required the State to prove that
                                     7

defendant “intended to cause a serious injury to Joel Riley.” We are unable

to ascertain any theory under which the other bad-acts evidence allowed by

the district court tended to show defendant’s intent in the case on trial

other than by resort to his propensity to harm others. This places the bad-

acts evidence outside the boundaries of what is now allowed under Sullivan.

      With one exception, the State has suggested no alternative to

propensity as a probative theory for the admission of this evidence to show

specific intent. The one theory that the State does propound is labeled as

“the doctrine of objective chances.” It was relied on by the court of appeals

in approving the use of the bad-acts evidence in the present case. As

described by the court of appeals, this doctrine provides that an accused’s

involvement in several similar acts that on their face appear to have been

done with requisite criminal intent gives rise to an intermediate inference

that it is objectively improbable his involvement in so many similar

incidents was in fact innocent.        The doctrine is discussed in the

Imwinkelried article at 595. An examination of the doctrine as described by

that commentator suggests that it is based on the improbability that all

potentially criminal acts in a series of similar actions are innocent.

Imwinkelried states the proposition as follows (as applied to three acts):

      It flies in the face of common sense to assume that on all three
      occasions, the accused had an innocent state of mind; a
      coincidence of three, inadvertent, similar acts is objectively
      unlikely.

Id. at 595-96. We are reluctant to accept this doctrine as an alternative

theory for avoiding the limitations established in Sullivan.

      As described by Imwinkelried and alluded to by the State in the

present case, the doctrine of objective chances is based on the improbability

that all acts in a series of acts are innocent. The doctrine does not sustain

the conclusion that none of the acts in the series of acts were done without
                                              8

the required criminal intent nor does it assist a trier of fact in determining

in which instances that might be so or is not so. Resort to the doctrine of

objective chances is particularly inappropriate with respect to the willful-

injury charge in the present case where a defense of justification was

presented as to one of the bad acts and not shown to have been involved in

the others.       This circumstance makes the case on trial sufficiently

dissimilar from the others that the doctrine cannot be applied according to

its own terms.

       The district court also concluded that the other bad-acts evidence was

relevant to show motive, opportunity, and knowledge. We disagree. All

three of the stabbings in which defendant was involved grew out of verbal

altercations with the victim. Each of these situations was different from the

others and sheds no light on the motive in the other stabbings. Nor was the

challenged evidence needed to show a particular knowledge on defendant’s

part because that was not a matter required to be established.

       Opportunity, as viewed by the district court, had reference to

defendant’s access to a sharp cutting instrument.                    In considering the

willful-injury charge, it made no difference whether defendant assaulted

Riley with a box cutter or a broken beer glass.                   His defense in either
instance depended on a claim of justification.1 The other bad-acts evidence
was not admissible for any purpose on the willful-injury charge.

       2. The going-armed-with-intent charge. The trial of the going-armed-

with-intent charge presented a factual issue concerning whether defendant

       1Under    the district court’s instructions, the intent element involved in the jury’s
consideration of the justification defense required the State to prove that defendant could
not have a reasonable belief that the force he used was necessary to avoid imminent danger
of death or serious injury. Because this is an entirely objective standard, it did not involve
proof of a specific intent on defendant’s part but, rather, was dependent on the facts of the
altercation as viewed by the jury. Consequently, the affirmative defense provides no issue
concerning defendant’s intent for which evidence of other bad acts might serve as evidence
under rule 5.404(b).
                                       9

was armed with a sharp cutting instrument. The district court instructed

the jury that defendant must be shown to have armed himself with a

cutting device similar to a knife, box cutter, or razor. We conclude that the

evidence of the other stabbing incidents was relevant to show defendant’s

access to a sharp cutting instrument. In weighing the probative value of the

evidence of the other bad acts against the danger of unfair prejudice, we

must consider the actual need for the evidence in light of the issues and the

other evidence available and weigh this against the extent to which the

evidence might improperly influence the jury. State v. White, 668 N.W.2d

850, 855 (Iowa 2003). We are satisfied that the State’s need for evidence to

show defendant’s possession of a sharp cutting instrument was sufficiently

great that the probative value of the circumstances surrounding the other

two stabbing incidents outweighs the prejudicial effect of that evidence.

      Nevertheless, the district court erred in permitting the jury to

consider evidence of the other bad acts for purposes of establishing the

specific intent required for the crime.          Under the district court’s

instructions, the State was required to establish that defendant armed

himself with a cutting instrument with intent to use that device against

another person without justification. Our cases suggest that with respect to
this crime that intent must be present at the time the accused arms himself

and goes forth to harm another. State v. Ray, 516 N.W.2d 863, 865-66

(Iowa 1994); State v. Slayton, 417 N.W.2d 432, 434-35 (Iowa 1987); see also

State v. Buchanan, 207 N.W.2d 784, 786 (Iowa 1973) (decided under prior

law). We are convinced that the use of the other bad-acts evidence to show

that intent was a resort to defendant’s propensity to commit similar acts,

contrary to the limitation laid down in Sullivan. The district court’s limiting

instruction failed to restrict the jury’s consideration of the bad-acts evidence
                                              10

for that improper purpose. 2 This was sufficiently prejudicial to require

reversal of the going-armed-with-intent conviction. On retrial, if evidence of

the other stabbing incidents is allowed to show defendant’s access to a

sharp cutting instrument, the jury should be instructed that this evidence

may be considered for that purpose only on the going-armed-with-intent

charge and for no purpose on the willful-injury charge.

       We have considered all issues presented and conclude that the

judgments of conviction on both charges must be reversed and the case

remanded for a new trial.

       DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED.




       2A  record was made at the suppression hearing challenging the admission of this
evidence to show intent. The defendant asserted that the evidence was not admissible for
that purpose. The district court ruled otherwise and stated in its ruling that the evidence
would be admitted for purposes of showing motive, intent, knowledge, and opportunity.
The jury was so instructed. Having made his record on these points at the suppression
hearing, defendant was not required to object to the court’s limiting instruction. The court
had already ruled on the basis for the instruction, see James v. Burlington Northern, Inc.,
587 N.W.2d 462, 464 (Iowa 1998) (failure to object to instructions is not an abandonment
of position taken on pretrial rulings that form the basis for instructions); Florke v. Peterson,
245 Iowa 1031, 1036, 65 N.W.2d 372, 375 (1954) (same), and under the circumstances,
defendant could well have viewed some limiting instruction as more favorable than no
limiting instruction.
