Amended July 20, 2016 State of Iowa v. Toby Ryan Richards

IN THE SUPREME COURT OF IOWA
No. 14–0019

Filed May 6, 2016

Amended July 20, 2016

STATE OF IOWA,

Appellee,

vs.

TOBY RYAN RICHARDS,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, Mark R.

Fowler, District Associate Judge.

A defendant in a criminal case seeks further review after the court

of appeals affirmed his conviction for domestic abuse assault, contending

the district court improperly admitted evidence of prior altercations in

violation of Iowa Rule of Evidence 5.404(b). COURT OF APPEALS
DECISION AND DISTRICT COURT JUDGMENT AFFIRMED.

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

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Alexandra

Link (until withdrawal), Assistant Attorneys General, Michael J. Walton,

County Attorney, and Elizabeth Cervantes, Assistant County Attorney,

for appellee.
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HECHT, Justice.

On trial for domestic abuse assault, Toby Richards asserted he

acted in self-defense after his then-girlfriend, Trish Poell, instigated the

confrontation. The State offered evidence about previous incidents

during which Richards allegedly slapped Poell, struck her neck with his

cell phone, and threw her against a refrigerator. While these other acts

could be viewed as textbook examples of propensity evidence, the State

asserted they were admissible because they were probative of Richards’s

intent in committing the charged assault. See Iowa R. Evid. 5.404(b)

(providing evidence of other acts is inadmissible to prove conformity with

character, but may “be admissible for other purposes, such as proof of

. . . intent”).

Richards objected, contending that because he had asserted self-

defense, his intent was not genuinely at issue, so the real purpose of the

other-acts testimony was to establish his violent propensity and suggest

that if he had assaulted Poell before, he must have done so again.

Additionally, Richards contended the evidence was unfairly prejudicial.

The district court admitted the evidence and the jury ultimately

convicted Richards of domestic abuse assault. The court of appeals

affirmed his conviction because it concluded the district court properly

admitted the other acts evidence. On further review, we find no abuse of

discretion in the district court’s ruling. We therefore affirm.

I. Background Facts & Proceedings.

On February 2, 2013, Poell was visiting Richards at his mother’s

house in Davenport, where Richards lived. Both Poell and Richards were

napping, Poell in bed and Richards on a couch in the same room.

Beyond those facts, however, accounts of the day’s events diverge

significantly.
 3

A. Poell’s Testimony. According to Poell, she awoke to discover a

message on her cell phone from another woman—the mother of

Richards’s daughter—that stated, “[I]f you knew what your man does

when you’re not around.” Poell responded that she was always around,

and the other woman replied, “[Y]ou weren’t Wednesday night when he

was in my bed.”

Upset at these allegations of infidelity, Poell approached Richards,

who was still sleeping on the couch, and “tapped him on his shoulder” to

wake him up and tell him the relationship was over. When Richards

asked why, Poell told him about the messages from the other woman and

revealed she had also discovered a message from Richards to the other

woman asking her to call him. Richards tried to explain the messages,

but Poell did not want to listen. Richards pushed Poell onto the bed and

lay on top of her, holding her down for a length of time Poell believed was

at least five minutes.

Eventually Richards released Poell, and she began to retrieve her

coat and car keys. Richards implored Poell not to leave because his

children referred to her as their mom. Poell responded, “[F]uck [them]. I

don’t care. I want to go. It’s over.” After that remark, Richards began

punching Poell’s head, face, and arms. Poell threw her hands up to

protect her face and tried to push Richards off her. Although the

altercation continued for some time, eventually Richards “just stopped

hitting.” At that point, Poell quickly left the house, locked herself in her

car, and waited for police to arrive.

B. Richards’s Testimony. Richards contended Poell was the

aggressor. He disputed that Poell woke him up by tapping his shoulder.

Instead, he asserted, Poell punched his forehead and then immediately

began to use her hands and fists to hit him, including clawing at
 4

Richards with her fingernails. Poell’s physical contact “wasn’t really

hurting” Richards, but he eventually “got tired of it,” so he grabbed

Poell’s wrists as he tried to explain any communication between him and

the other woman was innocuous.

The message from him to the other woman asking her to call him,

Richards explained, was a necessary communication because it involved

a parenting question about Richards’s daughter, but it angered Poell

because she had arbitrarily forbidden Richards from contacting the other

woman for any reason. When Poell discovered the message, she simply

refused to accept Richards’s parenting question as a valid reason for the

communication even though the message itself did not imply Richards

had been unfaithful to Poell. Richards did not testify about the message

stating he was in the other woman’s bed.

As the physical altercation continued, the parties fell onto the bed.

Eventually Richards’s mother intervened and convinced Richards to

release his hold on Poell. Richards’s mother then sat with Poell on the

couch and explained to Poell that any communication between Richards

and the other woman was only about Richards’s daughter. When Poell

responded with profanity toward Richards’s children, Richards decided

he had heard enough. He grabbed Poell’s wrists again and told her, “Get

the F out of my house. . . . I don’t want nothing to do with you

anymore.” He pulled Poell off the couch into a standing position and

followed her out the door as she left.

C. Other Testimony. A few other witnesses testified, including

Richards’s mother and both Davenport police officers who responded to a

911 call about the dispute between Richards and Poell.

Officer Hagedorn testified that when he arrived, he spoke with

Richards. Richards admitted to Officer Hagedorn that he had shoved
 5

Poell and pushed her down on the bed to keep her from continuing to hit

him, but insisted he had not struck her. Officer Hagedorn observed

some scratches on Richards’s chest and face, which were unquestionably

injuries but, Officer Hagedorn stated, were not necessarily consistent

with absorbing a punch. Officer Welch was working with Officer

Hagedorn that day and, upon arrival, spoke with Poell. He noticed Poell

was bleeding and had fresh facial injuries.

After conversing with Richards, Poell, and Richards’s mother, the

officers arrested Richards, sent Poell home, and dispatched an evidence

technician to her house to photograph her injuries. The photos, taken

about forty-five minutes after the altercation, show Poell with bruises on

her hands and nose, a swollen cheek, scratches on her face, and blood

running down her nose. At the police station, officers also photographed

Richards, and those photos corroborate the officers’ testimony as to the

extent of his injuries. Richards suggested all of Poell’s injuries, including

bruises on her hands and face, were self-inflicted because “[s]he was

going pretty wild with her hands,” or may have been preexisting bruises

from Poell’s cleaning business because “[s]he’s a very physical worker.”

Richards’s mother also provided her recollection of the incident.

Upon hearing some screaming, she ran into the room and saw Richards

and Poell careening onto the bed, with Poell striking Richards in the face,

chest, and neck. Although Richards and Poell stopped physically

scuffling for a brief time, they kept arguing, and eventually Richards told

Poell, “[J]ust leave.” Richards’s mother did say she saw Richards striking

Poell “a little bit,” but did not believe he was doing any more than was

necessary to stop Poell from hitting him.

D. Legal Proceedings. The State charged Richards with domestic

abuse assault causing bodily injury. See Iowa Code § 236.2(2)(d) (2013);
 6

id. §§ 708.1(1), .2A(1), .2A(2)(b). Richards filed a notice of intent to assert

self-defense. He also filed a motion in limine seeking to exclude evidence

about his criminal record or previous contacts with police. The State

resisted the motion and additionally asserted “past uncharged instances

of domestic violence that the Defendant has perpetrated against the

victim in this case” were admissible to prove Richards’s intent. See State

v. Taylor, 689 N.W.2d 116, 126 (Iowa 2004) (concluding other acts

evidence was admissible to prove intent because a “defendant’s prior

conduct directed to the victim of a crime, whether loving or violent, . . . is

highly probative of the defendant’s probable motivation and intent in

subsequent situations”). Richards responded that evidence of uncharged

incidents is inadmissible propensity evidence under rule 5.404(b). The

court reserved ruling on the matter to allow Richards to depose Poell and

determine the details of the uncharged incidents the State intended to

present.

In her deposition, Poell alleged that in four separate incidents

within the previous year, Richards had slapped her face, thrown his cell

phone at her neck, angrily argued with other members of her family, and

thrown her against a refrigerator. In response to Richards’s renewed

motion to exclude the other acts evidence, the State contended

Richards’s decision to assert self-defense brought intent into dispute,

and so the evidence of other acts was admissible to prove Richards’s

intent—especially because domestic violence can be cyclical and juries

should see a full picture of the parties’ relationship, not a sanitized

version. Furthermore, the State asserted the evidence was admissible to

rebut Richards’s self-defense theory.

The district court ruled the evidence admissible and overruled

Richards’s renewed objections at trial. However, the court curtailed the
 7

scope of the other acts evidence to avoid the danger of allowing

inflammatory emotional testimony that might prejudice the jury and

prompt it to decide the case on an improper emotional basis. See State

v. Putman, 848 N.W.2d 1, 15 (Iowa 2014) (“[C]oncerns about prejudice to

a defendant might be eased by narrowing the scope of the prior-bad-acts

evidence presented to the jury.”). Poell testified consistent with her

deposition testimony. When the court submitted the case to the jury, the

jury instructions included a limiting instruction specifically cautioning

that Richards was “not on trial for those [other] acts” and that the jury

was to consider the evidence “only . . . to show motive or intent.”

The jury found Richards guilty of domestic abuse assault causing

bodily injury. Richards appealed, and we transferred the case to the

court of appeals. The court of appeals concluded the district court did

not abuse its discretion in admitting evidence of three prior altercations

between Richards and Poell. The court further concluded evidence of a

prior instance of conflict between Richards and members of Poell’s family

was not relevant but the admission of that evidence was harmless error.

Richards sought further review, and we granted his application.

II. Scope of Review.

“In considering whether the trial court properly admitted prior-

bad-acts evidence, we apply an abuse-of-discretion standard of review.”

Taylor, 689 N.W.2d at 124. The abuse-of-discretion standard means “we

give a great deal of leeway to the trial judge who must make [a] judgment

call.” State v. Newell, 710 N.W.2d 6, 20–21 (Iowa 2006). “If an abuse of

discretion occurred, reversal will not be warranted if error was harmless.”

State v. Reynolds, 765 N.W.2d 283, 288 (Iowa 2009).
 8

III. Analysis.

In State v. Sullivan, we described the three-step other-acts analysis

we undertake in determining whether proffered evidence is admissible

under rule 5.404(b). 679 N.W.2d 19, 25 (Iowa 2004). The three steps are

(1) “the evidence must be relevant and material to a legitimate issue in

the case other than a general propensity to commit wrongful acts”;

(2) “there must be clear proof the individual against whom the evidence is

offered committed the bad act or crime”; and (3) if the first two prongs

are satisfied, “the court must then decide if [the evidence’s] probative

value is substantially outweighed by the danger of unfair prejudice to the

defendant.” Id.

Applying that test here, we conclude the evidence of three

instances of Richards’s other acts was relevant and material to a

legitimate issue in this case notwithstanding the justification defense.

Furthermore, we conclude Poell’s testimony is sufficiently clear proof of

the other acts, and we determine any prejudice arising from the

admission of the evidence did not substantially outweigh its probative

value. 1

1The court of appeals characterized the third prong as requiring the evidence to
be “substantially more probative than prejudicial.” While the difference is subtle,
phrasing the standard this way creates a different analytical framework for admissibility
than is required under rule 5.404(b). Cf. Iowa R. Evid. 5.609(b) (excluding evidence of
convictions more than ten years old “unless the court determines . . . that the probative
value of the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect”).
We have sometimes expressed the test the way the court of appeals did in this
case. See State v. Barnes, 791 N.W.2d 817, 825 (Iowa 2010) (“[A] determination must
be made as to whether the probative value of the evidence on the issue for which it is
offered substantially outweighs the danger of unfair prejudice to the defendant.”); State
v. Duncan, 710 N.W.2d 34, 40 (Iowa 2006) (“[D]oes the probative value . . . substantially
outweigh the danger of unfair prejudice pursuant to the balancing test under Iowa Rule
of Evidence 5.403?”). In the vast majority of our cases analyzing evidence under rule
5.404(b), however, we “balance the evidence’s probative value with the danger of unfair
prejudice under Iowa Rule of Evidence 5.403” and determine whether the prejudice
 9

A. Taylor and Other Relevant Cases. Taylor is the foundation of

the State’s argument and of the district court’s decision to admit the

other acts evidence in this case. Taylor also involved domestic abuse

assault causing bodily injury. 689 N.W.2d at 120. Taylor was under a

protective order prohibiting him from contacting his wife. Id. However,

he followed his wife, who was a passenger in a friend’s van, into a church

parking lot, “got out of his car, and began pounding on [the] vehicle,

yelling” and swearing at his wife. Id. at 120–21. After returning to his

own car and positioning it so that it blocked the van from driving away,

he jumped on the van’s hood, cracked the windshield, and approached

the passenger side window to pound on it. Id. at 121. The window broke

and Taylor “yanked his wife . . . out through the broken window” despite

some difficulty maneuvering her through her buckled seatbelt. Id.

Taylor’s defense to the domestic abuse assault charge “was that he

. . . only wanted to talk to his wife” and so he lacked intent to injure or

cause fear. See id. at 125. During trial, the court admitted evidence of

two previous altercations—one in which Taylor shoved his wife into a

door and one in which he threatened to kill himself in front of her after

punching a hole in the kitchen door. Id. at 122–23 & n.3. “The court

___________________________
substantially outweighs probative value. Reynolds, 765 N.W.2d at 290; see, e.g.,
Putman, 848 N.W.2d at 9–10, 14–15; State v. Elliott, 806 N.W.2d 660, 675 (Iowa 2011);
State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010); State v. Cox, 781 N.W.2d 757, 761
(Iowa 2010); State v. Shanahan, 712 N.W.2d 121, 137 (Iowa 2006); Newell, 710 N.W.2d
at 20; State v. Henderson, 696 N.W.2d 5, 11 (Iowa 2005); Taylor, 689 N.W.2d at 124;
Sullivan, 679 N.W.2d at 25; State v. Rodriquez, 636 N.W.2d 234, 239–40 (Iowa 2001);
State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001); State v. Castaneda, 621 N.W.2d
435, 440 (Iowa 2001); State v. Barrett, 401 N.W.2d 184, 187 n.2 (Iowa 1987).
Despite the language the court of appeals used here, it ultimately reached the
correct result. Nonetheless, we take this opportunity to clarify that the proper
balancing in other-acts cases is the same test described in rule 5.403, and our language
in Barnes and Duncan suggesting otherwise was simply imprecise.
 10

admitted this evidence on the issue of intent” over Taylor’s objection

under rule 5.404(b). Id. at 123.

We concluded Taylor’s failure-of-proof defense placed intent at

issue. See id. at 124–25. We further explained the importance of prior

acts in the domestic violence context:

[T]here 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. In other words, the defendant’s prior
conduct directed to the victim of a crime, whether loving or
violent, reveals the emotional relationship between the
defendant and the victim and is highly probative of the
defendant’s probable motivation and intent in subsequent
situations.

Id. at 125. Put another way, “The relationship between the defendant

and the victim, especially when marked by domestic violence, sets the

stage for their later interaction.” Id. at 128 n.6.

Because there was conflicting testimony among witnesses about

the incident, we concluded “[e]vidence reflecting the nature of the

relationship between the defendant and the victim would be crucial to a

fact finder resolving the inconsistencies.” Id. at 127; see id. at 129

(“[T]he witnesses’ accounts of the event were remarkably at odds.

Therefore, there was clearly a need for evidence that would clarify the

circumstances of the defendant’s conduct and thereby shed light on his

intent.”). The other acts, “while certainly illustrative of a propensity to

use violence, also reflect[ed Taylor’s] emotional relationship with his wife,

which . . . [wa]s a circumstance relevant to his motive and intent on the

day in question.” Id. at 128; see also State v. Kellogg, 263 N.W.2d 539,

542 (Iowa 1978) (considering it “firmly established in our law” that when

a defendant is charged with committing a crime against his or her
 11

spouse, other acts regarding the spouse are admissible “as bearing on

the defendant’s quo animo”); State v. O’Donnell, 176 Iowa 337, 352, 157

N.W. 870, 875–76 (1916) (“[L]ong-existing discord and treatment were

competent to show the mental attitude of the husband and wife . . . on

the date of the alleged crime . . . .”).

Taylor is not our only case involving admissibility of other acts of

domestic violence under rule 5.404(b), however. In State v. Rodriquez,

the jury heard evidence “about prior occasions of abuse” by a defendant

charged with attempted murder, willful injury, kidnapping, and assault

against his girlfriend. 636 N.W.2d 234, 238 (Iowa 2001). We concluded

evidence of prior assaults was relevant to the defendant’s intent because

that evidence—which detailed “prior intentional, violent acts towards the

victim”—made it “more probable that [the defendant] intended to cause

[the victim] serious injury” on the day of the assault for which he was

being tried. Id. at 242. In balancing probative value against prejudice,

we noted the evidence was highly probative because only the defendant

and the victim were present, so “the need for other evidence . . . was

substantial” given “the ‘he said/she said’ nature of th[e] disagreement.”

Id. Furthermore, the state minimized possible prejudice because it “did

not elicit great detail about the prior assaults and spent a relatively small

amount of time on this line of questioning.” Id. at 243. We ruled the

district court correctly admitted the evidence. Id. at 243–44.

Later, in Newell, when the defendant had called the victim

derogatory names, head-butted her, and inflicted bruises on her arms,

we concluded those other acts were relevant and admissible in

determining malice aforethought in a murder prosecution. 710 N.W.2d
 12

at 21. Similarly, in State v. Richards, 2 we concluded evidence about the

defendant pushing and shoving the victim and putting a cane to her neck

was “relevant to show [the defendant] had been angry enough at [the

victim] in the recent past to commit acts of violence against her.” 809

N.W.2d 80, 93–94 (Iowa 2012). We confronted the possible propensity

inference and concluded the other acts evidence established “not that

Richards was a violent man generally, but rather that he was explosive

toward [the victim] specifically.” Id. at 94; accord State v. Jones, 955

A.2d 1190, 1196 (Vt. 2008) (agreeing with Taylor and concluding when

“prior bad acts were perpetrated against the same victim, the evidence

serves essentially the same purpose as an admission of intent to harm

that particular victim, rather than establishing defendant’s general

propensity for violence”). Together with Taylor, these cases form the

platform from which we dive into the three-pronged Sullivan analysis.

B. Legitimate Disputed Issue. Sullivan’s emphasis on the

question whether the other acts evidence is relevant to a “legitimate

issue” is significant. 679 N.W.2d at 25. That emphasis is significant

because “the jury is less likely to concentrate on propensity if there is a

bona fide dispute on mens rea.” State v. Henderson, 696 N.W.2d 5, 16

(Iowa 2005) (Lavorato, C.J., concurring specially). But if there is no real

dispute, “the only relevancy of such evidence is to show the defendant’s

criminal disposition or propensity to commit the very crime for which the

defendant is on trial.” Id.; see also Thompson v. United States, 546 A.2d

414, 422 (D.C. 1988) (“Where intent is merely a formal issue derived from

2The defendant in this case is a different Richards, but the earlier Richards case

involved a similar issue concerning the admissibility of prior acts of domestic violence.
 13

the elements of the offense, and is not being controverted, the argument

for receiving [other acts] evidence falters.”).

Of course, most crimes include a mens rea element, and admitting

other acts evidence “whenever the prosecutor offers uncharged

misconduct to support an ultimate inference of mental intent . . . creates

a risk of prejudice to the accused.” Sullivan, 679 N.W.2d at 27; see also

Thompson, 546 A.2d at 421 (“If the ‘intent exception’ warranted

admission of evidence of a similar crime simply to prove the intent

element of the offense on trial, the exception would swallow the rule.”).

Thus, we require prosecutors to “articulate a valid, noncharacter theory

of admissibility” in order to satisfy the first prong (i.e., relevance) of the

other-acts test. Sullivan, 679 N.W.2d at 28.

Intent is one valid, noncharacter theory of admissibility. See Iowa

R. Evid. 5.404(b). However, the State may only utilize other acts

evidence to prove intent if intent is legitimately disputed. In our previous

cases involving other acts of domestic violence, each of the defendants

directly disputed intent. For example, the defendant in Rodriquez

disputed the intent elements of murder and kidnapping. 636 N.W.2d at

242. The defendant in Newell “portrayed [the] death as accidental.” 710

N.W.2d at 22. The defendants in those cases did not assert self-defense

as Richards does here. Thus, we must determine if Richards’s assertion

of self-defense eliminated any legitimate dispute about his intent. If it

did, the other acts evidence here fails the relevance prong of the Sullivan

test.

When a defendant raises the issue of self-defense,

the burden rests upon the State to prove—beyond a
reasonable doubt—that the alleged justification did not exist.
The State can meet its burden by proving any of the
following facts:
 14
1. The defendant initiated or continued the incident
resulting in injury; or

2. The defendant did not believe he was in imminent
danger of death or injury and that the use of force was not
necessary to save him; or

3. The defendant had no reasonable grounds for such
belief; or

4. The force used was unreasonable.

State v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999) (citation omitted).

We have not directly confronted the issue of whether a defendant

who asserts self-defense concedes the intent element of a crime, but we

have commented in dicta on the question and a concurring opinion has

also explored it. For example, in State v. Carey, although we were not

considering a question of admissibility of other acts evidence under rule

5.404(b) and not deciding whether a defendant’s assertion of self-defense

eliminated the State’s burden to prove the element of intent, we

characterized the effect of the defendant’s justification defense as

admitting “every material element of the crimes with which he was

charged; the State only bore the burden of proving [he] was not justified

in his actions.” 709 N.W.2d 547, 560 (Iowa 2006); see also Douglas v.

People, 969 P.2d 1201, 1206–07 (Colo. 1998) (en banc) (acknowledging a

self-defense claim “in effect” admits the mens rea of the crime). Thus,

one conception of self-defense is that it effectively admits the elements of

the crime, thereby removing intent entirely from dispute.

Closer to the issue in this case, in State v. Matlock, we considered

whether a defendant’s other violent acts were admissible to prove the

intent element of a willful injury charge. 715 N.W.2d 1, 4–5 (Iowa 2006).

Matlock defended against the charges by claiming justification. See id. at

3. We addressed the effect of the justification defense in a footnote:
 15
[T]he 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).

Id. at 6 n.1 (emphasis added).

Finally, a concurring opinion in Reynolds asserted intent is not

legitimately disputed in a self-defense case:

Reynolds admits he assaulted the victim, but raises the
defense of self-defense. . . .

In this case, the only legitimate factual issue in
dispute was who initiated the incident that resulted in injury
to the victim. None of the other-acts evidence the State
attempted to introduce . . . is relevant to who initiated the
incident.

765 N.W.2d at 295 (Wiggins, J., specially concurring) (citation omitted).

Relatedly, we have concluded that, irrespective of intent, other acts

evidence is admissible to rebut a self-defense theory. State v. Shanahan,

712 N.W.2d 121, 137–38 (Iowa 2006). Although the other acts in

Shanahan occurred after the alleged crime and were not acts of domestic

violence, they were admissible to address a murder defendant’s self-

defense theory and show her actions were “inconsistent with a claim of

self-defense.” Id. at 137.

Courts in other jurisdictions have also addressed the interplay

between self-defense and the rule prohibiting evidence of other assaultive

acts. For example, some courts conclude, similar to Shanahan, that

other acts are admissible to rebut defendants’ self-defense claims—

usually by proving that the defendant could not reasonably have feared
 16

the victim or that he or she acted inconsistently with a reactionary

defensive outburst. See, e.g., United States v. Haukaas, 172 F.3d 542,

544 (8th Cir. 1999) (“[T]he government was entitled to introduce the Rule

404(b) evidence . . . to rebut the claim of self-defense.”); Yusem v. People,

210 P.3d 458, 464 (Colo. 2009) (en banc) (“[Rule] 404(b) evidence can

properly be used to rebut a claim of self-defense.”); Collins v. State, 966

N.E.2d 96, 105 (Ind. Ct. App. 2012) (“Where a defendant claims self-

defense, the State may use evidence of the defendant’s prior misconduct

to disprove that argument that the victim was the initial aggressor.”);

State v. Dukette, 761 A.2d 442, 446 (N.H. 2000) (“By filing a notice of

self-defense, the defendant has placed her state of mind at issue.”);

Robinson v. State, 844 S.W.2d 925, 929 (Tex. App. 1992) (concluding

other acts “may be used to rebut a defensive theory, such as self-defense,

even though this purpose is not mentioned” in the Texas equivalent to

rule 5.404(b)); see also Lisa A. Linsky, Use of Domestic Violence History

Evidence in the Criminal Prosecution: A Common Sense Approach, 16 Pace

L. Rev. 73, 86 (1995) (considering other acts “particularly effective in

refuting the defense of justification”).

Dukette provides a thorough roadmap of the rationale for admitting

other acts evidence in response to a justification defense. See Dukette,

761 A.2d at 446–47. The case involved murder, not merely assault, but

the defendant and victim were in a romantic relationship. See id. at 444.

The New Hampshire Supreme Court ruled evidence of previous assaults

against the victim were admissible. Id. at 447. The other acts were

relevant to a disputed issue—intent, which the defendant put at issue by

raising self-defense. Id. at 446. There was a sufficient logical connection

between the other acts and the defendant’s state of mind because the

other acts and charged conduct involved the same victim and occurred
 17

under similar circumstances following a confrontation. Id. The other

acts “were not so removed in time as to render them irrelevant” because

they occurred within three years of the charged conduct. See id. Finally,

“evidence that the defendant previously committed unprovoked assaults

upon the alleged victim to which the alleged victim did not respond

violently undermine[d] the defendant’s argument that she reasonably

believed the alleged victim was about to use unlawful . . . force against

her.” Id. at 446–47.

On the other hand, some courts conclude that even if self-defense

places the defendant’s intent at issue, other acts evidence is inadmissible

because the inference required to demonstrate intent through prior acts

is indistinguishable from the impermissible propensity inference. For

example, in United States v. Commanche, the government charged

Commanche with assault causing serious bodily injury, and he asserted

self-defense. 577 F.3d 1261, 1263 (10th Cir. 2009). The trial court

admitted evidence that the defendant had two prior aggravated battery

convictions. See id. The jury rejected the self-defense claim and

convicted Commanche of two counts of assault. Id. On appeal from

those convictions, the court of appeals considered “the admissibility

under Federal Rule of Evidence 404(b) of bad act evidence that bears on

a defendant’s intent.” Id. It concluded “such evidence is inadmissible

because the jury must necessarily use it for an impermissible purpose

(conformity) before it can reflect on a permissible purpose (intent)” and

the other acts evidence would reflect on intent “only if a jury first infers

that [the defendant] is prone to violence.” Id. The court acknowledged

the intuitive appeal of using other acts to demonstrate intent but

concluded the reasoning a jury would undertake in considering the

evidence was inextricable from the improper propensity purpose:
 18
[T]he present case is not one in which intent is proven
circumstantially based on repeated substantially similar
acts. There is no indication in the record that Commanche
claimed self-defense on the other two occasions. Thus, the
aggravated battery convictions make it no more likely that
Commanche reacted with disproportionate force during this
encounter . . . .

By contrast, the details of Commanche’s prior
aggravated battery convictions demonstrate nothing about
his intent; they simply show that he is violent. It may be
that Commanche’s violent character would lead a jury to
conclude that his fear was unreasonable or that he acted
with disproportionate force and thus cannot properly claim
self defense. Although this reasoning may have intuitive
appeal, it is precisely what Rule 404(b) prohibits—a chain of
inferences dependent upon the conclusion that Commanche
has violent tendencies and acted consistent with those
tendencies during the fight.

Id. at 1269 (citation omitted). Like Commanche, there is no indication in

this record that Richards claimed self-defense on the prior occasions.

See id.

Similarly, in Yusem, the Colorado Supreme Court considered the

“complex question” about “whether . . . prior act evidence is logically

relevant” independent of the propensity inference. 210 P.3d at 466. The

defendant was charged with menacing (i.e., threatening someone with a

weapon). Id. at 461 & n.4. The trial court admitted evidence that the

defendant had threatened someone while wearing (but not brandishing) a

weapon on a previous occasion. See id. at 460. Though the Colorado

Supreme Court acknowledged that other acts evidence may be offered to

rebut a self-defense claim, it ultimately concluded the particular evidence

in the case before it was not admissible:

The People contend the evidence is relevant to prove
Yusem’s mental state—whether he intended to menace the
victim or acted in self-defense—and therefore is independent
of the prohibited inference that Yusem has a bad character
and acted in conformity with that character. We disagree. A
jury cannot reasonably conclude that Yusem was more likely
to menace the [victim] and less likely to act in self-defense
 19
without relying on the inference that Yusem bullied someone
in the past while wearing a gun and so likely bullied
someone again by brandishing a gun. Thus, the inference,
at best, that may be drawn from the prior act is impossible
to distinguish from the inference that Yusem has a bad
character.

Id. at 464, 466.

The Indiana courts have developed a third approach. Indiana

follows “a narrow construction of the intent exception” to the prohibition

against other acts evidence. Wickizer v. State, 626 N.E.2d 795, 799 (Ind.

1993). As the Indiana Supreme Court has explained, that state’s

equivalent to rule 5.404(b)

does not authorize the general use of prior conduct evidence
as proof of the general or specific intent element in criminal
offenses. To allow the introduction of prior conduct evidence
upon this basis would be to permit the intent exception to
routinely overcome the rule’s otherwise emphatic prohibition
against the admissibility of other crimes, wrongs, or acts to
prove the character of a person in order to show action in
conformity therewith. In this context, admission of prior bad
acts would frequently produce the “forbidden inference” . . . .

The intent exception . . . will be available when a
defendant goes beyond merely denying the charged
culpability and affirmatively presents a claim of particular
contrary intent.

Id. Under this narrow construction of the intent exception, self-defense
asserts a claim that the defendant acted with a different intent than that

asserted by the State. In particular, those asserting self-defense claims

contend they acted with the intent to prevent harm to themselves. Evans

v. State, 727 N.E.2d 1072, 1080 (Ind. 2000); see also Douglas, 969 P.2d

at 1206–07.

We conclude the Indiana formulation best describes the effect of a

self-defense claim on the admission of other acts evidence, and we

therefore adopt it. Intent remains a legitimate matter of dispute even

when the defendant asserts self-defense—at least to the extent the State
 20

claims the defendant did not believe he was in imminent danger of death

or injury and that the use of force was not necessary to protect him. We

acknowledge our dicta in Carey and Matlock suggest a self-defense claim

removes intent from dispute and precludes the State from offering other

acts evidence for that purpose. See Matlock, 715 N.W.2d at 6 n.1; Carey,

709 N.W.2d at 560. But we conclude that broad characterization of the

effect of self-defense cannot be correct, because it would in effect mean

defendants asserting the defense stipulate that the alleged crime was

committed if the State disproves the defense. We decline to make the

effect of asserting self-defense so muscular that it eliminates the burden

of proof on all elements of the crime in the State’s case-in-chief.

While the rationale of the Commanche and Yusem courts is

compelling, we distinguish those cases because the victims of the other

acts proved in those cases were not the victims of the charged crimes.

See Commanche, 577 F.3d at 1264; Yusem, 210 P.3d at 461–62. Our

own cases involving other acts against the same victim have concluded

such evidence is “highly probative” when, as here, the prior relationship

between the defendant and the victim was characterized by acts of

domestic violence. Taylor, 689 N.W.2d at 123, 125; see also Richards,

809 N.W.2d at 93; Newell, 710 N.W.2d at 21; cf. State v. Cox, 781 N.W.2d

757, 769 (Iowa 2010) (holding, in a sexual abuse case governed by a

statute expressly permitting propensity evidence, that “it was improper

for individuals other than the victim . . . to testify regarding prior acts”

(emphasis added)). We continue to adhere to them.

“In a prosecution for assault the State has the burden of proving

beyond a reasonable doubt that the defendant was not acting in self

defense.” State v. Sharkey, 311 N.W.2d 68, 72 (Iowa 1981); accord State

v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988). Because we conclude a
 21

self-defense claim does not categorically remove the defendant’s intent

from dispute, the other acts evidence here was relevant to a legitimate

disputed issue. It was specifically probative of whether Richards acted—

as he claimed—in furtherance of a belief that he needed to protect

himself from imminent injury at Poell’s hands. See Sullivan, 679 N.W.2d

at 25. We conclude Richards’s self-defense theory was a legitimately

disputed issue to which the other acts evidence was relevant in this case.

See Shanahan, 712 N.W.2d at 137–38. We now turn to the other

elements of the Sullivan test.

C. Clear Proof. “[A] victim’s testimony, standing alone, satisfies

the requirement of clear proof.” State v. Jones, 464 N.W.2d 241, 243

(Iowa 1990); see also Taylor, 689 N.W.2d at 130 (“[I]t is not required that

the prior act be established beyond a reasonable doubt, nor is

corroboration necessary.”). Poell’s testimony constituted clear proof of

the other alleged acts under the circumstances presented here.

D. Balancing Probative Force Against Danger of Prejudice. In

Taylor, we noted the factors we consider in balancing probative force

against the danger of unfair prejudice:

[T]he court should 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.

Taylor, 689 N.W.2d at 124.

We readily acknowledge juries would probably not like someone

whom they conclude has repeatedly assaulted a significant other and

therefore might develop a desire to punish. Cf. State v. Liggins, 524

N.W.2d 181, 188–89 (Iowa 1994) (acknowledging juries who discover a
 22

defendant is a drug dealer may have an “instinct to punish drug

dealers”). We also acknowledge Richards had a jury trial, not a bench

trial, which means the fact finder is more susceptible to deciding the

case on an improper basis. See Taylor, 689 N.W.2d at 130 (“Clearly the

likelihood of an improper use of the evidence is reduced by the fact that

the present case was tried to the court.”); State v. Casady, 491 N.W.2d

782, 786 (Iowa 1992) (concluding prejudicial effect from other acts

evidence “is reduced in the context of a bench trial”). Yet, in this case,

the district court carefully circumscribed the scope of the other acts

testimony and thereby limited its potential prejudicial impact. See

Rodriquez, 636 N.W.2d at 243 (concluding there was little danger of

unfair prejudice from other acts evidence because “[t]he State did not

elicit great detail about the prior assaults and spent a relatively small

amount of time” on the questions).

The district court prudently followed “the better practice” and gave

the jury a limiting instruction curtailing the danger of unfair prejudice.

State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996); see also State v.

Wade, 467 N.W.2d 283, 284–85 (Iowa 1991). Although limiting

instructions will not always alleviate the danger of unfair prejudice, see

State v. Elliott, 806 N.W.2d 660, 674 n.4 (Iowa 2011), we conclude this

one did given the other limiting precautions the district court took. Cf.

Matlock, 715 N.W.2d at 6–7 (finding a limiting instruction did not cure

possible prejudice because it “failed to restrict the jury’s consideration of

the bad-acts evidence for [an] improper purpose”).

The limited evidence of three prior altercations between Richards

and Poell did not pose a danger of unfair prejudice substantially

outweighing its probative value. Therefore, the district court did not

abuse its discretion in admitting the evidence. Exercising our own
 23

discretion to select issues we address on further review, we let the court

of appeals decision stand as the final decision on Richards’s contention

that the district court committed reversible error in admitting other acts

evidence of Richards’s altercation with Poell and other members of her

family on a separate occasion. See Iowa R. App. P. 6.1103(1)(d); State v.

Stewart, 858 N.W.2d 17, 19 (Iowa 2015) (allowing the court of appeals

decision to stand on one issue while reviewing some other issues).

Our decision today does not—and we do not intend it to—retreat

from our well-established understanding that rule 5.404(b) is a rule of

exclusion. See, e.g., Elliott, 806 N.W.2d at 675; State v. Nelson, 791

N.W.2d 414, 425 (Iowa 2010); Sullivan, 679 N.W.2d at 24–25; State v.

Castaneda, 621 N.W.2d 435, 439–40 (Iowa 2001); State v. Barrett, 401

N.W.2d 184, 187 (Iowa 1987); State v. Munz, 355 N.W.2d 576, 581 (Iowa

1984); State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979). Our conclusion

simply means that under the circumstances presented here, the danger

of unfair prejudice did not substantially outweigh the probative value of

the other acts evidence bearing upon a legitimate issue other than

propensity. Thus, we find no abuse of discretion in the district court’s

admission of the evidence under rule 5.404(b).

IV. Conclusion.

A defendant does not eliminate the relevance of intent evidence by

asserting self-defense. Accordingly, other acts evidence may be

admissible to prove a defendant’s intent in connection with the claim of

self-defense, provided the evidence does not otherwise present a danger

of unfair prejudice that substantially outweighs its probative value.

Because the evidence offered in this case did not present such a danger,
 24

the district court did not abuse its discretion in admitting the other-acts

testimony. We affirm Richards’s conviction.

COURT OF APPEALS DECISION AND DISTRICT COURT

JUDGMENT AFFIRMED.

All justices concur except Wiggins, Appel, and Zager, JJ., who

dissent.
 25

#14–0019, State v. Richards

WIGGINS, Justice (dissenting).

This is another example of our court overreaching to conclude

other acts evidence is admissible under Iowa Rule of Evidence 5.404(b).

See, e.g., State v. Rodriquez, 636 N.W.2d 234, 248–55 (Iowa 2001)

(Lavorato, C.J., dissenting); State v. Plaster, 424 N.W.2d 226, 233–35

(Iowa 1988) (Schultz, J., dissenting).

I would find the alleged other acts of domestic violence were not

admissible for two reasons. First, the alleged other acts of domestic

violence were not probative of any issue in this case because the

defendant claimed self-defense and did not dispute that he had the

requisite intent to be convicted of the charged crimes. Second, the

danger of unfair prejudice associated with the admission of evidence

regarding the alleged other acts of domestic violence substantially

outweighs its probative value.

The majority adopts the approach to other acts evidence

articulated by the Indiana Supreme Court in Wickizer v. State, 626

N.E.2d 795, 799 (Ind. 1993). In that case, the court concluded evidence

of other acts may be admissible when a defendant denies culpability and

affirmatively claims a particular intent contrary to that asserted by the

state. See id. I disagree with the majority’s adoption of this approach.

But even assuming this test determines the admissibility of evidence of

other acts, I disagree with the majority’s application of it to conclude

other acts evidence was admissible under the facts of this case.

As the majority notes, my special concurrence in State v. Reynolds

set forth my analysis concerning the admissibility of other acts evidence

when a defendant raises self-defense in an assault case. 765 N.W.2d

283, 295 (Iowa 2009) (Wiggins, J., specially concurring). In plain
 26

English, when the defendant raises self-defense in an assault case, the

defendant’s intent is no longer in dispute. Rather,

the State must prove beyond a reasonable doubt any of the
following to defeat the claim of self-defense: (1) the defendant
initiated or continued the incident resulting in injury; (2) the
defendant did not believe he was in imminent danger of
death or injury and that the use of force was not necessary
to save him; (3) the defendant did not have reasonable
grounds for the belief he was in imminent danger of injury or
death and that the use of force was not necessary to save
him; or (4) the defendant used unreasonable force.

Id.

At trial, Richards did not deny culpability for his actions. Instead,

he relied solely on his claim that his acts were justified in self-defense.

In a very short final argument, his counsel framed the decision

confronting the jury as follows:

You’re gonna have to make a decision during your
deliberations as to which of these two versions you think is
more likely, but bear in mind that the burden of proof is on
the State to prove its allegations by proof beyond a
reasonable doubt.

....

. . . I suggest to you that all the evidence indicates that
he only did what was necessary to protect himself and
nothing more beyond that.

If that is true, then he is not guilty of domestic assault
resulting in bodily injury or any of the lesser-included
offenses.

Thus, Richards’s counsel expressly acknowledged the jurors should find

him guilty of the crime charged if they did not believe his claim of self-

defense.

Richards never claimed he did not assault the victim, and he never

claimed he did not have the intent to assault her. Thus, the

circumstances of this case are very different from those the Indiana
 27

Supreme Court considered in Wickizer. See 626 N.E.2d at 799. In that

case, the defendant insisted he did not have the requisite intent to be

convicted of the charged crime. Id. In contrast, Richards does not deny

he had the requisite intent to be convicted of the charged crimes.

Therefore, his alleged other acts of domestic violence were not probative

of a legitimate issue in dispute in this case.

Furthermore, even assuming the alleged other acts of domestic

violence were probative with respect to a legitimate issue in dispute, the

probative value of those acts was substantially outweighed by the danger

of unfair prejudice to Richards. “When the probative value of evidence of

a defendant’s prior act is substantially outweighed by the danger of

unfair prejudice to the defendant, the court must exclude it.” State v.

Wilson, 878 N.W.2d 203, 216 (Iowa 2016). As Chief Justice Lavorato

once so aptly pointed out,

This balancing test has been described as “the modern
bastion of a long standing tradition that protects a criminal
defendant from ‘guilt by reputation’ and from ‘unnecessary
prejudice.’ ” And “[b]ecause the weighing entails competing
interests, it is delicate, and must be employed with care lest
accommodation to the prosecutor’s needs results in
subverting a principle that is central to our concept of
fairness.” Otherwise, we allow the exceptions in rule 404(b)
to swallow the important rule.

Rodriquez, 636 N.W.2d at 253 (alteration in original) (citations omitted)

(quoting United States v. Cook, 538 F.2d 1000, 1004 (3d Cir. 1976)).

When a defendant takes the position that he is guilty unless he

acted in self-defense, the only conceivable purpose for admitting other

acts evidence addressing his intent would be to tip the scales unduly

against him. Such evidence serves no legitimate purpose and therefore

should not be admitted.
 28

Accordingly, I conclude evidence concerning Richards’s alleged

other acts of domestic violence should not have been admitted because

they were not probative of any legitimate disputed issue in this case and

whatever probative value they might have had was substantially

outweighed by the danger of unfair prejudice engendered by their

admission.

Appel and Zager, JJ., join this dissent.