IN THE SUPREME COURT OF IOWA
No. 53 / 05-1980
Filed July 13, 2007
STATE OF IOWA,
Appellee,
vs.
MARK ANTHONY ELSTON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Pottawattamie County, James
S. Heckerman, Judge.
Applicant seeks further review of court of appeals decision holding the
district court did not abuse its discretion in denying his motion to sever and
preserving claims of ineffective assistance of counsel for possible
postconviction proceedings. DECISION OF COURT OF APPEALS AND
JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Matthew D. Wilber, County Attorney, and Shelly Sedlak,
Assistant County Attorney, for appellee.
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HECHT, Justice.
This case is before us on further review of a court of appeals decision
concluding the district court did not abuse its discretion in denying
defendant Mark Elston’s motion to sever a charge of indecent contact from
charges of sexual exploitation and in preserving Elston’s claims of
ineffective assistance of counsel for possible postconviction proceedings.
We affirm.
I. Factual and Procedural Background.
Mark Elston was a friend of Brenda Neff and her husband, Dale Neff.
Brenda is the mother, and Dale the stepfather, of two female children, A.E.
and her sister. Elston came to the Neffs’ house almost every day to socialize
with the Neffs and occasionally babysat the children. Elston and the Neffs
generally spent time together in the Neffs’ bedroom, with the door shut and
locked.
Debra Krebs, who socialized with Elston and the Neffs and babysat
A.E. and her sister on a regular basis, became suspicious that the children
were being sexually abused. On February 10, 2005, she contacted the
children’s school counselor, who then met with the children. A.E. reported
her stepfather had touched her inappropriately, and both children indicated
they had seen “nasty pictures” on their parents’ computer.
After meeting with the children, the school counselor called the
Department of Human Services (DHS) and reported suspected sexual abuse.
When they were interviewed the next day by a DHS social worker and a
police detective, the children essentially repeated the allegations made
previously to the school counselor, and A.E. also divulged that her
stepfather had photographed her in the nude. After that interview but prior
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to the execution of a search warrant on the Neffs’ house, the children told
investigators that Elston had touched them inappropriately.
The State charged Elston with eighteen counts of sexual exploitation
of a minor, in violation of Iowa Code sections 728.12(1), 728.12(3), and
728.1(7)(g) (2005), and one count of indecent contact with a child, in
violation of section 709.12(2). The sexual exploitation counts charged
Elston with accessing child pornography through the Neffs’ computer and
participating with Mr. Neff in taking illicit photographs of A.E. from
approximately July 1, 2003 through February 11, 2005. The indecent
contact count alleged Elston inappropriately touched A.E. within the same
timespan.
Elston filed a motion to sever the trial of the sexual exploitation of a
minor counts from the trial of the indecent contact count. He contended
separate trials would ensure the jury’s compartmentalization of the evidence
relevant to each charge. The district court overruled the motion.
A.E. testified at the jury trial that Elston, on at least two occasions,
put his arm around her and then touched her between her clothed legs
while they watched movies in the Neffs’ home. During cross-examination,
A.E. conceded that Elston may have touched her accidentally. A.E. also
testified that her stepfather, Dale Neff, took nude photographs of her in the
Neffs’ bedroom and that Elston was sometimes present when this occurred.
A.E. and her sister testified that they had observed Elston in that same
bedroom using the Neffs’ computer to observe nude pictures of young girls.
After A.E. testified, a detective who participated in the Elston
investigation testified for the State. Through the detective, the State
introduced seventeen photographs of young, naked females found on the
hard drive of the computer in the Neffs’ bedroom. In addition, the State
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introduced numerous photographs of young, naked females found on the
Neffs’ screensaver. Although a forensics investigation of the Neffs’ computer
revealed no evidence he had ever downloaded or viewed any of the
particular photographs introduced by the State, Elston admitted to
investigators he had used the Neffs’ computer to view sites featuring
“females not completely developed.”
None of the photographs retrieved from the Neffs’ computer depicted
A.E. in the nude. There was some evidence, however, that such
photographs were on the Neffs’ computer before the State seized it. Krebs
testified she had seen a picture of A.E. naked on the Neffs’ computer and
expressed her concern to Elston, who told her he would “check into it.”
According to the detective who testified for the State, Elston conceded
during an interview that he “thought” he had seen “one of the girls [A.E. or
her sister] on the computer.”
The district court granted Elston’s motion for judgment of acquittal
on all counts except the count of indecent contact with a child. The jury
returned a guilty verdict on that count.
Elston filed a notice of appeal contending the district court abused its
discretion in denying the motion to sever and asserting his trial counsel was
ineffective. The court of appeals affirmed Elston’s conviction and preserved
his ineffective counsel claim for possible postconviction relief proceedings.
We granted further review.
II. Standards of Review.
We review refusal to sever multiple charges against a single defendant
for abuse of discretion. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992)
(citing State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985)). We review
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ineffective assistance of counsel claims de novo. State v. Martin, 704 N.W.2d
665, 668 (Iowa 2005).
III. Discussion.
A. Motion to Sever.
Our analysis of whether the district court abused its discretion in
denying Elston’s motion to sever begins with Iowa Rule of Criminal
Procedure 2.6(1). This rule provides:
Two or more indictable public offenses which arise from the
same transaction or occurrence or from two or more
transactions or occurrences constituting parts of a common
scheme or plan, when alleged and prosecuted
contemporaneously, shall be alleged and prosecuted as
separate counts in a single complaint, information or
indictment, unless, for good cause shown, the trial court in its
discretion determines otherwise.
We have held that transactions or occurrences are part of a “common
scheme or plan” under Iowa Rule of Criminal Procedure 2.6(1) when they
are the “products of a single or continuing motive.” See State v. Oetken, 613
N.W.2d 679, 688 (Iowa 2000) (citing State v. Lam, 391 N.W.2d 245, 250
(Iowa 1986)). In ascertaining whether a “common scheme or plan” exists,
“we have found it helpful to consider factors such as intent, modus
operandi, and the temporal and geographic proximity of the crimes.” Id.
(citing Lam, 391 N.W.2d at 249-50).
We conclude the transactions forming the factual basis for the
indecent contact charge and the sexual exploitation charges against Elston
were part of a “common scheme or plan” under Iowa Rule of Criminal
Procedure 2.6(1). All of the crimes alleged in this case against Elston could
be found to have been motivated by his desire to satisfy sexual desires
through the victimization of children. All of the transactions allegedly
occurred in close geographic proximity within the Neffs’ small home.
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Although the temporal proximity of the alleged indecent contact and sexual
exploitation offenses was not close 1 and the modus operandi allegedly
employed by Elston was dissimilar, we find no abuse of discretion in the
district court’s determination that the several alleged offenses were part of a
common scheme or plan.
Although the existence of a “common scheme or plan” indicates the
charges should be joined, the district court nonetheless had discretion to
sever the charges for “good cause.” Iowa R. Crim. P. 2.6(1). To prove the
district court abused its discretion in refusing to sever charges, Elston
bears the burden of showing prejudice resulting from joinder outweighed
the State’s interest in judicial economy. Oetken, 613 N.W.2d at 689. For
the reasons that follow, we conclude Elston has not met this burden.
Elston argues he suffered prejudice resulting from joinder of the
sexual exploitation and indecent contact charges far outweighing the State’s
interest in judicial economy. Although he concedes the pornographic
photographs would have been relevant to the sexual exploitation charges,
Elston asserts the pictures would not have been admissible to prove the
indecent contact charge, the only charge actually submitted to the jury, had
it been tried separately, because they are inadmissible evidence of “other
crimes, wrongs, or acts.” Generally, evidence of an accused’s other “crimes,
wrongs, or acts” is inadmissible to prove his propensity to behave in a
certain manner. See Iowa R. Evid. 5.404(b) (“Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order
to show that the person acted in conformity therewith.”). However, such
evidence is generally admissible for purposes other than proving propensity;
for instance, such evidence may be used to prove “motive, opportunity,
1As we have noted, the State alleged the offenses occurred between July of 2003
and August of 2005.
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intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id.
We follow a well-established test to determine whether the
photographs were admissible to prove the charge of indecent contact. First,
we must ascertain “whether the challenged evidence [was] relevant and
material to some legitimate issue” other than a general propensity to
commit wrongful acts. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988)
(internal quotation marks and citation omitted). If this test is satisfied, the
evidence was prima facie admissible, even though it illustrates the
accused’s bad character. Id. Second, we “must . . . decide whether the
evidence’s probative value [was] substantially outweighed by the danger of
unfair prejudice.” Id. (citing Iowa R. Evid. 5.403). If unfair prejudice
resulting from admission of the evidence substantially outweighed its
probative value, the evidence was inadmissible. Id.
We conclude the pornographic images of young girls had great
probative value on the question of whether Elston touched A.E. “for the
purpose of arousing or satisfying the sexual desires of either [himself or
A.E.].” Iowa Code § 709.12. As noted above, defense counsel first raised
during the cross-examination of A.E. the question of whether Elston might
have accidentally touched A.E. between her clothed legs. The State’s need
to respond to Elston’s assertion of accidental touching substantially
increased the probative value of the pornographic photographs. The
pornographic images of young females seized from the Neffs’ computer
during the execution of the search warrant tended to prove Elston’s
touching of A.E. was not accidental. 2
2The seizure was made from the very computer Elston admitted he had used prior to
the search to look at images of nude, undeveloped girls.
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We are unconvinced that the photographs’ considerable probative
value would have been substantially outweighed by the danger of unfair
prejudice had they been admitted in a separate trial on the indecent contact
charge. The photographs were no more prejudicial than other evidence that
was admitted at trial and that would have been admissible in a separate
trial as evidence of Elston’s intent. In particular, A.E. testified that Elston
was present in the bedroom when Dale Neff took pornographic photographs
of her. This evidence was considerably more prejudicial than the
pornographic photographs of unknown female children, because it tended
to prove Elston had a sexual interest in A.E., the very child whom he was
charged with touching indecently.
In summary, we conclude the district court did not abuse its
discretion in overruling Elston’s motion to sever the sexual exploitation and
indecent contact charges. The pornographic photographs were admissible
to prove the indecent contact charge against Elston whether or not the trial
of that charge was joined with the trial of the sexual exploitation charges.
Elston failed to prove any prejudice resulting from joinder of the charges
outweighed the State’s interest in judicial economy.
B. Ineffective Assistance of Counsel.
Elston’s claims of ineffective assistance of counsel are before us on
direct appeal. We usually preserve claims of ineffective assistance of
counsel for potential postconviction proceedings. State v. Buck, 510 N.W.2d
850, 853 (Iowa 1994). However, if the record is sufficient to decide such
claims, we will do so on direct appeal. State v. Martens, 569 N.W.2d 482,
484 (Iowa 1997).
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1. Failure to Object to Testimony of Debra Krebs.
The State called Debra Krebs, who testified Elston owned a collection
of adult pornography. On appeal, Elston argues his trial counsel should
have objected to this evidence pursuant to Iowa Rules of Evidence 5.402
(irrelevant evidence is inadmissible) and 5.403 (relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice).
“[P]ostconviction proceedings are often necessary to discern the
difference between improvident trial strategy and ineffective assistance.”
State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006). Such is the case here.
Although trial counsel failed to object to this testimony, we are unable on
this record to assess whether the failure constituted ineffective assistance of
counsel. We consequently preserve this claim for possible postconviction
proceedings.
2. Failure to Request Jury Instruction Explaining Proper
Consideration of Evidence Related to the Dismissed Counts.
Elston also claims his trial counsel provided ineffective assistance in
failing to request a jury instruction explaining the proper consideration of
evidence related to the dismissed sexual exploitation counts. In particular,
he asserts trial counsel should have requested the district court to instruct
the jury to disregard the pornographic pictures during deliberations on the
indecent contact charge. We find no merit in this claim because we have
already concluded the pictures were admissible as part of the State’s proof
of the indecent contact offense. See State v. Wills, 696 N.W.2d 20, 24 (Iowa
2005) (finding trial counsel was not ineffective in failing to raise
unmeritorious issue).
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IV. Conclusion.
We conclude the district court did not abuse its discretion in denying
the motion to sever. We preserve one claim of ineffective assistance of
counsel for possible postconviction proceedings.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED.