IN THE COURT OF APPEALS OF IOWA
No. 20-1184
Filed November 3, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ADAN SOSA PUGA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Richard D.
Stochl, Judge.
A defendant appeals his conviction and sentence for third-degree sexual
abuse. CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ.
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BADDING, Judge.
Adan Sosa Puga was charged with sexual abuse in the third degree for a
sex act involving a teenage co-worker. At his jury trial, a different victim was
allowed to testify about a similar incident that occurred between her and Puga.
The jury found Puga guilty as charged, and he was sentenced to serve no more
than ten years in prison. No reasons were given for the sentence. Puga appeals,
challenging the admission of the prior sexual abuse, the failure to state reasons
for the sentence that was imposed, and a discrepancy between the oral
pronouncement of the sentence and the written judgment entry. We affirm the
conviction but vacate the sentence and remand for resentencing.
I. Background Facts and Proceedings
Fourteen-year-old M.D. was a waitress at a restaurant where Puga cooked.
On her day off, M.D. and a friend went to the restaurant to pick up food. When
they got there, Puga waved M.D. into the kitchen. She left her friend at the bar
and went back to talk to Puga. After some small talk, Puga grabbed M.D. He put
his hands on her buttocks, kissed her neck, and rubbed his penis on her vaginal
area through her clothes. M.D.’s friend walked into the kitchen and saw this
happen. She told M.D. they needed to go, and the two left the restaurant.
According to the friend, M.D. was “upset, embarrassed, [and] scared” after
this occurred. They told some other friends about what happened but not M.D.’s
parents or the police. One of those friends was fifteen-year-old R.K., who revealed
that Puga had done something similar to her several months earlier. R.K. was at
Puga’s house when he came up behind her, put his hands on her waist, and thrust
his penis into her buttocks while she was clothed. As she was walking out the front
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door, Puga spanked her on the buttocks. R.K. did not report this incident to the
police until after she got in trouble at school. During the investigation of R.K.’s
report, the incident with M.D. surfaced.
When questioned by police, Puga said that when M.D. went into the kitchen
to tell him hello, he raised his hand to give her a high five. But according to Puga,
M.D. put her arms out for a hug, so Puga hugged her. He denied grabbing her,
putting his hands on her buttocks, or rubbing his penis against her vaginal area.
Puga did not stick with this version at trial. He instead testified that when M.D.
came into the kitchen, he gave her the food with his left hand and patted her on
the back with his right hand. Puga did not talk about a hug or claim that any contact
was accidental during his testimony at trial.
In closing arguments, however, the State focused on Puga’s police-
interview version, asserting:
The defendant wants to say, well, no, this was—this was just a
misunderstood hug. But then we had fifteen-year-old [R.K.] come in
and testify that the defendant did a very similar act to her . . . . This,
ladies and gentlemen, was not an accidental hug or a touching,
innocent touching.
The jury returned a guilty verdict, following which Puga was sentenced to a
term of imprisonment not to exceed ten years. Puga appeals.
II. Scope and Standards of Review
“We review a district court’s evidentiary rulings regarding the admission of
prior bad acts for abuse of discretion,” although to the extent that constitutional
claims are at issue, our review is de novo. State v. Cox, 781 N.W.2d 757, 760
(Iowa 2010). Our review of sentencing decisions is for the correction of errors at
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law. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). When a sentence imposed
is within statutory limits, it will be affirmed absent an abuse of discretion. Id.
III. Prior Bad Acts Evidence
Puga claims the admission of R.K.’s testimony about a past act of sexual
abuse violates Iowa Rule of Evidence 5.404(b) and Iowa Code section 701.11
(2019), as well as the due process clause of the Iowa Constitution. We start with
rule 5.404(b)(1), which prohibits “[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.” The reason for this rule is not
grounded on a belief “that the evidence is irrelevant, but rather on a fear that juries
will tend to give it excessive weight, and on a fundamental sense that no one
should be convicted of a crime based on his or her previous misdeeds.” Cox, 781
N.W.2d at 760 (citation omitted). Yet evidence of other crimes, wrongs, or acts
may be admissible under rule 5.404(b)(2) if offered to show “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
In sexual abuse cases, however, evidence of other acts of sexual abuse is
not limited to those categories. Id. at 761. Section 701.11 provides that “evidence
of the defendant’s commission of another sexual abuse is admissible and may be
considered for its bearing on any matter for which the evidence is relevant.” The
Iowa Supreme Court upheld the constitutionality of section 701.11 in State v.
Reyes, 744 N.W.2d 95, 102-03 (Iowa 2008), with respect to the admissibility of
other sexual abuse involving the same victim. The court reasoned the statute
passed constitutional muster as applied in that case because the evidence was
“not offered to show a general propensity to be attracted sexually to young girls,
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but instead to demonstrate the nature of the defendant’s relationship and feelings
toward a specific individual.” Reyes, 744 N.W.2d at 103.
The holding in Reyes was specifically limited to prior incidents involving the
same victim, leaving open the constitutionality of section 701.11 “where the prior
acts of sexual abuse involve persons other than the current alleged victim.” Id. at
102 n.1. That open question was decided in Cox, which held the due process
clause of the “Iowa Constitution prohibits admission of prior bad acts evidence
involving a different victim when admitted solely for the purpose of demonstrating
propensity. Instead, the evidence must be relevant to a ‘legitimate issue.’” 781
N.W.2d at 762. The court reasoned that a “focus on the criminal or aberrant
disposition of the defendant with regard to various victims is exactly the sort of
prejudice which the general rule seeks to avoid.” Id. at 767 (citation omitted).
Importantly, the court in Cox “did not hold that evidence of sexual abuse with
different victims is never constitutionally admissible under 701.11.” 7 Laurie Kratky
Doré, Iowa Practice Series: Evidence § 5.404:6.
For other acts of sexual abuse with a different victim to be admissible after
Cox, the analysis to be applied mirrors the general 5.404(b) analysis. See Cox,
781 N.W.2d at 769. The evidence must first be relevant to a legitimate issue in
dispute. See id.; see also State v. Putnam, 848 N.W.2d 1, 9 (Iowa 2014). Second,
there “must be clear proof the individual against whom the evidence is offered
committed the bad act or crime.” Putnam, 848 N.W.2d at 9 (citation omitted). And
third, the court must determine whether the evidence’s probative value is
substantially outweighed by the danger of unfair prejudice to the defendant. Id.
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A. Relevance
The State asserts the district court correctly found the evidence was
relevant to establish that Puga’s contact with M.D. was sexual and not accidental.1
But Puga argues that was not a legitimate issue in dispute because “it was only
the State referencing accidental touching and a ‘misunderstood hug’ in its closing
arguments.” We reject this argument for several reasons.
First, it is not entirely accurate. On cross-examination, after M.D. testified
that she was sure she felt Puga’s penis rub against her vaginal area, defense
counsel insinuated that M.D. misunderstood the contact:
So—so you’re not aware if perhaps Adan had something in
his pocket? A. I don’t know.
Q. You don’t know? Okay. And you don’t know if he had
some sort of a—perhaps a belt buckle on or something that was—
that would be around his waist? A. I don’t know.
Second, while it was the State’s witness who testified to Puga’s initial story
about a “misunderstood hug,” there is nothing in rule 5.404(b) or related cases that
require the evidence to be used by the State to rebut a defense theory. See State
v. Weltman, No. 20-0860, 2021 WL 2768910, at *6 n.3 (Iowa Ct. App. June 30,
2021). Instead, the evidence must just be relevant to a “legitimate issue in
dispute.” A legitimate issue in dispute was whether Puga’s contact with M.D. was
sexual in nature.
The jury was instructed that to find Puga guilty of third-degree sexual abuse,
one of the elements the State needed to prove was that “Puga performed a sex
1 The district court also found the evidence was relevant to explain M.D.’s delay in
reporting the sexual abuse. The State does not advance that theory of relevancy
on appeal, so we will not discuss it further.
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act with M.D.” See Iowa Code § 709.4(1)(b). “Sex act” was defined in part for the
jury as “any sexual contact . . . [b]etween the genitals of one person and the
genitals or anus of another.” See id. § 702.17. “Not all contact is a ‘sex act.’” State
v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). In determining whether a sex act
occurred, the jury was instructed it could “consider the type of contact and the
circumstances surrounding it in deciding whether the contact was sexual in nature.
Skin-to-skin contact is not required in order to establish a ‘sex act.’ Prohibited
contact may occur even though the specified body parts are covered by clothing.”
Seizing upon these considerations, the State argues “the fact that Puga assaulted
another teenage girl under similar circumstances—grinding his clothed penis into
her body without her consent—makes it more likely that his conduct with M.D. was
sexual in nature and less likely that his hug of M.D. had an innocent or non-sexual
purpose” or that it was accidental. We agree.
We have relied on this theory of relevance in several sexual abuse cases
to combat claims that contact between two individuals was not sexual or that it was
accidental. See, e.g., State v. Thoren, No. 20-0192, 2021 WL 1017405, at *3 (Iowa
Ct. App. Mar. 17, 2021) (finding testimony of five former massage therapy clients
“in similar settings, who experienced similar incidents” was relevant to show the
defendant’s lack of mistake); Weltman, 2021 WL 2768910, at *6 (concluding
evidence about defendant’s actions with the victim on a trip that occurred after the
sexual abuse was relevant to establish the lack of mistake or accident); State v.
Daugard, No. 06-0537, 2007 WL 1062867, at *3 (Iowa Ct. App. Apr. 11, 2007)
(allowing defendant’s coworkers to testify about prior interactions between the
victim and defendant because it was relevant to the defense of mistake or
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accident). Although Weltman, 2021 WL 2768910, at *6, and Daugard, 2007 WL
1062867, at *3, involved other acts of sexual abuse with the same victim, our
supreme court recognized in Cox that prior bad acts with different victims can be
relevant to motive or intent “when a defendant claims [the] touching was
accidental.” 781 N.W.2d at 771.
The court in Cox did go on to find that evidence of the defendant’s sexual
abuse of two other victims was not relevant to establish motive or intent in its case
because the State did not have to prove specific intent for the sexual abuse
charges, “only that the alleged sexual conduct occurred.” Id.; see also Putnam,
848 N.W.2d at 10 (finding that the perpetrator’s motive for sexual abuse was not a
legitimate issue in dispute because his state of mind was not an element of the
crime). While motive and intent are also not at issue in this prosecution for third-
degree sexual abuse, evidence of Puga’s similar sexual abuse of R.K. speaks not
to those issues but to whether his contact with M.D. was sexual in nature.2 Unlike
Cox, 781 N.W.2d at 771, the sexual nature of Puga’s contact with M.D. was an
element that was in dispute in this case. There was therefore no abuse of
discretion in allowing R.K. to testify about her experience with Puga. And because
R.K.’s testimony about the past sex act was relevant for a non-propensity purpose,
2 We decline the State’s invitation to find that Puga’s denial of the sexual nature of
the contact made his motive “relevant to provide an explanation for the contact.”
Puga’s state of mind was not an element of the crime and thus not at issue. See
Weltman, 2021 WL 2768910, at *6. The State simply needed to prove the contact
between the specified parts of Puga’s body with the specified parts of M.D.’s body
was sexual in nature. See id. Puga’s motive for making that contact was
immaterial. See id.
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it adhered to the due process guarantee under our state’s constitution. See Reyes,
744 N.W.2d at 103.
B. Clear Proof
Puga next argues the clear-proof requirement was not met because R.K.
was not a credible witness. In support of this argument, Puga relies on the timing
of R.K.’s disclosure of the sexual abuse to the police, noting it came after she got
in trouble at school for an incident involving Puga’s son. “[D]irect testimony from
the victim of a prior alleged assault, as a matter of law, is sufficient ‘clear proof’ to
meet the code requirement.” Id. at 101. R.K.’s trial testimony about the past
incident, which was subject to cross-examination and not denied by Puga, was
accordingly sufficient to satisfy the clear-proof requirement. See Putnam, 848
N.W.2d at 9 (noting that clear proof does not require the bad acts to be established
beyond a reasonable doubt or corroborated by other evidence); State v. Zeliadt,
541 N.W.2d 558, 561 (Iowa Ct. App. 1995) (finding testimony from a single witness
clear proof of the prior act).
C. Balancing Test
We are left with whether the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403;
Cox, 781 N.W.2d at 761, 769. Factors relevant to this balancing test include:
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.
Putnam, 848 N.W.2d at 9-10 (citation omitted).
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On the probative side of the scales, Puga argues the need for the evidence
was not great because the State had testimony from M.D.’s friend who witnessed
the sex act. But as the State points out, the sexual contact “was brief and occurred
through clothing while Puga and M.D. were in a relatively public place.” See
Weltman, 2021 WL 2768910, at *6 (finding that the need for the other acts
evidence was strong given the short duration of the touch). While there was a
witness to the contact, Puga denied that anything improper had occurred, thus
increasing the need for the other sexual abuse evidence. See, e.g., State v.
Blaufuss, No. 15-2174, 2016 WL 6396345, at *3 (Iowa Ct. App. Oct. 26, 2016)
(finding evidence of prior sexual abuse of same victim crucial to the State’s case
because the defendant denied any sexual contact with her); State v. Query, 594
N.W.2d 438, 444 (Iowa Ct. App. Feb. 24, 1999) (concluding the State needed the
prior bad acts evidence to rebut defendant’s claims the acts were innocent or
accidental).
On the unfairly prejudicial side of the scales, the State did not spend much
time developing testimony about the prior bad act during trial. See State v. Wright,
No. 12-2138, 2014 WL 956064, at *4 (Iowa Ct. App. Mar. 12, 2014). R.K.’s
testimony about the act was “concise, direct, and noninflammatory, and of a nature
similar to that in the underlying charge,” thus decreasing the chance that it would
incite “overmastering hostility” toward the defendant. Reyes, 744 N.W.2d at 100.
The uncharged act with R.K. was also close in time to the charged act with M.D.,
further mitigating the potential for unfair prejudice. Wright, 2014 WL 956064, at *4.
The district court’s failure to give a limiting instruction to the jury on the
permissible use of R.K.’s testimony does give us some pause. See id. (recognizing
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the importance that limiting instructions have in minimizing prejudice). But Iowa
law does not require that such cautionary instructions be given. See State v. Plain,
898 N.W.2d 801, 816 (Iowa 2017). And though a limiting instruction was not given,
the district court was careful to screen out other sex acts between Puga and R.K.
that were remote in time or not similar to his conduct with M.D. See Putnam, 848
N.W.2d at 15 (indicating “that concerns about prejudice to a defendant might be
eased by narrowing the scope of the prior-bad-acts evidence presented to the
jury”). We are therefore unable to say that the lack of a limiting instruction made
R.K.’s testimony unfairly prejudicial, particularly considering the leeway to be given
to trial judges faced with making these discretionary calls. See State v. Rodriquez,
636 N.W.2d 234, 240 (Iowa 2001) (“Analyzing and weighing the pertinent costs
and benefits of admitting prior acts evidence is no trivial task. Wise judges may
come to differing conclusions in similar situations.”).
IV. Sentencing Errors
Puga claims the district court abused its discretion in failing to state any
reasons for sentencing him to prison and ordering him to pay category “B”
restitution in its written judgment entry after finding on the record that he did not
have a reasonable ability to pay that category of restitution. The State concedes
error on both counts. See Iowa R. Crim. P. 2.23(3)(d) (requiring the sentencing
court to state on the record its reasons for selecting a particular sentencing); State
v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998) (vacating sentence and remanding for
resentencing where court failed to state reasons for nonmandatory sentence);
State v. Hess, 533 N.W.2d 525, 526 (Iowa 1995) (noting where there is a
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discrepancy between the oral pronouncement of sentence and the written
judgment, the oral pronouncement controls).
We accordingly vacate Puga’s sentence and remand his case for
resentencing. On remand, the district court should state its reasons on the record
for selecting Puga’s particular sentence and address the issue of category “B”
restitution.
V. Conclusion
The district court did not abuse its discretion in allowing a different victim to
testify about Puga’s past sexual abuse of her because the evidence was relevant
to show that Puga’s contact with the victim here was sexual in nature and not
accidental. The court did, however, abuse its discretion in failing to give reasons
for the sentence it imposed and requiring Puga to pay category “B” restitution in its
written judgment entry. Puga’s conviction is therefore affirmed, but his sentence
is vacated and the case remanded for resentencing.
CONVICTION AFFIRMED, SENTENCED VACATED, AND REMANDED
FOR RESENTENCING.