(concurring specially).
I join in the court’s opinion in all aspects, except its treatment of the expert testimony of Lieutenant David Taylor. Although that testimony does not warrant reversal of Newell’s conviction, given the strength of other evidence against him, it should not have been allowed by the district court.
The challenged testimony of Lieutenant Taylor explained the issues of power and control often involved in domestic violence and the use of intimidation, emotional abuse, isolation of the victim, blaming the victim, and threats. It suggested that domestic abuse may involve a continuum of violence and the potential that the violence will escalate. The majority opinion concludes that this testimony concerning the attributes of domestic abuse was helpful in aiding the jury’s understanding of the relationship between Gillen and Newell for purposes of determining Newell’s state of mind on the night of Gillen’s death and what might have motivated him to beat and strangle her. I submit that this was an improper use of profiling evidence to establish Newell’s guilt.
The situation in the present case is different from the uses of this type of testimony approved in State v. Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001); and State v. Griffin, 564 N.W.2d 370, 374 (Iowa 1997). In those cases, the evidence was used to explain ambiguous conduct of the victims regarding the ability to flee from the perpetrator in a kidnapping prosecution and the reason for the recantation of the victim’s statement in a domestic-abuse prosecution. In the present case, no similar issues were presented concerning the conduct of the victim.
With respect to Newell’s state of mind, the majority opinion is implicitly referring to the State’s need to prove malice. A jury’s determination of the elements of a crime with which an accused is charged should be based entirely on the evidence presented in the case before the court and not based on the conduct of others under circumstances beyond the jury’s knowledge or consideration. Moreover, the danger presented by such profiling evidence goes well beyond the issue of intent. There is also a strong possibility that a jury faced with Lieutenant Taylor’s testimony concerning a continuum of violence and a potential for escalated violence might infer that Newell acted in conformity with the patterns of violence alluded to by the witness and inflicted the injuries that caused Gillen’s death. The potential for misuse of this evidence far outweighs any benefit the jury might gain from its admission. It should have been excluded.
LAVORATO, C.J., and WIGGINS, J., join this special concurrence.