State of Iowa v. Spaulding

ALLBEE, Justice (dissenting).

I would reverse on the ground that trial court erred in admitting evidence of sexual activity between defendant and the victim’s older sister. This testimony was subject to the rule which prohibits evidence of other crimes or bad acts committed by a defendant, and it came within no valid exception to that exclusionary rule. Therefore, trial court had no discretion to admit the evidence.

The rule which excludes evidence of other crimes or bad acts has long been a part of Anglo-American and Iowa jurisprudence. The purpose of this rule is to prevent the jury from considering evidence which has no relevance except to show that the defendant is of bad character and therefore is more likely to have committed the crime charged. State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979); McCormick’s Handbook of the Law of Evidence § 190, at 447, 453 (2d ed. 1972). Accordingly, when other-crimes evidence is offered for some purpose other than to show that the defendant acted in conformity with his bad character, it es*883capes the ban of the rule and is admissible. Cott, 283 N.W.2d at 326. This court has recognized a number of noncharacter objectives of proof for which such evidence may be admitted, including:

(1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or system of criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other, (5) identity of the person charged with the commission of the crime.

Id. These categories of proof are often referred to as “exceptions” to the exclusionary rule.

The so-called exception relied upon by the majority differs from the well-established exceptions listed above, in that it identifies no noncharacter purpose for which the evidence is offered. Rather, the rationale is that a person who has committed “certain unnatural sex crimes” in the past is very likely to have committed a similar act upon the occasion involved in the charge. In the present case, for example, evidence of defendant’s sexual activity with his older daughter is relevant to the crime charged only by way of an inference that a man who has engaged in sexual activity with one daughter is likely to do so with his other daughters. While I agree it is tempting to draw such an inference, it is precisely this kind of character inference that the exclusionary rule was designed to prevent a jury from making. Thus, unlike the recognized exceptions, which actually fall outside the scope of the exclusionary rule, the exception relied upon by the court today cuts right to the heart of that rule and eviscerates it.

The majority’s reliance on McCormick, supra, is misplaced. This is revealed by the full text of the paragraph from which the majority has quoted only in part:

[One of the purposes for which evidence of other crimes is admissible is] [t]o show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial. Other like sexual crimes with other persons do not qualify for this purpose. It has been argued that certain unnatural sex crimes are in themselves so unusual and distinctive that previous such acts by the accused with anyone are strongly probative of like acts upon the occasion involved in the charge, but the danger of prejudice is likewise enhanced here, and most courts have in the past excluded such acts with other persons for this purpose. More recent cases show signs of lowering this particular barrier to admission.

McCormick, supra, § 190, at 449-50 (emphasis added) (footnotes omitted).

The majority also relies upon State v. Maestas, 224 N.W.2d 248 (Iowa 1974). I believe that Maestas has been discredited by our opinion in Cott, 283 N.W.2d at 327, and that we should take this opportunity to overrule Maestas rather than attempt to revive it.

In Maestas, where the defendant was charged with committing lascivious acts upon his twelve-year-old daughter, the court indicated that evidence of the defendant’s prior sexual relations with the two older sisters of the prosecuting witness “arguably” came within either the exception relating to a common scheme of criminal activity or an exception permitting introduction of evidence to show the “lewd disposition” of the defendant. Maestas, 224 N.W.2d at 250-51. The broad “lewd disposition” exception referred to in Maestas was later rejected by this court in Cott:

[E]vidence tending to prove a lewd disposition of the defendant charged with lascivious acts with a minor was originally considered relevant only insofar as it showed his intent solely toward the prosecuting witness. Almost imperceptibly, the lewd disposition exception was overextended to permit evidence of the defendant’s acts with other victims. First, in Schlak, [253 Iowa 113, 111 N.W.2d 289] it crept in as a synonym for motive. Then, in Maestas, it was used as an alternative rationale to the common scheme exception. However, proving lewd disposition has never been the sole purpose for which this court has approved the admis*884sion of testimony concerning prior acts with persons other than the prosecutrix. Nor are we now disposed to endorse lewd disposition as a separate, exclusively adequate exception to the rule prohibiting the admission of testimony regarding pri- or victims. 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. By creating an exception of this kind, we would seriously erode the impact of the general rule, proscribing evidence of prior criminal conduct, in the context of sex crimes. The resultant unfairness to those accused of sex crimes is self-evident.

Cott, 283 N.W.2d at 327 (emphasis added) (footnotes omitted).

Thus, the only possible rationale for the Maestas decision which remains after Cott is that the evidence came within the common scheme exception. Even that exception, however, is inapplicable to the other-crimes evidence at issue in Maestas and in the case at bar. Previous decisions by this court have made it clear that a mere showing that the defendant has committed highly similar offenses does not bring the evidence within the common scheme exception. For example, in State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971), this court held that in a trial for the theft of soybeans, evidence that the defendant had participated in other soybean thefts in the same neighborhood during the same general time period was not within the common scheme exception. The court observed:

Assuming the evidence shows what the State claims for it, the most that can be said is that defendant first stole soybeans from one of the other farms and, being successful, was emboldened to engage in other thefts until he ultimately came under suspicion. Nowhere is there any suggestion that one crime was dependent upon or connected with any of the others. Each was, under this record, a separate and independent crime.
It appears beyond dispute that the State sought to introduce evidence of other crimes to persuade the jury that a person who had stolen soybeans on several prior occasions was very likely to have stolen them on this occasion also — the very rationale the rule is designed to guard against.

Id.

Likewise, in another case also entitled State v. Wright, 203 N.W.2d 247 (Iowa 1972), it was held that evidence of the defendant’s lascivious conduct toward his natural daughter was inadmissible in a trial where he was charged with the statutory rape of a stepdaughter. The court noted that the evidence would be admissible only if the separate offenses were “so related to each other that proof of one tend[ed] to establish the other,” and observed that “[t]he State failed utterly to prove that relationship here.” Id. at 251.

Finally, in Cott, a prosecution for lascivious acts with a child, we found the common scheme exception inapplicable to evidence of the defendant’s previous lascivious acts with a different child in which he employed a similar modus operandi. 283 N.W.2d at 328. There we said:

The fact that defendant committed crimes of the same nature against the two girls is insufficient to bring the testimony within [the common scheme] exception .... [T]he only basis for our applying [that] exception in this case would be an assumption that the accused was compelled by some sort of internalized plan or character defect. That would place us perilously close to relying upon the defendant’s criminal disposition to find relevance in the disputed testimony.

Id. (citations omitted).

Because the common scheme exception is clearly inapplicable to the evidence of defendant’s sexual activity with the victim’s sister, and because defendant’s trial involved no issue as to motive, intent, mistake or identity, it is apparent that the majority has carved out a special exemption from the exclusionary rule for what the court vaguely refers to as “unnatural sex crimes.” In other words, persons charged with these crimes will not receive the protection of the *885exclusionary rule that other criminal defendants receive. There is no basis, however, for such a difference in treatment. As we noted in Cott, “[t]he implicit assumption in treating sexual offenders differently from other criminals is that they have a greater propensity for recidivism. Most studies show this assumption unwarranted. [Citations.]” 283 N.W.2d at 327 n.2. Until the court has some sound data showing that evidence of a defendant’s involvement in a similar crime is substantially more probative in the case of a sex crime than for other types of crime, the exclusionary rule should be applied equally to both types of defendants.

The trend among a number of courts to dilute the protections of the exclusionary rule in sex crime cases has been widely criticized by the commentators. See, e.g., Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz.L.Rev. 212 (1965); Note, Time for Change: Evidentiary Safeguards Needed in Trials for Sexual Offenses, 11 Ind.L.Rev. 895 (1978); Note, Evidence of Defendant’s Other Crimes: Admissibility in Minnesota, 37 Minn.L.Rev. 608, 614 (1953); Comment, Defining Standards for Determining the Admissibility of Evidence of Other Sex Offenses, 25 U.C.L. A.L.Rev. 261, 278-82 (1977). After the steps taken in Cott to counteract the beginnings of such a trend in our own case law, I regret that the court has now, by its decision in this case, chosen to turn back the clock. This court should resist basing its decision on an emotional reaction to a repugnant crime rather than on sound eviden-tiary principles.

UHLENHOPP and McCORMICK, JJ., join this dissent.