Opinion
No. 2-798 / 01-1637.
Filed November 15, 2002.
Appeal from the Iowa District Court for Polk County, GEORGE BERGESON, Judge.
Defendant appeals his conviction and sentence, following a jury trial, for domestic abuse assault, enhanced, in violation of Iowa Code section 708.2A(3)(b) (2001). REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Defendant-appellant David Adcock appeals his conviction and sentence, following a jury trial, for domestic abuse assault, enhanced, in violation of Iowa Code section 708.2A(3)(b) (2001). Defendant claims his trial counsel was ineffective for failing to object to evidence of prior bad acts and failing to request a limiting instruction, and that the trial court erred by using an incorrect standard in overruling defendant's motion for a new trial. We reverse and remand for a new trial.
I. BACKGROUND FACTS AND TRIAL PROCEEDINGS
On March 16, 2001 defendant and his sometime girlfriend, whom he had known for the past twenty-four years, Sharon Kilgore, got into an argument. According to testimony, Sharon, who lived with defendant and used drugs with him on a daily basis, wished to leave defendant's house, where she was living, to go use drugs that evening. Defendant told Sharon she could not leave. In response, Sharon "hollered" at him, ripped down blinds on the back door, and kicked a glass coffee table in the living room, causing it to break into several pieces. Although Sharon admitted having an unclear memory as to the events of that night, she testified that defendant then tackled her, hit her on the top of her head with his fist, and pulled out some of her hair. He then forced her to sit in a chair in the living room. Following these events there was a phone call from a woman named Jerrica, who supplied Sharon with drugs. Defendant hung the phone up. Sharon then called her sister, Cynthia Silzer, to have her organize a three-way call with Jerrica so Sharon could meet Jerrica down the street, but defendant caught her making the call. Sharon screamed into the phone, "Help! He's trying to kill me!" Cynthia drove over to their house and beat on the back door. She testified seeing defendant with a piece of broken glass pointed at Sharon's neck. Sharon testified that defendant had said, "Bitch, I'm going to kill you. I'm going to put you in a shallow grave along with my ex," before holding the glass to her neck. Upon Cynthia's arrival and her banging on the front door, defendant let her in. According to testimony defendant and Cynthia then screamed at each other while Sharon told defendant to run away, as the police would be called.
When Officer Christopher Wellman arrived, Sharon showed him a pillow that she testified defendant had held against her face the night before. Officer Wellman observed a bump on Sharon's head and a scratch on her face. He also testified that there were broken pieces of glass in the living room and a large piece of glass on the floor several feet from where the coffee table sat.
Defendant's version of the events that night was that he was attempting to prevent Sharon from leaving the house to buy drugs when she kicked the glass table and tore the blinds down. He claimed he was picking up the pieces of the glass table when Sharon's sister, Cynthia, arrived. Defendant denied assaulting Sharon.
At trial there was testimony regarding defendant's past behavior toward Sharon. This testimony consisted of statements by Sharon that defendant decided what she could wear, whom she could talk to, where she could go, and how long she could be gone. Sharon further testified that defendant did not like her to have friends, did not like her to spend time with relatives, checked the mileage in the car when she went anywhere, and listened to her phone conversations. In her testimony Sharon further recalled numerous instances when defendant called her derogatory names, had violent outbursts, threatened to destroy her personal belongings, actually broke some personal belongings, accused her of being unfaithful, and threatened to kill her. Additionally she testified that on the morning of the day of the incident at issue, defendant choked her, which she claimed was a common practice for him. Aside from one objection to the derogatory-names testimony, defendant's counsel made no objections to this evidence.
Defendant claims his counsel should have objected to this evidence and should have requested a limiting instruction regarding evidence of defendant's prior behavior toward Sharon, as this evidence was inadmissible under Iowa Rule of Evidence 5.404( b) or should have been excluded as substantially more prejudicial than probative under rule 5.403.
II. SCOPE OF REVIEW
Since the defendant's claim of ineffective assistance arises from his Sixth Amendment right to counsel, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. See Carter, 602 N.W.2d at 820; see also State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). Ineffective assistance claims are usually preserved for postconviction relief proceedings, but where the record is adequate, we will consider them on direct appeal. Westeen, 591 N.W.2d at 207. We think the record here is sufficient to determine that defendant's counsel rendered ineffective assistance. See id.
III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel failed to perform an essential duty and that prejudice resulted from this failure. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). We may affirm if either element is lacking. Id.
Iowa Rule of Evidence 5.404( b) states,
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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Iowa Rule of Evidence 5.403 further limits any evidence deemed admissible under rule 5.404( b):
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .
We will first address whether evidence of defendant's past behavior would have been excluded, as defendant argues, under rule 5.404( b) as irrelevant character evidence had defendant's attorney objected. The State argues evidence of defendant's behavior in the past was admissible not as character evidence, but rather to demonstrate defendant's motive, his general intent to frighten and injure Sharon, the non-accidental nature of his acts, and the volatile relationship existing between defendant and Sharon prompting him to abuse her.
We agree with the State on this issue. Evidence of defendant's prior behavior toward the victim is relevant to show their relationship, which aids in determining his motive. See State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997); State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct.App. 1998). This evidence is also useful to determine defendant's intent. See State v. Plowman, 386 N.W.2d 546, 548-49 (Iowa Ct.App. 1986).
In this case evidence of defendant's previous behavior toward Sharon was relevant not to show his propensity to abuse her, but rather to show their volatile relationship, his motives beyond merely wishing to protect her from drug use, and his intent to cause her harm.
We next examine whether this evidence, if objected to, should nevertheless have been excluded as substantially more prejudicial than probative under rule 5.403. As this evidence was never objected to, the trial court did not engage in the rule 5.403 weighing process. A proper weighing of probative value and unfair prejudice requires that the court consider
on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility.State v. Rodriguez, 636 N.W.2d 234, 240 (Iowa 2001) (Lavorato, C.J., and Carter, J., dissenting), citing State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991) (quoting Edward W. Cleary, McCormick on Evidence, § 190, at 453 (2d ed. 1972) (now found substantially at 1 John W. Strong, McCormick on Evidence § 190, at 672 (5th ed. 1999)).
Defendant urges us to find that the evidence of his past behavior was more prejudicial than probative because 1) there was sufficient alternative evidence of the crime at issue; and 2) the evidence of defendant's acts of control over Sharon would have improperly played on the jurors' emotions. See State v. Most, 578 N.W.2d 250, 254 (Iowa Ct.App. 1998). In urging us to adopt this position defendant refers us to Most and State v. Castaneda, 621 N.W.2d 435, 440-41 (Iowa 2001) (Cady, Larson and Ternus, JJ., dissenting) and distinguishes Rodriguez.
In Most we determined that evidence of defendant's prior conviction for lascivious acts with a child was more prejudicial than probative in his trial for new counts of sexual abuse and lascivious acts with a child. Most, 578 N.W.2d at 254. As there was already sufficient evidence of defendant's intent to sexually abuse the victim, which included evidence defendant had kissed the victim and removed her clothing, we concluded the probative value was substantially outweighed by the prejudice of introducing the prior crime. Id.
In Castaneda the Iowa Supreme Court similarly concluded in its majority opinion that the danger of unfair prejudice from testimony regarding prior sexual conduct by the defendant substantially outweighed the probative value of that evidence to demonstrate sexual abuse. Castaneda, 621 N.W.2d at 443. In that case defendant had been charged with three counts of second-degree sexual abuse and one count of indecent contact with a child, the latter count requiring a showing of specific intent. Id. at 441. Evidence of defendant's prior sexual conduct introduced at trial was determined by the majority to be relevant only to the issue of specific intent. Id. Yet the jury found defendant guilty of only one count of sexual abuse, and specific intent was not necessary for that finding. Id. Further, the facts involved in the sexual abuse count the jury convicted on (oral-genital contact) mirrored the facts in the prior bad act evidence (oral-genital contact). Id. Given this scenario, it appeared likely the jury improperly used the prior sexual conduct as evidence of propensity in order to convict defendant of the count of sexual abuse. Id. In their dissent, Justices Cady, Larson and Ternus argued that balancing unfair prejudice against probative value did not weigh substantially on the side of prejudice, especially in light of the cautionary instruction given to the jury by the district court and the fact that the sexual act introduced as evidence had occurred between adults, not an adult and a child, as the crime at issue had. Id. at 449.
In Rodriguez, 636 N.W.2d at 242-44, the majority opinion for the supreme court concluded the introduction of evidence of defendant's prior assaults on the victim to establish a kidnapping charge was not overly prejudicial. Rodriguez, 636 N.W.2d at 242-44. In that case the court concluded that the prior bad acts evidence was the only additional evidence available in that "he said/she said" case to establish the parties' prior relationship, which was necessary to determine if the victim had been "confined" under the legal definition of "kidnapping." Id. at 242-43. The court further concluded in Rodriguez that not only was this evidence needed to establish the case, it was highly probative as to the matter it was introduced to establish, specifically that confinement had occurred and that it would have been defendant's intent to confine the victim. Id. The court also considered the high reliability of this evidence, noting the victim's mother corroborated her accounts of these bad acts. Id. at 243.
Weighing these considerations against the prejudicial effect of the evidence, the court noted the prejudice to defendant was significantly lessened because defendant admitted committing the assault in question. Id. Furthermore, the prior acts were not more brutal than the act at issue had been, again weighing against the possibility of the tendency of the prior acts to rouse the hostility of the jury. Id. (citation omitted).
Using these cases as a guide, we conclude in this case that the bad acts evidence was substantially more prejudicial than probative. First, in spite of the State's claim that the bad acts evidence was necessary, this case was not a pure "he said/she said" controversy; Sharon's sister, Cynthia, testified to seeing defendant hold the glass to the Sharon's neck, and Officer Wellman testified to seeing a large piece of glass which had been picked up and carried. We therefore cannot justify the bad acts evidence as if it were the only evidence available to aid in determining, between the conflicting stories of a single defendant and his victim, which story was more credible. Furthermore, the bad acts evidence was not necessary to establish an element, such as "confinement" in Rodriguez, of a wholly separate charge.
Secondly, the evidence of defendant's bad acts, based solely upon Sharon's testimony, is not clear proof that they occurred. Sharon stated that she was constantly under the influence of drugs, her testimony indicated a noticeable difficulty in recounting past events with certainty, and she had previously signed an affidavit stating defendant had not hurt her in the past. Although Sharon testified at trial that the substance of the affidavit was false, we nevertheless must take its presence into account in determining whether her later testimony to the contrary was capable of establishing clear proof. Further, unlike in Rodriguez, in this case there was no corroborating testimony affirming the victim's claims of defendant's prior acts.
Third, although the prior bad acts may have demonstrated defendant's motive, intent, absence of mistake, and the parties' relationship to a certain degree, we conclude the strength of the evidence to prove these elements was not particularly high, especially considering defendant's own statements of his motive, intent, and absence of mistake, including, "I'm going to kill you, bitch," and, "I'm going to put you in a shallow grave along with my ex," as testified to by Sharon. According to Sharon's testimony, defendant made both of these statements just before coming at her with the broken piece of glass. These statements seem more probative on the issue of defendant's motive, intent, and absence of mistake with respect to the assault in question than do Sharon's accounts either of defendant's past general threats directed at her or of their prior relationship.
On the other side of the balancing process we note that the prior bad acts at issue included choking Sharon, among multiple other acts designed to threaten her life and sense of security. Although these other acts may not be more brutal than holding a piece of broken glass to her neck, choking is arguably as brutal, and together with the demonstrated history of domestic abuse which these acts establish, any jury exposed to these facts could easily be pushed to overmastering hostility. See Rodriguez, 636 N.W.2d at 243, citing State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct.App. 1993). Further weighing on the side of prejudice is Sharon's admittedly unclear memory of events in the past and the fact that she had signed an affidavit to the effect that defendant had not committed the bad acts she later testified he did.
On balance we conclude Sharon's testimony of defendant's bad acts likely served as bad-character evidence, and defendant's counsel was ineffective for not objecting to the evidence or requesting a limiting instruction. We believe there is a high probability the jury's decision to convict was influenced by improper consideration of defendant's other bad acts, and that defendant's counsel's failure to object to this evidence or request a limiting instruction was not harmless error. See State v. Alderman, 578 N.W.2d 255, 259 (Iowa Ct.App. 1998). We reverse on this issue and remand for a new trial.
We note that in State v. Adcock,No. 00-1559 (Iowa Ct.App. Dec. 28, 2001), involving this same defendant, we found prior bad act evidence was not overly prejudicial. In that case, however, the prior relationship evidence helped establish the "confinement" element of an additional false imprisonment charge, and it consisted of facts surrounding an extended break-up between defendant and his then girlfriend. In this case prior relationship evidence was not introduced to establish an element of a separate crime, nor did the facts focus upon one specifiable chain of events beyond the general relationship of the parties.
IV. MOTION FOR A NEW TRIAL
Defendant further argues on appeal that the trial court failed to use the correct standard in overruling defendant's motion for a new trial. Defendant claims the trial court used a "sufficiency-of-the-evidence" standard rather than a "weight-of-the-evidence" standard, and that this was error under State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). The State responds that defendant failed to preserve this error, as all references made by defendant in his motion for a new trial were to the "sufficiency of the evidence" rather than the "weight of the evidence." Defendant claims in the alternative that his counsel was ineffective for failing to refer the court to the correct standard.
We agree with defendant that the trial court should have reviewed defendant's motion for a new trial based upon the weight of the evidence rather than upon the sufficiency of the evidence to uphold the verdict. See id. at 659. Having reversed and remanded on other grounds, however, we need not address this issue further.