State v. Coen, 85-138

• Citation: 382 N.W.2d 703
• Decision Date: 18 December 1985
• Docket Number: No. 85-138,85-138
• Parties: STATE of Iowa, Plaintiff-Appellee, v. David E. COEN, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 703

382 N.W.2d 703

STATE of Iowa, Plaintiff-Appellee, v. David E. COEN, Defendant-Appellant.

No. 85-138.

Court of Appeals of Iowa.

Dec. 18, 1985.

Michael J. McCarthy, Davenport, for defendant-appellant.

Thomas J. Miller, Atty. Gen. and Roxann M. Ryan, Asst. Atty. Gen., for plaintiff-appellee.

Heard by OXBERGER, C.J., and SNELL and SACKETT, JJ., but considered en banc.

SNELL, Judge.

Defendant Coen was convicted of kidnapping in the third degree and assault with intent to commit sexual abuse as a result of an incident which occurred on August 16, 1984. On that date at around 11 p.m. Natalie Weaver, a nineteen year old, parked her car outside Food For Less and went into the store. When she returned to her car, she heard air coming out of a tire, felt around on the sidewall of the tire, and could feel air coming out. She decided to try to drive to her grandparents' house without changing it. As she started to leave the parking lot, a man Natalie identified as Coen told her that her tire was flat and volunteered to change it for her. Coen was dressed in cut-off blue jean shorts and running shoes without a shirt. He told Natalie he had been jogging. After changing the tire, Coen asked Natalie for a ride home saying he lived by Hardy's on Brady Street. Natalie was going that way and agreed to give Coen a lift feeling obligated because he changed the tire for her. It didn't occur to her at the time that it was strange for a jogger to be asking for a ride. During the ride, Coen suddenly told Natalie that he had a knife, she was not to scream and she was supposed to do as he said. Natalie could not see if Coen actually had a knife because it was dark. They were then in an area of factories, warehouses, railroad tracks, and no streetlights. Natalie continued driving for about one minute; then she saw a jogger. Natalie honked her horn, slammed on her brakes, jumped from the car, and ran to the jogger. Coen fled into a nearby cornfield.

At trial the State called three women who testified that between July and August of 1984, Coen attempted to catch a ride with or give a ride to them. Each woman testified that after visiting a business establishment, she discovered that her car had a flat tire. Coen flagged down each woman to tell her that she had a flat tire and offered to fix it. None of these women accepted a ride with Coen or gave him a ride. Each woman reported that the flat tire had a puncture like that made with a knife.

The trial court also admitted the testimony of a woman who was sexually abused by Coen in 1979. On December 29, 1979, Karen Butler, fifteen years old at that time, accepted a ride with Coen. Coen threatened her with a knife and ordered her to do as he said. He drove her into the country and sexually abused her. Coen's 1980 conviction for second-degree sexual abuse arose out of this incident.

The trial court admitted Karen Butler's testimony concluding it was relevant to the issue of Coen's intent to subject Natalie Weaver to sexual abuse. The court gave the jury an instruction that it should only consider Karen Butler's testimony for the limited purpose of showing intent, motive, or absence of mistake, and not to prove Coen's character.

The jury found Coen guilty of kidnapping in the third degree and assault with intent to commit sexual abuse. Coen has appealed.

Coen raises two contentions on appeal: (1) that the trial court erred by admitting Karen Butler's testimony and (2) that the evidence was insufficient to prove the kidnapping charge.

I. Butler's Testimony.

A. Relevance. In reviewing the trial court's exercise of discretion in admitting the testimony regarding Coen's prior offense, we first consider the basis upon which relevance of the evidence may be found. State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979). The general rule is that "one crime cannot be proved by proof of another." Id. "The purpose of the rule is to exclude from the jury's consideration evidence which has no relevancy except to show that the defendant is a bad person and thus likely committed the crime in question." Id. However, evidence of other crimes may escape the rule's prohibition if it is relevant to prove other than the defendant's criminal disposition. Id.

Iowa Rule of Evidence 404(b) codifies the general rule:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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.

In order to be relevant to the issues, the other offenses must be reasonably similar to the act on which the prosecution is based. State v. Fetters, 202 N.W.2d 84, 92 (Iowa 1972). "There must be such connection between the offense charged and the other offenses that the latter can reasonably be said to tend to establish the first, or some essential fact in issue. In other words, the other offenses must be wrongful acts, crimes, offenses or attempted offenses of a like nature to the charge against the accused." Id.

The principal issue at trial was whether Coen possessed the requisite intent to commit sexual abuse. It was a necessary part of the State's case to prove beyond a reasonable doubt Coen assaulted Natalie with such intent. The intent to commit sexual abuse was an element of both of the crimes charged. The State is entitled to present evidence sufficient to meet its high burden of proof on each element of a criminal offense. State v. Conner, 314 N.W.2d 427, 429 (Iowa 1982).

The other crime described by Butler in which Coen was involved meets the test of relevancy. Karen Butler's testimony indicates that she was sexually abused by Coen after he threatened her with a knife. The sexual abuse occurred after Coen drove Butler in a car to a secluded area. The facts in the present incident indicate that, as in the prior incident, Coen was in a car with Natalie Weaver, he directed her to drive to a secluded area (in fact, the same area in which the prior sexual abuse occurred), and he threatened her with a knife.

Clearly, the testimony of Karen Butler established the commission of a prior crime and an act of sexual abuse which commenced in a manner similar to that with which Coen is presently charged.

Coen argues that the prior crime was too remote in time to be relevant. To resolve the question of whether the incidents were too remote in time we are guided by principles enunciated by the Iowa Supreme Court:

An objection based on remoteness essentially raises an issue of relevancy. "While remoteness in point of time does not necessarily render evidence irrelevant, it may do so where the elapsed time is so great as to negative all rational or logical connection between the fact sought to be proved and the remote evidence offered in proof thereof." 1 Jones on Evidence, § 4:1 at 380 (Sixth Ed.1972). The basic test of relevancy is whether the evidence offered would make the desired inference more probable than it would be without the evidence. * * The question of relevancy, and thus the effect of remoteness, is determined by the sound discretion of the trial court.

State v. Maestas, 224 N.W.2d 248, 251 (Iowa 1974), quoting State v. Engeman, 217 N.W.2d 638, 639 (Iowa 1974). The length of time affects the weight rather than the admissibility of other crimes. Maestas, 224 N.W.2d at 251.

In Maestas, the court faced other-crimes evidence involving the defendant's sexual misconduct six and ten years prior to the date of the incident giving rise to the instant prosecution. The Court stated that "in considering remoteness the time elapsed between events, while important, is not the sole test to be used." Id. at 252. The court concluded that because of the intrafamilial nature and similarity of place of the defendant's misconduct, the evidence of the defendant's prior acts was not too remote in time under the Engeman standards. Id. at 251.

Likewise, the court in State v. Walsh, 318 N.W.2d 184 (Iowa 1982), held that a prior crime which occurred three and one-half years before the current charge was not too remote in time to be relevant. There, the court based its finding partly on the fact that the defendant was confined in prison for some of that time lapse, reducing the "period of opportunity" between the two crimes to a one-year period. The defendant had returned to the same neighborhood to repeat the same plan or pattern of conduct at very nearly his earliest opportunity so to do. The court concluded, "We refuse to say, however, that a one-year period of opportunity between offenses makes Officer Roberts' testimony irrelevant as a matter of law." Id. at 187-88.

In the case at hand, the time lapse between the two crimes was four years and eight months. However, during some of that period Coen was in prison. Thus, the period of opportunity between the two crimes becomes about one year.

We follow the holdings of Maestas and Walsh to conclude that the prior incident involving Karen Butler was not too remote in time to be relevant. The trial court did not abuse its discretion by finding that Butler's testimony was relevant to prove Coen's intent to commit sexual abuse against Natalie Weaver.

Nevertheless, Coen asserts that we are bound by the Iowa Supreme Court's ruling in State v. Walters, 45 Iowa 389 (1877), to exclude Butler's testimony as to the issue of intent. The court there held that evidence of assaults upon the prosecutrix made before the one for which the defendant was tried was admissible to show intent, but evidence of assaults made upon another person several years earlier were not admissible to establish the scienter or quo animo. Id. at 389-90. The court concluded that it was error to allow the latter evidence because it did not directly tend to prove any matter in issue and had no connection with the crime charged. Id.

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