State v. Cott

Decision Date19 September 1979
Docket NumberNo. 62237,62237
Citation283 N.W.2d 324
PartiesSTATE of Iowa, Appellee, v. Arthur Stewart COTT, Appellant.
CourtIowa Supreme Court

James R. Cook, Des Moines, for appellant.

Thomas J. Miller, Atty., Gen., Lona J. Hansen, Asst. Atty. Gen., and Dan L. Johnston, Polk County Atty., for appellee.


ALLBEE, Justice.

Defendant Arthur Stewart Cott was charged and convicted of violating section 725.10, The Code 1977, which prohibits lascivious acts with persons under sixteen years of age for the purpose of arousing or satisfying sexual desires. The evidence at trial showed that on November 28, 1977, a five-year-old girl accompanied her mother to the Target Store on Euclid Avenue in Des Moines. They initially went to the toy department, where the girl became temporarily separated from her mother. According to the girl's testimony, a man approached her in the toy department, asked her if she wanted a quarter and she decided that she did. The man and she then walked to the adjacent shoe department because he told her that she would find the money there on the floor. In the shoe department, the man pulled down his pants and prompted the girl to touch his genitals. The man also touched the girl's pubic area at a time when her pants were down. Afterwards, the man gave the girl a quarter, instructing her to tell her mother that she found it.

Other evidence which trial court admitted, pursuant to its ruling on defendant's motion in limine, was the testimony of an eight-year-old girl regarding her involvement in similar incidents with defendant. The last of those incidents, for which he was convicted, had occurred approximately sixteen months earlier in Ames. She testified that defendant and she had touched each other's genital area a couple of times in his home and that he had twice given her money, advising her to tell her family that she found it.

In its instructions, trial court cautioned the jury that a conviction of the defendant must be based on the incident which occurred at the Target Store "and no other act." The jury was also instructed that the evidence of the prior incidents should only be considered as it might relate to defendant's motive on November 28, 1977, his intent, his identity as the offender and any common scheme or plan the jury might have found the defendant to have followed.

The sole error which defendant has urged on appeal was the admission of the testimony regarding the Ames incidents. The court of appeals reversed and remanded for a new trial, holding that the trial court had abused its discretion in admitting that testimony. While acknowledging that the evidence of defendant's prior offense had probative value, the court of appeals concluded that it was outweighed by its prejudicial effect.

We subsequently granted the State's application for further review of the decision of the court of appeals and now vacate that decision and reinstate trial court's judgment.

I. In reviewing trial court's exercise of discretion in admitting the testimony regarding defendant's prior offense, we first consider the bases upon which relevance of the evidence may be found. The general rule is that "one crime cannot be proved by proof of another." State v. Schlak, 253 Iowa 113, 115, 111 N.W.2d 289, 291 (1961). 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. See State v. Johnson, 224 N.W.2d 617, 621 (Iowa 1974) (quoting McCormick's Handbook of the Law of Evidence § 190, at 453 (2d ed. 1972)); State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971); Annot., 77 A.L.R.2d 841, 846-48 (1961). Consequently, evidence which is relevant to prove some fact or element in issue other than the defendant's criminal disposition escapes the rule's prohibition. We have accordingly recognized certain categories of permissible objectives for proof of prior criminal acts:

(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.

State v. Folkens, 281 N.W.2d 1, 5 (Iowa 1979) (citations omitted).

The State urges that the contested testimony falls within one or more of these well-recognized exceptions and within a sixth proposed exception: to show the lewd and lascivious disposition of the defendant. Because a cursory examination of some of our more recent opinions might yield arguable support for the creation of such an added exception in cases of this nature, we believe clarification is necessary.

This court's allowance of evidence of prior offenses for the purpose of showing the lewd disposition of the defendant in cases involving lascivious acts with a child apparently originated in State v. Neubauer, 145 Iowa 337, 124 N.W. 312 (1910). Neubauer upheld the trial court's refusal to exclude evidence of prior offenses of the same character as the crime charged and committed by the defendant against the prosecuting witness. Finding that the defendant's intent was in issue, the Neubauer court applied the rule previously used in rape cases which permitted evidence regarding prior offenses involving the same parties to show the defendant's intent. That opinion quoted the following language from a rape case: "(P)revious conduct of defendant tending to show a lascivious disposition on his part Toward the prosecutrix is admissible in a prosecution for a sexual offense." Id. at 346, 124 N.W. at 315 (quoting State v. Crouch, 130 Iowa 478, 484, 107 N.W. 173, 175 (1906) (emphasis added)).

Later, State v. Kinkade, 241 Iowa 1259, 1263, 43 N.W.2d 736, 738 (1950), approved the instruction of the trial court that evidence of prior similar sexual acts of the defendant with the prosecutrix was relevant to show the "lascivious and lewd disposition of the defendant." We discern, however, that the primary rationale of that decision was that the prior acts, as in Neubauer, showed defendant's intent with regard to the prosecutrix, not an indiscriminate lewd disposition on his part. Kinkade also pointed out that this court had uniformly excluded evidence of previous conduct of the defendant with persons other than the prosecutrix if the evidence was not relevant to one of the well-recognized classes of acceptable purposes for such evidence. See id. at 1261-62, 43 N.W.2d at 738; See, e. g., State v. Weaver, 182 Iowa 921, 924-26, 166 N.W. 379, 380-81 (1918); State v. Vance, 119 Iowa 685, 686-87, 94 N.W. 204, 204-05 (1903).

Those well-known exceptions were held applicable in cases subsequent to Kinkade. For example, Schlak, 253 Iowa at 116-17, 111 N.W.2d at 291, approved the admission of testimony of prior victims to show motive ("the desire to gratify his lustful desire by grabbing or fondling young girls") and identity (the victims were accosted at the same type of location and had identified the defendant's car license number). We note, however, that the opinion inaptly echoed the words of Kinkade by in one instance equating the motive purpose with one "to show the lewd disposition . . . of defendant." Id. at 117, 111 N.W.2d at 292. That language was also reiterated in State v. Maestas, 224 N.W.2d 248, 250-51 (Iowa 1974), which held that proof of prior incestuous acts of the defendant with daughters other than the prosecutrix was admissible to show either "defendant's common scheme or lewd disposition."

As is apparent from this summary, evidence 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, 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 admission 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 prior 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. 1 The resultant unfairness to those accused of sex crimes is self-evident. 2

Because we reject the lewd disposition rationale for approving admission of the testimony in question, our task is to determine if it falls within some other, acceptable exclusion from the rule. As stated in Wright, 191 N.W.2d at 640, "There must be some factual issue raised to permit evidence of other crimes under the noted exceptions." There is no issue here as to the offender's motive or intent in committing the acts charged. The offender's mental state inhered in the acts themselves. See State v. Marvin, 197 Iowa 443, 444, 197 N.W. 315, 316 (1924). For the same reason, absence of mistake or accident was not a legitimate reason for introducing the testimony in this case.

Nor do we believe the evidence was admissible to show a common scheme or system of criminal activity. The fact that defendant committed crimes of the same nature against the two girls is insufficient to bring the testimony within that exception. See Wright, 191 N.W.2d at 641. Testimony regarding the Ames incidents would neither serve to show...

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  • State v. Ellis
    • United States
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    • March 27, 1981
    ...relevant evidence may in some instances increase the probative value of the evidence available. (Citations omitted.)" State v. Cott, 283 N.W.2d 324, 329 (Iowa 1979). All factors must be put in the balance, and the trial court has a large amount of discretion in this This court has consisten......
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