State v. Garren
| Decision Date | 28 August 1974 |
| Docket Number | No. 56685,56685 |
| Citation | 220 N.W.2d 898 |
| Parties | STATE of Iowa, Appellee, v. Daniel Eugene GARREN, Appellant. |
| Court | Iowa Supreme Court |
Robert H. Laden, Des Moines, for appellant.
Richard C. Turner, Atty. Gen., Darby Maria Coriden, Asst. Atty. Gen., and Ray A. Fenton, Co. Atty., for appellee.
Heard before MOORE, C.J., and LeGRAND, REYNOLDSON, HARRIS and McCORMICK, JJ.
Defendant was convicted of violating § 706.2, The Code, by 'maliciously, forcibly, or fraudulently' taking and enticing away Kelly Ann Carmichael, a child under the age of 16 years, with intent to detain or conceal her from her natural parents. He was sentenced to serve a term of not more than 10 years in the penitentiary, and he appeals from that judgment. We affirm the trial court.
Briefly, the facts upon which this appeal rests are as follows: Kelly Ann Carmichael, 11 years of age, was stopped by a man near her home on the evening of February 7th, 1973. He forced her into his car, took her to a deserted area, and there compelled her to remove her clothes. She was sprayed in the face with a substance described as starting fluid. She was also rendered unconscious, probably by blows about the head and face. Her assailant then abandoned her, and she was later rescued by a passing motorist.
Defendant asserts these two issues are grounds for a new trial: (1) the trial court erred in overruling his motion in limine which sought to suppress evidence of another crime; and (2) the trial court erred in overruling his motion for a mistrial because of prosecutorial misconduct.
I. At the outset we repeat what we have often said before. A ruling which denies a motion in limine cannot be the basis for appeal. The error, if any, in such ruling must be preserved by proper objection at trial when the challenged evidence is offered. State v. Hinsey, 200 N.W.2d 810, 817 (Iowa 1972); State v. Garrett, 183 N.W.2d 652, 654 (Iowa 1971); cf. State v. Cage, 218 N.W.2d 582, 586 (Iowa 1974).
A review of the transcript discloses much of the evidence now claimed to be objectionable went in without protest while timely objection was made as to other portions. Since it is virtually impossible to review the matter without considering the evidence in its entirety, we treat this issue as though proper and timely objection had been made in each instance.
Defendant's complaint goes to evidence introduced by the State to show the circumstances surrounding the abduction of the young victim and the events which occurred while she was held captive. This included testimony that she was struck and beaten. It also included evidence from which the jury could find defendant had attempted to rape the girl. The only error relied on is that this evidence should have been excluded because it tended to establish a crime other than the one for which defendant was on trial. Actually two other crimes are involved--assault and battery and assault with intent to commit rape--but the objection is directed only toward evidence of the latter.
In substance, there was evidence that defendant struck and beat Kelly Ann; that the external vaginal area was 'red and bruised' with 'a small amount of blood present just inside the hymenal ring;' that seminal stains were found on Kelly Ann's clothing; and that certain hairs taken from her clothing 'were consistent' with hair samples from defendant's head.
We believe this evidence was admissible on either of two theories, even though it disclosed the commission of other and separate crimes. In the first place, we have repeatedly held that events and circumstances which immediately surround an offense may be shown even though they may incidentally show commission of another crime. State v. Drake, 219 N.W.2d 492, 494 (Iowa 1974); State v. Lyons, 210 N.W.2d 543, 546 (Iowa 1973); State v. Wright, 203 N.W.2d 247, 251 (Iowa 1972); State v Holoubek, 246 Iowa 109, 113, 66 N.W.2d 861, 863 (1954); State v. Robinson, 170 Iowa 267, 276, 152 N.W. 590, 593 (1915).
We believe there is a second reason this evidence was properly admitted. The general rule, of course, is that evidence of crimes other than the one for which a defendant is then on trial is inadmissible unless it tends to prove (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or system of criminal...
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...Edwards. The photograph tends to show Brewer may be guilty of a crime separate from the one in the present case. In State v. Garren, 220 N.W.2d 898, 900 (Iowa 1974) we said evidence of a separate crime is inadmissible as bearing on defendant's guilt unless it tends to prove (1) motive, (2) ......
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