State v. Munz

• Decision Date: 19 September 1984
• Docket Number: No. 69378,69378
• Citation: 355 N.W.2d 576
• Parties: STATE of Iowa, Appellee, v. Thomas Arthur MUNZ, Appellant.
• Court: Iowa Supreme Court

Page 576

355 N.W.2d 576

STATE of Iowa, Appellee, v. Thomas Arthur MUNZ, Appellant.

No. 69378.

Supreme Court of Iowa.

Sept. 19, 1984.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Joseph P. Weeg, Asst. Atty. Gen., and J. Patrick White, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, LARSON, and SCHULTZ, JJ.

LARSON, Justice.

The defendant Thomas Albert Munz appeals his conviction and sentence on two counts of third-degree sexual abuse. Iowa Code §§ 709.1, 709.4(5). He claims the trial court erred in several rulings on the admission of evidence and argues that section 709.4(5) violates his constitutional rights to privacy and equal protection. We affirm.

The evidence at trial revealed the following facts supporting the conviction. Munz lived for a time with a woman who had two children, a son and a daughter, by a prior marriage. Soon after Munz moved in, he began to have sexual relations with the twelve-year-old daughter, the victim in this case. This relationship continued over the next several years, first in the home then, when the girl's mother evicted Munz, at various other places including rooming houses and motels. At the time of the crimes charged here, March 1 and March 24, 1982, Munz was thirty-six and the victim was fourteen.

Iowa Code section 709.4 defines sexual abuse in the third degree:

Any sex act between persons who are not at the time cohabitating as husband and wife is sexual abuse in the third degree by a person when the act is performed with the other participant in any of the following circumstances:

....

5. The person is six or more years older than the other participant, and that other participant is fourteen or fifteen years of age.

I. The Evidence Rulings.

The State introduced evidence of other acts occurring both before and after the dates of the crimes charged. The prior acts were shown in photographs of Munz and the victim taken at various times and places. The defendant complains that these photographs were "cumulative and highly prejudicial." In addition, the State introduced evidence through testimony of the victim that Munz had beaten her seven days after the last incident charged in an attempt to prevent her from breaking off the continuing relationship. Evidence of the subsequent act, it is claimed, was "irrelevant and more prejudicial than probative."

Our rules of evidence provide for limited use of other crimes or acts of a defendant:

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.

Iowa R.Evid. 404(b). This rule is identical to federal rule 404(b).

Even if the proffered evidence is relevant, however, it may still be excluded under rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the [fact finders]." Iowa R.Evid. 404(b), advisory committee comment. See also State v. Conner, 314 N.W.2d 427, 429 (Iowa 1982).

A. The Photographs of Prior Acts. None of the pictures showing Munz and the victim engaged in various sex acts were taken on March 1 or March 24, the dates charged in the two counts of the information. Munz objected on the grounds the pictures were "cumulative" and "more prejudicial than probative." No relevancy objection was raised as to the photographs.

Even if we assume the evidence was cumulative, that is not a sufficient reason, standing alone, to require its exclusion; its admissibility still turns on the trial court's discretion. Conner, 314 N.W.2d at 429; State v. Maxwell, 222 N.W.2d 432, 435 (Iowa 1974). Moreover, the photographs in this case can scarcely be characterized as merely cumulative. They furnished graphic proof of prior sex acts with the defendant, a hotly contested issue at trial.

The question remains whether the relevancy of the photos was outweighed by prejudice to the defendant, as he claims. Iowa R.Evid. 403. This determination also lies in the discretion of the trial court, and we will reverse only upon abuse of that discretion. State v. Harmon, 238 N.W.2d 139, 145 (Iowa 1976); Iowa R.Evid. 403, advisory committee comment.

The photographs were, to put it mildly, explicit. Considered outside the factual context of this case, they could even be characterized as shocking. But the crimes charged were shocking, and the photographs of the prior acts merely embellished the verbal picture of the events already provided by the testimony of the victim. Under these circumstances, we are reluctant to find prejudice sufficient to override the probative value. See, e.g., State v. Fuhrmann, 257 N.W.2d 619, 625 (Iowa 1977) ("grisly nature of these photographs [of murder victim] is an unavoidable result of the nature of the killing"); State v. Fryer, 243 N.W.2d 1, 7 (Iowa 1976) (photograph of murder victim). The court did not err in admitting them into evidence.

B. Evidence of Subsequent Event. After the victim had testified about the sex acts of March 1 and March 24, she was asked on direct examination "[w]hen was your next contact, if any, with Tom Munz"? The defendant objected to evidence of this subsequent event on the ground it was irrelevant.

Initially, the trial court sustained the objection, but the county attorney argued the evidence was necessary to lend support to the victim's testimony to explain "why [the victim] did not tell anyone of her relationship with Mr. Munz prior to when she did." Although as defense counsel pointed out to the court the victim's reasons for failing to come forward from the beginning had not been called into question, the trial court reversed its ruling and allowed the testimony noting that "the not-guilty plea places everything in issue."

The victim then testified about a beating by Munz on March 31, seven days after the last offense. Based on her testimony that what took place on that day was not "sexual relations," defense counsel objected that her testimony "[would not] go to [Munz's] predisposition to have sex with her." That objection was also overruled. The victim testified that on that date she told the defendant she didn't want to "see" him any more, whereupon he forced her to remove her clothing, taped her hands above her head, and beat her with a leather belt.

Defendant argues that any testimony regarding events of March 31 had "no logical tendency to increase or decrease the probability of truth or the elements of the crime," State v. Zaehringer, 280 N.W.2d 416, 420 (Iowa 1979), and was therefore irrelevant. He asserts, as he did at trial, that even if some probative value exists, it is substantially outweighed by the danger of unfair prejudice.

In response, the State argues that testimony regarding the March 31 assault was relevant for two reasons: first, because it substantiated the witness's credibility; and second, because it showed "a passion or propensity for illicit sexual relations with a particular person concerned in the crime on trial." State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981). This relevancy, it argues, was not outweighed by prejudice.

(1) The credibility ground. The State's argument that the questions regarding the subsequent incident were merely an attempt to bolster the credibility of the victim is confronted by the well-established principle that unless the credibility of a witness is first placed in issue, no sustaining evidence is allowed. State v. Brandt, 182 N.W.2d 916, 917 (Iowa 1971); Iowa R.Evid. 608(a) (evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise). See also 98 C.J.S. Witnesses § 471, at 349 (1957) ("As a general rule evidence is not admissible to sustain the credibility of an unimpeached witness....").

In this case, the victim was the State's first witness. The testimony about the beating was presented during her direct examination; hence, defense counsel had not had an opportunity to cross-examine her or call her credibility into question. Admission of this testimony cannot be sustained on the basis of the State's "credibility" argument.

(2) The "propensity for illicit sexual relations" ground. The State's alternative argument for admissibility of the beating evidence is based on the principles allowing evidence of similar acts in sex abuse cases.

Munz correctly articulates the general rule that evidence of other crimes is inadmissible because it has "no relevancy except to show the defendant is a bad person and thus likely committed the crime in question." State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979). See also, Iowa R. of Evid. 404(b) ("evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person or in order to show that he acted in conformity therewith."). The rule of exclusion is, of course, based upon the potential prejudicial effect of such evidence.

One of the exceptions to the general rule of exclusion allows the admission of evidence of prior sexual acts with the victim "in order to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial." McCormick's Handbook on the Law of Evidence ± 190, at 449 (2d ed. E. Cleary 1972); accord, State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981); State v. Folkens, 281 N.W.2d 1, 5 (Iowa 1979); State v. Maetas, 224 N.W.2d 248, 250 (Iowa 1974); State v. Rankin, 181 N.W.2d 169, 171 (Iowa 1970); State v. Kinkade, 241 Iowa 1259, 1261-62, 43 N.W.2d 736, 738 (1950); State v. Neubauer, 145 Iowa 337, 345-46, 124 N.W. 312, 315 (1910); Annot. 88 A.L.R.3d 12 (1978); Annot. 77 A.L.R.2d 841 (1971...