State v. Plaster

• Decision Date: 11 May 1988
• Parties: STATE of Iowa, Appellee, v. Kevin Ray PLASTER, Appellant. 86-1632.
• Court: Iowa Supreme Court

Page 226

424 N.W.2d 226

STATE of Iowa, Appellee, v. Kevin Ray PLASTER, Appellant.

86-1632.

Supreme Court of Iowa.

May 11, 1988.

Charles L. Harrington, Appellate Defender, and Michael J. Laughlin and B. John Burns, Asst. Appellate Defenders, for appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., William E. Davis, Co. Atty., and James L. Ottesen, Asst. Co. Atty., for appellee.

Considered en banco.

LAVORATO, Justice.

Kevin Ray Plaster was convicted of third-degree sexual abuse for acts arising out of initially consensual sexual activity. See Iowa Code § 709.4 (1985). He appealed, arguing that prejudicial testimony concerning a similar incident with a different woman was improperly admitted into evidence and that the evidence was insufficient to warrant a guilty verdict. We transferred the case to the court of appeals, and it upheld the district court's evidentiary ruling and the conviction. Upon further review we likewise find no error and affirm.

Plaster met the complainant, Christine, in a laundromat one evening in June 1986. At his suggestion they went to a bar, where they drank alcoholic beverages for about two hours. They then decided to go to his apartment. Christine later testified that she assumed they would probably engage in sexual activity there.

After they had disrobed and performed oral sex, Plaster put his fingers into Christine's vagina and manipulated it very vigorously. According to Plaster, other women had found such manipulation pleasurable. It caused Christine pain, however, and she told Plaster to stop. When he did not, she had to pull herself away from him. Christine still felt pain after the manipulation ceased, and she saw that she was bleeding as a result of it. Because she was upset, Plaster tried to calm her.

Later, Plaster attempted to engage Christine in sexual intercourse. When she refused, Plaster allegedly told her he would "use his hand again" if she did not agree. They then had intercourse. Christine left the apartment about two hours later, although Plaster had invited her to spend the night.

When Christine returned home, she told her roommate, Susan, that she had been injured by Plaster. Susan, seeing that Christine was upset, called a rape crisis center for her and drove her to a hospital.

At the hospital Christine was examined by Dr. Dean Ehrecke and Dr. Donald Heming. They found lacerations in her vagina and the surrounding area, and both doctors testified that such injuries would have been very painful. Dr. Ehrecke noted the injuries were consistent with Christine's statement to him that "she had been assaulted with a fist into the vagina."

Because he had allegedly forced Christine to have intercourse after the hand manipulation, Plaster was charged with third-degree sexual abuse. See Iowa Code § 709.4. Before trial he made a motion in limine, seeking to exclude testimony concerning a woman whom he had injured in a similar way two years earlier. See Iowa R.Crim.P. 10(2); Iowa R.Evid. 104(a). Plaster argued that the probative value of such testimony would be outweighed by its prejudicial effect, see Iowa R.Evid. 403, and that the testimony would not fall within the exceptions to the prohibition against admitting evidence of other wrongs, see Iowa R.Evid. 404(b).

The district court denied the motion, broadly ruling that "evidence of a similar incident by [Plaster] with a different victim ... would be relevant, material, and admissible evidence of motive, opportunity, intent, preparation, plan, identity, knowledge, or absence of mistake or accident."

At trial Melissa, the woman who had been similarly injured by Plaster, and her physician, Dr. Eugene Kerns, testified about the earlier incident and its result. Melissa stated that during consensual sexual activity with Plaster, he had vigorously manipulated her vagina with his hand, causing her to bleed. Despite Melissa's request that he stop, Plaster continued the manipulation for some time.

Afterward, Melissa went into the bathroom to shower. Plaster followed her and, according to Melissa, forced her to perform oral sex against her will. Dr. Kerns, who examined Melissa after the incident, testified that Plaster's manipulation had caused bruises and a laceration of Melissa's vagina.

At the close of testimony the district court denied Plaster's motion for a judgment of acquittal, ruling that the evidence was not insufficient regarding lack of consent. See Iowa R.Crim.P. 18(8). The jury then found him guilty of third-degree sexual abuse. See Iowa Code § 709.4. After denying his motion for a new trial, the court sentenced Plaster to a period of incarceration not to exceed ten years, see id. at §§ 902.3, 902.9(3).

Plaster appealed, arguing that testimony concerning the incident with Melissa was improperly admitted and that his conviction was supported by insufficient evidence. We transferred the case to the court of appeals, which upheld the district court's evidentiary ruling and the conviction. Plaster's contentions are now before us for further review.

I. Evidence of Prior Sexual Abuse Toward One Other Than the Victim.

Plaster contends the district court erred in permitting Melissa's testimony about his prior sexual conduct toward her and in permitting Dr. Kerns' testimony about the treatment of her injuries resulting from that conduct. In support of his contention, Plaster argues that the testimony was not relevant because it did not fall within any of the recognized exceptions in rule 404(b) of the Iowa Rules of Evidence. He further argues that even if the testimony was relevant, its probative value was outweighed by the unfair prejudice generated by its admission.

The State insists the evidence was relevant on the hotly contested issue of force or lack of consent. Because the testimony was relevant, the State argues that the district court properly exercised its discretion in admitting it.

Rule 404(b) provides:

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.

The purposes listed in the rule are not exclusive. State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987); 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404, at 404-56--57 (1986). The key is "whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts." Barrett, 401 N.W.2d at 187; accord 2 Weinstein p 404, at 404-52. If the evidence meets this litmus test, "it is prima facie admissible, notwithstanding its tendency to demonstrate the accused's bad character." Barrett, 401 N.W.2d at 187.

In determining whether evidence of "other crimes, wrongs, or acts" is admissible, the trial court must employ a two-step analysis. The court must first decide whether the evidence is relevant. If the court finds that it is, the court must then decide whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. State v. Kern, 392 N.W.2d 134, 136 (Iowa 1986); Iowa R.Evid. 403. A positive finding as to the second step overcomes the evidence's prima facie admissibility. Barrett, 401 N.W.2d at 187 n. 2.

In the process of employing the two-step analysis, the trial court must exercise its discretion. We will reverse its decision only when we find a clear abuse of discretion. Kern, 392 N.W.2d at 136.

A. Relevancy. Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R.Evid. 401. The test is "whether a reasonable [person] might believe the probability of the truth of the consequential fact to be different if he knew of the proffered evidence." 1 Weinstein p 401, at 401-48.

The consequential fact here is whether Christine consented to the sexual intercourse following Plaster's hand manipulation of her vagina. Is the likelihood that Plaster did not have Christine's consent enhanced by evidence of past sexual abuse toward another in similar circumstances?

Various courts have grappled with the question whether evidence of past sexual abuse toward another is relevant to the issue of the victim's consent. These courts have utilized various analyses and have come to different conclusions. A number of these cases are collected in an exhaustive annotation on the subject. See Annotation, Admissibility, In Rape Case, Of Evidence That Accused Raped Or Attempted To Rape Person Other Than Prosecutrix, 2 A.L.R.4th 330, 374-80 (1980). We think a discussion of several of these cases would be helpful to our analysis.

In People v. Gray, 259 Cal.App.2d 846, 66 Cal.Rptr. 654 (1968), the defendant was convicted of kidnapping and rape. The victim, a 47-year-old woman, testified the defendant forced her into his apartment, pulled her clothes off, beat her, and accomplished three or four acts of intercourse during a two-hour period. Prior to this incident, the victim had been in the defendant's apartment on one occasion and he in hers on another. The defendant admitted the sexual intercourse but claimed it was consensual.

On rebuttal, three women testified that the defendant, prior to this incident, had beaten them in a similar manner and attempted to rape them. The defendant knew all three and, in the case of one, had previously engaged in consensual intercourse. The defendant testified that he had also had intercourse with the victim before. The tenor of the defense was to point up the improbability that the defendant would have resorted to force with the victim. Rejecting the defendant's contention that the testimony of the other three women had been erroneously admitted, the court reasoned that

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