State v. Ripperger, 86-319

• Decision Date: 28 May 1987
• Docket Number: No. 86-319,86-319
• Citation: 409 N.W.2d 693
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Loren RIPPERGER, Respondent-Appellant.
• Court: Iowa Court of Appeals

Page 693

409 N.W.2d 693

STATE of Iowa, Plaintiff-Appellee, v. Loren RIPPERGER, Respondent-Appellant.

No. 86-319.

Court of Appeals of Iowa.

May 28, 1987.

John P. Roehrick of Roehrick, Hulting & Moisan, Des Moines, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and Gregory L. Biehler, Asst. Polk Co. Atty., for plaintiff-appellee.

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

SNELL, Judge.

On August 8, 1985, the appellant, Loren Ripperger, was charged by trial information with committing lascivious acts with a child. See Iowa Code § 709.8 (1985). Trial commenced on January 6, 1986. Prior to trial, Ripperger filed a motion in limine seeking to exclude certain medical testimony. The district court overruled the motion in limine and the jury returned a verdict finding Ripperger guilty as charged. Following an unsuccessful motion for new trial, Ripperger was sentenced, on February 14, 1986, to an indeterminate term not to exceed two years. This appeal followed. Our review is limited to the correction of errors at law. Iowa R.App.P. 4. The admissibility of the evidence at issue rests largely in the trial court's discretion. State v. Johnson, 224 N.W.2d 617, 620 (Iowa 1974). We will not reverse if the trial court's ruling can be sustained on any ground. State v. Baker, 293 N.W.2d 568, 574 (Iowa 1980).

Ripperger contends the allowance into evidence of the testimony at issue violates Iowa Rule of Evidence 404(b) and the cases which have interpreted that rule. The testimony with which we are concerned was given by Dr. David L. Thornton, an expert witness for the State. Prior to Dr. Thornton's testimony the alleged victim, Ripperger's five-year-old step-granddaughter, had given an affirmative response when asked if the defendant had "ever put his finger inside of you?" Although the victim did not testify as to whether this occurred on the date of the assault for which Ripperger was charged or at some time prior to that date, Ripperger and the State have characterized Dr. Thornton's testimony as evidence of past crimes. Dr. Thornton testified that he had examined the victim nine days after the alleged acts had occurred. He stated both that the victim's vaginal caliber was abnormally wide and that this condition is consistent with digital penetration. Ripperger claims on appeal, as he did by way of pretrial motion in limine and objection during trial, that the allowance of this testimony violates Iowa Rule of Evidence 404(b).

The general rule is that "one crime cannot be proved by proof of another." State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979) (quoting 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. Id. This rule is codified as Iowa Rule of Evidence 404(b). See Iowa R.Evid. 404(b), federal advisory committee's notes. That rule reads as follows:

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 exceptions to this rule are based upon the relevancy of certain evidence to the proof of some fact or element in issue other than the defendant's criminal disposition. Cott, 283 N.W.2d at 326. The test of admissibility under an exception to rule 404(b) is two-pronged. First, the evidence must be relevant to one or more of the issues for which exceptions are recognized. State v. Walsh, 318 N.W.2d 184, 185 (Iowa 1982). Second, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Munz, 355 N.W.2d 576, 579 (Iowa 1984).

In addition to those bases for admission specifically enunciated in rule 404(b), the supreme court of this state has recognized an exception applicable to the context of sex crime cases. In State v. Spaulding, 313 N.W.2d 878 (Iowa 1981), the court reaffirmed its position that an exception to rule 404(b) exists for evidence offered " 'in order to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial.' " Id. at 880 (quoting McCormick's Handbook on the Law of Evidence, § 190 at 449 (2d Ed. E. Cleary 1972)). This exception is applicable in the context of prosecutions for lascivious acts with a child. State v. Maestas, 224 N.W.2d 248, 250 (Iowa 1974). Dr. Thornton's testimony was that the victim's vaginal condition was consistent with the victim's claim that digital penetration had occurred.

If in fact the victim's testimony relates to events occurring on the date of the offense for which Ripperger was charged, his objections to the testimony are misplaced. If this is the victim's claim, then Dr. Thornton simply gave corroborating testimony about physical evidence that a crime had been perpetrated on the child victim. His testimony regarding the victim's vaginal condition is consistent and corroborative of her testimony that defendant penetrated her digitally. The crime of lascivious acts with a child of which defendant is charged includes "(1) fondle or touch the pubes or genitals of a child." Iowa Code § 709.8(1)(1985). Dr. Thornton's testimony meets the relevancy criteria established by Iowa Rule of Evidence 401. That rule states "relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence."

If, however, the victim's testimony relates to digital penetration perpetrated by Ripperger on a previous occasion, we think Dr. Thornton's testimony comes within the "illicit sexual relations" exception reaffirmed by Spaulding. Although Dr. Thornton's testimony did not identify Ripperger as the perpetrator of the penetration, we think the fact that the testimony corroborated, and was corroborated by, the victim's testimony that Ripperger was the perpetrator provides the nexus of relevancy to this exception.

Ripperger contends Dr. Thornton's testimony violates the rule which requires clear proof of the alleged prior sex acts. See e.g., State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985). This, argues Ripperger, is because Dr. Thornton did not identify Ripperger as the perpetrator of the digital penetration. We note that the purpose of the rule argued by Ripperger "is to prevent the jury from engaging in speculation or drawing inferences based on mere speculation." Id. Although commission of prior acts need not be established beyond a reasonable doubt, id., the evidence must be clear and complete enough to allow the jury to find commission of the prior act without resorting to speculation or mere suspicion. Id. We look to the totality of the relevant circumstances to determine whether sufficient proof of the prior act has been demonstrated. See Johnson, 224 N.W.2d at 620-21.

Dr. Thornton is a pediatric physician possessing extensive training and experience in the examination of childhood victims of sexual abuse. No one disputes his qualifications to perform the examination; nor are his qualifications as an expert witness questioned on this appeal. The victim's testimony alleged Ripperger had perpetrated digital penetration upon her. This testimony corroborated that given by Dr. Thornton which, in turn, corroborated the victim's. Contrary to Ripperger's contention we believe Dr. Thornton's testimony, far from inviting the jury to speculate, actually reduced the possibility of speculation which may have resulted from the victim's otherwise unsupported claim. It would be quite anomalous for our law to allow such testimony from a victim, e.g., Spaulding, 313 N.W.2d at 880, while rejecting evidence which corroborates the youthful victim's claim. We think the potential for speculation arising from Dr. Thornton's testimony insufficient to warrant a finding of error. See Spargo, 364 N.W.2d at 209; see also Spaulding, 313 N.W.2d at 881-82 (probative value of prior acts testimony increased where testimony corroborates victim's claim).

In this respect we find support for our decision in State v. Hilleshiem, 305 N.W.2d 710 (Iowa 1981). In Hilleshiem, the defendant was charged with beating a two-year-old child to death. Id. at 711. Defendant challenged the State's use of evidence of bruises on the victim which preexisted the assault which resulted in the victim's death. Id. at 714. The bruises were not linked by the evidence to either the defendant or the cause of death. Id. Our supreme court refused to "find the evidence inadmissible as an improper attempt to adduce proof of other crimes" perpetrated on the victim by defendant. Id. The court held the evidence to be circumstantial evidence of the defendant's relationship with the victim which the jury was entitled to consider in determining credibility. Id. We think this rationale applies as well to the case at bar.

Nor do we think the failure of the victim to testify to the date of the alleged penetration fatal to the district court's ruling. While remoteness in time is certainly a consideration relevant to the balance of probative value and prejudicial effect, Spargo, 364 N.W.2d at 209, it clearly is not the only consideration. Id. Because the victim in this case was five years old at the time of trial, and four years old on the date the charged offense allegedly took place, we are presented with a factually-imposed limit of four to five years previous to trial during which the alleged penetration must have occurred. Longer time periods have not constituted a bar to admissibility in previous case...