State v. Thoren, 20-0192

• Court: United States State Supreme Court of Iowa
• Writing for the Court: OXLEY, Justice.
• Citation: 970 N.W.2d 611
• Docket Number: 20-0192
• Decision Date: 25 February 2022
• Parties: STATE of Iowa, Appellee, v. Kevin Jon THOREN, Appellant.

970 N.W.2d 611

STATE of Iowa, Appellee,
v.
Kevin Jon THOREN, Appellant.

No. 20-0192

Supreme Court of Iowa.

Submitted October 20, 2021
Filed February 25, 2022

Martha J. Lucey, State Appellate Defender, and Ashley C. Stewart (argued), Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers (argued), Assistant Attorney General, for appellee.

Oxley, J., delivered the opinion of the court, in which Christensen, C.J., and Appel and McDermott, JJ., joined. Waterman, J., filed a special concurrence, in which Mansfield, J., joined. Mansfield, J., filed a special concurrence, in which Waterman and McDonald, JJ., joined.

OXLEY, Justice.

970 N.W.2d 618

"It is fundamental to American jurisprudence that ‘a defendant must be tried for what he did, not for who he is.’ " United States v. Foskey , 636 F.2d 517, 523 (D.C. Cir. 1980) (quoting United States v. Myers , 550 F.2d 1036, 1044 (5th Cir. 1977) ). Our rules prohibit using a defendant's prior bad acts as propensity evidence—that is, to show that because a defendant did something before, he must have done it again. That said, evidence of prior bad acts can be used for other purposes, but only if the other purpose is truly disputed in the case. And when the evidence is allowed, the district court must take care to limit use of the evidence to the proper use, not the prohibited propensity use.

The defendant in this case, who was convicted of sexually abusing a client during a Reiki treatment session, argues the court of appeals erred in affirming his conviction because the district court violated this fundamental principle. Specifically, the defendant asserts the State should not have been allowed to introduce evidence about an investigation by the Iowa Board of Massage Therapy (Board) into allegations he had inappropriately touched other clients that ultimately led to the loss of his massage license or testimony from those complaining former clients. Given the unique circumstances of this case and the significant evidence presented about "phantom touches" in the defendant's attempt to convince the jury the victim only imagined that the defendant vigorously rubbed her vaginal area with his hand during the Reiki session, we conclude the district court properly admitted some evidence from the defendant's former massage clients about their experiences. But the district court erred in allowing evidence about the Board's investigation, which gave the Board's imprimatur of wrongdoing. The district court also failed to identify which issues were truly disputed, which led the district court to allow more testimony from the former clients than was permissible. The State's closing argument reveals the risk that the jury used the evidence for the prohibited purpose, not the allowed purpose, when the State urged the jury to consider the prior incidents to decide "did he intend to do this to her. He's done it to five other women." The defendant is entitled to a new trial.

I. Factual Background & Proceedings.

Kevin Thoren voluntarily surrendered his license to practice massage therapy in September 2018 following an investigation by the Board. The investigation arose from a complaint of inappropriate touching filed by a client named L.K. The complaint alleged that during a massage in 2014 Thoren exposed L.K.’s breasts and pulled on her nipples. Although Thoren voluntarily surrendered his license after the investigation, the self-surrender included no admission of guilt.

In addition to L.K., four other clients filed complaints with the Board about inappropriate sexual conduct during appointments with Thoren. J.J., who worked for Thoren, complained in 2017 that Thoren had massaged too close to her breasts in 2008 and 2009 after she asked him not to and that Thoren had used an electric vibrating machine against her wishes. J.J. was so upset that she quit working for Thoren after the incidents. In 2017, M.L. complained that Thoren had massaged the side of her breast during a 2012 appointment in an inappropriate way while panting and breathing heavily in a way that made her believe he was aroused. In 2016, A.N. complained that Thoren had placed an electric vibrating machine on her breasts, lower abdomen, and uncomfortably

970 N.W.2d 619

close to her vagina during appointments in 2009. Finally, upon hearing about the charges against Thoren, his sister-in-law, S.T., told law enforcement about a massage in 2009 during which Thoren had placed an electric vibrating machine on her crotch area and over her clitoris. S.T. eventually filed a complaint with the Board in August 2019. Thoren was not criminally charged for any of the complaints filed by these former clients with the Board. This case is about later events with another client, L.R., involving nonmassage healing treatments. Yet the Board's investigation and his prior conduct formed the opening evidence presented by the State at Thoren's trial for sexually abusing L.R.

Thoren continued to offer alternative healing modalities, including Reiki and craniosacral therapy, after surrendering his massage license. The client remains fully clothed for these treatments. According to the evidence presented at trial, Reiki, often referred to as a type of energy therapy, is an ancient form of natural hands-on healing where the practitioner holds his hands over the client's body to facilitate a transfer of energy to help the body heal itself. In a Reiki treatment, the practitioner either gently touches or holds his hands lightly above the client's body without actually touching it. Reiki is different from massage in that Reiki involves no rubbing, kneading, or manipulation. The practitioner holds his hands stationary in specific positions, either hovering over or gently touching the client's body, and removes his hands each time he moves to the next hand position.

Craniosacral therapy is also distinct from massage. It focuses on the bone structure between the skull and the sacrum bone at the base of the spine and works to improve movement of cerebral spinal fluid throughout the spine. The practitioner gently touches certain areas on the head or the sacrum—described as using pressure equal to the weight of a dime—with no movement or manipulation.

The story that led to the charges for which Thoren stood trial actually starts here. On November 21, 2018, L.R. was attending her second appointment with Thoren. L.R.’s first appointment for a craniosacral therapy treatment provided relief for her neck and headaches, so she booked a second appointment online. The appointment receipt shows that L.R. signed up for Reiki therapy, although she intended to book another craniosacral therapy session. This distinction matters because Thoren's theory at trial was that L.R. imagined the physical contact she claims she experienced, introducing evidence that clients may feel phantom touching—a feeling of being touched in places where no contact has occurred—during Reiki sessions like L.R. received.

The parties disagree on the facts of what happened during L.R.’s second appointment. According to L.R., Thoren covered her eyes with a cloth and stated that he was going to "work on [her] vaginal area." Thoren then began to rub L.R.’s stomach with his hand over her clothes, moving his hand down her body and eventually applying increasing amounts of pressure and rubbing vigorously over her clitoris, vagina, and anal area, repeatedly asking her to describe what she was feeling. L.R. did not know what to do at first but was finally able to tell Thoren to stop and left the appointment. L.R. filed a sexual assault report with the police in February 2019.

Thoren describes a very different account. According to Thoren, during a conversation at the start of the second appointment L.R. repeatedly mentioned that her sexual energy had returned after her last session. Thoren ignored the comments and began the session, which included both craniosacral therapy and Reiki. He recalled

970 N.W.2d 620

touching L.R. at the start of the session while performing craniosacral therapy, but denied touching her at any point during the Reiki treatment and denied ever touching her vaginal area. Thoren held his hands above L.R.’s naval and her solar plexus, which is the common method for conducting the Reiki treatment. He also insisted that he ended the session after L.R. groaned and said she had just experienced an orgasm. He repeatedly told her that was not the purpose or intent of the therapy.

Prior to trial, Thoren moved to exclude evidence from the Board relating to the previous complaints against him. The district court denied his motion and permitted a Board representative to testify about the Board's investigation and the five former clients to testify about Thoren's inappropriate touching during massage sessions. The jury ultimately found Thoren guilty of sexual abuse in the third degree. Thoren appealed his conviction, challenging the admission of evidence about the Board's investigation and report as well as the testimony from his former clients. The court of appeals affirmed, and we granted Thoren's application for further review.

II. Standard of Review.

Thoren appeals the district court's evidentiary...