State of Iowa v. Kevin Jon Thoren ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 20–0192
Submitted October 20, 2021—Filed February 25, 2022
STATE OF IOWA,
Appellee,
vs.
KEVIN JON THOREN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
The defendant seeks further review of the court of appeals decision
affirming his conviction for sex abuse and the district court rulings allowing
evidence of the licensing board’s investigation and settlement and his prior bad
acts. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
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,
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in which Mansfield, J., joined. Mansfield, J., filed a special concurrence, in which
Waterman and McDonald, JJ., joined.
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.
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OXLEY, Justice.
“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
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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
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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
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
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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
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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 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
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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 rulings, which we review for
abuse of discretion. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017). “A
district court abuses its discretion when it bases its decisions on grounds or
reasons clearly untenable or to an extent that is clearly unreasonable . . . [or] if
it bases its conclusions on an erroneous application of the law.” Id. (citation
omitted).
III. Error Preservation.
The State argues the district court’s motion in limine ruling was
conditional, so Thoren failed to preserve error on the issues raised in his motion
to the extent he did not also object to the evidence at trial. Although Thoren
objected at trial to the State’s introduction of the Board’s report, he did not object
to testimony from his former clients.
Thoren moved in limine to exclude (1) testimony and other evidence
relating to the Board investigation which led to the self-surrender of his license
and (2) testimony from any former clients alleging abuse during a massage. He
argued that this evidence was irrelevant under Iowa Rule of Evidence 5.402, that
it would be unfairly prejudicial under rule 5.403, and that it was improper
propensity evidence under rule 5.404(b). The State resisted and affirmatively
requested to admit the evidence of prior acts related to revocation of Thoren’s
license and the Board’s investigation of the five complaints, arguing the
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challenged evidence was relevant to show: Thoren’s knowledge that the types of
massages he had previously engaged in were inappropriate; Thoren’s motive or
modus operandi to sexually assault women “under the cloak of ‘healing work’ or
‘therapy’ ”; Thoren’s general intent to commit a sex act as opposed to a mistake
or accident; Thoren’s plan to “lull women into a sense of security before
assaulting them”; and Thoren’s consciousness of guilt from the surrender of his
license.
The district court denied Thoren’s motion and granted the State’s request,
conditioned on satisfying foundational issues for admitting the evidence. The
State subsequently listed the five prior clients as witnesses, and Thoren moved
to reconsider the court’s prior ruling and strike the identified witnesses. The
court denied Thoren’s motion, ordering: “The State’s proposed witnesses may
offer testimony within the parameters of that [prior] ruling.”
Generally, denial of a motion in limine does not preserve error for appellate
review. State v. Leedom, 938 N.W.2d 177, 191 (Iowa 2020); Quad City Bank & Tr.
v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 89 (Iowa 2011). Motions in limine
are procedural rulings that “serve[] the useful purpose of raising and pointing
out before trial certain evidentiary rulings the court may be called upon to make
during the course of the trial.” Quad City Bank & Tr., 804 N.W.2d at 89 (quoting
Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974)). If denied, the resisting
party must object at the time the evidence is offered at trial to preserve a
challenge to the evidence on appeal. Twyford, 220 N.W.2d at 924. If sustained,
the ruling “excludes reference or introduction of this evidence until its
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admissibility is determined by the trial court, outside the presence of a jury, in
an offer of proof.” Quad City Bank & Tr., 804 N.W.2d at 89. Error arises when
the evidence is introduced at trial, not from ruling on the motion in limine.
As with most rules, there is an exception. “[I]f the ruling [on the motion in
limine] reaches the ultimate issue and declares the evidence admissible or
inadmissible, it is ordinarily a final ruling and need not be questioned again
during trial.” State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) (quoting State v.
O’Connell, 275 N.W.2d 197, 202 (Iowa 1979) (en banc)). The ruling on Thoren’s
motion in limine left no question about its finality, concluding: “[T]he State will
be allowed the opportunity to present evidence of prior incidents of unwanted
sexual touching during massages.” The district court reaffirmed its ruling in
response to Thoren’s motion to reconsider and strike the identified witnesses:
“The State’s proposed witnesses may offer testimony within the parameters of
that [prior] ruling.” The ruling on the motion in limine preserved the evidentiary
issues without the need for objections during trial.
IV. Analysis.
We consider two evidentiary issues on appeal: (1) the admission of
evidence from the Board investigation as a violation of rules 5.402 and 5.403
and (2) the admission of testimony from five prior clients as a violation of rule
5.404(b).
A. Board Investigation. Thoren claims the district court committed
reversible error by admitting evidence about the Board’s investigation that led to
the loss of his massage license. Tony Alden, the Board’s administrator, testified
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about the process the Board uses to investigate complaints against licensees,
different ways an investigation can be handled, and benefits to a licensee of
avoiding a public hearing if he enters a settlement rather than contesting the
complaint. The State introduced as an exhibit the Board’s combined statement
of charges, settlement agreement, and final order related to its investigation into
complaints filed against Thoren, and Mr. Alden explained the contents of the
findings and the process for notifying the complainants about the Board’s
resolution. The statement included the charge—not admitted by Thoren
although the statement did not make that clear—that Thoren “touched a client’s
breasts for a non-therapeutic purpose.” The State used this evidence to bolster
the credibility of Thoren’s former clients, arguing the Board’s notification to each
of them revealed the license revocation was based, at least in part, on each of
their complaints.
Thoren contends this evidence should have been excluded as unduly
prejudicial under rule 5.403. “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Iowa R. Evid.
5.403. After finding the challenged evidence is relevant, we use a two-part test
to determine whether it should nonetheless be excluded. State v. Buelow, 951
N.W.2d 879, 889 (Iowa 2020). “First, we ‘consider the probative value of the
evidence.’ Second, we balance the probative value ‘against the danger of its
prejudicial or wrongful effect upon the triers of fact.’ ” State v. Huston, 825
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N.W.2d 531, 537 (Iowa 2013) (citation omitted) (quoting State v. Cromer, 765
N.W.2d 1, 8 (Iowa 2009)). While we ordinarily defer to the district court’s
balancing of these factors, State v. Buman, 955 N.W.2d 215, 221 (Iowa 2021),
deference is difficult here where the district court did no balancing.
Evidence is relevant when “it has any tendency to make a fact more or less
probable than it would be without the evidence[] and . . . [t]he fact is of
consequence in determining the action.” Iowa R. Evid. 5.401. Thoren argues the
Board applied a lower burden of proof and considered different elements in its
licensure investigation than required for the State to prove the criminal charges
against him, rendering evidence from the Board’s investigation irrelevant and
unfairly prejudicial. We reject Thoren’s argument that the different settings
between an agency investigation and a criminal trial necessarily make evidence
from the Board’s investigation irrelevant. “[R]elevance is a relatively low bar . . . .”
State v. Neiderbach, 837 N.W.2d 180, 238 (Iowa 2013) (Appel, J., concurring
specially). That Thoren was investigated by the Board using different standards
does not in itself make evidence from the investigation irrelevant to the criminal
charges.
While the different standards do not necessarily make evidence from the
Board’s investigation irrelevant, we have cautioned that introducing professional
standards with lower burdens of proof in a criminal trial creates a significant
risk of prejudice. See Buman, 955 N.W.2d at 221. In Buman, a nurse was charged
with wanton neglect of a healthcare facility resident and the jury received
evidence and instructions about the definition of accountability in the nursing
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professional standards. Id. at 219–20. Even though a separate instruction
informed the jury that violating the professional standards did not amount to a
crime, introducing evidence about the lower standard that applied to violations
of the professional standards risked confusing the issues and misleading the
jury. Id. at 221. Here, the State presented considerable evidence through Alden’s
testimony about the nature of the Board’s investigation without clarifying
standards of proof at all. Thoren’s concerns about the differing standards are
more properly assessed under the balancing test required by rule 5.403. We
therefore compare the probative value of the challenged evidence to its
prejudicial effect.
According to the State, evidence from the Board investigation is probative
because it “makes it more likely that Thoren committed sexual abuse when he
touched the victim in the case at bar.” In other words, it provides propensity
evidence. Rule 5.404(b) does not allow evidence to be used for this purpose. Iowa
R. Evid. 5.404(b)(1). We likewise reject the suggestion that the Board evidence is
probative of the victim’s credibility in this he said, she said case. Evidence about
the Board’s investigation cannot be used when its sole relevance is to enhance
the credibility of the victim. See State v. Mitchell, 633 N.W.2d 295, 299–300 (Iowa
2001).
The State asserts that the evidence was also relevant to show that Thoren
had surrendered his massage license. This might have been a valid purpose for
introducing some evidence from the Board’s investigation—if Thoren’s license to
perform massages was somehow relevant to the criminal charges against him.
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See Huston, 825 N.W.2d at 537 (cautioning that “ ‘the line of inadmissibility’ may
be crossed when an investigator’s testimony goes ‘beyond the point of merely
explaining why certain responsive actions were taken’ ” (quoting State v. Elliott,
806 N.W.2d 660, 668 (Iowa 2011))). But Thoren was not charged with providing
massage therapy services without a license—indeed, he was not required to be
licensed to provide the craniosacral and Reiki therapy he performed on L.R. In
any event, the State could have proved the simple fact that Thoren was not
licensed to provide massage therapy without introducing evidence of the Board’s
investigation and settlement.1
The court of appeals found the evidence relevant to help show that Thoren
“should have been aware of the line between proper and improper touching
during a massage as a result of the prior sanction,” but we disagree that this is
a proper purpose. By that reasoning, the state would be generally permitted to
show evidence of prior convictions in order to demonstrate that the defendant
“should have been aware” of the line between lawful and unlawful conduct.
Nobody suggested or argued that Thoren was unaware of the proper line between
proper and improper touching.
1We reject the State’s argument that “evidence that at the time of his session with L.R.,
Thoren no longer had a massage license helped establish that he lacked a legitimate, lawful
reason to rub L.R.’s genitals.” Even with a massage license, Thoren would have no legitimate
reason to rub L.R.’s genitals. Further, Thoren has never asserted he had a legitimate reason to
touch L.R.’s vaginal area—he denied touching her at all. This theory does not make evidence
Thoren had surrendered his license relevant. See State v. Prine, 200 P.3d 1, 11 (Kan. 2009)
(holding the state “could not open the door for itself” to prior bad acts evidence by putting up a
theory contrary to the defendant’s theory at trial and then using the prior evidence to rebut the
state’s theory).
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The most the State can make of Thoren’s surrender of his license is the
fact that his license number appeared on the website L.R. used to book her
appointments, which theoretically could have relevance as context or
background information to the extent it gave L.R. false assurances about
Thoren’s credentials. Cf. State v. Nelson, 791 N.W.2d 414, 422–24 (Iowa 2010)
(“[W]e will only allow the admission of other crimes, wrongs, or acts evidence to
complete the story of the charged crime when a court cannot sever this evidence
from the narrative of the charged crime without leaving the narrative
unintelligible, incomprehensible, confusing, or misleading.”). But L.R. did not
testify she relied on Thoren having a valid massage license when she booked her
appointments. To the contrary, her chiropractor recommended she find a
craniosacral practitioner, and her son recommended Thoren. That Thoren lost
his massage license has little, if any, probative value to the State’s case. See
Huston, 825 N.W.2d at 537 (“We see no probative value to the DHS determination
the abuse report against Huston was founded. Whether or not the abuse report
was deemed founded is irrelevant to any issue for the jury to decide.”).
On the other side of the scale, the potential prejudice from the evidence
about the Board’s investigation is quite high. Because administrative agencies
are arms of the state, there is a risk that juries will treat agency findings as
official, state-sanctioned results. Id. at 537–38 (“[W]e see a real danger the jury
will be unfairly influenced by that agency finding, which gives the ‘imprimatur’
of a purportedly unbiased state agency on a conclusion that Huston was guilty
of child abuse.”). Allowing the State to introduce administrative findings as
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evidence in a criminal trial creates a substantial risk that the jury will substitute
the agency’s judgment for its own. Id. at 539; see also United States v. Vasquez,
540 F. App’x 623, 626 (9th Cir. 2013) (affirming exclusion from defendant’s trial
for assault evidence about prison administrative reports concluding inmates’
fight was mutual, explaining “[t]he evidence, burden of proof, and ultimate
penalty in the prison’s disciplinary action were not the same as those in the
criminal case,” such that “admitting [the investigative reports] runs the risk of
substantial unfair prejudice” (second alteration in original)); State v. Renfro, 157
A.3d 775, 777 (Me. 2017) (holding district court properly excluded from OWI trial
evidence that administrative hearing examiner found that defendant’s breath
test had been improperly administered and rescinded license revocation,
explaining “[t]he court recognized the real potential for the jury to substitute the
decision of the hearing examiner—reached in a different context, based on a
different standard of proof, and applying a relaxed evidentiary standard—for its
own weighing of the evidence admitted in the criminal trial to determine whether
the State proved the elements of [OWI] beyond a reasonable doubt”). Although
the Board’s investigation involved a complaint of sexual assault by a different
victim, similar concerns exist that the jury could give undue weight to the
Board’s findings.
In light of these concerns, the use of evidence from the Board’s
investigation to enhance the credibility of the witnesses and the victim created a
substantial risk of unfair prejudice. See Huston, 825 N.W.2d at 537 (“In child
abuse cases, much evidence will be ‘at least somewhat prejudicial. Exclusion is
17
required only when evidence is unfairly prejudicial [in a way that] substantially
outweighs its probative value.’ ” (quoting Mitchell, 633 N.W.2d at 301 (Neuman,
J., dissenting) (alteration in original))). The Board’s combined statement of
charges concluded that Thoren had touched a client’s breasts for nontherapeutic
purposes. The jury could have understood this as an official, state-sanctioned
finding that met the criminal standards when in reality it was the result of a
settlement. The State emphasized the Board findings in its closing argument.
That the Board was investigating events different from those involved in the
criminal trial does not minimize the significant risk of the jury substituting the
Board’s judgment in place of its own. Due to its minimal probative value and
high risk of prejudice, the evidence from the Board investigation should have
been excluded.
In making this determination, we take guidance from our prior decision in
State v. Huston, 825 N.W.2d 531. There we held it was reversible error in a child
endangerment prosecution to allow evidence that the department of human
services had investigated and issued a founded report of child abuse against the
defendant. Id. at 539–40. We reasoned there was a real danger that the jury
would be unfairly influenced by this finding. Id. at 537–38. Similar concerns exist
here. The women who complained to the Board appeared at trial and testified.
Thus, to the extent their testimony was relevant and that relevance was not
outweighed by the danger of unfair prejudice (which we take up next), there was
no need to introduce evidence about the Board’s investigation. The jury could
evaluate those incidents based on the testimony of the women involved.
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B. Prior Bad Acts Evidence. Thoren also argues that the testimony from
his five former clients should have been excluded under rule 5.404(b)’s limits on
the use of prior acts evidence. Specifically, Thoren argues the testimony was
improperly used as propensity evidence and allowed the jury to conclude that
because Thoren had sexually abused five former clients, he must have also
sexually abused L.R.
While relevant evidence is generally admissible unless its prejudice
outweighs its probative value, see rules 5.402 and 5.403, rule 5.404(b) sets out
a specific rule governing admissibility of evidence of other crimes, wrongs, or
acts—i.e., prior bad acts evidence—and outlines the criteria for when it is
admissible:
(1) Prohibited use. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.
(2) Permitted uses. This evidence may be admissible for another
purpose such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
Iowa R. Evid. 5.404(b). Rule 5.404(b) “is a codification of our common-law rule
that one crime cannot be proved by proof of another.” State v. Castaneda, 621
N.W.2d 435, 439 (Iowa 2001) (en banc). We have described rule 5.404(b) as a
rule of exclusion: “unless the prosecutor can articulate a valid, noncharacter
theory of admissibility for admission of the bad-acts evidence, such evidence
should not be admitted.” State v. Sullivan, 679 N.W.2d 19, 28 (Iowa 2004)
(overruling State v. McDaniel, 512 N.W.2d 305 (Iowa 1994), to the extent it
described the rule as one of inclusion rather than exclusion); see also State v.
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Richards, 879 N.W.2d 140, 153 (Iowa 2016) (“Our decision today does not—and
we do not intend it to—retreat from our well-established understanding that rule
5.404(b) is a rule of exclusion.”).
Notwithstanding rule 5.404(b), Iowa Code section 701.11 expressly allows
propensity evidence in sexual assault cases. Iowa Code § 701.11(1) (2018) (“In a
criminal prosecution in which a defendant has been charged with sexual abuse,
evidence of the defendant’s commission of another sexual abuse is admissible
and may be considered for its bearing on any matter for which the evidence is
relevant.”). In State v. Cox, we held section 701.11 violated a defendant’s due
process rights to the extent “it permit[ted] admission of prior bad acts against an
individual other than the victim in the case to demonstrate general propensity.”
781 N.W.2d 757, 768–69 (Iowa 2010). Thus, evidence of prior sexual abuse
involving a different victim is admissible in Iowa courts only if it fits within the
rule 5.404(b) framework.2
2We recognize this puts us at odds with how federal courts and some other state courts
treat evidence of prior acts involving different victims in sexual assault cases. Congress added
rules 413 and 414 to the federal rules of evidence, which provide that in cases involving charges
of sexual assault “evidence that the defendant committed a prior similar offense ‘may be
considered for its bearing on any matter to which it is relevant,’ including the defendant’s
propensity to commit such offenses.” United States v. Gabe, 237 F.3d 954, 959, (8th Cir. 2001)
(quoting Fed. Rs. Evid. 413(a), 414(a)); see also United States v. Guardia, 135 F.3d 1326, 1329
(10th Cir. 1998) (“Rule 413 supersedes Rule 404(b)’s restriction and allows the government to
offer evidence of a defendant’s prior conduct for the purpose of demonstrating a defendant’s
propensity to commit the charged offense.”). In Cox, we considered and rejected cases that upheld
the constitutionality of Federal Rule of Evidence 413 against due process challenges. See 781
N.W.2d at 768 (“Unlike the federal courts that have considered this issue, we do not believe
evidence of prior bad acts can be admitted for the sole purpose of showing general propensity
even if a trial judge considers the balancing test found in Iowa Code section 701.11.” (citing
United States. v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001))).
A number of states have statutes or rules similar to section 701.11, which their courts
apply to allow propensity evidence in some types of sexual abuse cases. See Basyle J. Tchividjian,
Predators and Propensity: The Proper Approach for Determining the Admissibility of Prior Bad Acts
Evidence in Child Sexual Abuse Prosecutions, 39 Am. J. Crim. L. 327, 340 (2012) (“Today,
20
Prior bad acts evidence is always propensity evidence in the sense that it
has the “potential for the jury to draw the inference . . . that because the
defendant did this kind of thing before, he did it on the charged occasion.” State
v. Richins, 496 P.3d 158, 166 (Utah 2021). But rule 5.404(b) only excludes prior
acts evidence if it “serves no purpose except to show the defendant is a bad
person.” State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (emphasis added).
When evidence of prior acts is relevant to a nonpropensity purpose, the evidence
is admissible even though it is still propensity evidence. The Utah Supreme Court
cogently explained:
One way to think of rule 404(b)(2)’s list is as circumstances
where we have concluded that evidence of past acts might be
presented to the jury in a way that will direct the jury away from the
improper propensity inference that rule 404(b) is designed to protect
against. . . . [R]ule 404(b)(1) maintains that such an inference would
be improper. But we nevertheless believe that when prior-acts
evidence is introduced for another purpose under rule 404(b)(2), we
can trust the jury to maintain its focus on the permissible, non-
propensity-based inference.
Richins, 496 P.3d at 166.
Given the risk of improper use of prior acts evidence, we require the district
court to engage in a three-part analysis when considering its admissibility. State
v. Putman, 848 N.W.2d 1, 8–9 (Iowa 2014). The court must first “determine
whether the evidence is relevant to a legitimate, disputed factual issue.” Id. at 9.
Second, the evidence must provide “clear proof” that the defendant engaged in
the act. Id. Mere speculation or hearsay is not enough, but “[t]estimony of
approximately twenty-three states and the District of Columbia follow some form of the ‘lustful
disposition’ exception created either by judicial application or legislative codification.”). The views
supported by those jurisdictions are contrary to our holding in Cox, and we do not consider them.
21
credible witnesses can satisfy the clear-proof requirement.” Id. Finally, the court
must consider whether the evidence’s “probative value is substantially
outweighed by the danger of unfair prejudice to the defendant.” Sullivan, 679
N.W.2d at 25.
To satisfy the first element, the party introducing the evidence must
“articulate a tenable noncharacter theory of logical relevance” between that
evidence and a legitimate, disputed factual issue. Id. at 28 (quoting Edward J.
Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove
Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence
Prohibition, 51 Ohio St. L.J. 575, 585 (1990)); cf. State v. Reynolds, 765 N.W.2d
283, 290 (Iowa 2009) (“It is generally impossible to rule on the admissibility of
prior bad acts before trial because their admissibility is so contingent on what
‘legitimate issue[s] [are] in the case.’ ” (alterations in original) (quoting Sullivan,
679 N.W.2d at 25), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880
N.W.2d 699 (Iowa 2016)). Although not all-inclusive, rule 5.404(b)(2) includes a
list of acceptable ways that prior bad acts evidence can be relevant to a legitimate
issue: “proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Iowa R. Evid. 5.404(b)(2).
Here, the State generally identified motive, intent, and lack of mistake or
accident to support admission of the prior bad acts evidence. The district court
and the court of appeals both recited the same litany of noncharacter purposes
for the prior acts evidence without addressing how each was actually at issue in
22
Thoren’s case.3 Even when prior bad acts evidence is admissible as relevant to a
noncharacter purpose, its use should be limited to the specific purpose to which
it is relevant. See Putman, 848 N.W.2d at 15–16 (affirming use of prior bad acts
evidence where the jury was reminded by the state in closing and by the district
court in jury instructions “on the narrow purposes for which th[e] evidence could
be used”). Given the nature of the evidence and the real risk that the jury will
use the evidence for an improper purpose, it is critical for the district court to
identify the specific purpose or purposes to which the evidence is relevant. Two
decades ago we cautioned district courts to give a limiting jury instruction even
if not requested. See Rodriquez, 636 N.W.2d at 243 n.2 (“In the future, trial
courts would be wise to give such an instruction to the jury, even if not
specifically requested by the defendant, whenever bad acts evidence is
introduced for a limited purpose.”). The court cannot give a proper limiting
instruction without first identifying which purposes are legitimately at issue. We
therefore consider each of the bases offered to support use of the testimony from
Thoren’s former clients. See, e.g., Putman, 848 N.W.2d at 10–11 (considering
3Justice Mansfield’s special concurrence essentially does the same thing, glossing over
the need to identify a legitimate disputed factual issue the jury must actually decide. The
concurrence identifies “intent” as the disputed issue without explaining how intent is actually at
issue. The entirety of the concurrence’s reasoning is that “evidence that Thoren intentionally
committed nonconsensual sexual touching on one or more clients could, under some
circumstances, tend to prove he intended to commit—and therefore did commit—a sexual
assault against L.R.” That’s not a dispute over intent; that’s propensity. Without explaining how
intent is even at issue, the concurrence prefers to slide past the first step of our 5.404(b) analysis
and jump to the last step by applying a rule 5.403-type balancing test. That “[m]ost trial judges
recognize this point intuitively” and base their rule 5.404(b) decisions on how similar the prior
acts and timing are to the current charge highlights the district court’s error in this case. The
concurrence’s analysis replaces our carefully crafted rule 5.404(b) regime with the rule 5.403
balancing test most familiar to district court judges. While easier, it is not better. Nor is it allowed
by our rules or our precedent.
23
each issue offered by the state to support prior bad acts, including motive and
identity of the perpetrator); Cox, 781 N.W.2d at 769–71 (considering each issue
offered by the state, including opportunity or preparation, common scheme or
plan, modus operandi, and motive or intent).
1. Intent or motive. Although the district court found the testimony was
probative of Thoren’s intent and motive, it failed to first address whether intent
or motive was actually at issue. See State v. Taylor, 689 N.W.2d 116, 124 (Iowa
2004) (“It is first essential to identify whether intent was at issue in the case.”);
Sullivan, 679 N.W.2d at 25 (requiring evidence be relevant “to a legitimate issue
in the case other than a general propensity to commit wrongful acts” (emphasis
omitted)). We begin our analysis there.
While they are often lumped together, motive and intent are not merely
synonyms for the same concept. “Motive is the impetus that supplies the reason
for a person to commit a criminal act.” Putman, 848 N.W.2d at 10 (emphasis
omitted) (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 404.22[3], at 404–119 to –120 (Joseph M. McLaughlin ed., 2d. ed.
2014)). Although motive is rarely an element of an offense, prior bad acts may
be relevant to provide context and help explain why the defendant committed the
charged acts. In State v. Richards, evidence of the defendant’s drinking problem
and his ex-wife’s pressure for him to stop provided “a reason why Richards would
have killed his ex-wife to whom he had recently become reengaged.” 809 N.W.2d
80, 92 (Iowa 2012). In State v. Barnes, evidence of the defendant’s desire to “get
back at” his sister helped explain, or provide a motive, for why he stole her
24
property. 791 N.W.2d 817, 827 (Iowa 2010). And in State v. Nelson, evidence of
the defendant’s prior drug dealing was relevant in a first degree murder case to
explain why he would shoot and kill someone he thought to be an undercover
narcotics officer—to avoid apprehension. 791 N.W.2d at 425–26.
But evidence of prior inappropriate sexual contact with other clients does
not help explain Thoren’s motive in sexually abusing L.R. Unlike Richards and
Barnes, the fact that Thoren had previously inappropriately touched other
massage clients has no bearing on his relationship with L.R. Nor do Thoren’s
past abuses give him a reason for later sexually abusing L.R. In this context,
when the state offers evidence of prior sex acts to prove motive, it is really offering
it to prove intent without showing that intent is actually at issue. Used in this
way, the testimony shows only that Thoren has a generalized motive to sexually
abuse his massage clients and so his motive when treating L.R. was to sexually
abuse her. This rationale overgeneralizes the relevancy of motive to a criminal
prosecution, disguising what is really just propensity evidence. “The motive for
[sexual assault] crimes [is] obviously and inherently sexual, so any purported
use to that end [i]s pretextual or inadequate.” Jackson v. Commonwealth, No.
2019–SC–0597–MR, 2021 WL 2618168, at *7 (Ky. June 17, 2021) (Minton, C.J.,
concurring in result only).4 The testimony should not have been admitted to
4This is the rational Justice Mansfield uses in his special concurrence to conclude the
prior conduct is relevant to Thoren’s intent generally to commit a sexual assault. A defendant
charged with a sex crime can always be said to have a motive or intent to commit a sex act.
However, allowing the state to use that intent as the basis for admitting evidence of prior sex
acts when intent is not a legitimate disputed issue for the jury to decide would allow the state to
always offer evidence of prior sex acts with other victims in sex abuse cases, a result we rejected
in Cox. 781 N.W.2d at 771.
25
prove Thoren’s motive. See, e.g., Putman, 848 N.W.2d at 10 (“The perpetrator’s
motive for sexually abusing L.R. was not a legitimate or disputed issue in this
case.”); cf. State v. Goodson, 958 N.W.2d 791, 801 (Iowa 2021) (affirming the
admission of prior sexual abuse involving the same victim because “[t]he nature
of the relationship between A.T. and Goodson was critical in determining the
motive”).
The State can offer evidence from Thoren’s former clients to prove intent
only if Thoren’s intent is a legitimate disputed issue the jury needs to decide.
Intent can be at issue when it is a disputed element of the crime. In State v.
Elston, evidence that the defendant viewed pornographic images of prepubescent
girls was probative of his intent where he was charged with indecent contact with
a child. See 735 N.W.2d 196, 200 (Iowa 2007). But that charge required the state
to prove the defendant touched the victim “for the purpose of arousing or
satisfying the sexual desires of either [himself or A.E.]” under Iowa Code section
709.12, putting intent directly into play. Id. (alteration in original). Similarly, in
State v. Allen, we allowed testimony about sexual acts that a hypnotherapist
committed against a former client because the prior acts directly related to the
“pattern or practice or scheme of conduct” element of the charged offense. 565
N.W.2d 333, 336–39 (Iowa 1997). Allen was charged with sexual exploitation by
a counselor under Iowa Code section 709.15(2) (1993), a class “D” felony.5 Allen,
5The defendant was charged with a class “D” felony under the 1993 version of the statute.
Allen, 565 N.W.2d at 335. A counselor committed a class “D” felony if the counselor engaged in
a “pattern or practice or scheme of [sexual] conduct” with clients. Iowa Code § 709.15(1)(f)(1)–(2).
On the other hand, engaging in sexual conduct with only a single client was either an aggravated
misdemeanor or serious misdemeanor, depending on whether the client was “emotionally
26
565 N.W.2d at 335. That crime occurs when there is a “pattern or practice or
scheme of conduct” of engaging in sexual conduct with a client “for the purpose
of arousing or satisfying the sexual desires of the counselor” or the client. Iowa
Code § 709.15(1)(f) (emphasis added). An isolated incident would only have
allowed the state to charge Allen with the lesser offense of engaging in sexual
conduct with a client. Id. § 709.15(3)–(4). We affirmed the district court’s
admission of the prior client’s testimony because it tended to show the required
pattern or scheme of conduct in the defendant’s behavior. Allen, 565 N.W.2d at
339. In contrast, in State v. Putman we held that evidence of “[t]he perpetrator’s
motive for sexually abusing [the victim] was not a legitimate or disputed issue in
this case” because “[t]he State was not required to prove Putman’s state of mind
as an element of the crime.” 848 N.W.2d at 10. Here, the State charged Thoren
with one count of sexual abuse in the third degree by forcing the victim to
perform a sex act against her will or by force. This is a general-intent crime so
the State is not required to show intent as an element of the charge. State v.
McNitt, 451 N.W.2d 824, 824 (Iowa 1990).
Although the jury was also instructed on the lesser included offense of
assault with intent to commit sexual abuse, so that intent was an element, intent
still needs to be disputed. Intent is often a disputed issue for assault with intent
to commit sexual abuse—essentially an incomplete sex abuse crime—where the
state must prove the defendant had the specific intent to commit a sex act even
dependent.” Id. § 709.15(1)(f)(2)–(3), .15(3), .15(4). Since the state charged the defendant with a
class “D” felony, the pattern of conduct became a disputed issue that the state needed to prove.
27
though the sex act was not completed. In that instance, the state must prove
something the defendant intended to do but didn’t. See State v. Casady, 491
N.W.2d 782, 785–86 (Iowa 1992) (en banc) (allowing evidence defendant had
previously forced two other women into his car and sexually assaulted them as
evidence of the defendant’s intent when he unsuccessfully tried to pull a
thirteen-year-old girl into his car); State v. Spargo, 364 N.W.2d 203, 205–06, 209
(Iowa 1985) (allowing evidence defendant had invited other boys to his
apartment, engaged them in philosophical discussions about life and sex, and
sexually abused them as evidence of the defendant’s intent to commit a sex act
with another boy the defendant similarly engaged but was stopped before
completing a sex act).
Yet, the elements of a charged offense do not automatically become
legitimate, disputed factual issues in a case. We have cautioned that “[e]vidence
of an unconnected prior crime is always evidence of propensity and never
evidence of a specific intent to commit the crime charged.” Taylor, 689 N.W.2d
at 128 n.6 (quoting Sullivan, 679 N.W.2d at 26). Federal courts have recognized
as much in allowing very similar evidence under rule 413, while acknowledging
it would be excluded under rule 404(b). See United States v. Guardia, 135 F.3d
1326, 1328–29 (10th Cir. 1998) (allowing evidence under rule 413, because “[i]f
believed, the Rule 413 evidence in this case would demonstrate that the
defendant has a propensity to take advantage of female patients by touching
them in a salacious manner and making comments while doing so. Because the
defendant’s propensity is to engage in conduct which closely matches that
28
alleged in this case, the evidence is probative of his guilt.”). “Where intent is
merely a formal issue derived from the elements of the offense, and is not being
controverted, the argument for receiving [other acts] evidence falters.” Richards,
879 N.W.2d at 147 (alteration in original) (quoting Thompson v. United States,
546 A.2d 414, 422 (D.C. 1988)).
Because many crimes require some showing of mens rea, admitting prior
bad acts testimony every time a charge includes some notion of specific intent
would eviscerate rule 5.404(b). Id. at 147–48 (“Sullivan’s emphasis on the
question whether the other acts evidence is relevant to a ‘legitimate issue’ is
significant. That emphasis is significant because ‘the jury is less likely to
concentrate on propensity if there is a bona fide dispute on mens rea.’ ” (citation
omitted) (quoting State v. Henderson, 696 N.W.2d 5, 16 (Iowa 2005) (Lavorato,
C.J., concurring specially))). Thus, even if intent is an element of the lesser
included offense, prior bad acts evidence is not relevant unless intent is actually
in dispute. See id.Although the lesser included offense of assault with intent to commit a sex
act was instructed to the jury, the State made no effort to prove intent at trial
and Thoren raised no defenses about intent. Intent and motive do not become
controverted issues at trial simply because a lesser included offense has some
mens rea element. See State v. Gibson, 52 P.3d 339, 346 (Kan. Ct. App. 2002)
(“The crucial distinction in admitting evidence of other crimes . . . on the issue
of intent is not whether the crime is a specific or general intent crime, but
whether the defendant has claimed that his or her acts were innocent.” (citation
29
omitted)). As tried, the testimony was not relevant to proving intent or motive
simply because the lesser included charge had an intent element. The district
court abused its discretion in allowing the State to use testimony from Thoren’s
former clients to prove motive or intent.
2. Lack of accident. The State also argues the former clients’ testimony
helped prove that Thoren did not accidentally touch L.R. and that he had no
therapeutic reason to touch her vaginal area. Prior bad acts evidence can be
admitted to show the touching or assault was not accidental. See Taylor, 689
N.W.2d at 125 (citing Stewart v. State, 730 So. 2d 1203, 1234 (Ala. Crim. App.
1997)). Accident is at issue when a defendant claims he touched intimate parts
of the victim’s body either accidentally, such as while playing, or for a legitimate
reason, such as bathing or giving a medical treatment to a child. See, e.g., United
States v. Mosquito, 532 F. Supp. 3d 1074, 1080 (E.D. Okla. 2021) (allowing
evidence of prior incidents under rule 404(b) to “contradict defendant’s
explanation . . . that he merely intended to change the child’s diaper”); State v.
Brammer, 614 S.W.3d 18, 28 (Mo. Ct. App. 2020) (evidence of defendant’s prior
conviction for sex abuse against a minor was admissible to counter defendant’s
claim he accidentally brushed fourteen-year-old’s breast while they were riding
a four-wheeler).
But Thoren never argued that he accidentally touched L.R. or that he
touched her vaginal area for therapeutic purposes. Cf. Elston, 735 N.W.2d at 200(concluding evidence defendant had accessed pornographic pictures of young
girls was especially probative after defense attorney asked child victim on cross-
30
examination if it was possible defendant accidentally touch her between her
clothed legs). He flat-out denied ever touching L.R. below her belly button. Just
as the elements of a charge are not automatically disputed issues, the
explanation for Thoren’s inappropriate touching is not automatically considered
a disputed issue simply because Thoren could have raised it as a defense. The
reason Thoren touched L.R.’s vaginal area was never a legitimate issue at trial;
the disputed issue was whether the touching actually occurred. The district
court abused its discretion in allowing the State to use the former clients’
testimony to prove a lack of accident.
3. Credibility. The State, district court, and court of appeals also
considered the former clients’ testimony relevant to credibility on the theory that
evidence of similar inappropriate actions in similar settings is important in a he
said, she said case because it bolsters the victim’s credibility and makes it more
probable that the defendant is being dishonest. But we have rejected use of prior
bad acts evidence when used solely to bolster the victim’s credibility. See Mitchell,
633 N.W.2d at 300 (“If the State is allowed to prevail on its theory that there is
an independent relevancy to bad-acts evidence for credibility purposes, this
doctrine could be invoked in nearly every criminal case.”). Allowing a jury to
consider the evidence for credibility purposes is essentially allowing it to use it
for propensity purposes—he did it before so he must be lying about not doing it
now. Prior bad acts evidence cannot be used solely to bolster the victim’s
credibility, especially in a he said, she said case. Id.31
4. Modus operandi, common plan or scheme. Although not argued on
appeal, we briefly address two other arguments made by the State below—that
the prior acts could be admissible to show either Thoren’s modus operandi or
his plan to use his position as a therapist to sexually abuse his clients. See State
ex rel. Dickey v. Besler, 954 N.W.2d 425, 432 (Iowa 2021) (holding we may affirm
on any basis urged below); In re M.W., 876 N.W.2d 212, 221 (Iowa 2016)
(recognizing our obligation to affirm where any proper basis exists to do so).
“Modus operandi is ‘ “a distinct pattern or method of procedure thought to
be characteristic of an individual criminal[ ] and habitually followed by him” ’ ”
that is typically relevant to prove identity or lack of consent. Cox, 781 N.W.2d at
770 (alteration in original) (quoting State v. Plaster, 424 N.W.2d 226, 231 (Iowa
1988) (en banc)); see also Putman, 848 N.W.2d at 11 (“To permit the inference
that similar acts establish the same person committed both acts, we have
required that the other acts must be ‘strikingly similar’ or of a ‘unique nature.’ ”
(quoting In re J.A.L., 694 N.W.2d 748, 753 (Iowa 2005))). But neither identity nor
consent was at issue here. “[T]o expand modus operandi to all similar crimes
without requiring that they be offered to demonstrate a legitimate issue would
simply admit prior bad acts to show propensity.” Cox, 781 N.W.2d at 770.6
6Justice Mansfield’s reliance on Putman ignores that the culprit’s identity was disputed
there, which is what made modus operandi relevant. 848 N.W.2d at 13. Likewise, the special
concurrence’s reliance on Allen as the “most analogous case factually” to this case ignores that
Allen involved an entirely different offense that required the state to prove a “pattern or practice
or scheme of conduct” of engaging in sexual conduct with more than one client “for the purpose
of arousing or satisfying the sexual desires of the counselor” or the client. 565 N.W.2d at 337(quoting Iowa Code § 709.15(1)(f)). To the extent Allen supports allowing evidence of unrelated
but similar acts as generally “relevant to establishing such factors as motive, intent, opportunity,
and plan,” id. at 339, it is contrary to the stricter standard we have since developed for allowing
5.404(b) evidence in Cox, a case not even cited by the concurrence. The concurrence pines for
32
“Common scheme or plan means more than the commission of two similar
crimes by the same person.” Id. at 769 (quoting State v. Wright, 191 N.W.2d 638,
641 (Iowa 1971)). “Although not an element of an offense, plan suggests mental
preparation and a decision to go forward with criminal activity. The physical acts
accompanying the plan must bear some relationship to completion of the larger
offense.” 7 Laurie Kratky Dorè, Iowa Practice Series Evidence § 5.404:6, at 274
(2018–19 ed. 2018) [hereinafter Dorè]. “Evidence of other crimes should never be
admitted when it appears that the defendant committed them wholly
independent of the one for which he is then on trial. There must be some
connection between the crimes.” Cox, 781 N.W.2d at 769–70 (citation omitted)
(quoting Wright, 191 N.W.2d at 641).
Although some jurisdictions broadly apply the common scheme or plan
basis for allowing prior acts evidence, see 22B Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice and Procedure § 5252, at 265 (2017) [hereinafter
Wright & Graham] (noting the danger when courts read “plan” in rule 404(b)
broadly “as a blueprint” rather than narrowly “as a subdivision map,” where
“such use will lead the jurors to suppose that they can convict defendant if they
find he has bad character”), we heed our precedent recognizing the purpose of
this exception to the propensity exclusion rule is limited to allowing evidence
that is part of a larger, related plan of illegal activity. See 7 Dorè § 5.404:6, at
274–75 (“In State v. Cox, the Iowa Supreme Court cautioned against reading the
simpler days when showing general relevance to the litany of 5.404(b)(2) factors was enough, but
our precedent requires more. The State has not asked us to overturn Cox, and we will not take
up that cause sua sponte.
33
‘common plan or scheme’ exception too broadly.”); see also 22B Wright &
Graham § 5252, at 277 n.47 (concluding Professor Dorè “state[d] [the] rule
properly” in 7 Iowa Practice Series § 5.404:6). We agree with Professor Leonard
that “if not carefully policed, this exception can serve to admit a series of crimes
whose most obvious relationship is that they were all committed by the
defendant and whose strongest tendency is to prove the defendant’s character
for crime rather than his planned course of conduct.” David P. Leonard, The New
Wigmore: Evidence of Other Misconduct and Similar Events § 9.2.2, at 644–47
(Richard D. Friedman ed., 2d ed. 2019) [hereinafter Leonard] (quoting 22 Wright
& Graham § 5244, at 500 (1978)) (discussing criticisms of a broad application of
the common scheme or plan basis for admitting 404(b) evidence). The testimony
from Thoren’s five former clients spans nearly ten years and involves wholly
independent acts and unrelated victims, precluding the evidence from meeting
our common scheme or plan jurisprudence.
5. Lack of victim’s mistake. Whether lack of mistake was a legitimate,
disputed issue at trial is a closer call. Mistake usually arises in the context of
the defendant’s mistake—was the defendant’s conduct the result of a mistake
rather than criminal behavior. See, e.g., United States v. Tanner, 61 F.3d 231,
237 (4th Cir. 1995) (witness’s testimony that pharmacist illegally refilled her
prescriptions over five year period was relevant to rebut claim of mistake in
prosecution for selling prescription drugs without a valid prescription); Dean v.
Sanders County, 204 P.3d 722, 728 (Mont. 2009) (evidence of employee’s
marijuana use and connection to known drug dealer’s marijuana business
34
admissible to rebut employee’s claim in wrongful termination case that she did
not realize payments were for illegal drugs when described only as “weed”). A
defendant who claims to have acted by mistake puts his intent into issue—did
he act mistakenly or intentionally? See Leonard § 7.2.2, at 474 (“Most codified
versions of the uncharged misconduct rule, including Federal Rule of Evidence
404(b), list ‘intent’ and ‘absence of mistake or accident’ separately. It is
unnecessary to do so. ‘Absence of mistake or accident’ is generally synonymous
with intent.”).
But rule 5.404(b)(2)’s reference to mistake or accident is not strictly limited
to a mistake or accident by the defendant. See, e.g., People v. Deeney, 193 Cal.
Rptr. 608, 612–13 (Ct. App. 1983) (recognizing that rule 404(b)’s reference to
mistake or accident generally refers to whether the defendant’s actions were
mistaken or accidental but also recognizing that even though “there was no issue
regarding whether [the defendant’s] conduct was accidental or mistaken,”
“evidence of prior bad acts may properly be admitted to . . . overcome any
material matter sought to be proved by the defense” in addressing whether a
husband’s prior abuse of his wife was admissible to rebut his claim that his wife
was an alcoholic and often fell to show her death was an accident). In some
circumstances mistake can also arise in the context of the victim’s mistake when
the defendant presents specific evidence to support a theory that the victim was
mistaken about what happened, say because the victim was hallucinating or, as
here, was experiencing phantom touches associated with a Reiki treatment so
that she only imagined what she felt. See, e.g., Koo v. State, 640 N.E.2d 95, 100–
35
02 (Ind. Ct. App. 1994) (holding evidence from two former patients that physician
drugged and raped them during medical exam admissible, under newly enacted
Indiana Rule of Evidence 404(b), to rebut defendant’s claim victim hallucinated
the claimed sexual encounter); State v. Lough, 889 P.2d 487, 495 (Wash. 1995)
(en banc) (“[E]vidence of prior druggings and rapes [by the defendant] was
relevant to the specific issue of whether the conduct on which the charge was
based actually occurred or was, as the Defendant contended, a fabrication or
mistake by the victim.”). In this context, evidence of the defendant’s prior actions
is not relevant to a mistake that goes the defendant’s intent but is relevant to
rebut a specific-defense theory of mistake by the victim.
Thoren’s theory at trial was that L.R. imagined he touched her vaginal area
during the Reiki therapy when in fact he never touched below her belly button.
Both sides called expert witnesses at trial to discuss Reiki therapy and the
possibility of experiencing “phantom touches” during a Reiki session. According
to witnesses from both the State and Thoren, clients often feel a sensation of
being touched during Reiki treatments in places where no physical contact has
occurred. This testimony was essential to Thoren’s defense that he did not touch
L.R. below her belly button and that she imagined the rubbing of her vaginal
area. Given the significant trial testimony devoted to describing Reiki treatment
and phantom touches, whether L.R. mistakenly believed that Thoren touched
her vaginal area was a legitimate and disputed issue at trial.
With lack of mistake at issue, we must determine whether the testimony
from Thoren’s five former clients was relevant. Evidence is relevant if “it has any
36
tendency to make a fact more or less probable than it would be without the
evidence[] and . . . [t]he fact is of consequence in determining the action.” Iowa
R. Evid. 5.401. In State v. Lough, the Washington Supreme Court allowed
evidence that the paramedic defendant had drugged and raped other victims as
relevant to whether the victim was mistaken about what had happened, noting
her credibility was difficult to assess given her foggy memory from being drugged.
889 P.2d at 495.7 And in Koo v. State, the Indiana Court of Appeals allowed
testimony from two former patients of the defendant-physician that he had
drugged and raped them during physical exams to rebut the defendant’s
evidence that the victim’s use of prescription drugs could have caused sexual
hallucinations. 640 N.E.2d at 101–02. The defendant questioned pharmacists
about the frequency of the victim’s refills for Valium and Codeine in the months
leading up to the alleged incident, the hallucinatory effects of those drugs when
used together, and whether the victim’s shaking hands after the incident could
indicate she was going through withdrawal. See id. He also presented evidence
that the doctor’s office looked different than the victim described and then used
that evidence in closing argument to support his argument the victim had
hallucinated the events. Id. Given the extensive evidence here about phantom
touches during Reiki sessions, evidence that Thoren touched other clients
7InLough, the court concluded evidence from the former victims was also admissible to
show a common design or plan. 889 P.2d at 494. Although the evidence here does not meet our
common design or scheme jurisprudence, see Cox, 781 N.W.2d at 769–70, we nonetheless find
Lough convincing to the extent it addresses a victim’s mistake.
37
inappropriately during therapy sessions is relevant to rebut Thoren’s claim that
L.R. experienced phantom touching rather than felt Thoren’s hand.
Even when prior bad acts may be relevant to a legitimate and disputed
factual issue at trial, we are cautious to only allow such evidence that is both
“relevant and necessary.” Cox, 781 N.W. 2d at 768. In Koo, the court allowed
evidence from two former patients who described details similar to those
described by the victim, including that the defendant taped the examining sheet
to an overhead lamp so they couldn’t see what he was doing, giving credence to
the victim’s similar story. Id. at 100–01. We recognize that the testimony from
Thoren’s former clients differs from his abuse of L.R. in some significant ways.
The former clients testified they were inappropriately touched during a
traditional massage that necessarily involved direct physical contact. L.R.
claimed she was abused during a Reiki session, which, as described by witnesses
presented by both parties, differs from the type of physical contact received
during a traditional massage. The former clients were all unclothed for their
massages, while L.R. was fully clothed. The disputed issue is whether L.R.
imagined the contact by experiencing phantom touching, which was not an issue
for the former clients who were clearly touched. In addition, the events were not
close in time, spanning a period of nearly ten years.
We nonetheless find the evidence relevant given the unique nature of this
sexual abuse case involving significant evidence about alternative healing
modalities and phantom touches. Thoren claimed that L.R. imagined the
physical touching she testified she felt—even claiming L.R. stated she
38
experienced the deepest orgasm she had ever felt. L.R., whose eyes were covered,
described the events differently, but not in a way that totally contradicted
Thoren’s theory. Even with the differences between L.R.’s Reiki treatment and
the former clients’ massage sessions, evidence that Thoren crossed the line by
inappropriately touching clients in a sexual manner during other therapy
sessions might make a difference to a reasonable fact finder on the issue of
whether L.R. could have imagined the physical contact she described. See
Putman, 848 N.W.2d at 8–9 (“The general test for relevancy is ‘whether a
reasonable [person] might believe the probability of the truth of the consequential
fact to be different if [the person] knew of the proffered evidence.’ ” (alterations
in original) (quoting Plaster, 424 N.W.2d at 229)). The testimony from Thoren’s
former clients about his inappropriate conduct was relevant to whether Thoren
rubbed his hand over L.R.’s vaginal area as she described, a fact of consequence
given the unusual facts of this case.
Having concluded the evidence was relevant to a disputed issue, we next
determine whether its “probative value is substantially outweighed by the danger
of unfair prejudice to the defendant.”8 Sullivan, 679 N.W.2d at 25. We consider
a number of factors, including:
the need for the evidence in light of the issues and the other evidence
available to the prosecution, whether there is clear proof the
defendant committed the prior bad acts, the strength or weakness
8Thoren does not dispute that the former clients’ testimony satisfies the requirement for
“clear proof” that he committed the prior conduct, the second step required for allowing bad acts
evidence. See Richards, 879 N.W.2d at 152 (“[A] victim’s testimony, standing alone, satisfies the
requirement of clear proof.” (alteration in original) (quoting State v. Jones, 464 N.W.2d 241, 243
(Iowa 1990))).
39
of the evidence on the relevant issue, and the degree to which the
fact finder will be prompted to decide the case on an improper basis.
Putman, 848 N.W.2d at 9–10 (quoting Taylor, 689 N.W.2d at 124).
“Weighing probative value against prejudicial effect ‘is not an exact
science,’ so ‘we [generally] give a great deal of leeway to the trial judge who must
make this judgment call.’ ” Id. at 10 (quoting State v. Newell, 710 N.W.2d 6, 20–
21 (Iowa 2006)). Here, the district court made its call before trial in its limine
ruling at a time when it lacked a full appreciation of the evidence that would be
presented at trial. Whether prior bad acts evidence should be admitted is a fact-
specific determination that should generally be made within the context of the
other evidence presented at trial when the district court can adequately weigh
the need for the evidence. See Reynolds, 765 N.W.2d at 290. We caution district
court judges to conduct their balancing analysis at a point when they have all
the relevant evidence to ensure they understand the probative value of the
offered evidence and its prejudicial effect can be fully appreciated.
In addressing the need for the evidence, we note that the State put on its
own witness experienced in Reiki therapy as part of its case-in-chief, and the
defense put on two Reiki practitioners as well as two of Thoren’s current clients
who had received Reiki and craniosacral treatments from him, describing the
phantom touching Thoren claimed L.R. experienced. L.R., whose eyes were
covered, admittedly had to rely on her other senses in claiming that Thoren
physically rubbed her vaginal area with his hand—a necessary element of the
sex abuse charge. For the most part, testimony from the former clients was
relatively short and to the point and focused on how Thoren inappropriately
40
touched each of them during a massage session, which is what made the
evidence relevant to the current prosecution. The need for the evidence, coupled
with the limited testimony about the prior conduct, balances in favor of allowing
testimony from Thoren’s former clients.
However, two witnesses testified beyond the scope of what we have found
to be the relevant purpose for the evidence, that is, whether L.R. might have been
mistaken about what she felt. Thoren’s sister-in-law, S.T., testified about a
massage she received from Thoren in his home in 2009, nine years before the
events for which Thoren was convicted. In addition to testifying that he used a
vibrating machine directly over her clitoris, she also testified about how Thoren’s
actions violated the trust she had in Thoren as her brother-in-law and the
damage it did to their relationship. The facts that S.T. had a personal
relationship with Thoren, received a message in his home rather than in a clinical
setting, and lost trust in her brother-in-law take S.T.’s testimony well beyond the
limited purpose for which the prior acts evidence was relevant to this case.
Another former client, M.L., testified that during a massage in 2012
Thoren massaged farther up the side of her breast than was appropriate and
that he was panting and breathing heavy while doing so as if he was sexually
aroused. Whether or not Thoren was panting and aroused has no relevance to
whether L.R. felt Thoren’s hand or experienced phantom touching. This
testimony was not needed to support the proper purpose for the evidence but
risked giving the jury an improper basis on which to decide the case. See Putman,
848 N.W.2d at 9–10 (considering the strength or weakness of the prior act
41
evidence on the relevant issue against the risk that the prior act will prompt the
jury to decide the case on an improper basis). The district court abused its
discretion in allowing S.T. and M.L. to testify.9
On balance, the probative value of the testimony from the other three
former clients was not substantially outweighed by the danger of unfair prejudice
to Thoren, and the district court did not abuse its discretion in admitting their
testimony as relevant to the issue of whether L.R. was mistaken. See Sullivan,
679 N.W.2d at 25.
V. Harmless Error. We next determine whether the district court’s errors
are reversible. When a district court commits a nonconstitutional error by
admitting evidence it should have excluded, we do not reverse the defendant’s
conviction if the error was harmless. The test for harmless error “is whether the
rights of the objecting party have been ‘injuriously affected by the error’ or
whether the party has ‘suffered a miscarriage of justice.’ ” State v. Parker, 747
N.W.2d 196, 209 (Iowa 2008) (quoting Sullivan, 678 N.W.2d at 29).
Overwhelming evidence of the defendant’s guilt can make the error harmless. Id.
at 210. “We presume prejudice and ‘reverse unless the record affirmatively
9We do not prejudge what evidence should be allowed on retrial because similar testimony
may be appropriate depending on why it is introduced and how it is used. See State v. Mitchell,
670 N.W.2d 416, 422 (Iowa 2003) (holding, in appeal from second trial following remand after
district court improperly admitted prior acts evidence solely to bolster victim’s credibility, that
the court properly admitted the same evidence on retrial to rebut the defendant’s conspiratorial
theory presented in second trial); see also Cox, 781 N.W.2d at 771 (“Although it does not appear
the testimony of A.L. and T.C. was relevant to any ‘legitimate issue’ and therefore was not
appropriately admitted, we express no opinion regarding whether the evidence may become
relevant to a legitimate issue and be admissible on retrial.”).
42
establishes otherwise.’ ” Reynolds, 765 N.W.2d at 292 (quoting Sullivan, 679
N.W.2d at 30).
Our review of the trial proceedings convinces us that the district court’s
errors were not harmless. Although some of the evidence about Thoren’s prior
acts was admissible to rebut Thoren’s theory that L.R. was mistaken about what
she felt, the district court’s failure to identify the specific purpose for which the
evidence could be used prejudiced Thoren. First, it allowed evidence about the
Board’s investigation and testimony from S.T. and M.L. that went beyond the
specific issue to which the prior act evidence was relevant. Second, it allowed the
State to use even the properly admitted evidence beyond its limited purpose of
rebutting Thoren’s theory that L.R. experienced phantom touching. The district
court painted with too broad a brush in ruling that all of the evidence could come
in for the purposes of showing intent, motive, or lack of accident or mistake. The
definitive pretrial ruling allowed the State to begin its case-in-chief with evidence
about the Board’s investigation that led Thoren to surrender his massage license
followed by testimony from the five former clients. Putting “the effect of this
evidence . . . in[to] perspective,” Rodriquez, 636 N.W.2d at 243, this is not a case
where the improperly admitted evidence had minimal effect or was downplayed
by the State, cf. id. (“The State did not elicit great detail about the prior assaults
and spent a relatively small amount of time on this line of questioning.”). Rather,
the improper evidence set the stage for the State’s he said, she said case by
painting Thoren as a bad actor based on events unrelated to the charged crime,
bolstered by the Board’s investigation, before even presenting the actual facts of
43
the case. The State capitalized on the improper use of the evidence in its closing
argument, where it urged the jury to “rely on any of the other testimony of the
other victims . . . to show, was this a mistake, was it an accident, did he intend
to do this to her. He’s done it to five other women.”
The district court was tasked with determining the specific legitimate
issues to which the evidence was relevant and limiting its use to those issues.
Its failure to do so fell far short of the “model of caution” we have recognized in
cases involving rule 5.404(b) evidence. See Putman, 848 N.W.2d at 16
(recognizing district court carefully analyzed each piece of prior bad acts evidence
before admitting it, winnowed thousands of pornographic videos and images
down to two, and then only allowed the witness to read the titles of the two videos
into evidence without allowing the jury to see them); see also Richards, 809
N.W.2d at 93 n. 4 (applauding district court’s efforts during trial where, before
admitting evidence of specific prior bad acts, the court required the evidence to
show the defendant’s “malice” toward the victim “rather than a propensity to
commit bad acts” and considered the “strength of the witness or evidence on the
relevant issue”).
Finally, the strength of the State’s case does not make the errors harmless.
The evidence against Thoren was not overwhelming where his conviction turned
on whether the jury believed L.R.’s version of events or Thoren’s. See State v.
Redmond, 803 N.W.2d 112, 127 (Iowa 2011) (holding evidence of guilt was not
overwhelming for purposes of harmless error review where “P.M. testified to one
version of the events on that evening; Redmond to another”). The district court’s
44
errors were not harmless, and Thoren is entitled to a new trial. See Reynolds,
765 N.W.2d at 293 (holding district court should have limited evidence of prior
incidents between the defendant and his assault victim, concluding district court
could have allowed some prior incidents but its error in admitting evidence about
eleven previous events was not harmless where the state urged the jury in closing
to find the defendant guilty based on the five years’ worth of history, which
“foretold what was going to happen September 27, 2006”).
VI. Disposition.
We vacate the court of appeals decision, reverse Thoren’s conviction, and
remand the case for a new trial consistent with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
Christensen, C.J., and Appel and McDermott, JJ., join this opinion.
Waterman, J., files an opinion concurring specially, in which Mansfield, J., joins.
Mansfield, J., files an opinion concurring specially, in which Waterman and
McDonald, JJ., join.
45
#20–0192, State v. Thoren
WATERMAN, Justice (concurring specially).
I join part IV.A of the majority opinion and concur in the result and join
Justice Mansfield’s special concurrence as to part IV.B. I write separately to raise
an additional reason that evidence of a practitioner’s voluntary settlement with
a licensing board should be inadmissible in a subsequent criminal proceeding
arising from the same or similar misconduct: Iowa’s strong public policy to
encourage settlements as reflected in Iowa Rule of Evidence 5.408.10 The
majority opinion understandably refrains from mentioning rule 5.408 because
Thoren failed to raise that ground in district court or on appeal.
Iowa Rule 5.408 prohibits use of evidence of settlements to prove the
validity of a disputed claim, and does so to “promot[e] . . . the public policy
10Iowa Rule of Evidence 5.408 provides:
a. Prohibited uses. Evidence of the following is not admissible—on behalf
of any party—to prove the validity or amount of a disputed claim:
(1) Furnishing, promising, or offering—or accepting, promising to accept,
or offering to accept—a valuable consideration in compromising or attempting to
compromise the claim that was disputed on either validity or amount.
(2) Conduct or a statement made during compromise negotiations about
the claim.
b. Exceptions. The court may admit this evidence for another purpose,
such as proving a witness’s bias or prejudice, negating a contention of undue
delay, or proving an effort to obstruct a criminal investigation or prosecution.
Notably, Iowa Rule of Evidence 5.408 does not contain the exception added in 2006 to
Federal Rule of Evidence 408, for “negotiations related to a claim by a public office in the exercise
of its regulatory, investigative, or enforcement authority” that is “offered in a criminal case.” Fed.
R. Evid. 408(a)(2). Based on that exception, the United States Court of Appeals for the Sixth
Circuit on plain error review held that the district court did not abuse its discretion in a criminal
billing fraud trial by admitting into evidence without objection an order by the Kentucky Board
of Medical Licensure in which the defendant voluntarily surrendered his medical license to
resolve charges arising out of the same misconduct. United States v. Paulus, 894 F.3d 267, 280
(6th Cir. 2018). United States v. Paulus is inapplicable because the Iowa rule lacks that exception.
46
favoring the compromise and settlement of disputes.” Graber v. City of Ankeny,
616 N.W.2d 633, 638–39 (Iowa 2000) (en banc) (quoting Fed. R. Evid. 408
advisory committee’s note to 1972 proposed rules). Such evidence has low
probative value because the motivation to settle may be “a desire for peace rather
than . . . any concession of weakness of position.” Id. (quoting Fed. R. Evid. 408
advisory committee’s note to 1972 proposed rules). In Graber v. City of Ankeny,
we held the district court abused its discretion in admitting evidence of a
settlement because allowing the evidence “would seriously undermine Iowa’s
public policy to encourage settlements.” Id. at 641. The same reasoning applies
here.
Our court today correctly holds that the district court abused its discretion
in this criminal trial by admitting into evidence Kevin Thoren’s voluntary
surrender of his massage license and related documents from the Iowa Board of
Massage Therapy. A contrary holding would deter other licensed professionals
from voluntary settlements surrendering their license to practice if that
settlement would be admissible into evidence against them in related criminal
proceedings. Settlements with licensing boards should be encouraged, not
discouraged. For this additional reason, I join the court’s opinion requiring a
retrial of the criminal charge without evidence of Thoren’s settlement with the
licensing board.
Mansfield, J., joins this special concurrence.
47
#20–0192, State v. Thoren
MANSFIELD, Justice (concurring specially).
I join part IV.A of the majority opinion. I concur in the result as to part
IV.B. Specifically, I agree with the majority that the district court did not abuse
its discretion in admitting the prior acts involving L.K., J.J., and A.N. but abused
its discretion in admitting the prior acts involving S.T. and M.L. However, I
believe the majority’s analysis in IV.B confuses an important evidentiary issue.
Therefore, I specially concur.
I. The Majority’s Mistake About Mistake.
According to the majority, Kevin Thoren’s prior acts of sexual misconduct
against L.K., J.J., and A.N. are admissible only to prove that L.R. didn’t make a
mistake in claiming Thoren sexually assaulted her—i.e., to prove that the alleged
victim’s testimony is correct. But how is this any different from bolstering the
victim’s credibility, a ground that the majority states is invalid? These are two
sides of the same coin.
Analytically, we need to back up and consider how the other incidents
involving L.K., J.J., and A.N. might be relevant to prove L.R. didn’t err in her
testimony. They are relevant because they tell us something about Thoren,
specifically that Thoren when performing therapeutic procedures on female
clients has repeatedly touched them sexually against their wishes. And why is
this significant? Because it tells us that Thoren derives gratification from this
kind of activity and therefore is more likely to have engaged in it with L.R. In
short, the underlying reason why the other incidents are relevant is to show
48
Thoren’s motive and intent.11 “Lack of victim mistake” is just a more circuitous
way of saying the incidents help prove Thoren’s motive and intent.
Again, to the extent prior bad acts by Thoren could demonstrate that L.R.
didn’t make a mistake, they do so by showing that Thoren had a tendency to do
the same thing to other women in the same position. That is 100% propensity
evidence, unless you treat it as bearing also on the defendant’s motive and intent.
Consider the following hypotheticals:
 Mr. X is stopped by a police officer for erratic driving. He
refuses the Datamaster but is prosecuted for OWI. The officer
testifies that he smells an alcoholic beverage on the
defendant’s breath and that the defendant was driving
erratically, which the defendant denies. Can the state
introduce evidence of the defendant’s prior OWI’s to prove
“lack of mistake” by the cop in his testimony?
 An informant who is a heavy drug user testifies that he bought
drugs from Ms. Y. Can the state introduce evidence of Ms. Y’s
prior drug convictions to show “lack of mistake” by the
informant—e.g., to rebut the claim that the informant was a
heavy drug user and not a reliable witness?
The answer to these questions is, “Clearly no.” Evidence of the defendant’s prior
acts is not admissible to prove absence of mistake per se by a complaining
witness. Those acts are only admissible when the evidence is able to demonstrate
something about the defendant’s motive, intent, plan, etc. at the time of the
charged crime.
11The majority spends a page belaboring a distinction between motive and intent. I’m not
sure why. This distinction may matter with respect to other crimes. For example, most drug
dealers sell drugs to make money, not because they get a thrill out of the act of sale. However,
with sex offenses, motive and intent tend to be one and the same—sexual gratification.
49
Unsurprisingly, the majority is only able to cite three out-of-state cases in
support of its claim that absence of victim mistake is an independent ground for
admissibility under rule 5.404(b). See State v. Lough, 889 P.2d 487, 495 (Wash.
1995) (en banc); Koo v. State, 640 N.E.2d 95, 100–02 (Ind. Ct. App. 1994); People
v. Deeney, 193 Cal. Rptr. 608, 612–13 (Ct. App. 1983). The Washington Supreme
Court case actually supports my position. In that court’s view, the incidents with
the other women showed the victim didn’t make a mistake, but only by showing
the defendant’s “design.” Lough, 889 P.2d at 494–95. As the court put it,
The evidence that this Defendant rendered four other women, whom
he had relationships with, unconscious with drugs and then raped
them is not admitted to establish that the Defendant has a criminal
disposition or a bad character; it is admitted to show that he
committed the charged offense pursuant to the same design he used
in committing the other four acts of misconduct. The evidence is
admitted to show plan, not propensity. In this case, the Defendant’s
history of drugging women, with whom he had a personal
relationship, in order to rape them while they were unconscious or
confused and disoriented evidences a larger design to use his special
expertise with drugs to render them unable to refuse consent to
sexual intercourse. A rational trier of fact could find that the
Defendant was the mastermind of an overarching plan.
Id. The legal analysis in the case from the Indiana Court of Appeals is pretty
conclusory and, I would suggest, out of date. See Wages v. State, 863 N.E.2d
408, 412 (Ind. Ct. App. 2007) (noting that “[t]his part of the rule has been
described as ‘simply a special form of the exception that permits the use of other
crimes to prove intent’ ”) (quoting Robert L. Miller, Jr., Courtroom Handbook on
Indiana Evidence 80 (2007)). The California Court of Appeal case involves a very
different situation where the defendant brought up prior conduct of the victim—
i.e., her alleged accidental falls resulting in injury. Deeney, 193 Cal. Rptr. at
50
613–14. The court concluded that in some instances the state could respond
with prior misconduct by the defendant against the same victim to show the
prior injuries were not accidental. Id. That scenario has nothing to do with the
present case or with the concept of “victim mistake.”
The predominant view is that rule 5.404(b) refers to an absence of mistake
by the defendant. This is what the treatises say. See 22B Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure § 5255, at 336 (2017)
(“The final listed uses for uncharged misconduct evidence in Federal Rule of
Evidence 404(b)(2)—‘absence of mistake, or lack of accident’—provide judges and
lawyers with a more specialized application of the broader category of ‘intent.’ ”);
David P. Leonard, The New Wigmore: Evidence of Other Misconduct and Similar
Events § 7.2.2, at 474 (Richard D. Friedman ed., 2d ed. 2019) (“Most codified
versions of the uncharged misconduct rule, including Federal Rule of Evidence
404(b), list ‘intent’ and ‘absence of mistake or accident’ separately. It is
unnecessary to do so. ‘Absence of mistake or accident’ is generally synonymous
with intent.”). As Professor Doré puts it in her respected treatise on Iowa
evidence: “Evidence proving lack of mistake or accident appears to significantly
overlap proof of intent. Proof of other acts demonstrating that the defendant did
not act under a mistake or accident on this occasion in essence proves
intentional conduct.” 7 Laurie Kratky Doré, Iowa Practice: Evidence § 5.404:6, at
284 (2018–2019 ed. 2018).
Thus, I believe lack of victim mistake is an unnecessary legal distraction,
without support in logic or precedent.
51
II. Similarity and Nearness in Time Are Two Keys to Admissibility.
While I do not think absence of victim mistake is a basis for admissibility
under rule 5.404(b), I would nonetheless conclude that the district court did not
abuse its discretion in admitting the testimony of L.K., J.J., and A.N. Thoren
vigorously disputed that he had touched L.R. sexually, and proof that he had
done something similar to other women clients in the not-too-distant past for his
own sexual gratification could tend to show the he intended to do so to L.R. on
November 21, 2018, and therefore in fact did so.
Thoren’s defense was that he did not touch L.R. in any private area, and
that his purpose was never to give L.R. “sexual energy” but merely to give her
“energy.” For example, Thoren testified,
I asked her a couple questions. Again, typical, when somebody is
having a session, but just, how are you doing, what are you
experiencing, what are you feeling, and she didn’t answer. And so
then I asked again. And she didn’t answer. So I just dropped it,
because I thought, well, she’s just in a really relaxed state, doesn’t
want to answer. And then she made a noise, kind of a groan, and
said that was the deepest orgasm I’ve ever had. There was nothing -
- anyway.
Q. So [L.R.] said that to you?
A. Yes.
Q. Was there anything that you said inappropriate that went
before that?
A. No, sir.
Q. And what was your response to [L.R.] saying that?
A. I immediately pulled my hands away, and I said that was
not the purpose or intent, I believe is what the word I used. I may
have reacted a little too strongly in that way.
52
Evidence that Thoren had improperly touched other female clients during their
sessions could, in the right situation, tend to show that the truth was otherwise.
In other words, evidence that Thoren intentionally committed nonconsensual
sexual touching on one or more clients could, under some circumstances, tend
to prove he intended to commit—and therefore did commit—a sexual assault
against L.R.
Of course, using evidence of past misconduct to help prove the defendant
committed the charged crime is fraught with danger. If the prior misconduct
provides only weak evidence of the defendant’s motive and intent, there is a grave
risk that its legitimate use will be outweighed by its improper effects. Most trial
judges recognize this point intuitively. They therefore base rule 5.404(b)
admissibility decisions largely on how similar and how close in time the prior
acts are to the charged criminal offense. The more similar and the closer in time,
the greater the likelihood the evidence will be allowed to show some legitimate
rule 5.404(b) purpose.
We recognized this point in State v. Putman, a case where identity was at
issue and where we found that evidence of the defendant’s possession of two
pornography videos of very young children being raped was admissible to prove
that the defendant had raped a very young child. 848 N.W.2d 1, 12–13 (Iowa
2014). We emphasized, “There is undeniable similarity between the two videos
and the act for which Putman was on trial.” Id. at 12.
The most analogous case factually to the present case is State v. Allen. 565
N.W.2d 333 (Iowa 1997). In a prosecution of a hypnotherapist for having sexual
53
relations with a client in violation of Iowa Code section 709.15(2) (1993), we
upheld the admission of an incident involving another woman. Id. at 339.
Although the majority tries to distinguish Allen, what we said in that case speaks
for itself:
We believe the testimony of Westphal tended to show a pattern or
scheme of conduct in connection with Allen’s behavior. Both
Westphal and Frederick found Allen’s listing in the yellow pages of
the telephone directory and sought help from him for their
problems—Westphal for weight loss and Frederick for unexplained
physical symptoms. Allen initiated sexual contact with both women
while they were in his office for treatment. The similarities between
the two situations were relevant to establishing such factors as
motive, intent, opportunity, and plan. See Iowa R. Evid. 404(b).
Id.Other courts follow a similar analytical approach focusing on the similarity
of the prior conduct on the ground that more similar conduct is more probative
of motive, intent, or plan. See, e.g., People v. Gonzales, 377 N.E.2d 91, 100 (Ill.
App. Ct. 1978) (“The attacks on the other women and the rape of the complainant
bear significant similarities which rendered evidence of the former relevant as
proof of the existence of a common scheme or design, and modus operandi.”);
Young v. State, 106 So. 3d 775, 780 (Miss. 2012) (en banc) (“[T]he trial court here
did not abuse its discretion by admitting evidence of Young’s previous sexual
abuse of another prepubescent female family member, because the evidence was
admissible for noncharacter purposes. Those purposes include establishing that
Young’s motive was a ‘seemingly uncontrollable desire to partake in pedophilic
sexual activities with young and developing female juveniles’ and that both
assaults were part of a ‘common plan, scheme, or system’ that involved Young
54
taking advantage of family relationships to engage in sexual activities with
prepubescent girls.”); State v. Bommarito, 856 S.W.2d 680, 682–83 (Mo. Ct. App.
1993) (finding that evidence that the defendant “had grabbed, fondled and
forcibly kissed other women that evening . . . . was relevant to establish the
motive and intent of Defendant on the evening the crime occurred”);
Commonwealth v. Gordon, 673 A.2d 866, 869–70 (Pa. 1996) (finding that
evidence that an attorney sexually assaulted three other women when they were
meeting with him on legal business in similar circumstances was “relevant to
prove motive, intent, absence of mistake or accident, and a common scheme or
plan embracing the commission of two crimes so related to each other that proof
of one tends to prove the others”); State v. Perry, 182 A.3d 558, 569 (R.I. 2018)
(“ ‘[T]he factors to be considered when comparing the charged incident and the
prior sexual misconduct are “time, place, age, family relationships of the victims,
and the form of the sexual acts.” ’ Looking to these factors, we conclude that the
trial justice did not abuse her discretion in finding that the prior acts of sexual
misconduct were similar to the charged acts.” (alteration in original) (citation
omitted) (quoting State v. Mohapatra, 880 A.2d 802, 807 (R.I. 2005))).
We need to apply that screen here, as well as the “clear proof” and “need
for the evidence” rule 5.403 screens that serve a similar purpose. I agree with
the majority that the trial’s focus on Reiki treatment and phantom touches
accentuated the need for testimony from the other women. However, that
consideration goes into the rule 5.403 balancing under need for the evidence.
55
See, e.g., Putman, 848 N.W.2d at 9. It does not, as I’ve already noted, provide an
independent ground to admit the testimony under absence of victim mistake.
Considering the similarity of the other incidents, the timeframe in which
they occurred, the strength of the proof of those incidents, the need for the
evidence, and the other rule 5.403 factors, I would find that the district court
did not abuse its discretion in admitting evidence of testimony from L.K., J.J.,
and A.N. This is a close call for me because two of these incidents had occurred
nearly a decade before, and I am not saying that a narrower view of admissibility
would have been improper. I agree with the majority that the incidents involving
S.T. and M.L. were not sufficiently similar to the charged crime to be admissible.
Waterman and McDonald, JJ., join this special concurrence.