State of Iowa v. Brett Graham ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1306
Filed September 17, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRETT GRAHAM,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Steven J. Oeth,
Judge.
A defendant appeals his conviction for second-degree arson. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, and Dan Kolacia, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VAITHESWARAN, P.J.
Brett Graham confessed to taking a lighter to a barn in Boone County.
The resulting fire destroyed the barn and its contents.
The State charged Graham with second-degree arson, and a jury found
him guilty as charged. On appeal, Graham contends (I) the district court abused
its discretion in admitting prior bad acts evidence and (II) his trial attorney was
ineffective in failing to request a uniform jury instruction on the treatment of the
prior bad acts evidence in lieu of the instruction that was given.
I. Prior Bad Acts Evidence
A key issue at trial was the admission of evidence of prior crimes allegedly
committed by Graham. Specifically, police learned that Graham may have set
three fires in Story County before setting the fire in Boone County. They
questioned Graham about these fires and sought to admit recordings of the
interviews in his Boone County trial.
Graham filed a motion in limine seeking to exclude the recordings. He
contended the evidence served a single impermissible purpose: to show he had
the propensity to light fires and acted in conformity with this propensity in setting
the Boone County fire. The State countered that the evidence would address a
fighting issue in the case—whether Graham intended to damage or destroy the
Boone County barn.
The district court excluded evidence of two of the Story County fires but
admitted evidence of a fire at a Story County golf center eight days prior to the
Boone County fire. In admitting this evidence, the court reasoned as follows:
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[T]he court finds that the evidence is relevant. The issue of specific
intent is really the fighting issue in this case, especially given the
allegations of the defendant’s conduct relative to trying to put out
the Boone County barn fire by urinating on the smoldering hay.
The court also finds that it is similar in kind and time to the conduct
in Boone County. Specifically, there was a lighter involved to a
building. In the Boone County case there was a lighter to hay in a
building. And the conduct is alleged to have been close in time, a
week or eight days before. Finally, the court finds there is sufficient
evidence at least allegedly in—based on the minutes of testimony
to support that the defendant committed the Story County conduct
based on his alleged admissions. And finally, the court finds that
the probative value, again given what I perceive to be the fighting
issue in this case relative to the specific intent and again
considering defendant’s conduct on urinating on the smoldering
hay, I find that based on that the probative value substantially
outweighs the danger of unfair prejudice.
Our review of this ruling is for an abuse of discretion. State v. Putman, 848
N.W.2d 1, 8 (Iowa 2014).
The admission of prior bad acts evidence is governed by Iowa Rule of
Evidence 5.404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that the person acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
The rule “exclude[s] evidence that serves no purposes except to show that the
defendant is a bad person, from which the jury is likely to infer he or she
committed the crime in question.” State v. Rodriquez, 636 N.W.2d 234, 239
(Iowa 2001).
To be admissible, prior bad acts evidence must be (1) relevant to a
legitimate, disputed factual issue, such as identity, intent, or motive;
(2) supported by clear proof the individual against whom the evidence is offered
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committed the bad act or crime; and (3) substantially more probative than
prejudicial. Putman, 848 N.W.2d at 9-10.
We begin and end with the relevancy requirement. “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Iowa R. Evid. 5.401; Putman, 848
N.W.2d at 9. According to the Advisory Committee’s note to the comparable
federal rule, “[t]he fact to which the evidence is directed need not be in dispute.”
Fed. R. Evid. 401 advisory committee’s note.
The jury was instructed that the State would have to prove the following
elements of second-degree arson:
1. On or about the twenty-fifth day of January, 2013, the defendant
caused a fire or explosion or placed burning material in or near
property.
2. The defendant intended to destroy or damage the property or knew
the property would probably be destroyed or damaged.
3. The property was a building, structure or personal property, the
value of which exceeded five hundred dollars.
On appeal, the State reiterates that the evidence of the prior fire was relevant to
establish intent, which is an exception to the prohibition on admission of prior bad
acts evidence.
We agree rule 5.404(b) lists intent as an element on which prior conduct
may be probative. Iowa R. Evid. 5.404(b); Putman, 848 N.W.2d at 10; State v.
Nelson, 791 N.W.2d 414, 425 (Iowa 2010). We also agree that, assuming a
dispute is required, intent was a disputed element in this case; Graham’s
proposed jury instruction on the lesser included offense of “reckless use of fire”
made this clear. It would seem like a small step, then, to conclude that, under
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the broad definition of relevance set forth in rule 5.401, Graham’s role in the
Story County fire made it more probable he intended to destroy the barn in
Boone County. In other words, it could be argued that the prior crime was
“logically relevant” to the present crime. See State v. Knox, 18 N.W.2d 716, 723
(Iowa 1945) (“‘Logical relevancy’ may be defined as the existence of such a
relationship in logic between the fact of which evidence is offered and a fact in
issue that the existence of the former renders probable or improbable the
existence of the latter.”).
However, even if evidence is “logically relevant” under rule 5.401, the
evidence may not be legally relevant under the remaining rules of evidence. See
12 Barry A. Lindahl, Iowa Practice Series, Civil & Appellate Procedure § 36:42, at
55-56 (2014 ed.). To meet the test for legal relevance under rule 5.404(b), the
State was obligated to “articulate a valid, noncharacter theory of admissibility for
admission of the bad-acts evidence.” State v. Sullivan, 679 N.W.2d 19, 28 (Iowa
2004); accord Nelson, 791 N.W.2d at 425 (quoting State v. Mitchell, 633 N.W.2d
295, 298 (Iowa 2001), “The important question is whether the disputed evidence
is ‘relevant and material to some legitimate issue other than a general propensity
to commit wrongful acts.’”); State v. Cox, 781 N.W.2d 757, 769 (Iowa 2010) (“We
must decide whether [the evidence] could be admitted for a ‘legitimate issue.’”); 7
Laurie Kratky Doré, Iowa Practice Series, Evidence § 5.404:6, at 225 (2011-2012
ed.) (stating that to be legally relevant, prior bad acts evidence must be “relevant
to a legitimate non-character issue in the case even though such evidence may
reveal character traits of the accused”). For the Story County evidence to be
legally relevant, the State could not simply argue that if Graham entertained the
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intent to destroy a building in the past, “he probably harbored the same intent at
the time of the charged offense.” Sullivan, 679 N.W.2d at 29. Yet, this is
precisely what the State argued. The prosecutor stated:
We can use 404B evidence to prove intent . . . . They are both
unoccupied dwellings. He used a lighter in the golf center. He
used a lighter at the barn. And also he drove and hid. In both
instances he went back almost two days later.
The State’s argument was nothing more than an assertion that Graham had the
propensity to take lighters to buildings and acted on the propensity in setting the
Boone County fire. As in Sullivan, the prosecutor offered a prior, unproven act of
arson “unconnected to the charge for which [Graham] was being tried without
articulating a valid, non-character theory of logical relevance to support an
ultimate inference of intent.” Id. This was impermissible.
In reaching this conclusion, we have considered several opinions cited by
the State. In our view, these opinions are inapposite.
In State v. Reynolds, 765 N.W.2d 283, 290-91 (Iowa 2009), an appeal
from a conviction for assault causing bodily injury, the court found prior threats
and assaults toward the complaining witness relevant to show the defendant’s
“personal animus toward” the complaining witness. The court took pains to
explain that the evidence “was not offered to show a general propensity towards
violence but rather ‘to demonstrate the nature of [Reynolds’] relationship and
feelings toward a specific individual.’” Reynolds, 765 N.W.2d at 291.
Similarly, in State v. Taylor, 689 N.W.2d 116 (Iowa 2004), an appeal from
convictions for domestic abuse assault causing bodily injury and first-degree
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burglary arising out of Taylor’s altercation with his wife, the court found the prior
relationship important to determining intent. The court stated:
We also think there is a logical connection between a
defendant’s intent at the time of a crime, when the crime involves a
person to whom he has an emotional attachment, and how the
defendant has reacted to disappointment or anger directed at that
person in the past, including acts of violence, rage, and physical
control.
Taylor, 689 N.W.2d at 125. The court concluded,
The defendant’s prior acts of violence toward his wife, while
certainly illustrative of a propensity to use violence, also reflect his
emotional relationship with his wife, which as our discussion shows,
is a circumstance relevant to his motive and intent on the day in
question.
Id. at 128. The court distinguished this situation from cases in which the State
sought to introduce evidence of unconnected prior crimes. Accepting Sullivan’s
statement that “evidence of an unconnected prior crime is always evidence of
propensity and never evidence of a specific intent to commit the crime charged,”
the Taylor court noted that “[d]omestic violence is never a single isolated
incident.” Taylor, 689 N.W.2d at 129 n.6 (citation omitted). The court stated,
“[e]vidence of prior bad acts is especially relevant and probative in domestic
violence cases because of the cyclical nature of domestic violence.” Id. (citation
omitted); see also Rodriquez, 636 N.W.2d at 242 (“The fact that the defendant
had cruelly assaulted Enriquez in the past when she tried to leave him makes it
more probable that his mere presence in the bedroom was intended—and
perceived—to be a threat of harm calculated to prevent her from leaving. In
addition, evidence of the defendant’s prior intentional, violent acts towards the
victim coupled with his prior threats to kill her if she left him also makes it more
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probable that he intended to cause her serious injury on October 11, in contrast
to his claim that the injuries he inflicted that day were merely unintended,
incidental consequences of his anger.”); State v. Little, No. 08-1125, 2010 WL
786011, at *11-12 (Iowa Ct. App. Mar. 10, 2010) (distinguishing case from those
such as Taylor by stating “[i]f the conduct had involved the same victim . . . this
would of course be a different case” and stating “intent is almost always an issue
in a criminal case. So that the 5.404(b) exception does not swallow the rule, it is
important the evidence bear directly on intent, rather than passing through the
filter of character or propensity”).
In State v. Plaster, 424 N.W.2d 226, 230 (Iowa 1988), the court
considered whether evidence of past sexual abuse of a different woman was
relevant on the issue of consent. The court stated “Plaster’s prior sexual conduct
toward [a different woman] tends to show the same peculiar and characteristic
behavior pattern manifested in the crime charged” and “tends to rebut his
consent theory of defense.” Plaster, 424 N.W.2d at 230. The court ultimately
held that the probative value of this evidence outweighed the danger of unfair
prejudice. Id. at 233. The Iowa Supreme Court called this holding into question
in Mitchell, 633 N.W.2d at 299. In an appeal from a conviction for second-degree
sexual abuse, the court held the district court abused its discretion in admitting
testimony concerning a defendant’s prior bad acts with different people. Mitchell,
633 N.W.2d at 300. The court specifically stated, “[t]he future applicability of
Plaster in a factual situation similar to the one in that case now remains an open
question.” Id. at 299.
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In this case, the Story County fire was unconnected to the Boone County
fire. The setting of the Story County fire showed nothing more than Graham’s
propensity to commit the Boone County fire.1 See Sullivan, 679 N.W.2d at 29.
The court’s recent opinion in Putman also does not alter our conclusion.
The court there held that certain evidence of a sexual nature was relevant to
establish identity. Putman, 848 N.W.2d at 13. The court stated the relevancy
test was different in the context of proving identity, requiring a showing that the
prior bad acts were “strikingly similar” or of a “unique nature.” Id. at 11. Here the
focus is on intent. The pertinent test for evaluating legal relevancy in this context
was set forth in Sullivan. But even if the relevancy test summarized in Putnam
were applicable to prior bad acts offered to prove intent, we are not persuaded
that the use of lighters to start fires rendered the prior bad act “strikingly similar”
or of a “unique nature.” See Putman, 848 N.W.2d at 12 (“[W]e have held
generally similar prior-bad-acts evidence inadmissible.”).
Finally, the closeness in time of the Story County fire did not enhance the
probative value of the evidence because “temporal separation” of the prior bad
act goes to the weight of the evidence rather than its admissibility. See Sullivan,
679 N.W.2d at 29 (noting three-year time span between past and present act
“cast[] doubt on the weight of th[e] evidence”).
1
Although the State introduced Graham’s statement to police in which Graham indicated
he started fires to gain the attention of his father, an assistant fire chief, the State does
not now argue that the prior bad acts evidence was admissible to establish the
alternative non-propensity purposes of motive or plan.
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In sum, we conclude the evidence of the Story County fire was not legally
relevant, and accordingly, the evidence was inadmissible. See Iowa R. Evid.
5.402.
This brings us to the question of whether the district court’s admission of
the evidence was harmless. On this question, we presume prejudice and
reverse unless the record affirmatively establishes otherwise. Sullivan, 679
N.W.2d at 30.
The record affirmatively establishes otherwise. The owner of the barn
testified she previously employed Graham in cutting and stacking hay. Graham
told police that several checks he received in payment for the work bounced. On
the night of the fire, he was angry about the bounced checks. Early in the
morning, he pulled into the barn, knowing the door would be open and the hay
would be highly combustible. He pulled out his lighter and held it to the hay. He
was surprised when the hay did not instantly ignite because he knew “how dry
that hay was when [he] put it in there.” He said if he “would have lit a cigarette, it
would have . . . [w]oof.” Because the hay did not immediately ignite he “just . . .
held [the lighter] there.” The hay still did not ignite, and at this point, Graham
experienced a touch of remorse, urinated on the hay in an effort to keep the
smoldering fire from bursting into flames, and left.
Notwithstanding Graham’s belated pang of conscience, this evidence
overwhelmingly establishes that he “intended to destroy or damage the property
or knew the property would probably be destroyed or damaged.” Accordingly,
any error in admitting the evidence of the Story County fire was harmless.
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II. Ineffective Assistance of Counsel Claim
Graham contends his trial attorney was ineffective in failing to seek a
uniform jury instruction on prior bad acts evidence which, unlike the instruction
that was given, requires establishment of the prior bad acts by “clear proof.” To
succeed, Graham must show counsel breached an essential duty, and prejudice
resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). Ordinarily,
ineffective-assistance-of-counsel claims are best preserved for postconviction-
relief proceedings, where the record of trial counsel’s motivations can be more
completely developed. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990).
Here, we find the record adequate to address the issue.
As discussed, the evidence of Graham’s guilt was overwhelming.
Accordingly, there is no reasonable probability of a different outcome had
Graham’s attorney requested the uniform jury instruction. See State v. Davis,
584 N.W.2d 913, 919 (Iowa Ct. App. 1998) (“Davis cannot prove he was
prejudiced” by his attorney’s failure to propose a more detailed instruction
because “[t]he evidence was so overwhelming”); see also State v. Maxwell, 743
N.W.2d 185, 197 (Iowa 2008) (“When the submission of a superfluous jury
instruction does not give rise to a reasonable probability the outcome of the
proceeding would have been different had counsel not erred, in the context of an
ineffective-assistance-of-counsel claim, no prejudice results.”). Graham’s
ineffective-assistance-of-counsel claim fails on the prejudice prong.
We affirm Graham’s judgment and sentence for second-degree arson.
AFFIRMED.