State Of Iowa Vs. Calvin Clarence Nelson, Jr. ( 2010 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 08–1384
    Filed December 10, 2010
    STATE OF IOWA,
    Appellee,
    vs.
    CALVIN CLARENCE NELSON, JR.,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Polk County, Don C.
    Nickerson, Judge.
    The State seeks further review of a decision of the court of appeals
    reversing the defendant’s conviction for first-degree murder. DECISION
    OF    THE   COURT     OF   APPEALS      VACATED;     DISTRICT     COURT
    JUDGMENT AFFIRMED.
    Mark C. Smith, State Appellate Defender, and Nan Jennisch,
    Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant
    Attorney General, John P. Sarcone, County Attorney, and Stephanie L.
    Cox and James P. Ward, Assistant County Attorneys, for appellee.
    2
    WIGGINS, Justice.
    The State seeks further review of a court of appeals decision
    reversing a defendant’s first-degree murder conviction. A jury found the
    defendant guilty of first-degree murder. On appeal, the court of appeals
    reversed the conviction because it concluded the district court should
    not have admitted evidence of the defendant’s drug dealing. On further
    review, we find the evidence is not excludable under Iowa Rule of
    Evidence 5.404(b).   Therefore, we vacate the decision of the court of
    appeals and affirm the judgment of the district court.
    I. Background Facts and Proceedings.
    On the evening of June 26, 2007, Michael Collins and his
    girlfriend, Tracy Lewis, bought some crack and smoked it at a friend’s
    house.   Afterwards, Collins and Lewis left to purchase more crack.
    Eventually, they parked at the intersection of Seventh Street and
    Hickman Road in Des Moines.
    Collins was willing to approach strangers to purchase crack. At
    approximately midnight, Collins got out of the car, took Lewis’s cell
    phone, and told her he was going to walk to an apartment complex
    located at the intersection of Eighth Street and Jefferson Avenue where
    he had previously purchased crack. Accordingly, Collins began to walk
    south on Seventh Street while Lewis waited in the car. Lewis waited for
    approximately fifteen to twenty minutes and began to worry. Just as she
    was about to start the car and go looking for Collins, she heard two “pop
    pop” sounds.    Lewis drove to the intersection of Seventh Street and
    Franklin Avenue and saw Collins lying in the grass.
    Earlier, at approximately 11 or 11:30 p.m. the same day, Calvin
    Nelson Jr. and his paramour, Dody Lester, were at the Double Deuce
    bar. While there, Nelson received a phone call and told Lester that he
    3
    had to “go make things right with a friend of his.” Nelson told Lester his
    friend “wanted some stuff,” but all he had was gank, which is fake crack.
    Eventually, Nelson and Lester drove to a house located at Seventh Street
    and Franklin Avenue, where Nelson’s friend lived. When they pulled up
    to the house, there were a large number of people standing in the yard.
    Nelson repeatedly tried to call his friend but he would not answer. While
    there, Lester observed a white male talking on a cell phone on the corner
    of Seventh Street and Franklin Avenue. The white male was Collins.
    Nelson finally got in touch with his friend and told him to meet
    Nelson on Eighth Street.    Lester parked their vehicle on Washington
    Avenue between Seventh and Eighth Street; Nelson got out and waited in
    the road for his friend to arrive.   His friend never arrived, but Collins
    approached Nelson and the two began to converse.          In response to
    Collins’ statements, Lester heard Nelson say twice, “I don’t know what
    you’re talking about.”   Subsequently, Nelson got back into the vehicle
    with Lester, and they again headed towards Seventh Street and Franklin
    Avenue.
    As they pulled up to Seventh Street and Franklin Avenue, Nelson
    saw his friend standing outside. Nelson exited the vehicle, while Lester
    waited inside. Nelson and the friend talked for a few minutes, and then
    Collins approached Nelson again.      Nelson said, “Who are you, dude?”
    Nelson’s friend then said, “I don’t know who he is.” Nelson pulled a gun
    out of his pocket and pointed it at Collins. Collins put his hands in the
    air and said, “I am nobody, I am nobody.” Nelson then shot Collins in
    the face, and he fell to the ground. Collins was on all fours, trying to
    crawl away. Nelson walked towards Collins and shot him again in the
    back of the head. Lester witnessed the entire incident between Nelson
    and Collins.   After the shooting, Nelson got back into the vehicle with
    4
    Lester and drove away.     Paramedics rushed Collins to Mercy Medical
    Center, where he was pronounced dead.
    Lester saw Nelson again later the next day. Nelson told her he did
    not want to kill Collins, but he thought Collins was a police officer trying
    to apprehend him for drugs and he had to kill Collins because Collins
    had seen his face. Nelson also threatened to kill Lester if she told anyone
    about the shooting.
    At approximately 2:30 p.m. the next day, a seven-year-old boy
    found a gun under a rock in his backyard. The boy’s mother called the
    police and turned the gun over to them. A firearms specialist from the
    Iowa Division of Criminal Investigation later confirmed the two cartridge
    cases found at the scene of the Collins’ shooting were fired from the
    recovered gun. Nelson’s girlfriend used to live at the duplex where the
    boy discovered the gun. Moreover, Nelson began calling the boy’s mother
    numerous times the day after the shooting, urgently requesting to speak
    with her in person and asking if she had seen him in her backyard
    earlier that morning. After reporting this to the police, the mother agreed
    to meet Nelson at her home.           When Nelson arrived, the police
    immediately arrested him. The State charged Nelson with the crime of
    murder in the first degree, in violation of Iowa Code sections 707.1 and
    707.2 (2005).
    Nelson filed a pro se motion in limine seeking to prohibit the
    testimony of narcotics officer Chad Nicolino.          Nicolino’s expected
    testimony concerned his general knowledge of crack and drug trafficking,
    which Nelson argued would be highly prejudicial.          Nelson’s counsel
    supplemented the pro se motion by filing an additional motion in limine.
    The motion sought to preclude the State from mentioning in voir dire and
    5
    opening statement or offering any evidence at trial regarding Nelson’s
    prior criminal record as well as to prohibit the testimony of Nicolino.
    In considering the motion in limine, the court stated it was more
    inclined to allow Nicolino to testify about specific drug trafficking in the
    area where the crime occurred but not about the general nature of drug
    trafficking due to the prejudice it would engender. However, the court
    decided to reserve its ruling on the motion until it heard more about the
    evidence in the case.
    The State never called Nicolino as a witness.     Instead, the State
    called Sergeant Chris Hardy to testify against Nelson. Before he became
    a detective, Hardy worked as a plainclothes undercover narcotics officer.
    After Hardy described his involvement in the present case, the State
    asked to take up a legal issue with the court outside the presence of the
    jury.   Subsequently, the State notified the court that the police found
    plastic bags and marijuana in Nelson’s vehicle as well as an empty
    cardboard box for a digital scale in Nelson’s home. The State informed
    the court that it planned to ask Hardy whether these items were
    consistent with drug dealing. Nelson’s counsel argued this evidence was
    irrelevant and an attempt by the State to improperly show Nelson’s bad
    character.    In response, the State argued this evidence corroborated
    Lester’s testimony, explained the context in which the crime took place,
    and explained why the crime occurred. The court requested the State to
    make an offer of proof.
    After the offer of proof, Nelson’s counsel again argued this evidence
    was not relevant. The court refused to allow Hardy to testify about the
    marijuana. As for the plastic bags and the empty cardboard digital scale
    box, the court ruled, “To the extent that the paraphernalia found in the
    van [and home] could be used in connection with crack sales, I will allow
    6
    that testimony.” Hardy then testified that, based on his experience as an
    undercover narcotics officer, he was knowledgeable about the items
    consistently found with crack dealers. Hardy testified plastic bags are
    consistent with crack sales. He stated that after the crack is weighed, it
    is placed inside a plastic bag, and a knot is tied so the crack can be kept
    in a person’s pocket or mouth without dissolving. Hardy also testified
    crack dealers commonly use a gram or digital scale to weigh the drugs
    before they sell them.
    The State also called identification technician Nancy Lamasters,
    who searched Nelson’s vehicle pursuant to a search warrant. Through
    Lamasters, the State introduced pictures of the plastic bags and the
    plastic bags themselves into evidence. After each offer to introduce the
    pictures and plastic bags into evidence, Nelson’s counsel renewed his
    previous relevance objection. In addition, the State called officer Jason
    Halifax, who assisted in the execution of a search warrant at Nelson’s
    residence. Through Halifax, the State introduced pictures of the empty
    cardboard digital scale box and the box itself into evidence. After each
    offer to introduce the pictures and the box into evidence, Nelson’s
    counsel again renewed his previous relevance objection.
    The jury returned a verdict finding Nelson guilty of first-degree
    murder. Nelson filed a notice of appeal, and we transferred the case to
    the court of appeals. Considering Iowa Rule of Evidence 5.404(b), the
    court of appeals concluded the evidence linking Nelson to drug dealing
    was marginally relevant to complete the story of the crime but not
    relevant to Nelson’s motive or intent because these elements could be
    inferred from Nelson’s use of a deadly weapon to commit the crime.
    Although determining the evidence was marginally relevant to complete
    the story of the crime, the court of appeals concluded this evidence
    7
    primarily served to paint Nelson as a bad person. Therefore, the court of
    appeals concluded the evidence’s probative value was far outweighed by
    its prejudicial effect.   Consequently, the court of appeals held the
    admission of the drug-dealing evidence was not harmless error, reversed
    the judgment of the district court, and remanded the case for a new trial.
    Subsequently, the State sought further review, which we granted.
    II. Issue.
    The issue we must decide on this further review is whether the
    admitted testimony of a narcotics officer detailing the sale and
    distribution of crack as well as the evidence of the plastic bags and the
    empty digital scale box, which the officer explained are consistently
    found with crack-drug dealers, requires us to reverse Nelson’s conviction.
    III. Scope of Review.
    We review evidentiary rulings for an abuse of discretion. State v.
    Stone, 
    764 N.W.2d 545
    , 548 (Iowa 2009).       When a trial court admits
    evidence on grounds or for reasons clearly untenable or to an extent
    clearly unreasonable, the court has abused its discretion.        State v.
    Maghee, 
    573 N.W.2d 1
    , 5 (Iowa 1997).       When the trial court makes a
    ruling based on an erroneous application of the law, its ruling is clearly
    untenable. In re J.A.L., 
    694 N.W.2d 748
    , 751 (Iowa 2005).
    IV. Analysis.
    A.   Admissibility as Intrinsic Evidence that Completes the
    Story of the Crime. At trial, the State claimed it was not offering the
    testimony of the narcotics officer and the introduction of the plastic bags
    and empty scale box as character evidence. Rather, it sought to admit
    this evidence to give the jury the complete story of the crime and show
    Collins was in the area to purchase drugs. It was on this basis that the
    8
    court admitted the testimony of the narcotics officer and permitted the
    introduction of the plastic bags and empty scale box into evidence.
    1. The inextricably intertwined doctrine. Not all evidence of other
    crimes, wrongs, or acts falls within the scope of rule 5.404(b).                     One
    category of other crimes, wrongs, or acts evidence not covered by rule
    5.404(b) is evidence deemed inextricably intertwined with the crime
    charged. 1 See, e.g., United States v. Bowie, 
    232 F.3d 923
    , 927 (D.C. Cir.
    2000); State v. Walters, 
    426 N.W.2d 136
    , 140–41 (Iowa 1988).
    “Inextricably intertwined evidence is evidence of the surrounding
    circumstances of the crime in a causal, temporal, or spatial sense,
    incidentally revealing additional, but uncharged, criminal activity.”
    Jennifer Y. Schuster, Uncharged Misconduct Under Rule 404(b):                        The
    Admissibility of Inextricably Intertwined Evidence, 42 U. Miami L. Rev.
    947, 973 (1988) [hereinafter Schuster]; see also State v. Garren, 
    220 N.W.2d 898
    , 900 (Iowa 1974) (citing Iowa law dating back to 1915 that
    repeatedly recognized “events and circumstances which immediately
    surround an offense may be shown even though they may incidentally
    show commission of another crime”).                  The inextricably intertwined
    doctrine bypasses rule 5.404(b) because rule 5.404(b), by its express
    terms, is only applicable to evidence of other crimes, wrongs, or acts,
    which is considered to be extrinsic evidence. Edward J. Imwinkelried,
    1The   inextricably intertwined doctrine developed in the federal circuit courts in
    relation to Federal Rule of Evidence 404(b). However, since its conception, it has gained
    widespread acceptance in every federal circuit court as well as among the states.
    Edward J. Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach to
    Untangling the “Inextricably Intertwined” Theory for Admitting Evidence of an Accused’s
    Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 723 (2010). Moreover, we have
    recognized that Iowa Rule of Evidence 5.404(b) is “similar” and “the counterpart to”
    Federal Rule of Evidence 404(b). State v. Cox, 
    781 N.W.2d 757
    , 762 (Iowa 2010); State
    v. Sullivan, 
    679 N.W.2d 19
    , 23 (Iowa 2004). Thus, for purposes of this opinion, we will
    generally refer to Iowa Rule of Evidence 5.404(b) when discussing the inextricably
    intertwined doctrine.
    9
    The Second Coming of Res Gestae: A Procedural Approach to Untangling
    the “Inextricably Intertwined” Theory for Admitting Evidence of an
    Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 724–25 (2010)
    [hereinafter Imwinkelried].
    The inextricably intertwined doctrine holds other crimes, wrongs,
    or acts evidence that is inextricably intertwined with the crime charged is
    not extrinsic evidence but, rather, intrinsic evidence that is inseparable
    from the crime charged.       
    Bowie, 232 F.3d at 927
    ; Jason M. Brauser,
    Intrinsic or Extrinsic?:   The Confusing Distinction Between Inextricably
    Intertwined Evidence and Other Crimes Evidence Under Rule 404(b), 88
    Nw. U. L. Rev. 1582, 1584–85 (1994) [hereinafter Brauser]; Imwinkelried,
    59 Cath. U. L. Rev. at 722, 724–25. Therefore, although there are two
    separate offenses, the testimony about the two offenses is so closely
    intertwined and indivisible that the court must admit the evidence of the
    technically uncharged crime. Imwinkelried, 59 Cath. U. L. Rev. at 725.
    Furthermore, because rule 5.404(b) is inapplicable to inextricably
    intertwined evidence, the court admits the technically uncharged-crime
    evidence without limitation and irrespective of its unfair prejudice or its
    bearing on the defendant’s bad character. Brauser, 88 Nw. U. L. Rev. at
    1585; Milton Hirsch, “This New-Born Babe an Infant Hercules”:          The
    Doctrine of “Inextricably Intertwined” Evidence in Florida’s Drug Wars, 25
    Nova L. Rev. 279, 289–90 (2000) [hereinafter Hirsch].         Instead, the
    inextricably intertwined evidence is subject to the same general
    admissibility requirements as other evidence that is used to provide the
    fact finder with a complete picture of the charged crime. Schuster, 42 U.
    Miami L. Rev. at 973.
    In summary, the inextricably intertwined doctrine permits the
    admission of other crimes, wrongs, or acts evidence based on a special
    10
    relationship between this evidence and the charged crime, regardless of
    the strictures of rule 5.404(b). Imwinkelried, 59 Cath. U. L. Rev. at 725–
    26.
    2. History and criticism of the inextricably intertwined doctrine. The
    inextricably intertwined doctrine grew out of the inseparable crimes
    exception.   Brauser, 88 Nw. U. L. Rev. at 1600.      Common law courts
    generally refused to admit evidence of other crimes, wrongs, or acts
    because they viewed such evidence as irrelevant and unfair. Hirsch, 25
    Nova L. Rev. at 281–82.      The common law, however, made certain
    exceptions to this general rule, including the “inseparable crimes”
    exception.   Brauser, 88 Nw. U. L. Rev. at 1594.      “This exception was
    invoked [and evidence of an uncharged crime was admitted] whenever a
    court found that the charged crime could not be proved without mention
    of another [uncharged] crime.”    
    Id. at 1594–95.
       From this exception,
    courts began to develop a doctrine
    that evidence of uncharged misconduct was admissible when
    it was “so [closely] blended or connected with the one on trial
    . . . that proof of one incidentally involves the other; or
    explains the circumstances thereof.”          This exception
    broadened the class of admissible other crimes evidence by
    permitting not only the introduction of uncharged
    misconduct evidence when it was impossible to prove the
    crime charged without revealing the uncharged misconduct,
    but also when the uncharged misconduct evidence explained
    the circumstances surrounding the charged crime.
    Schuster, 42 U. Miami L. Rev. at 955 (quoting Bracey v. United States,
    
    142 F.2d 85
    , 88 (D.C. Cir. 1944)). Courts began to refer to other crimes,
    wrongs, or acts evidence that explained the circumstances of the crime
    charged, or was necessarily revealed in proving the crime charged, as
    res gestae. 
    Id. at 955–56.
    Thus, the inseparable crimes exception was
    enlarged by the courts when they began to use the amorphous phrase
    11
    res gestae. Brauser, 88 Nw. U. L. Rev. at 1600. “The courts developed
    the res gestae or ‘completes the story’ doctrine in order to ensure that
    otherwise relevant evidence would not be excluded when it incidentally
    involved uncharged criminal activity . . . .” Schuster, 42 U. Miami L. Rev.
    at 971.
    Shortly after the passage of Federal Rule of Evidence 404(b), courts
    began to characterize certain other crimes, wrongs, or acts evidence as
    inextricably intertwined with the crime charged in order to avoid the
    limitations of rule 404(b). 
    Id. at 970–71.
    “The inextricably intertwined
    doctrine is arguably the second coming of the common-law res gestae
    principle.”   Imwinkelried, 59 Cath. U. L. Rev. at 728–29 (arguing the
    inextricably intertwined doctrine is the “modern de-Latinized” equivalent
    of res gestae). As one commentator has explained:
    Inextricably intertwined evidence stands in a different
    relationship to the crime charged than does evidence of
    wholly independent crimes. The inextricably intertwined
    evidence is causally, temporally, or spatially connected to the
    crime charged, and the crime charged and the uncharged
    acts both involved the defendant.               The uncharged
    misconduct evidence is not offered to prove the defendant’s
    character in order to imply that it was more likely that the
    defendant committed the crime charged, although in some
    cases an exact independent theory of relevance may be
    difficult, if not impossible, to articulate. Rather, the evidence
    is introduced to facilitate the jury’s understanding of the
    context within which the charged crime occurred, because
    without this contextual setting the jury would be forced to
    reach a verdict in a vacuum.
    Schuster, 42 U. Miami L. Rev. at 971–72. The federal appellate courts
    have attempted to define the vague term “inextricably intertwined” in
    various ways.    Compare United States v. Ramirez, 
    45 F.3d 1096
    , 1102
    (7th Cir. 1995), with United States v. Carboni, 
    204 F.3d 39
    , 44 (2d Cir.
    2000).    Moreover, at least one commentator has discovered five broad
    12
    categories of other crimes, wrongs, or acts evidence, which has been
    found admissible under the federal inextricably intertwined doctrine.
    See Schuster, 42 U. Miami L. Rev. at 961–62.        These five categories
    include:   (1) uncharged misconduct that was a “necessary preliminary
    step toward completing the crime charged,” (2) uncharged misconduct
    that is “directly probative of the crime charged,” (3) uncharged
    misconduct that arises from the “same transaction or transactions as the
    crime charged,” (4) uncharged misconduct that forms “an integral part of
    a particular witness’ testimony concerning the crime charged,” and (5)
    uncharged misconduct that “complete[s] the story of the crime charged.”
    
    Id. at 962
    (emphasis added).
    Although Iowa has never referred to other crimes, wrongs, or acts
    evidence as inextricably intertwined, we have long recognized the rule
    that, “[w]hen acts are so closely related in time and place and so
    intimately connected that they form a continuous transaction, the whole
    transaction may be shown to complete the story of what happened [even
    though they may incidentally show the commission of another uncharged
    crime].”   State v. Oppelt, 
    329 N.W.2d 17
    , 19 (Iowa 1983) (emphasis
    added); accord 
    Walters, 426 N.W.2d at 140
    –41; State v. Hood, 
    346 N.W.2d 481
    , 483–84 (Iowa 1984); State v. Nowlin, 
    244 N.W.2d 596
    , 601
    (Iowa 1976); State v. Fryer, 
    243 N.W.2d 1
    , 6 (Iowa 1976); 
    Garren, 220 N.W.2d at 900
    ; State v. Drake, 
    219 N.W.2d 492
    , 494 (Iowa 1974); State v.
    Lyons, 
    210 N.W.2d 543
    , 546–47 (Iowa 1973); State v. Wright, 
    203 N.W.2d 247
    , 251 (Iowa 1972); State v. Holoubek, 
    246 Iowa 109
    , 112–13, 
    66 N.W.2d 861
    , 863 (1954); State v. Robinson, 
    170 Iowa 267
    , 276, 
    152 N.W. 590
    , 593 (1915).    Although Iowa courts have variably referenced the
    inseparable crimes, res gestae, and complete the story doctrines in
    support of this rule, these three doctrines really consist of one evolving
    13
    principle. See, e.g., State v. Bowers, 
    656 N.W.2d 349
    , 354 (Iowa 2002)
    (reciting the inextricably intertwined test and citing federal eighth circuit
    cases for support); 
    Oppelt, 329 N.W.2d at 19
    (referencing the inseparable
    crimes doctrine when concluding the trial court did not abuse its
    discretion by admitting other crimes, wrongs, or acts evidence); 
    Fryer, 243 N.W.2d at 6
    (admitting uncharged evidence of a rape to complete the
    story of multiple charged homicides); 
    Lyons, 210 N.W.2d at 545
    –47
    (allowing res gestae evidence to help describe what actually happened at
    the time of the commission of the charged crime, even though it was not
    directly relevant to the elements of the charged crime). Accordingly, we
    appear to follow the inextricably intertwined doctrine. However, because
    most of our cases applying the doctrine simply recite the doctrine, the
    applicability and scope of the doctrine under our case law has never been
    well-defined.
    Although    the   inextricably    intertwined   doctrine   has   gained
    widespread acceptance, it has also become the target of intense scholarly
    criticism. Imwinkelried, 59 Cath. U. L. Rev. at 723. This doctrine has
    been criticized for two principal reasons. 
    Id. at 728.
    First, the phrasing
    “inextricably intertwined” is extremely vague and amorphous. 
    Id. at 728–
    30. Critics argue this vagueness has allowed courts to engage in result-
    oriented decision-making and invites abuse.           
    Id. at 729–30
    (stating
    courts can justify the admission of other crimes, wrongs, or acts evidence
    by the simple expedient of describing it as inextricably intertwined with
    the charged offense).    Second, critics claim courts have abused the
    doctrine by applying it in an overly broad manner. 
    Id. at 730.
    “In case
    after case, the courts have invoked the doctrine even though, on careful
    scrutiny, the testimony about the charged and uncharged offenses could
    readily have been separated.” 
    Id. 14 Of
    all the different categories of inextricably intertwined evidence,
    none has received as harsh criticism as evidence found to be admissible
    because it completes the story of the crime charged. See, e.g., Brauser,
    88 Nw. U. L. Rev. at 1606; Hirsch, 25 Nova L. Rev. at 300–05. Evidence
    that completes the story of the crime charged is admissible under the
    inextricably intertwined doctrine simply to put the crime charged into
    context, provide background, and generally explain or set up the charged
    crime. Brauser, 88 Nw. U. L. Rev. at 1606; Hirsch, 25 Nova L. Rev. at
    300; see also Old Chief v. United States, 
    519 U.S. 172
    , 187–89, 
    117 S. Ct. 644
    , 653–54, 
    136 L. Ed. 2d 574
    , 592–93 (1997) (recognizing the
    importance of telling a “colorful story with descriptive richness” when
    presenting evidence to prove a crime). Thus, to complete the story of the
    crime, the other crimes, wrongs, or acts evidence need only pertain, in
    some fashion, to the chain of events explaining the context, background,
    or set-up of the crime charged. Hirsch, 25 Nova L. Rev. at 300. Critics
    argue almost any uncharged conduct could meet this lax test. Brauser,
    88 Nw. U. L. Rev. at 1606 (“Under the ‘completing the story’ doctrine,
    almost any uncharged misconduct is admissible if it somehow explains
    how the charged crime occurred.”); Hirsch, 25 Nova L. Rev. at 300 (“Is it
    possible to imagine any evidence so evanescent in any given case as not
    to pass this test?”). Moreover, at least one commentator has warned that
    this category of inextricably intertwined evidence poses the greatest
    threat of eviscerating rule 5.404(b) and has led to the admission of other
    crimes, wrongs, or acts evidence that is neither closely related to the
    charged crime nor necessary to prove it. Brauser, 88 Nw. U. L. Rev. at
    1606.
    3. Application of the inextricably intertwined doctrine in Iowa.
    Critics of the inextricably intertwined doctrine argue the doctrine must
    15
    be narrowed and toughened to ensure prejudicial other crimes, wrongs,
    or acts evidence that is severable from the crime charged is excluded.
    See, e.g., Hirsch, 25 Nova L. Rev. at 312–15; Imwinkelried, 59 Cath. U. L.
    Rev. at 737–41. These commentators argue the court should only admit
    evidence of uncharged conduct under the inextricably intertwined
    doctrine when the evidence cannot be severed from the narrative of the
    charged    crime    without    leaving   the   narrative    unintelligible,
    incomprehensible, confusing, or misleading. Hirsch, 25 Nova L. Rev. at
    312–15; Imwinkelried, 59 Cath. U. L. Rev. at 737–41. Accordingly, these
    commentators urge, “ ‘Inextricably intertwined’ evidence should be
    received infrequently, as a narrow exception to the general rule against
    the admission of evidence of uncharged crimes.” Hirsch, 25 Nova L. Rev.
    at 313. We agree the inextricably intertwined doctrine should be used
    infrequently and as a narrow exception to the general rule against
    admitting evidence of other crimes, wrongs, or acts.
    To ensure a court does not admit unnecessary and prejudicial
    evidence of other crimes, wrongs, or acts, we reaffirm the language from
    one of our earlier cases and hold we will only allow such evidence to
    complete the story of what happened when the other crimes, wrongs, or
    acts evidence is so closely related in time and place and so intimately
    connected to the crime charged that it forms a continuous transaction.
    
    Oppelt, 329 N.W.2d at 19
    .     Thus, the charged and uncharged crimes,
    wrongs, or acts must form a continuous transaction. 
    Id. Moreover, we
    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. In
    this way, we can be sure rule 5.404(b) remains the standard for the
    16
    admission of evidence of other crimes, wrongs, or acts and the
    inextricably intertwined doctrine is construed as a narrow and limited
    exception to rule 5.404(b). Therefore, under this narrow interpretation of
    Iowa’s inextricably intertwined doctrine that completes the story of the
    crime, we must analyze the State’s argument that the evidence the
    defendant was a drug dealer is not evidence of other crimes, wrongs, or
    acts but is, in fact, intrinsic evidence completing the story of the charged
    crime of murder in the first degree.
    It is clear that omitting evidence of the plastic bags, empty digital
    scale box, and the testimony linking these items to crack-drug dealing
    would     not   have   left   the   narrative   of   this   crime   unintelligible,
    incomprehensible, confusing, or misleading. The State argues the story
    of the murder cannot be intelligibly told without explaining why Nelson
    would shoot someone who merely approached him and asked him for
    drugs. However, Lester had already testified that Nelson was in the area
    where the murder occurred because “somebody wanted some stuff.”
    Lester also testified Nelson told her the day after the murder that he
    killed Collins because he thought Collins was a police officer trying to
    apprehend him for selling drugs and because Collins had seen his face.
    The evidence of the plastic bags, empty digital scale box, and testimony
    linking these items to drug dealing simply permitted the jury to make the
    general inference that Nelson was involved in drug trafficking.               This
    evidence did not fill in any gaping holes in the narrative of the story of
    the crime. Additionally, these items were not so closely related in time
    and place and so intimately connected to the charged crime that they
    formed a continuous transaction.
    At most, the plastic bags, empty digital scale box, and testimony
    linking these items to drug dealing support the State’s proposed motive
    17
    for the killing—Nelson was a drug dealer who believed Collins was an
    undercover narcotics officer attempting to apprehend him for selling
    crack, and he decided to kill Collins because Collins had seen his face. If
    this evidence was offered for the noncharacter purpose of establishing
    motive, it must be subjected to a rule 5.404(b) analysis. Accordingly, we
    hold the evidence of the plastic bags, the empty digital scale box, and the
    testimony linking these items to crack-drug dealing was not admissible
    as inextricably intertwined evidence offered to complete the story of the
    crime.
    B. Admissibility Under Rule 5.404(b). At trial, the State did not
    claim the plastic bags, the empty digital scale box, and the testimony
    linking these items to crack-drug dealing was admissible under Iowa
    Rule of Evidence 5.404(b). On appeal, the State claims for the first time
    the evidence is admissible under rule 5.404(b). Normally, we would not
    reach this claim because the State failed to preserve error by not arguing
    this evidence is admissible under rule 5.404(b) in the trial court. DeVoss
    v. State, 
    648 N.W.2d 56
    , 60–61 (Iowa 2002). However, we have adopted
    an exception to the general rule of error preservation when dealing with
    evidentiary rulings. 
    Id. at 62–63.
    Therefore, we will address the State’s
    claim regarding the admissibility of this evidence under rule 5.404(b).
    1. General legal principles concerning rule 5.404(b). Iowa Rule of
    Evidence 5.404(b) governs the admissibility of evidence of other crimes,
    wrongs, or acts. It provides:
    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.
    18
    Iowa R. Evid. 5.404(b).   Rule 5.404(b) is a rule of exclusion.   State v.
    Sullivan, 
    679 N.W.2d 19
    , 24 (Iowa 2004). The public policy for excluding
    other crimes, wrongs, or acts evidence is not that the evidence is
    irrelevant. 
    Id. Rather, the
    public policy for excluding such evidence is
    based on the premise that a jury will tend to give other crimes, wrongs,
    or acts evidence excessive weight and the belief that a jury should not
    convict a person based on his or her previous misdeeds. 
    Id. Other crimes,
    wrongs, or acts evidence cannot be used to show the
    defendant has a criminal disposition and, therefore, was more likely to
    have committed the crime in question. State v. Reynolds, 
    765 N.W.2d 283
    , 289 (Iowa 2009). However, other crimes, wrongs, or acts evidence is
    admissible if it is probative of some fact or element in issue other than
    the defendant’s general criminal disposition. State v. Taylor, 
    689 N.W.2d 116
    , 123 (Iowa 2004). Rule 5.404(b) lists several examples of when prior
    conduct can be probative of some fact or element in issue other than the
    defendant’s general criminal disposition. The examples included in rule
    5.404(b) are “proof of motive, opportunity, intent, preparation, plan,
    knowledge, identity, or absence of mistake or accident.” Iowa R. Evid.
    5.404(b). The examples listed in rule 5.404(b) are not exclusive; rather,
    “[t]he 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. Mitchell, 
    633 N.W.2d 295
    , 298 (Iowa
    2001) (quoting State v. Barrett, 
    401 N.W.2d 184
    , 187 (Iowa 1987)).
    To be admissible, the prosecutor must articulate a noncharacter
    theory of relevance. 
    Sullivan, 679 N.W.2d at 28
    . The court then must
    determine whether the other crimes, wrongs, or acts evidence is relevant
    and material to a legitimate issue in the case, other than a general
    propensity to commit wrongful acts. State v. Cox, 
    781 N.W.2d 757
    , 761
    19
    (Iowa 2010).         If the court determines the evidence is relevant to a
    legitimate issue in dispute, the court must determine whether the
    probative value of the other crimes, wrongs, or acts evidence is
    substantially outweighed by the danger of unfair prejudice to the
    defendant.     
    Id. In determining
    whether the probative value of other
    crimes, wrongs, or acts evidence is substantially outweighed by the
    danger of unfair prejudice, the court should consider
    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 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.
    
    Taylor, 689 N.W.2d at 124
    .              If the evidence’s probative value is
    substantially outweighed by its unfair prejudice, it must be excluded.
    
    Mitchell, 633 N.W.2d at 298
    –99.
    2. Application       of   rule   5.404(b).   The   State   articulates   a
    noncharacter theory of relevance—the evidence of drug dealing is
    probative to motive and intent.         To the extent the challenged evidence
    tends to support the general inference that Nelson is a crack-drug dealer,
    it is relevant to the issues of Nelson’s motive and intent for killing
    Collins.   The evidence of drug dealing is relevant to motive because a
    drug dealer would be more inclined to shoot an individual seeking to
    purchase crack if they believed the person was an undercover narcotics
    officer. Motive can be relevant to whether a defendant acted with malice
    aforethought.        See State v. Hoffer, 
    383 N.W.2d 543
    , 549 (Iowa 1986)
    (“Although motive is not a necessary element of murder, lack of motive
    may be considered in determining whether an assailant acted with
    malice aforethought.”).         Additionally, the evidence is also relevant to
    20
    intent because a drug dealer would be more inclined to intentionally kill
    an undercover narcotics officer who could later identify and apprehend
    him or her. Thus, the challenged evidence is relevant to the legitimate
    issues of Nelson’s motive and intent.
    The State next claims the probative value of the drug-dealing
    evidence is not substantially outweighed by the danger of unfair
    prejudice to Nelson.    We agree, the evidence of drug dealing is not
    substantially outweighed by the danger of unfair prejudice to Nelson.
    The record contains sufficient evidence to establish Nelson sold
    drugs and was in the area on the night in question to engage in a drug
    deal. Although, the court instructed the jury that it could infer malice
    aforethought and intent from Nelson’s use of a dangerous weapon, the
    jury was free to accept or reject that inference. On the other hand, the
    challenged evidence of drug dealing is direct evidence supporting the
    conclusion that Nelson intentionally and with malice aforethought killed
    Collins because Nelson thought Collins was an undercover police officer
    who saw Nelson’s face. The State needed this type of evidence to prove
    its case.
    Finally, we doubt the jury decided the case on the basis Nelson
    was a drug dealer. Lester witnessed the shooting. The next day, Nelson
    told Lester he shot Collins because Collins saw his face and he thought
    Collins was a police officer. A child found the murder weapon in the yard
    of a duplex where Nelson’s prior girlfriend used to live. Nelson repeatedly
    made contact with the child’s mother, inquiring whether she had seen
    him in the yard. The evidence was replete with testimony regarding drug
    dealing in the area where the charged crime took place. In light of all
    this evidence, the mere fact Nelson was a drug dealer does not lead us to
    believe the jury decided the case on that basis.
    21
    Therefore, the plastic bags, the empty digital scale box, and the
    testimony linking these items to drug dealing were not excludable under
    rule 5.404(b).
    V. Disposition.
    We vacate the decision of the court of appeals and affirm the
    judgment of the district court because the plastic bags, the empty digital
    scale box, and the testimony linking these items to drug dealing were not
    excludable under rule 5.404(b).
    DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
    COURT JUDGMENT AFFIRMED.