State v. Jeffs

HARRIS, Justice

(concurring specially).

I disagree with the majority holding in division II. I believe evidence of the possession of other marijuana was admissible in this prosecution for delivery of marijuana a few hours earlier.

I. The majority does not dispute the rule it cites: evidence of other crimes is admissible to prove (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or system of criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other, or (5) identity of the person charged with the commission of the crime. State v. Garren, 220 N.W.2d 898, 900 (Iowa 1974); State v. Wright, 191 N.W.2d 638, 640 (Iowa 1971). I believe the marijuana in this case was admissible to prove absence of mistake or accident and especially a common scheme or system of criminal activity.

Under normal circumstances possession of marijuana would seem to be a prerequisite to its delivery. Surely evidence of possession is no less relevant because it happens to describe another crime.

The rule limiting evidence of other crimes is aimed at the vice of attempting to secure convictions by showing the accused is a “bad man.” But where the evidence is relevant to the principal charge it may be admitted even though it incidentally shows commission of another crime. Garren, supra, 220 N.W.2d at 900. The test is whether the evidence of another crime has a legitimate bearing on any point in issue; it is not a question of whether the evidence tends to show commission of another crime. State v. Hill, 258 Iowa 932, 937, 140 N.W.2d 731, 734 (1966). It is basically a question of relevance. Wright, supra, 191 N.W.2d at 640.

Admissibility of such evidence is generally within the sound discretion of the trial court with questions of time going more to weight than to admissibility. State v. Maestas, 224 N.W.2d 248, 251 (Iowa 1974). See generally 2 Wigmore on Evidence (Third Ed.), § 368, pp. 291-296 and cases cited therein.

I do not believe the trial court abused its discretion in admitting the evidence. Seizure of the exhibit was sufficiently contemporaneous with the sale some few hours earlier. The trial court properly found the probative value of the evidence outweighed any prejudicial effect. See State v. Johnson, 237 N.W.2d 819, 821 (Iowa 1976). I believe the evidence was properly admitted.

II. I agree the trial court erred in admitting hearsay evidence as explained in division III of the majority opinion and would join in the holding the judgment of the trial court must be reversed for that reason.

REYNOLDSON, J., joins this special concurrence.