State v. Johnson

367 N.W.2d 319, 1985 Iowa App. LEXIS 1456
CourtCourt of Appeals of Iowa
DecidedFebruary 26, 1985
Docket84-186
StatusPublished
Cited by3 cases

This text of 367 N.W.2d 319 (State v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Johnson, 367 N.W.2d 319, 1985 Iowa App. LEXIS 1456 (iowactapp 1985).

Opinions

SACKETT, Judge.

Defendant Samuel Johnson appeals from his conviction and sentence for sexual abuse in the second degree in violation of Iowa Code § 709.3(1) contending that the trial court erred in failing to grant his motion for a mistrial.

Defendant allegedly forcibly committed a sex act with a female against her will in the City of Eldora, Iowa.

Defendant testified in his own behalf contending at the time in question that he was on the other side of town from where the alleged crime took place. Defendant had on several occasions sexually propositioned his sister-in-law Elaine, who on the night in question was babysitting in the Steinfelt home near the location where the alleged crime was to have taken place. Elaine’s son Scott had a conversation with defendant on the day of the alleged crime in which Scott told the defendant he was going to his babysitter’s home on the evening in question. Defendant filed a motion in limine to keep out the testimony of Scott and his mother. The trial court overruled the motion. Defendant asked the court if its ruling was a final ruling and whether he needed to make objections during the testimony to preserve the issue for appellate review. The court replied that its ruling was only preliminary because it had not yet heard the actual testimony and required the defendant to make objections in the presence of the jury.

Elaine testified over defendant’s objection that in the days and weeks prior to the crime defendant called her twice and talked to her once and said he could force her to go to bed with him. The State then called Scott who testified he told the defendant he was going to his babysitters that night and no one talked about his mother being there. Defendant again moved to strike the testimony, contending the State had failed to supply any connecting link to show defendant’s knowledge that Elaine would be at the house in question. The court then sustained the objection. The defendant moved for a mistrial. Trial court refused to grant the mistrial but admonished the jury to disregard the testimony.

[321]*321The State contends that the testimony was properly admitted because it was admitted not to show that the defendant was a bad person but to show that the defendant had a motive to be near the Steinfelt home. And, that this evidence rebutted the defendant’s alibi defense. The State admits that the relevancy of the evidence hinged on the defendant’s knowledge that Elaine would be present at the Steinfelt home. The State argues that Scott Maley’s testimony established this connection by his conversation with defendant informing defendant that Scott would be babysitting1 at the Steinfelt home. The inference from this conversation was that defendant would know that Scott was too young to babysit, and his mother would be at the Steinfelt home.

In limited instances, evidence of prior acts has been admitted. State v. Oppelt, 329 N.W.2d 17, 19 (Iowa 1983) (Evidence of prior stabbing immediately before fatal stabbing was admissible because it was so close in time and an inseparable part of the whole deed and an act so connected as to form a continuous transaction. The court also considered the fact that the person stabbed and another youth robbed defendant earlier in the day — so first stabbing established motive and negated the defense’s theory that the incident was the purposeless product of insane mind.). State v. Mendiola, 360 N.W.2d 780 (Iowa 1984). (Fact of earlier conviction of possession with intent to deliver marijuana was admissible in trial for possession of controlled substance with intent to deliver after defendant denied knowing scales could be used to weigh marijuana and earlier conviction tended to prove defendant had knowledge concerning the use of scales). State v. McDaniel, 265 N.W.2d 917, 921 (Iowa 1978) (Evidence of defendant’s prior sexual relationship with one Edington and evidence of his prior delivery of drugs to her was clearly admissible to show State’s theory that delivery of drugs to a shed was in fact a delivery to Edington, and it was vital to the State’s case to show defendant’s visit to the shed was part of a regular scheme or system of criminal activity in which he furnished Edington with drugs).

We fail to find an inference that could be drawn on supposed facts sufficient to support the admission, i.e., there is no basis to assume as the State asks that an 11-year old is too young to babysit, so, if an 11-year old is hired to babysit, his mother will in fact will do the babysitting. Nor can we find that the testimony falls under an exception permitting such evidence when it tends 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 commission of the crime. See State v. McDaniel, 265 N.W.2d 917, 921 (Iowa 1978).

Having agreed with the trial court’s ultimate determination that the evidence is not admissible, we need next determine the more difficult question of whether the defendant was so prejudiced that a mistrial should have been granted.

In State v. Jensen, 216 N.W.2d 369, 373-4 (Iowa 1974) the Iowa court described an overruled motion in limine as a “red flag” whose primary purpose is to avoid disclosing to the jury prejudicial matters which may compel declaring a mistrial. The court said:

If evidence is improperly admitted but is later withdrawn with a cautionary statement to the jury to disregard it there is no error except in extreme instances where the prejudicial effect would probably remain to influence the verdict despite its exclusion, (emphasis original).

The court in Jensen found reversible error where the defendant filed a motion in limine seeking to exclude all evidence relating to a breath test because the State had failed to comply with procedures required under the implied consent law. The motion [322]*322was supported by an uncompleted form used by officer when the test was taken. Holding it was reversible error to permit the arresting officer to testify that the officer had asked defendant if he would rather have a blood test or breath test and defendant indicated he would not want the blood test, the court also found an instruction to disregard all testimony on blood or breath test didn’t cure the error.

The Iowa court failed to find an extreme instance where it was difficult to understand how withdrawn testimony would prejudice defendant. The stricken testimony was a remark by grocery and gas station owner who was the victim of alleged theft that he had been missing money twice before. State v. Johnson, 183 N.W.2d 194, 198 (Iowa 1971).

The court in State v. Leuty, 247 Iowa 251, 258, 73 N.W.2d 64

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Related

State v. Alderman
578 N.W.2d 255 (Court of Appeals of Iowa, 1998)
State v. Christensen
414 N.W.2d 843 (Court of Appeals of Iowa, 1987)
State v. Johnson
367 N.W.2d 319 (Court of Appeals of Iowa, 1985)

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Bluebook (online)
367 N.W.2d 319, 1985 Iowa App. LEXIS 1456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-iowactapp-1985.