State v. Ripperger

409 N.W.2d 693, 1987 Iowa App. LEXIS 1578
CourtCourt of Appeals of Iowa
DecidedMay 28, 1987
Docket86-319
StatusPublished
Cited by3 cases

This text of 409 N.W.2d 693 (State v. Ripperger) 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. Ripperger, 409 N.W.2d 693, 1987 Iowa App. LEXIS 1578 (iowactapp 1987).

Opinions

SNELL, Judge.

On August 8, 1985, the appellant, Loren Ripperger, was charged by trial information with committing lascivious acts with a child. See Iowa Code § 709.8 (1985). Trial commenced on January 6, 1986. Prior to trial, Ripperger filed a motion in limine seeking to exclude certain medical testimony. The district court overruled the motion in limine and the jury returned a verdict finding Ripperger guilty as charged. Following an unsuccessful motion for new trial, Ripperger was sentenced, on February 14, 1986, to an indeterminate term not to exceed two years. This appeal followed. Our review is limited to the correction of errors at law. Iowa R.App.P. 4. The admissibility of the evidence at issue rests largely in the trial court’s discretion. State v. Johnson, 224 N.W.2d 617, 620 (Iowa 1974). We will not reverse if the trial court’s ruling can be sustained on any ground. State v. Baker, 293 N.W.2d 568, 574 (Iowa 1980).

Ripperger contends the allowance into evidence of the testimony at issue violates Iowa Rule of Evidence 404(b) and the cases which have interpreted that rule. The testimony with which we are concerned was given by Dr. David L. Thornton, an expert witness for the State. Prior to Dr. Thornton’s testimony the alleged victim, Ripper-ger’s five-year-old step-granddaughter, had [694]*694given an affirmative response when asked if the defendant had “ever put his finger inside of you?” Although the victim did not testify as to whether this occurred on the date of the assault for which Ripperger was charged or at some time prior to that date, Ripperger and the State have characterized Dr. Thornton’s testimony as evidence of past crimes. Dr. Thornton testified that he had examined the victim nine days after the alleged acts had occurred. He stated both that the victim’s vaginal caliber was abnormally wide and that this condition is consistent with digital penetration. Ripperger claims on appeal, as he did by way of pretrial motion in limine and objection during trial, that the allowance of this testimony violates Iowa Rule of Evidence 404(b).

The general rule is that “one crime cannot be proved by proof of another.” State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979) (quoting State v. Schlak, 253 Iowa 113, 115, 111 N.W.2d 289, 291 (1961)). The purpose of the rule is to exclude from the jury’s consideration evidence which has no relevancy except to show that the defendant is a bad person and thus likely committed the crime in question. Id, This rule is codified as Iowa Rule of Evidence 404(b). See Iowa R.Evid. 404(b), federal advisory committee’s notes. That rule reads as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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 exceptions to this rule are based upon the relevancy of certain evidence to the proof of some fact or element in issue other than the defendant’s criminal disposition. Cott, 283 N.W.2d at 326. The test of admissibility under an exception to rule 404(b) is two-pronged. First, the evidence must be relevant to one or more of the issues for which exceptions are recognized. State v. Walsh, 318 N.W.2d 184, 185 (Iowa 1982). Second, the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. State v. Munz, 355 N.W.2d 576, 579 (Iowa 1984).

In addition to those bases for admission specifically enunciated in rule 404(b), the supreme court of this state has recognized an exception applicable to the context of sex crime cases. In State v. Spaulding, 313 N.W.2d 878 (Iowa 1981), the court reaffirmed its position that an exception to rule 404(b) exists for evidence offered “ ‘in order to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial.’ ” Id. at 880 (quoting McCormick’s Handbook on the Law of Evidence, § 190 at 449 (2d Ed. E. Cleary 1972)). This exception is applicable in the context of prosecutions for lascivious acts with a child. State v. Maestas, 224 N.W.2d 248, 250 (Iowa 1974). Dr. Thornton’s testimony was that the victim’s vaginal condition was consistent with the victim’s claim that digital penetration had occurred.

If in fact the victim’s testimony relates to events occurring on the date of the offense for which Ripperger was charged, his objections to the testimony are misplaced. If this is the victim’s claim, then Dr. Thornton simply gave corroborating testimony about physical evidence that a crime had been perpetrated on the child victim. His testimony regarding the victim’s vaginal condition is consistent and corroborative of her testimony that defendant penetrated her digitally. The crime of lascivious acts with a child of which defendant is charged includes “(1) fondle or touch the pubes or genitals of a child.” Iowa Code § 709.8(1) (1985). Dr. Thornton’s testimony meets the relevancy criteria established by Iowa Rule of Evidence 401. That rule states “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 that it would be without the evidence.”

If, however, the victim’s testimony relates to digital penetration perpetrated by Ripperger on a previous occasion, we think [695]*695Dr. Thornton’s testimony comes within the “illicit sexual relations” exception reaffirmed by Spaulding. Although Dr. Thornton’s testimony did not identify Rip-perger as the perpetrator of the penetration, we think the fact that the testimony corroborated, and was corroborated by, the victim’s testimony that Ripperger was the perpetrator provides the nexus of relevancy to this exception.

Ripperger contends Dr. Thornton’s testimony violates the rule which requires clear proof of the alleged prior sex acts. See e.g., State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985). This, argues Ripperger, is because Dr. Thornton did not identify Rip-perger as the perpetrator of the digital penetration. We note that the purpose of the rule argued by Ripperger “is to prevent the jury from engaging in speculation or drawing inferences based on mere speculation.” Id. Although commission of prior acts need not be established beyond a reasonable doubt, id,, the evidence must be clear and complete enough to allow the jury to find commission of the prior act without resorting to speculation or mere suspicion. Id.

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Related

State v. Clay
455 N.W.2d 272 (Court of Appeals of Iowa, 1990)
State v. Shearon
449 N.W.2d 86 (Court of Appeals of Iowa, 1989)
State v. Ripperger
409 N.W.2d 693 (Court of Appeals of Iowa, 1987)

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Bluebook (online)
409 N.W.2d 693, 1987 Iowa App. LEXIS 1578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ripperger-iowactapp-1987.