STATE OF IOWA, Plaintiff-Appellee, vs. JOSHUA RAY PUFFINBARGER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-399 / 06-0779
Filed February 27, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSHUA RAY PUFFINBARGER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Douglas S.
Russell, Judge.
Joshua Puffinbarger appeals from the district court’s judgment and
sentence for third-degree sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Janet Lyness, County Attorney, and Anne Lahey, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
2
VAITHESWARAN, J.
E.A. claimed her friend’s father, Joshua Puffinbarger, sexually abused her
when she was eleven or twelve years old. A jury found Puffinbarger guilty of one
count of third-degree sexual abuse. Iowa Code §§ 709.1(3), 709.4(2)(b) and
702.7 (2001). At trial, a key issue was whether the district court should have
admitted evidence of subsequent bad acts by Puffinbarger against E.A. The
same issue is before us on appeal, but we have the benefit of a recent Iowa
Supreme Court opinion on the subject. See State v. Reyes, ___ N.W.2d ___
(Iowa 2008).
The issue in Reyes was “whether a defendant accused of sexual abuse of
his minor niece is entitled to a new trial where the trial court admitted evidence of
a prior sexual assault involving the same victim.” Id. at *1. The supreme court
affirmed the district court’s admission of the evidence under Iowa Code
§ 701.11(1) (2005). That provision states:
In a criminal prosecution in which a defendant has been charged
with sexual abuse, evidence of the defendant’s commission of
another sexual abuse is admissible and may be considered for its
bearing on any matter for which the evidence is relevant. This
evidence, though relevant, may be excluded if the probative value of
the evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
This evidence is not
admissible unless the state presents clear proof of the commission
of the prior act of sexual abuse.
Although the statute was enacted after the incident giving rise to the charge, the
court concluded it was “fully applicable at Reyes’ trial in 2005.”
Reyes, __
N.W.2d at *3. The court further concluded the provision was applicable even
though the State did not rely on it at trial because, under DeVoss v. State, 648
3
N.W.2d 56, 62 (Iowa 2002), “general error preservation requirements do not
foreclose this court’s consideration of alternate grounds for the admission of
evidence on appeal.” Id. After overcoming these procedural hurdles, the court
held the evidence admissible under section 701.11(1).
Id. at *4.
The court
stated “the probative value of the evidence was not substantially outweighed by
the danger of unfair prejudice, confusion of issues, or misleading the jury.” Id. at
*7.
The court explained the evidence was “offered in a direct, concise, and
noninflammatory fashion and was similar to the underlying charge against
Reyes.” Id.
Here, the State sought the admission of three acts of a sexual nature that
occurred after the act with which Puffinbarger was charged: (1) inappropriate
touching of E.A. while Puffinbarger was giving her a ride in his truck, (2) touching
of E.A.’s breasts, and (3) rubbing of E.A.’s thigh. Puffinbarger filed motions in
limine to have this evidence excluded under Iowa Rules of Evidence 5.401, .402,
.403, and .404(b).
The district court overruled the motions.
During trial,
Puffinbarger’s attorney objected to some, but not all, of this evidence.
objections that were made were overruled.
The
After trial, the court overruled
Puffinbarger’s motion for new trial grounded on the admission of this evidence.
As in Reyes, no one raised the applicability of section 701.11(1).
We find it unnecessary to address the error preservation concerns raised
by the State with respect to the cited evidentiary rules because those rules are
not the basis of our decision. The basis of our decision is Iowa Code section
701.11(1) and, as Reyes makes clear, the failure to raise that provision in district
court does not foreclose reliance on it. Id. at *3-4.
4
Applying section 701.11(1), the first question is whether the evidence was
relevant.
In Reyes, the court stated “[t]he existence of prior sexual abuse
involving the same alleged perpetrator and victim . . . has relevance on the
underlying criminal charge because it shows the nature of the relationship
between the alleged perpetrator and the victim.” Id. at *6. Here, the challenged
evidence involved acts by Puffinbarger with E.A. Under Reyes, the evidence
was relevant. In our view, the fact that the acts occurred after the charged act
rather than before does not render the evidence less probative because it still
bore on the nature of the relationship between Puffinbarger and E.A. See State
v. Munz, 355 N.W.2d 576, 581 (Iowa 1984) (“subsequent acts are as probative
as those prior to the date of the charged offense”).
The next question is whether the evidence, albeit relevant, should
nonetheless have been excluded for other reasons. We find no reasoned basis
for distinguishing the type of evidence at issue here from the type of evidence
deemed admissible in Reyes.
E.A. briefly testified to the three incidents
described above and the evidence was similar to the evidence that formed the
basis of the charge. Two of the incidents occurred during the same summer as
the act that was the basis of the charge. Although the third act occurred two or
three years later, the act was similar to one of the other subsequent acts and no
more inflammatory than the act that was the basis of the charge. For these
reasons, we conclude the challenged evidence was admissible under Iowa Code
section 701.11(1).
We discern no abuse of discretion in the district court’s
decision to admit the evidence.
5
We affirm Puffinbarger’s judgment and sentence for third-degree sexual
abuse.
AFFIRMED.
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