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State v. Putman

Supreme Court of Iowa

June 13, 2014

STATE OF IOWA, Appellee,

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On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge. A criminal defendant seeks further review of a court of appeals decision affirming a district court's admission of prior-bad-acts evidence in the form of two video titles involving child pornography in a trial for child sex abuse.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and W. Wayne Saur, County Attorney, for appellee.

ZAGER, Justice. All justices concur except Wiggins, Appel, and Hecht, JJ., who dissent; and, writing separately, Hecht, J., who dissents.


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ZAGER, Justice.

Ricky Lee Putman was charged with one count of first-degree sexual abuse for allegedly performing a sex act on L.R., a two-year-old girl. Putman filed a motion in limine that sought to exclude evidence of child pornography found on his computer and other electronic devices. After an evidentiary hearing, the district court denied the motion in limine, with limitations. The district court allowed the State's expert to testify at trial that child pornography was found on Putman's computer and other electronic devices. However, it limited the State's expert to testifying only to the file names of two videos. A jury convicted Putman, and he appealed, claiming the district court erred when it admitted the evidence of prior bad acts. The court of appeals affirmed. Putman sought further review, which we granted. For the reasons set forth below, we affirm his conviction.

I. Background Facts and Proceedings.

Around 6 p.m. on May 22, 2010, forty-one-year-old Ricky Putman came to the home of Lawrence and Holley Robbins in Arlington, Iowa, to spend time with the couple and their three children. One of the children was two-year-old L.R. After joining the family on a trip to a nearby park, Putman returned with the family to their home around 9 p.m. Shortly after the group returned from the park, Holley's cousin, fifteen-year-old Alex, came to the house.

Back at the house, the adults drank beer, watched television, and listened to music while the children played. By midnight or 1 a.m., the Robbins children had fallen asleep. The two boys had fallen asleep on the couch, and L.R., wearing a blue dress and a diaper, was carried upstairs to her crib, which was located in a room just adjacent to the bedroom shared by Lawrence and Holley.

Holley spent some more time downstairs with Lawrence, Alex, and Putman before going upstairs to go to sleep. Putman followed Holley up the stairs, climbed into bed with her, and became sexually aggressive towards her. Holley got out of the bed, went downstairs followed by Putman, and told Lawrence and Alex what had just taken place. Holley demanded that Lawrence

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get Putman out of the house. However, this did not occur. Shortly thereafter, Holley again went back upstairs to go to bed, this time followed by Putman and Alex. Putman again crawled into bed with Holley, touched her, and told her to leave Lawrence for him. Holley immediately climbed out of bed and went downstairs a second time, this time followed by Alex and Putman. Holley left the house with Alex around 4 a.m., again telling her husband to get Putman out of the house.

Putman did not leave. Around 4:30 a.m., at Lawrence's suggestion, Putman went to sleep in Lawrence and Holley's bedroom. Lawrence, after cleaning up the downstairs, went upstairs to check on L.R. in her crib. Lawrence did not notice anything unusual at that time. He also observed Putman sleeping in his and Holley's bed. Lawrence then went downstairs and fell asleep on a chair. Lawrence awoke around 7 a.m. on May 23 when Alex's mother, Marilyn Blackford, came to the house looking for Alex.

L.R. came downstairs around 8 a.m. L.R. was not wearing her diaper or the blue dress she had been wearing the previous night. Lawrence did not think this odd as L.R. had removed her own diaper on previous occasions. While Lawrence did notice some blood between L.R.'s legs, he believed she had merely scratched herself. Lawrence put a fresh diaper on L.R. and sat her on the couch. After L.R. cried for a bottle, Lawrence went upstairs to retrieve it from her crib. While he was upstairs, Lawrence exchanged greetings with Putman and noticed that Putman had blood on his shirt and on his hands. Lawrence believed Putman could have cut himself on a broken table beside the bed. Lawrence went back downstairs and fixed a bottle for L.R. Lawrence laid L.R. on the couch where she fell asleep, and he sat in a chair. Lawrence did notice that L.R. was lying awkwardly on the couch.

Shortly afterward, Putman came downstairs. Putman looked at the blood on his hands and clothes and asked Lawrence what had happened. Lawrence told Putman he may have cut himself on the broken table next to the bed. L.R. awoke, looked at Putman, and moved towards Lawrence. Putman then put his shoes on and left the house.

Eventually Holley returned home. When she arrived, Lawrence was upset and shaking. He told Holley that he had to go, and he went to the home of Marilyn Blackford, Holley's aunt, who lived a few houses away. While at Marilyn Blackford's house, Lawrence asked Marilyn and her boyfriend how a person would know if a child had been sexually molested. Meanwhile, while Lawrence was gone, Holley noticed bruising on L.R.'s face and neck, what she suspected to be bite marks on her ear, and blood on her chest and legs.

Lawrence returned home with Marilyn Blackford. After observing L.R., including opening up L.R.'s diaper, Marilyn Blackford instructed Lawrence and Holley to take L.R. to the hospital in Oelwein, and law enforcement would be contacted. The Robbins family went immediately to the hospital, and the Fayette County Sheriff was contacted.

After being examined at Mercy Hospital in Oelwein, it was determined that the injuries sustained by L.R. were too extensive to be properly treated there. L.R. was subsequently transferred to the University of Iowa Hospitals and Clinics for appropriate treatment. After examinations by pediatric physicians at the University of Iowa Hospitals and Clinics, they concluded that L.R. had suffered vaginal penetration injuries. To repair those injuries, L.R. was taken to surgery and put

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under general anesthesia. Her injuries required numerous stitches to repair the damage.

After its preliminary investigation to secure the scene and identify possible suspects, the sheriff's department began conducting interviews in the morning hours of May 23. A sheriff's deputy went to Putman's home in Arlington. There, the deputy found Putman, who appeared to have recently showered. Putman was advised of his Miranda rights. With Putman's consent, the deputy began to collect evidence from the Putman home. It became apparent during the investigation that Putman had begun to launder some of his clothing. Ultimately seized from Putman's home was a recently laundered shirt matching the description of the one Putman was alleged to have worn the previous night.[1] The damp shirt hung from a bedroom door handle while a few other items of clothing tumbled in the dryer. The deputy decided to detain Putman.

Putman was eventually arrested and charged by trial information with sexual abuse in the first degree, a class " A" felony. While in jail, Putman, who lived alone, asked a friend, Rodney Peterman, to go to his house and feed his cat. Peterman built computers as a side business and had built and sold Putman a computer and related electronic devices. Knowing the reason Putman had been arrested, Peterman decided to see what was on Putman's computer while he was at Putman's house. On the computer, Peterman found what he suspected to be child pornography. Because of this discovery, and the fact that Putman still owed him money for the computer, Peterman took the computer, which contained a CD and an external hard drive. Peterman took these items to his parents' house and called the sheriff's department. A deputy from the sheriff's department retrieved the computer, CD, and the external hard drive.

On another trip to feed Putman's cat, Peterman took more items from Putman's house. Among the items Peterman took was a box containing miscellaneous tattoo equipment that Peterman had given to Putman. Inside the box, Peterman also found a loose USB drive. Upon returning home, Peterman plugged this USB drive into his own computer. On the USB drive, Peterman found more disturbing materials, so he notified the sheriff's department and dropped off the USB drive at the sheriff's office. The computer and other electronic devices were later turned over to a unit within the Iowa Division of Criminal Investigation (DCI), the Internet Crimes Against Children Task Force. That unit performed a forensic evaluation of the computer and related electronic devices.

Before trial, Putman filed a motion in limine seeking to exclude evidence of prior bad acts. Putman asserted that any information obtained from his computer was not admissible, specifically identifying evidence of child pornography. The State also requested a ruling from the district court on the admissibility of the child pornography, citing motive and identity as potential issues in the case. The district court issued an order permitting the State to offer into evidence images of young child pornography seized from Putman's computer, per rule 5.404( b ) of the Iowa Rules of Evidence. The district court ruled that such evidence of prior bad acts was relevant to the issues of identity, motive, and related issues due to the fact the

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defense theory of the case was that another person committed the crime and the two-year-old victim was the only witness to the crime as it occurred. Putman then filed a motion requesting the district court reconsider its ruling on the admissibility of the child pornography evidence.

An evidentiary hearing on Putman's motion to reconsider was held. An investigator for DCI testified at the hearing regarding his investigation of the computer and other electronic devices. The DCI investigator examined the computer's hard drive, external hard drive, the USB drive, and the CD and found thousands of photographs and over one hundred videos depicting child pornography. Contained within these videos, the DCI investigator discovered two titles of special note as they specifically referenced rapes involving a two-year-old child. The DCI investigator read into the record the two videos' entire titles and confirmed the videos' titles described the videos' content.

The defense cross-examined the DCI investigator, drawing from him several points. First, the DCI investigator testified he was unable to determine whether the USB drive had ever been inserted into Putman's computer. In addition, he was unable to conclude Putman's computer had been used to copy files onto the USB drive. Next, regarding the CD, the DCI investigator could not determine that its contents had been placed on the disk using the computer. The DCI investigator also testified he was unsure whether the computer, which had multiple user accounts, was password protected. He acknowledged his investigation could not reveal who downloaded the files onto the computer or other devices. Finally, he conceded that if the computer's internal clock were altered, then a file's time stamp would be inaccurate. He knew of no way, however, to determine whether the computer's clock was accurate at the time a file was downloaded.

At the conclusion of the hearing, the State agreed not to make any mention of the child pornography in its opening statement to the jury and agreed not to display any of the seized child pornography during trial. After the hearing, the district court denied Putman's motion, finding the State had established Putman's ownership of the computer, use of the computer, and the chain of custody for the evidence. The court also found the evidence relevant and not unduly prejudicial. Finally, the court bound the State to the agreements it made during the hearing, noting the court had " relied on them in making its ruling."

At trial, the State called Peterman, who testified he built the computer for Putman and sold it to Putman. Peterman testified that when he sold the computer to Putman it did not contain child pornography. Peterman also testified regarding his discovery of the child pornography on Putman's computer and other electronic devices. The DCI investigator also testified. He explained his forensic investigation into Putman's computer and the electronic devices. He also testified he found child pornography on all four items that had been taken from Putman's house. He was allowed to mention only the two video titles, and he did not read the entire video titles to the jury, as he had at the hearing. The DCI investigator testified the video titles matched their content, estimating the girls in the videos to be two or three years of age. No pornographic images were shown to the jury. On cross-examination, the investigator testified he could not determine who was operating the computer or other electronic devices at the time when a file was generated.

Putman was convicted of one count of first-degree sexual abuse. Putman appealed on several grounds, one of which was

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the admission of the evidence of child pornography, including the two video titles. We transferred the case to the court of appeals, and it affirmed Putman's conviction. Putman sought further review, which we granted to determine whether the admission of the evidence of child pornography and, specifically, the two video titles, as limited, was proper.

II. Issue on Further Review.

On further review, we have discretion to consider all the issues raised on appeal. State v. Becker, 818 N.W.2d 135, 140 (Iowa 2012). We may let the court of appeals decision on any particular issue stand as a final decision. Id. On further review, we address only Putman's challenge to the admission of the evidence of child pornography and the two video titles. With respect to Putman's challenge to the sufficiency of the evidence to convict him, and to the district court's exclusion of the DCI laboratory report, the court of appeals decision stands as final. See id. (allowing court of appeals decision to stand on an issue not addressed on further review).

III. Standard of Review.

We review evidentiary rulings regarding the admission of prior bad acts for abuse of discretion. State v. Cox, 781 N.W.2d 757, 760 (Iowa 2010). " A court abuses its discretion when its 'discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.' " State v. Long, 814 N.W.2d 572, 576 (Iowa 2012) (quoting State v. Teeters, 487 N.W.2d 346, 349 (Iowa 1992)). " 'A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.' " In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013) (quoting Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010)). Even if a trial court has abused its discretion, prejudice must be shown before we will reverse. State v. Jordan, 779 N.W.2d 751, 756 (Iowa 2010).

IV. Discussion.

A. Iowa Rule of Evidence 5.404( b ).

This appeal turns on the admissibility of evidence of prior bad acts. Under Iowa Rule of Evidence 5.404( b ), evidence of prior bad acts is not admissible for purposes of proving character: " 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." Iowa R. Evid. 5.404( b ). The evidence " may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. The rule " exclude[s] evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer he or she committed the crime in question." State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001).

In determining whether to admit prior-bad-acts evidence, we rely on a three-step analysis.[2] ...

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