from the Iowa District Court for Polk County, David M.
Brown appeals from convictions and sentences imposed after a
jury found him guilty of three counts of sexual abuse in the
third degree and one count of incest.
C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
DANILSON, CHIEF JUDGE.
Brown appeals from the convictions and sentences imposed
after a jury found him guilty of three counts of sexual abuse
in the third degree, in violation of Iowa Code section
709.4(1)(a), and one count of incest, in violation of section
726.2, for conduct alleged to have occurred between June 2013
and May 2015. At trial, he admitted he fathered the
complainant's child, but denied the sexual conduct was
"against the will of" the complainant. The jury
found otherwise, and the court imposed consecutive sentences
totaling thirty-five years.
appeal, Brown first contends the district court abused its
discretion in denying his objection made pursuant to Iowa
Rule of Evidence 5.404(b) and allowing the State to present
evidence Brown had sexual intercourse with the complainant on
several more occasions than the charged offenses. Brown also
asserts the State failed to prove the sex acts were performed
"by force or against the will of" the complainant.
Rule of Evidence 5.404(b)(1) prohibits the use of
"[e]vidence of a crime, wrong, or other act . . . to
prove a person's character in order to show that on a
particular occasion the person acted in accordance with the
character." However, such evidence "may be
admissible for another purpose such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or lack of accident." Iowa R. Evid.
5.404(b)(2). Moreover, Iowa Code section 701.11 provides that
in cases involving sexual abuse, other incidents of sexual
abuse may be introduced so long as the probative value is not
substantially outweighed by the danger of unfair prejudice.
acknowledged consent would be an issue and that the other
sexual conduct could be relevant to the issue of consent.
See State v. Reyes, 744 N.W.2d 95, 102 (Iowa 2008)
(concluding "[t]he existence of prior sexual abuse
involving the same alleged perpetrator and victim, however,
has relevance on the underlying criminal charge because it
shows the nature of the relationship between the alleged
perpetrator and the victim"). However, he argued the
evidence was unfairly prejudicial. The district court engaged
in the appropriate balancing test and determined the evidence
was relevant to the issue of consent and the relationship of
the defendant to the complaining witness, and was not
unfairly prejudicial. See State v. Larsen, 512
N.W.2d 803, 808 (Iowa Ct. App. 1993) (finding other acts of
sexual abuse with same victim "did not involve conduct
any more sensational or disturbing" than the charged
crime, and exclusion was not warranted under rule 5.403).
Although we would encourage the use of a limiting instruction
under these facts, we find no abuse of discretion. See
State v. Putnam, 848 N.W.2d 1, 7 (Iowa 2014) (discussing
standard of review).
argues there is insufficient evidence that the sexual acts
were "against the will of" the complaining witness.
It is not necessary in Iowa to establish physical resistance
to show that an act of sexual abuse was committed by force or
against the will of the person. Iowa Code § 709.5.
"[P]sychological force or inability to consent based on
the relationship and circumstance of the participants may
give rise to a conviction under the 'against the
will' element of section 709.4(1). This statutory element
considers all circumstances that establish actual nonconsent,
including any psychological circumstances particular to the
participants." State v. Meyers, 799 N.W.2d 132,
146 (Iowa 2011); see also State v. Kelso-Christy,
911 N.W.2d 663, 667 (Iowa 2018) ("[I]n furtherance of
the statute's clear purpose, we inquire into whether the
victim gave meaningful consent and consider the
'circumstances indicating any overreaching by the
accused, together with circumstances indicating any lack of
consent by the other person.'").
complaining witness testified she did not want to engage in
sex acts with Brown and told him "no" but felt
compelled to accede to him. Brown denied using force or
threats to compel the complaining witness to have sex with
him, but he admitted he used corporal punishment in the past.
Brown acknowledged the victim never affirmatively agreed to
have sex with him and never initiated any sexual contact.
There is substantial evidence from which the jury could find
the sexual intercourse was "against the will of"
the complaining witness. See Meyers, 799 N.W.2d at
138, 146-47 (noting scope of review and finding substantial
evidence the sex acts were done "against the will
of" the complainant).