IN THE SUPREME COURT OF IOWA 

No. 53 / 05-1980 

Filed July 13, 2007 

STATE OF IOWA, 

 Appellee, 

vs. 

MARK ANTHONY ELSTON,

 Appellant. 

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Pottawattamie County, James 

S. Heckerman, Judge. 

 Applicant seeks further review of court of appeals decision holding the 

district court did not abuse its discretion in denying his motion to sever and 

preserving claims of ineffective assistance of counsel for possible 

postconviction proceedings. DECISION OF COURT OF APPEALS AND 

JUDGMENT OF DISTRICT COURT AFFIRMED. 

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, 

Assistant Appellate Defender, for appellant. 

 Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant 

Attorney General, Matthew D. Wilber, County Attorney, and Shelly Sedlak, 

Assistant County Attorney, for appellee. 
2

HECHT, Justice. 

This case is before us on further review of a court of appeals decision 

concluding the district court did not abuse its discretion in denying 

defendant Mark Elston’s motion to sever a charge of indecent contact from 

charges of sexual exploitation and in preserving Elston’s claims of 

ineffective assistance of counsel for possible postconviction proceedings. 

We affirm. 

 I. Factual and Procedural Background.

Mark Elston was a friend of Brenda Neff and her husband, Dale Neff. 

Brenda is the mother, and Dale the stepfather, of two female children, A.E. 

and her sister. Elston came to the Neffs’ house almost every day to socialize 

with the Neffs and occasionally babysat the children. Elston and the Neffs 

generally spent time together in the Neffs’ bedroom, with the door shut and 

locked. 

 Debra Krebs, who socialized with Elston and the Neffs and babysat 

A.E. and her sister on a regular basis, became suspicious that the children 

were being sexually abused. On February 10, 2005, she contacted the 

children’s school counselor, who then met with the children. A.E. reported 

her stepfather had touched her inappropriately, and both children indicated 

they had seen “nasty pictures” on their parents’ computer. 

After meeting with the children, the school counselor called the 

Department of Human Services (DHS) and reported suspected sexual abuse. 

When they were interviewed the next day by a DHS social worker and a 

police detective, the children essentially repeated the allegations made 

previously to the school counselor, and A.E. also divulged that her 

stepfather had photographed her in the nude. After that interview but prior 
3

to the execution of a search warrant on the Neffs’ house, the children told 

investigators that Elston had touched them inappropriately. 

 The State charged Elston with eighteen counts of sexual exploitation 

of a minor, in violation of Iowa Code sections 728.12(1), 728.12(3), and 

728.1(7)(g) (2005), and one count of indecent contact with a child, in 

violation of section 709.12(2). The sexual exploitation counts charged 

Elston with accessing child pornography through the Neffs’ computer and 

participating with Mr. Neff in taking illicit photographs of A.E. from 

approximately July 1, 2003 through February 11, 2005. The indecent 

contact count alleged Elston inappropriately touched A.E. within the same 

timespan. 

Elston filed a motion to sever the trial of the sexual exploitation of a 

minor counts from the trial of the indecent contact count. He contended 

separate trials would ensure the jury’s compartmentalization of the evidence 

relevant to each charge. The district court overruled the motion. 

A.E. testified at the jury trial that Elston, on at least two occasions, 

put his arm around her and then touched her between her clothed legs 

while they watched movies in the Neffs’ home. During cross-examination, 

A.E. conceded that Elston may have touched her accidentally. A.E. also 

testified that her stepfather, Dale Neff, took nude photographs of her in the 

Neffs’ bedroom and that Elston was sometimes present when this occurred. 

A.E. and her sister testified that they had observed Elston in that same 

bedroom using the Neffs’ computer to observe nude pictures of young girls. 

After A.E. testified, a detective who participated in the Elston 

investigation testified for the State. Through the detective, the State 

introduced seventeen photographs of young, naked females found on the 

hard drive of the computer in the Neffs’ bedroom. In addition, the State 
4

introduced numerous photographs of young, naked females found on the 

Neffs’ screensaver. Although a forensics investigation of the Neffs’ computer 

revealed no evidence he had ever downloaded or viewed any of the 

particular photographs introduced by the State, Elston admitted to 

investigators he had used the Neffs’ computer to view sites featuring 

“females not completely developed.” 

None of the photographs retrieved from the Neffs’ computer depicted 

A.E. in the nude. There was some evidence, however, that such 

photographs were on the Neffs’ computer before the State seized it. Krebs 

testified she had seen a picture of A.E. naked on the Neffs’ computer and 

expressed her concern to Elston, who told her he would “check into it.” 

According to the detective who testified for the State, Elston conceded 

during an interview that he “thought” he had seen “one of the girls [A.E. or 

her sister] on the computer.” 

The district court granted Elston’s motion for judgment of acquittal 

on all counts except the count of indecent contact with a child. The jury 

returned a guilty verdict on that count. 

Elston filed a notice of appeal contending the district court abused its 

discretion in denying the motion to sever and asserting his trial counsel was 

ineffective. The court of appeals affirmed Elston’s conviction and preserved 

his ineffective counsel claim for possible postconviction relief proceedings. 

We granted further review. 

II. Standards of Review. 

We review refusal to sever multiple charges against a single defendant 

for abuse of discretion. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992) 

(citing State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985)). We review 
5

ineffective assistance of counsel claims de novo. State v. Martin, 704 N.W.2d 

665, 668 (Iowa 2005). 

III. Discussion. 

A. Motion to Sever. 

Our analysis of whether the district court abused its discretion in 

denying Elston’s motion to sever begins with Iowa Rule of Criminal 

Procedure 2.6(1). This rule provides: 

Two or more indictable public offenses which arise from the 

same transaction or occurrence or from two or more 

transactions or occurrences constituting parts of a common 

scheme or plan, when alleged and prosecuted 

contemporaneously, shall be alleged and prosecuted as 

separate counts in a single complaint, information or 

indictment, unless, for good cause shown, the trial court in its 

discretion determines otherwise. 

We have held that transactions or occurrences are part of a “common 

scheme or plan” under Iowa Rule of Criminal Procedure 2.6(1) when they 

are the “products of a single or continuing motive.” See State v. Oetken, 613 

N.W.2d 679, 688 (Iowa 2000) (citing State v. Lam, 391 N.W.2d 245, 250 

(Iowa 1986)). In ascertaining whether a “common scheme or plan” exists, 

“we have found it helpful to consider factors such as intent, modus 

operandi, and the temporal and geographic proximity of the crimes.” Id.

(citing Lam, 391 N.W.2d at 249-50). 

We conclude the transactions forming the factual basis for the 

indecent contact charge and the sexual exploitation charges against Elston 

were part of a “common scheme or plan” under Iowa Rule of Criminal 

Procedure 2.6(1). All of the crimes alleged in this case against Elston could 

be found to have been motivated by his desire to satisfy sexual desires 

through the victimization of children. All of the transactions allegedly 

occurred in close geographic proximity within the Neffs’ small home. 
6

Although the temporal proximity of the alleged indecent contact and sexual 

exploitation offenses was not close1 and the modus operandi allegedly 

employed by Elston was dissimilar, we find no abuse of discretion in the 

district court’s determination that the several alleged offenses were part of a 

common scheme or plan. 

Although the existence of a “common scheme or plan” indicates the 

charges should be joined, the district court nonetheless had discretion to 

sever the charges for “good cause.” Iowa R. Crim. P. 2.6(1). To prove the 

district court abused its discretion in refusing to sever charges, Elston 

bears the burden of showing prejudice resulting from joinder outweighed 

the State’s interest in judicial economy. Oetken, 613 N.W.2d at 689. For 

the reasons that follow, we conclude Elston has not met this burden. 

Elston argues he suffered prejudice resulting from joinder of the 

sexual exploitation and indecent contact charges far outweighing the State’s 

interest in judicial economy. Although he concedes the pornographic 

photographs would have been relevant to the sexual exploitation charges, 

Elston asserts the pictures would not have been admissible to prove the 

indecent contact charge, the only charge actually submitted to the jury, had 

it been tried separately, because they are inadmissible evidence of “other 

crimes, wrongs, or acts.” Generally, evidence of an accused’s other “crimes, 

wrongs, or acts” is inadmissible to prove his propensity to behave in a 

certain manner. See Iowa R. Evid. 5.404(b) (“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.”). However, such 

evidence is generally admissible for purposes other than proving propensity; 

for instance, such evidence may be used to prove “motive, opportunity, 

 

1As we have noted, the State alleged the offenses occurred between July of 2003 

and August of 2005. 
7

intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident.” Id. 

We follow a well-established test to determine whether the 

photographs were admissible to prove the charge of indecent contact. First, 

we must ascertain “whether the challenged evidence [was] relevant and 

material to some legitimate issue” other than a general propensity to 

commit wrongful acts. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) 

(internal quotation marks and citation omitted). If this test is satisfied, the 

evidence was prima facie admissible, even though it illustrates the 

accused’s bad character. Id. Second, we “must . . . decide whether the 

evidence’s probative value [was] substantially outweighed by the danger of 

unfair prejudice.” Id. (citing Iowa R. Evid. 5.403). If unfair prejudice 

resulting from admission of the evidence substantially outweighed its 

probative value, the evidence was inadmissible. Id. 

We conclude the pornographic images of young girls had great 

probative value on the question of whether Elston touched A.E. “for the 

purpose of arousing or satisfying the sexual desires of either [himself or 

A.E.].” Iowa Code § 709.12. As noted above, defense counsel first raised 

during the cross-examination of A.E. the question of whether Elston might 

have accidentally touched A.E. between her clothed legs. The State’s need 

to respond to Elston’s assertion of accidental touching substantially 

increased the probative value of the pornographic photographs. The 

pornographic images of young females seized from the Neffs’ computer 

during the execution of the search warrant tended to prove Elston’s 

touching of A.E. was not accidental.2 

 

2The seizure was made from the very computer Elston admitted he had used prior to 

the search to look at images of nude, undeveloped girls.
8

We are unconvinced that the photographs’ considerable probative 

value would have been substantially outweighed by the danger of unfair 

prejudice had they been admitted in a separate trial on the indecent contact 

charge. The photographs were no more prejudicial than other evidence that 

was admitted at trial and that would have been admissible in a separate 

trial as evidence of Elston’s intent. In particular, A.E. testified that Elston 

was present in the bedroom when Dale Neff took pornographic photographs 

of her. This evidence was considerably more prejudicial than the 

pornographic photographs of unknown female children, because it tended 

to prove Elston had a sexual interest in A.E., the very child whom he was 

charged with touching indecently. 

 In summary, we conclude the district court did not abuse its 

discretion in overruling Elston’s motion to sever the sexual exploitation and 

indecent contact charges. The pornographic photographs were admissible 

to prove the indecent contact charge against Elston whether or not the trial 

of that charge was joined with the trial of the sexual exploitation charges. 

Elston failed to prove any prejudice resulting from joinder of the charges 

outweighed the State’s interest in judicial economy. 

B. Ineffective Assistance of Counsel. 

Elston’s claims of ineffective assistance of counsel are before us on 

direct appeal. We usually preserve claims of ineffective assistance of 

counsel for potential postconviction proceedings. State v. Buck, 510 N.W.2d 

850, 853 (Iowa 1994). However, if the record is sufficient to decide such 

claims, we will do so on direct appeal. State v. Martens, 569 N.W.2d 482, 

484 (Iowa 1997). 
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1. Failure to Object to Testimony of Debra Krebs. 

The State called Debra Krebs, who testified Elston owned a collection 

of adult pornography. On appeal, Elston argues his trial counsel should 

have objected to this evidence pursuant to Iowa Rules of Evidence 5.402 

(irrelevant evidence is inadmissible) and 5.403 (relevant evidence may be 

excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice). 

“[P]ostconviction proceedings are often necessary to discern the 

difference between improvident trial strategy and ineffective assistance.” 

State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006). Such is the case here. 

Although trial counsel failed to object to this testimony, we are unable on 

this record to assess whether the failure constituted ineffective assistance of 

counsel. We consequently preserve this claim for possible postconviction 

proceedings. 

2. Failure to Request Jury Instruction Explaining Proper 

Consideration of Evidence Related to the Dismissed Counts. 

Elston also claims his trial counsel provided ineffective assistance in 

failing to request a jury instruction explaining the proper consideration of 

evidence related to the dismissed sexual exploitation counts. In particular, 

he asserts trial counsel should have requested the district court to instruct 

the jury to disregard the pornographic pictures during deliberations on the 

indecent contact charge. We find no merit in this claim because we have 

already concluded the pictures were admissible as part of the State’s proof 

of the indecent contact offense. See State v. Wills, 696 N.W.2d 20, 24 (Iowa 

2005) (finding trial counsel was not ineffective in failing to raise 

unmeritorious issue). 
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IV. Conclusion. 

We conclude the district court did not abuse its discretion in denying 

the motion to sever. We preserve one claim of ineffective assistance of 

counsel for possible postconviction proceedings. 

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT 

COURT AFFIRMED.