IN THE SUPREME COURT OF IOWA

No. 12–0022

Filed June 13, 2014

STATE OF IOWA,

Appellee,

vs.

RICKY LEE PUTMAN,

Appellant.

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. DECISION OF COURT OF APPEALS AND JUDGMENT 

OF DISTRICT COURT AFFIRMED. 

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. 
2

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. 
3

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 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 
4

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 
5

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 

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 

 1Initially, the deputy seized a different shirt that Putman represented he had 

been wearing the previous night. 
6

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 defense theory of the case was that 
7

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. 
8

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 the admission of 

the evidence of child pornography, including the two video titles. We 
9

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). 
10

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. Rodriguez, 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 See State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 

 2There has been persistent confusion in our cases about whether Iowa Rule of 

Evidence 5.404(b) requires clear proof that the person against whom the evidence is 

offered committed the prior bad act. In some cases, it has been suggested a showing of 

clear proof is required as an independent prong in the prior-bad-acts analysis, in 

addition to finding relevancy and weighing prejudice. In State v. Sullivan, we explained 

that clear proof and relevancy were the two “conditions” to be established before 

evidence could “be considered admissible.” 679 N.W.2d 19, 25 (Iowa 2004). In State v. 

Jones, we concluded that, because evidence of prior bad acts was relevant and clearly 

proved, the trial court did not abuse its discretion in refusing to exclude it. 464 N.W.2d 

241, 243 (Iowa 1990); see also State v. Roth, 403 N.W.2d 762, 765 (Iowa 1987) 

(requiring relevancy and clear proof before analyzing evidence’s prejudicial effect), 

abrogated on other grounds by State v. Campbell, 714 N.W.2d 622, 630 (Iowa 2006). In 

State v. Johnson, we observed that, in addition to the relevancy requirement, “[p]roof of 

the other offenses must be clear” before explaining the trial court still must balance 

evidence’s probative value against its prejudicial effect. 224 N.W.2d 617, 620, 621 

(Iowa 1974); see also Rodriguez, 636 N.W.2d at 240 (“Since our decision in [State v.]

Wade, [467 N.W.2d 283 (Iowa 1991)], we have stated that there must be ‘clear proof’ 

that the defendant committed the prior bad acts.”); State v. Brown, 569 N.W.2d 113, 

117 (Iowa 1997) (noting that “[i]n at least some cases we have added as a final 

consideration” the clear-proof requirement). Under this strand of cases, it is necessary 

that the evidence is relevant to some legitimate and disputed issue, that there is clear 

proof the defendant committed the prior act or crime, and that the evidence’s probative 
11

________________________________

value is not substantially outweighed by the danger of unfair prejudice. See Sullivan, 

679 N.W.2d at 25.

In other cases, however, we have evaluated whether there was clear proof as one 

factor in the multi-factored weighing process, not as an independent prong in the 

analysis. In State v. Reynolds, which followed Sullivan, we explained a court must 

determine whether the evidence is relevant to a disputed issue and whether the 

evidence’s probative value is substantially outweighed by the danger of unfair prejudice

See 765 N.W.2d 283, 289–90 (Iowa 2009). Rather than expressing the clear-proof 

requirement as an independent analytical step, we explained that, when a court weighs 

the prejudicial effect of evidence, it must consider whether there was clear proof it was 

the defendant who committed the prior bad act. See id. at 290. Other recent cases 

have stated the test similarly. See, e.g., State v. Henderson, 696 N.W.2d 5, 11 (Iowa 

2005) (considering the existence of clear proof as one factor in balancing process

without mentioning the clear-proof requirement as an independent analytical step); 

State v. Taylor, 689 N.W.2d 116, 129–30 (Iowa 2004) (same). Earlier cases also apply 

the test in this fashion. See, e.g., Wade, 467 N.W.2d at 284 (including proof the 

accused committed the prior act as a consideration in the balancing process, not as an 

independent analytical step); State v. Plaster, 424 N.W.2d 226, 231–32 (Iowa 1988) 

(considering whether the accused defendant committed the prior act as part of the 

balancing process). Under this strand of cases, it need only be found that the evidence 

is relevant to a legitimate, disputed issue and that the danger of unfair prejudice to the 

defendant does not substantially outweigh the evidence’s probative value. See

Reynolds, 765 N.W.2d at 290. 

Some requirement of proof the actor against whom the evidence is offered 

committed the prior act is common. Many jurisdictions consider it as an independent 

analytical step. See, e.g., State v. Terrazas, 944 P.2d 1194, 1196 (Ariz. 1997); People v. 

Garner, 806 P.2d 366, 373 (Colo. 1991); Johnson v. United States, 683 A.2d 1087, 1093 

(D.C. 1996); Rittenhouse v. State, 526 S.E.2d 342, 344 (Ga. 2000); People v. Thingvold, 

584 N.E.2d 89, 95 (Ill. 1991); State v. Jackson, 625 So. 2d 146, 149 (La. 1993); State v. 

Faulkner, 552 A.2d 896, 898 (Md. 1989); Commonwealth v. Leonard, 705 N.E.2d 247, 

250 (Mass. 1999); State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991); State v. Floyd, 

763 N.W.2d 91, 98 (Neb. 2009); State v. Kirsch, 662 A.2d 937, 942 (N.H. 1995); State v. 

Hernandez, 784 A.2d 1225, 1232 (N.J. 2001); State v. Holder, 676 S.E.2d 690, 698 (S.C. 

2009); Harrell v. State, 884 S.W.2d 154, 158 (Tex. Crim. App. 1994); State v. Pirtle, 904 

P.2d 245, 257–58 (Wash. 1995). 

Still other courts take a slightly different view. In Huddleston v. United States, 

the United States Supreme Court explained the determination whether proof existed 

that the actor committed the prior act was subsumed under the relevancy prong of the 

prior-bad-acts test: “In the Rule 404(b) context, similar act evidence is relevant only if 

the jury can reasonably conclude that the act occurred and that the defendant was the 

actor.” 485 U.S. 681, 689, 108 S. Ct. 1496, 1501, 99 L. Ed. 2d 771, 782 (1988). Some 

states take a similar view. See, e.g., State v. McDonald, 500 N.W.2d 243, 246 (S.D. 

1993) (“The strength of the evidence offered is already part of the relevancy 

determination.”); State v. McGinnis, 455 S.E.2d 516, 524–25 (W. Va. 1994) (“The 

evidence is relevant only if the jury can reasonably infer that the act occurred and that 

the defendant was the actor.”). In spite of our divergent caselaw, this court has 

explained that “the State must present clear proof that the defendant was culpable in 

the other acts in question” because the “[c]rimes of third persons are not relevant.” 

Johnson, 224 N.W.2d at 620. Whether the proof requirement is subsumed under the 
12

2004). A court must first determine whether the evidence is relevant to a 

legitimate, disputed factual issue. Id. Evidence is relevant if it has “any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would 

be without the evidence.” Iowa R. Evid. 5.401. The general test of 

relevancy is “whether a reasonable [person] might believe the probability 

of the truth of the consequential fact to be different if [the person] knew 

of the proffered evidence.” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 

1988) (citation omitted) (internal quotation marks omitted). Irrelevant 

evidence is, of course, inadmissible evidence. Iowa R. Evid. 5.402. 

There also “must be clear proof the individual against whom the 

evidence is offered committed the bad act or crime.” Sullivan, 679 

N.W.2d at 25. In assessing whether clear proof of prior misconduct 

exists, the prior act need not be established beyond a reasonable doubt, 

and corroboration is unnecessary. State v. Taylor, 689 N.W.2d 116, 130

(Iowa 2004). “There simply needs to be sufficient proof to ‘ “prevent the 

jury from engaging in speculation or drawing inferences based on mere 

________________________________

relevancy prong or is viewed as an independent prong, the party offering the evidence 

must still show sufficient proof the actor against whom the evidence is offered 

committed the act before a court weighs prejudice. Thus, the result of failing to show

sufficient proof will be functionally the same, and the court will not need to weigh the 

danger of unfair prejudice against its probative value. Cf. Sullivan, 679 N.W.2d at 29 

(finding evidence of prior bad acts not relevant to a noncharacter purpose and thus not 

weighing prejudice against probative value). 

After reviewing our cases and the diverse approaches of other jurisdictions, we 

conclude the better approach is to require, as an independent prong in the prior-badacts analysis, “clear proof the individual against whom the evidence is offered 

committed the prior” act or crime. Jones, 464 N.W.2d at 243. Requiring clear proof 

accords a defendant protection from the “concern that unduly prejudicial evidence 

might be introduced under [r]ule [5.404(b)].” Huddleston, 485 U.S. at 691, 108 S. Ct. at 

1502, 99 L. Ed. 2d at 783. Moreover, expressing the requirement of clear proof as an 

independent prong makes the prior-bad-acts test easier for trial courts and juries to 

apply. Notably, in this case, the trial court instructed the jury the evidence of two 

videos on Putman’s computer must have been shown by clear proof. 
13

suspicion.” ’ ” Id. (quoting State v. Brown, 569 N.W.2d 113, 117 (Iowa 

1997)). Testimony of credible witnesses can satisfy the clear-proof 

requirement. See Rodriguez, 636 N.W.2d at 243 (concluding testimony of 

two witnesses was sufficient to support a finding of clear proof). 

If the evidence is relevant to a legitimate and disputed factual 

issue, and the clear-proof requirement is satisfied, the court must 

determine whether the evidence’s “probative value is substantially 

outweighed by the danger of unfair prejudice to the defendant.” Sullivan, 

679 N.W.2d at 25. We consider a series of factors in weighing probative 

value against the danger of unfair prejudice. See, e.g., State v. Martin,

704 N.W.2d 665, 672–73 (Iowa 2005) (applying factors to analyze 

whether the danger of unfair prejudice substantially outweighed 

probative value). We consider 

the need for the evidence in light of the issues and the other 

evidence available to the prosecution, whether there is clear 

proof the defendant committed the prior bad acts, the 

strength or weakness of the evidence on the relevant issue, 

and the degree to which the fact finder will be prompted to 

decide the case on an improper basis.

Taylor, 689 N.W.2d at 124. If the danger of the evidence’s prejudicial 

effect substantially outweighs its probative value, the evidence must be 

excluded. See State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005) (holding

district court abused its discretion in admitting prejudicial prior-bad-acts 

evidence). Weighing probative value against prejudicial effect “is not an 

exact science,” so “we give a great deal of leeway to the trial judge who 

must make this judgment call.” State v. Newell, 710 N.W.2d 6, 20–21 

(Iowa 2006).

B. Relevancy. Putman first attacks the purpose for which the 

two video titles were admitted. He argues the evidence served no 

purpose other than to prove he acted in conformity with his character. 
14

In response, the State insists the evidence served to show Putman’s 

motive and identity as the perpetrator, which it claims, were disputed 

factual issues in the case. 

The State advances motive as its first noncharacter purpose for 

admitting the child pornography video titles. “Motive is the impetus that 

supplies the reason for a person to commit a criminal act.” 2 Jack B. 

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence

§ 404.22[3], at 404-119 to 404-120 (Joseph M. McLaughlin ed., 2d. ed. 

2014); see also State v. Richards, 809 N.W.2d 80, 92 (Iowa 2012) 

(describing motive as the reason why a defendant would have committed 

murder). We have observed, for example, that revenge and avoiding 

criminal charges may be motives for committing a crime. See, e.g., State 

v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010) (finding evidence of 

defendant’s desire to “get back at” his sister probative of his motive to 

steal his sister’s property); State v. Nelson, 791 N.W.2d 414, 425–26 

(Iowa 2010) (finding evidence of drug dealing relevant to accused 

murderer’s motive because a drug dealer would be more likely to shoot a 

buyer if the drug dealer believed the buyer was an undercover police 

officer). Motive, like any other noncharacter purpose for which evidence 

might be offered, must have been at issue in the case. See Taylor, 689 

N.W.2d at 124 (explaining that the first step in the prior-bad-acts 

analysis is identifying whether the noncharacter purpose is at issue in 

the case). 

The perpetrator’s motive for sexually abusing L.R. was not a 

legitimate or disputed issue in this case. The State was not required to 

prove Putman’s state of mind as an element of the crime, and Putman’s 

state of mind at the time of the crime was not put in issue. See Newell, 

710 N.W.2d at 21 (discussing elements of first-degree murder and the 
15

need for evidence on the defendant’s state of mind at the time of the 

crime in making a relevancy determination). The evidence of child 

pornography therefore could not be admitted for the purpose of proving 

Putman’s motive. 

The State further advanced identity as a noncharacter purpose for 

admitting the child pornography evidence. It is thus essential to decide 

whether identity was at issue in this case. Cf. Taylor, 689 N.W.2d at 124

(holding court must determine whether intent, a nonpropensity purpose, 

was at issue in the case). Identity of the perpetrator was clearly the

primary issue in the case. The State was required to prove beyond a 

reasonable doubt that Putman sexually abused L.R. Cf. id. (examining 

the first-degree-burglary statute to decide whether intent was at issue). 

Moreover, identity was the only disputed issue in the case as the defense 

sought to shift responsibility for the crime onto the victim’s father, 

Lawrence Robbins. See Cox, 781 N.W.2d at 771 (explaining identity may 

be put in issue “[w]hen a defendant argues a crime was committed by 

another person”). Accordingly, we reject Putman’s contention the State 

offered the evidence for no purpose other than to prove he was a bad 

person and that he acted in conformity with his character. 

In cases in which evidence of prior bad acts is offered for the 

purpose of proving identity, we have imposed a more demanding test 

than the general relevancy test. See, e.g., State v. Butler, 415 N.W.2d 

634, 636 (Iowa 1987) (holding rare burglar’s tool used by the defendant 

in previous crimes and the tool used in the case on appeal were 

sufficiently similar to permit prior-bad-acts evidence for purpose of 

proving identity); State v. Walsh, 318 N.W.2d 184, 186–87 (Iowa 1982) 

(finding sufficient similarity between circumstances of a homicide the 

defendant was previously convicted of and the homicide for which 
16

defendant was on trial to admit evidence for purpose of proving identity). 

“To permit the inference that similar acts establish the same person 

committed both acts, we have required that the other acts must be 

‘strikingly similar’ or of a ‘unique nature.’ ” In re J.A.L., 694 N.W.2d 748, 

753 (Iowa 2005) (quoting State v. Barrett, 401 N.W.2d 184, 189 (Iowa 

1987)). 

We acknowledge the difference, in broad terms, between Putman’s 

act of allegedly possessing child pornography and the act for which he 

was on trial, sexual abuse of a child. Strictly applying the requirement of 

similarity between prior acts and the act for which the defendant was on 

trial, one court noted the “wide gulf” separating “the act of possessing

written descriptions or stories about criminal conduct from the act of 

committing the offenses described.” See People v. Shymanovitz, 157 F.3d 

1154, 1159–60 (9th Cir. 1998) (holding trial court abused its discretion 

in admitting magazine articles as prior-bad-acts evidence), overruled in 

part by United State v. Curtin, 489 F.3d 935, 943 n.3 (“Prior acts evidence 

admitted under Rule 404(b) . . . [requires] ‘some connection’ between the 

reason for introducing the prior act and the nature of the crimes 

charged. Any language in Shymanovitz to the contrary is disapproved.”). 

This court, however, has not applied the similarity requirement so 

strictly. 

We have evaluated similarity by comparing the contents of 

materials possessed by a defendant to a criminal act committed by the 

defendant. See, e.g., Barrett, 401 N.W.2d at 189 (comparing “rather 

sketchy plans” in the defendant’s journal to homicides for which the 

defendant was being tried). In J.A.L., for example, a juvenile faced a 

delinquency adjudication for falsely reporting placement of an explosive 

device in his school. 694 N.W.2d at 750. We analyzed whether the 
17

juvenile court should have admitted the defendant’s journal entries,

which revealed the juvenile’s fascination with “suicide, death, and 

murder,” in spite of the broad dissimilarity between the act of placing a 

bomb threat at a school and authoring or possessing a macabre diary. 

See id. at 753. Though we held the journal entries should not have been 

admitted, it was because the journal topics did not contain “plans to 

place a bomb threat or to kill any of his fellow students,” not because 

journaling, or possessing a journal, lacks striking similarity with the act 

of placing a bomb threat. See id. Thus, when assessing the relevancy of 

prior-bad-acts evidence, we look not only for similarities between two 

acts committed by the defendant, but also for similarities between 

contents of materials possessed by the defendant and acts committed by 

the defendant. See id. 

Our criminal cases evaluating prior-bad-acts evidence are of two 

general categories. One category is cases in which there are only general 

similarities between the prior bad act and the crime for which the 

defendant is being tried. See, e.g., Cox, 781 N.W.2d at 759–60 

(identifying “ ‘common threads’ ” between prior acts of sexual abuse and

the acts the defendant was being tried for); J.A.L., 694 N.W.2d at 753 

(comparing a preoccupation with death in a journal to threats to bomb a 

school); Barrett, 401 N.W.2d at 189 (comparing plans to kill a newspaper 

carrier contained in the defendant’s journal to the life-insurance-scheme 

killing for which the defendant was on trial). Not surprisingly, we have 

held generally similar prior-bad-acts evidence inadmissible. J.A.L., 694 

N.W.2d at 753; Barrett, 401 N.W.2d at 189. 

In the other category are cases in which the acts are indeed 

strikingly similar. See Butler, 415 N.W.2d at 636 (concluding modified 

“nippers” used in defendant’s burglaries were sufficiently similar to admit 
18

evidence); Walsh, 318 N.W.2d at 186–87 (finding two “bizarre” homicides 

to be sufficiently similar). Finding striking similarity requires drawing 

out and comparing the peculiar circumstances of the acts. See Walsh, 

318 N.W.2d at 186 (conceding that some similarities between two 

homicides were “commonplace in crimes of this type” and comparing the 

“not commonplace” similarities). This case falls into the strikingly 

similar category. 

According to the DCI investigator’s report, which was admitted at 

the hearing on admissibility, Putman’s computer hard drive contained 

thousands of photographic images, some of which were images of child 

pornography. The USB drive contained thirty-five images and fifteen

videos of child pornography, the external hard drive contained thousands 

of images and ninety-four videos of child pornography, and the CD found 

in Putman’s computer contained 645 images of child pornography. The 

videos and images show nude children and children engaged in sex acts. 

What is more, the external hard drive contained amateur photographs of 

a teenage girl taken with a digital camera. The photographs show a man, 

believed to be Putman, performing sex acts on the unconscious teen. 

None of this evidence was presented to the jury. Indeed, evidence 

suggesting only a general preoccupation with child pornography may well 

have been inadmissible in this child sex abuse case. Cf. J.A.L., 694 

N.W.2d at 753 (holding a journal showing a fascination with death 

inadmissible in a juvenile adjudication proceeding for a threat to bomb a 

school). The district court, however, winnowed out this mass of child 

pornography evidence, leaving only the evidence of child pornography

bearing a striking similarity to the crime for which Putman was on trial. 

Thus, Rodney Peterman testified at trial that, understanding the charge 

Putman faced, he observed what he believed to be child pornography on 
19

Putman’s computer. He then confiscated the computer and informed law 

enforcement. The DCI investigator testified he found child pornography 

on all four items he examined, and he told the jury parts of the names of 

two videos he found: “Two YO [year old] getting raped” and “Two YO girl 

getting raped during diaper change.” The DCI investigator also explained 

the videos showed adult men sexually assaulting girls that he estimated 

to be two or three years of age. 

There is undeniable similarity between the two videos and the act 

for which Putman was on trial. Like the video victims, L.R. was two 

years of age, although it is unclear whether Putman knew L.R.’s exact 

age. Further, L.R. was put to bed wearing a diaper. When she came 

downstairs the next day, the diaper had been removed, and there was 

blood on her legs. In one video, as its title makes clear, the child’s diaper 

figures prominently. Like the video victims, testimony confirmed L.R. 

was the victim of vaginal penetration, which resulted in serious injuries. 

We conclude there was a striking similarity between the content of the 

two videos found on Putman’s computer, and the act of sexually abusing 

a two-year-old girl. Putman’s possessing the two videos involving the 

violent sexual abuse of very young children by adult men goes to the 

heart of the disputed issue of identity and makes it more probable he 

was the person who sexually abused L.R. and not the victim’s father. 

Accordingly, the prior-bad-acts evidence was highly relevant to the 

identity of the perpetrator. If the evidence is determined to be relevant, 

the evidence is “prima facie admissible, even though it illustrates the 

accused’s bad character.” State v. Elston, 735 N.W.2d 196, 199 (Iowa 

2007). 

C. Clear Proof. As his next point of contention, Putman insists 

the State failed to clearly prove he was responsible for downloading the 
20

two videos on his computer. As noted, proof of prior bad acts is clear if it 

prevents the jury from speculating or inferring from mere suspicion. See 

Taylor, 689 N.W.2d at 130. Putman points out the DCI investigator 

could not identify who downloaded the material on Putman’s computer. 

Nor could he determine with certainty, from the computer’s internal 

clock, when the videos were downloaded. Further, Rodney Peterman’s 

testimony indicates the computer was not password protected, meaning 

someone other than Putman could have accessed it. Putman also notes 

Peterman had the computer and other electronic devices in his own 

possession for some period of time before turning the items over to the 

sheriff. This evidence, Putman argues, undermines the State’s claim he 

downloaded the two videos whose titles were mentioned at trial. 

The State takes a different view. It argues there was clear proof 

Putman possessed the videos—the videos on Putman’s computer 

belonged to Putman, even if he did not download them. First, Peterman 

testified he built the computer for his friend Putman, and when he sold it 

to Putman, the computer did not contain any child pornography. In 

addition, although the computer and hardware were in Peterman’s 

possession before being given to the sheriff’s department, he notified the 

sheriff’s department soon after making the discoveries. Next, Peterman 

testified Putman lived alone at the time he was arrested, diminishing the 

likelihood the videos on Putman’s computer belonged to or were 

downloaded by someone else. Also, although Putman denied owning the 

videos on his computer, he never disputed owning the computer or the 

other electronic devices. Cf. State v. White, 668 N.W.2d 850, 855 (Iowa 

2003) (finding a defendant’s failure to dispute prior bad acts at trial 

supported a finding of clear proof). Most significant, the DCI investigator 

testified the same external hard drive that contained one of the two 
21

videos also contained photographs of Putman with his daughter, which 

suggests, at a minimum, that Putman had access to the hard drive, and 

thus its contents belonged to him. Finally, in its limiting instruction, the 

district court instructed the jury that this evidence must be shown by 

clear proof. Considering all the evidence, there was clear proof for the 

jury to find Putman possessed the two videos found on his computer 

without speculating or inferring from suspicion. 

D. Balancing Unfair Prejudice Against Probative Value. Since 

we conclude the evidence was relevant and there was clear proof Putman 

possessed the two videos, we must now decide whether the danger of 

unfair prejudice substantially outweighed the evidence’s probative value. 

See Richards, 809 N.W.2d at 92. As explained above, we balance a series 

of factors in weighing evidence’s probative value against the evidence’s 

danger of unfair prejudice. See, e.g., Henderson, 696 N.W.2d at 11–12 

(finding evidence’s “strong prejudicial impact” substantially outweighed 

its probative value). 

First, many of our cases have evaluated the existence of clear proof 

as part of the balancing process. See, e.g., Taylor, 689 N.W.2d at 124 

(noting the existence of clear proof is a factor in the balancing process). 

For purposes of clarity and consistency, whether clear proof exists 

should remain as part of the balancing process, in addition to being 

analyzed as an independent analytical step. As noted above, there is 

clear proof Putman possessed the two videos. This factor supports 

admission. 

We must next consider the need for the evidence that Putman 

possessed the two videos in light of the other available evidence and the 

issues in the case. See id. Because Putman denied that he committed 

the crime, the crucial issue in the case was the identity of the 
22

perpetrator, and as already noted, Putman’s possessing the two videos 

made it more probable he, rather than L.R.’s father Lawrence, sexually 

abused L.R. See Henderson, 696 N.W.2d at 11 (examining defendant’s 

defense to determine the need for the evidence in light of the case’s 

issues). Additionally, there was no forensic evidence that linked Putman 

to the crime, and the victim was just two-years old, incapable of 

testifying against her abuser. The only additional evidence available to 

the State at the time of trial was her observed behavior after the assault. 

Seeing Putman after the assault, L.R. moves towards Lawrence and hides 

her head in her hands. Thereafter, L.R. is generally afraid of all male 

strangers and clings to Lawrence. The State’s need to respond to 

Putman’s assertion that it was Lawrence and not him who was the 

perpetrator of this sexual assault on L.R. substantially increased the 

probative value of the evidence of the two videos found in his possession. 

Since the need for the evidence on the identity of the abuser was 

therefore high, this supports admission of the evidence. 

We also consider the strength or weakness of the evidence on 

identity. See Taylor, 689 N.W.2d at 124. Again, clear proof Putman 

possessed the videos showing two- or three-year-old girls being sexually

abused is strong evidence suggesting Putman committed the act similar

to the one in the videos against L.R. The most probative evidence on the 

issue of identity is the similar acts found in the two videos. All of these 

factors favor admission. 

However, this does not end our analysis. We also must determine 

whether the probative value of this evidence “is substantially outweighed 

by the danger of unfair prejudice.” Iowa R. Evid. 5.403. Evidence is 

unfairly prejudicial if it has “ ‘an undue tendency to suggest decisions on 

an improper basis commonly, though not necessarily, an emotional 
23

one.’ ” Newell, 710 N.W.2d at 20 (quoting Plaster, 424 N.W.2d at 231). 

Even highly probative evidence such as this may be excluded if the 

danger of unfair prejudice is too great. See State v. Reynolds, 765 

N.W.2d 283, 292 (Iowa 2009) (excluding highly prejudicial evidence 

despite its probative value to demonstrate the defendant’s motive). 

There is no question child pornography has “a strong tendency to 

produce intense disgust.” United States v. Loughry, 660 F.3d 965, 974 

(7th Cir. 2011) (holding danger of unfair prejudice posed by evidence of 

“hard core” child pornography outweighed its probative value in 

prosecution for distribution of “lascivious exhibition” child pornography).

Accordingly, the district court in this case, mindful of the prejudicial 

nature of the evidence, significantly limited the testimony the State was 

allowed to present to the jury to the two video titles. We have previously 

indicated that concerns about prejudice to a defendant might be eased 

by narrowing the scope of the prior-bad-acts evidence presented to the 

jury. See Barrett, 401 N.W.2d at 188 (explaining “[i]t would lessen our 

concerns regarding unwarranted prejudice if the statements in the 

journal concerning plans to harm other persons could be excised” so as 

to leave only relevant statements, but ultimately deciding against doing 

so to preserve context). 

The district court narrowed the scope of the prior-bad-acts 

evidence in this case. Consistent with the district court’s ruling on the 

motion in limine, the State’s expert was allowed to mention that child 

pornography had been found on each of the electronic devices. He also 

testified as to the file names of only two videos which were strikingly 

similar to the sexual assault which occurred here. The jury was not 

shown any images from these two videos found on Putman’s computer or 

other electronic devices. The State was not allowed to describe the 
24

volumes of photographs and videos of child pornography found on the 

electronic devices. Nor did the State mention the two videos in its 

opening statement. Aside from the brief testimony, the State made no 

mention of the two videos until its rebuttal closing argument—after being 

brought up by Putman’s counsel. Even then, the State reminded the 

jury of the “very narrow purpose” for which it could use the evidence of 

the two video titles. The State thus carefully adhered to the district 

court’s narrowly tailored order. 

To the extent any testimony exceeded the district court’s narrowly 

defined scope of permissible testimony, it was necessary to establish a 

context for the discovery of the two videos. Evidence that reveals the 

context of prior-bad-acts evidence is in some cases permissible. See id. 

Thus, Peterman testified about his initial discovery of the child 

pornography. The State’s expert testified that child pornography had 

been found on each of the devices provided to him. Though these 

references must factor into the balance, under the circumstances of this 

case, they are not alone sufficient to tip that balance in favor of excluding 

the evidence. 

Finally, in addition to significantly limiting the testimony presented 

to the jury, the district court gave a limiting instruction informing the 

jury of the limited purpose for which the evidence could be used. See 

State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996) (explaining a limiting 

instruction “help[s] to nullify the danger of unfair prejudice”); see also

Rodriguez, 636 N.W. 2d at 243 n.2 (advising trial courts to give a limiting 

instruction “explaining the purpose for which the prior acts evidence may 

be used” even if unrequested by the defendant). The district court 

instructed the jury Putman was “not on trial for” possessing child 

pornography. It also instructed the jury the evidence could “only be used 
25

to show motive, intent, or identity of the person charged.” We have 

explained before that in most cases a limiting instruction such as this is 

an antidote for the danger of prejudice: “It is only in extreme cases that 

such an instruction is deemed insufficient to nullify the danger of unfair 

prejudice.” Plaster, 424 N.W.2d at 232. This is not one of those extreme 

cases. 

The district court’s approach to this highly prejudicial evidence 

“was a model of caution.” See Richards, 809 N.W.2d at 93 n.4 (praising a 

district court’s efforts in sifting through remote, and thus less relevant, 

prior-bad-acts evidence). The district court winnowed thousands of 

images and videos of child pornography, leaving only two highly relevant 

video titles for the jurors’ ears. The district court did not permit the 

videos to be shown, nor did it permit the State to mention the videos in 

its opening statements, conditions with which the State strictly complied. 

Moreover, the district court instructed the jury on the narrow purposes

for which this evidence could be used. On balancing the probative value 

of the evidence in this case against the prejudicial impact of such 

evidence, we cannot conclude that the district court abused its discretion 

in allowing into evidence the very limited evidence of the two videos. 

V. Conclusion.

To be clear, not all evidence that a defendant possesses child 

pornography is admissible as prior-bad-acts evidence. Applying our 

long-standing analysis of the admissibility of prior-bad-acts evidence to 

the circumstances of this case, we hold the district court did not abuse 

its discretion when it admitted evidence that Putman possessed specific

videos involving child sexual abuse through the admission of the video 

titles in his trial for first-degree sexual abuse. The evidence was relevant 

to the issue of the identity of the perpetrator, there was clear proof 
26

Putman possessed the two videos, and the evidence’s probative value was 

not substantially outweighed by the danger of unfair prejudice. Finding 

no abuse of discretion, we affirm Putman’s conviction. 

DECISION OF COURT OF APPEALS AND JUDGMENT OF 

DISTRICT COURT AFFIRMED. 

All justices concur except Wiggins, Appel, and Hecht, JJ., who 

dissent; and, writing separately, Hecht, J., who dissents. 
27

#64/12–0022, State v. Putman

WIGGINS, Justice (dissenting).

I respectfully dissent. I agree with the court’s analysis on the 

inadmissibility of the testimony that the police found child pornography 

on four items taken from Putman’s house and the reference to the two 

video titles that the witness read into the record for the reason this 

evidence does not go to motive. I part company with the court’s opinion 

because this evidence does not go to identity. 

I reach this conclusion for two reasons. The first reason is the 

court is applying Iowa Rule of Evidence 5.404(b) as a rule of inclusion, 

rather than a rule of exclusion. The second reason is the caselaw does 

not allow a court to use the mere fact of possession of pornography to 

establish identity, no matter how similar the pornography is to Putman’s 

alleged act.

The court applies rule 5.404(b) as a rule of inclusion. In People v. 

Shymanovitz, 157 F.3d 1154, 1159 (9th Cir. 1998), abrogated by United 

States v. Curtin, 489 F.3d 935 (9th Cir. 2007), a panel of the Ninth 

Circuit Court of Appeals held the defendant’s possession of adult gay 

male magazines was not relevant to show the defendant’s intent 

regarding the crimes of assault, child abuse, and criminal sexual 

conduct involving children. See 157 F.3d at 1155, 1158–60. I agree with 

the following statement made by the panel in its decision:

Criminal activity is a wildly popular subject of fiction 

and nonfiction writing—ranging from the National Enquirer 

to Les Miserables to In Cold Blood. Any defendant with a 

modest library of just a few books and magazines would 

undoubtedly possess reading material containing 

descriptions of numerous acts of criminal conduct. Under 

the government’s theory, the case against an accused child 

molester would be stronger if he owned a copy of Nabokov’s 

Lolita, and any murder defendant would be unfortunate to 

have in his possession a collection of Agatha Christie 

mysteries or even James Bond stories. Woe, particularly, to 
28

the son accused of patricide or incest who has a copy of 

Oedipus Rex at his bedside.

Id. at 1159. The reasoning in Shymanovitz is consistent with applying 

rule 5.404(b) as a rule of exclusion.

Ten years after Shymanovitz, the Ninth Circuit sat en banc in the 

case of United States v. Curtin, 489 F.3d at 937. There, the court held 

articles in the defendant’s possession describing sexual acts between an 

adult and minors were admissible on the element of specific intent. See 

id. at 958–59. The reason for disapproving of Shymanovitz and allowing 

this testimony was based on the rationale that Federal Rule 404(b) is a 

rule of inclusion, rather than a rule of exclusion. See id. at 944, 953–54. 

The court applies rule 5.404(b) as the Ninth Circuit did in Curtin; thus, 

the court applied this rule as a rule of inclusion. 

In Iowa, we initially interpreted rule 5.404(b), our state equivalent 

to Federal Rule 404(b), as a rule of inclusion. See State v. McDaniel, 512 

N.W.2d 305, 308 (Iowa 1994) (“[E]vidence of other illegal activities that 

tend to prove the defendants’ general propensity . . . is relevant and 

should be admitted.”), overruled by State v. Sullivan, 679 N.W.2d 19, 28 

(Iowa 2004). We subsequently overruled McDaniel and recognized rule 

5.404(b) is a rule of exclusion. See Sullivan, 679 N.W.2d at 28 (“We think 

the better rule is that unless the prosecutor can articulate a valid, 

noncharacter theory of admissibility for admission of the bad-acts 

evidence, such evidence should not be admitted.”). As a rule of 

exclusion, the prosecutor must prove a valid, noncharacter theory of 

admissibility for the testimony that the police found child pornography 

on Putman’s computer and the reference to the two video titles that the 

witness read into the record. The prosecutor claims this evidence goes to 

identity. I disagree.
29

We have held that other-acts evidence can go to identity if the 

other acts are strikingly similar or of a unique nature. See In re J.A.L., 

694 N.W.2d 748, 753 (Iowa 2005). We require similarity or uniqueness 

to prevent the fact finder from determining “identification based on the 

forbidden inference of propensity.” Id. First, the mere possession of 

pornography does not qualify as an act. Additionally, there is no 

showing in the record the child pornography found on the four items 

taken from Putman’s house, other than the video titles read into the 

record, are similar or unique to this crime. Thus, the district court erred 

by allowing the DCI investigator’s testimony of finding child pornography. 

The mention of dissimilar child pornography is enough to require a new 

trial. See State v. Barrett, 401 N.W.2d 184, 189 (Iowa 1987) (finding the 

admission of a journal entry in violation of rule 404(b) (now rule 5.404(b)) 

required a new trial, even though a similar journal entry was admissible 

under rule 404(b)).

The best argument the prosecutor can make for the admission of 

the video titles is that the video titles read in the record are similar or 

unique to the crime; thus, this evidence goes to identity. The problem 

with this argument is Iowa caselaw does not support the admissibility of 

these types of written material to show identity without another act or a 

plan. In J.A.L., the State alleged the juvenile was delinquent for falsely 

reporting the placement of an explosive device in violation of Iowa Code 

section 712.7 (2003). 694 N.W.2d at 750. The State introduced notes 

from the juvenile’s journal into evidence. See id. at 750–51. In holding 

these writings excludable under rule 5.404(b), we said:

A review of J.A.L.’s journal entries indicates J.A.L. was 

fascinated with suicide, death, and murder. The journal 

entries, however, do not offer any indication J.A.L. was 

preparing to place a bomb threat at the school. The entries 
30

do not contain any plans to place a bomb threat or to kill 

any of his fellow students.

Id. at 753.

Another case supporting the exclusion of these video titles is 

Barrett. There, the State charged the defendant with two counts of 

murder in the first degree in violation of Iowa Code sections 707.1 and 

707.2 (1985). Barrett, 401 N.W.2d at 185. The State introduced into 

evidence two journals made by the defendant. Id. The first journal 

detailed a plan by the defendant to kill several people, including one for 

whom the defendant was the beneficiary of the person’s life insurance 

policy. See id. at 185–86. The State’s theory as to why the defendant 

killed a second person was that it was the defendant’s intent to make the 

police believe the second person killed the first person, then committed 

suicide. Id. at 185. The second journal referred to kidnapping and 

ransoming an unidentified woman. Id. at 186. It also included plans for 

kidnapping and murdering a newspaper carrier and plans to plant false 

clues about these crimes. Id. 

The district court admitted both journals into evidence, and the 

defendant was convicted. Id. at 185–86. On appeal, we determined the 

first journal was not excludable under rule 404(b) because the defendant 

had, in fact, bought life insurance on one of the murder victims, and the 

journal dispelled the notion the defendant bought the life insurance for a 

legitimate reason. See id. at 188. However, we held the second journal 

was excludable under rule 404(b) because the writings were not similar 

to the modus operandi of the murders for which the defendant was tried. 

See id. at 189. We then reversed the convictions and remanded for a 

new trial. Id.
31

The lesson we learn from J.A.L. and Barrett is that mere writings 

do not in and of themselves make the writings admissible. There has to 

be some link between the material sought to be introduced and the crime 

charged. In J.A.L., the juvenile’s journal entries do not support an 

inference he was responsible for falsely reporting the placement of an 

explosive device. See 694 N.W.2d at 753. In Barrett, one journal was 

admissible only because the defendant bought life insurance on one of 

the victims. See 401 N.W.2d at 188. Here, the possession of videos with 

the specific titles shows Putman’s fascination with child rape. However, 

these videos do not offer any indication that Putman was the child rapist 

on the night in question or that the crime he allegedly did was in the 

same manner as the acts committed in the videos.

The court’s opinion also relies on State v. Butler, 415 N.W.2d 634 

(Iowa 1987), and State v. Walsh, 318 N.W.2d 184 (Iowa 1982). Both 

cases are distinguishable. In Butler, the burglar’s tool used by the 

defendant in previous crimes and the tool used in the case on appeal 

were strikingly similar to permit admission of the other-acts evidence for 

the purpose of proving identity. 415 N.W.2d at 636. In Walsh, there was 

a sufficient similarity between circumstances of a homicide for which the 

defendant was previously convicted and the homicide for which the 

defendant was on trial to admit the evidence for the purpose of proving 

identity. 318 N.W.2d at 186–87. Thus, these cases are distinguishable 

because the act for which the State charged each defendant was similar 

and unique to other acts done by each defendant.

Here, we have no other act done by Putman. There is no 

connection between the videos or the crime charged. Rather the alleged 

other act is merely possessing certain titles of child pornography that, on 

their face, appear to be similar to the crime. 
32

Other states faced with similar facts would not let the video titles 

or pornography into the record. Kentucky is one such state. There, the 

Commonwealth charged a defendant with sodomy in the first degree 

committed on a boy under the age of twelve. Dyer v. Commonwealth, 816 

S.W.2d 647, 648 (Ky. 1991), overruled in part on other grounds by Baker 

v. Commonwealth, 973 S.W.2d 54 (Ky. 1998). The jury found the 

defendant guilty of the crime. Id. at 650. At trial, the court admitted 

evidence that graphically illustrated and described homosexual activity, 

among other sexually explicit materials. See id. at 648–49. 

The Supreme Court of Kentucky reversed the defendant’s 

conviction, finding the materials were inadmissible to profile the 

defendant as a pedophile. See id. at 652–54. In doing so, the court said, 

“We declare, unqualifiedly, that citizens and residents of Kentucky are 

not subject to criminal conviction based upon the contents of their 

bookcase unless and until there is evidence linking it to the crime 

charged.” Id. at 652.

The Supreme Court of South Carolina came to the same 

conclusion. See State v. Nelson, 501 S.E.2d 716, 724 (S.C. 1998). There, 

the defendant was convicted of four counts of first-degree criminal sexual 

conduct with a three-year-old child and four counts of lewd act on a 

three-year-old child. Id. at 717. The district court admitted materials at 

the defendant’s trial including children’s toys, testimony about certain 

videos, photographs depicting young girls, and other evidence seized 

from the defendant’s bedroom. Id. at 717–18. Additionally, the district 

court admitted the defendant’s statements to police that he had fantasies 

about children. Id. at 723. The Supreme Court of South Carolina found 

this evidence not only inadmissible to establish identity, but also 

inadmissible to establish motive, intent, absence of mistake or accident, 
33

or a common scheme or plan. Id. at 718–19, 724. The court reasoned 

that although the defendant had materials reflecting the defendant was a 

pedophile, the jury did not have the option to infer the defendant was 

acting in conformity with his alleged classification as a pedophile when 

he committed the crimes with which he was charged. Id. at 719. The 

court went on to say making such an inference was an improper basis to 

determine guilt; thus, the evidence should not have been admitted. Id. 

The court cited cases from Florida, Idaho, New York, Texas, Kentucky, 

Ohio, and Tennessee that reached similar conclusions. Id. at 719–22. 

Some states allow such materials to be admissible as the complete 

story of the crime if the defendant showed the objects to the child. E.g., 

State v. Ericson, 986 A.2d 488, 496 (N.H. 2009). Another jurisdiction has 

allowed such materials to be admissible as evidence of intent in a 

prosecution for traveling across state lines with the intent to engage in a 

sexual act with a minor and using an interstate facility to attempt to 

persuade a minor to engage in sexual acts. See Curtin, 489 F.3d at 936, 

958–59.

I am unable, however, to find any authority saying the prosecutor 

can use the mere possession of pornography depicting similar acts to 

those of the alleged crime to prove identity. There is nothing in the 

record to show any connection between the pornography and the video 

titles introduced into evidence in this case. If this really is the law, 

people of the State of Iowa must be careful in what they watch or read. 

The State can use a person’s reading of the book Lolita to convict that 

person of underage sexual abuse. The State can use a person’s 

fascination with crime shows to convict that person of murder. 

There is no showing Putman acted upon his fascination with child 

pornography at the time of the crime. Without that link, the court 
34

impermissibly allowed the jury to infer Putman was acting in conformity

with this character trait when he committed the crimes with which he 

was charged. I would borrow a phrase from the Supreme Court of 

Kentucky and declare, unqualifiedly, that citizens and residents of Iowa 

are not subject to criminal conviction based upon the contents of their 

bookcase unless and until there is evidence linking it to the crime 

charged. 

Finally, the prosecutor did not limit her final argument to the two 

video titles the court held admissible in her final argument. Instead, she 

waited until her rebuttal argument and argued the child pornography on 

the defendant’s computer and on every single item taken from the 

defendant’s home linked him to the crime. By not limiting her argument 

to the two video titles and using in her argument the pornography found 

on the computer and other drives, she used the totality of the 

pornography for propensity rather than identity. Accordingly, I would 

reverse Putman’s conviction and remand for a new trial. 

Hecht and Appel, JJ., join this dissent. 
35

#12–0022, State v. Putman

HECHT, Justice (dissenting).

Although I join the dissent of Justice Wiggins because I am not 

persuaded Putman’s possession of the pornographic materials 

constituted an “act” under Iowa Rule of Evidence 5.404(b), I write 

separately because I conclude the evidence should have been excluded 

for another reason. Even assuming only for the sake of analysis that the 

evidence was offered for the legitimate purpose of proving identity, I 

believe it should have been excluded because the danger of unfair 

prejudice attending its admission substantially outweighed its probative 

value.

The factors we consider in assessing the probative force of evidence 

in relationship to the resulting danger of unfair prejudice are:

the need for the evidence in light of the issues and the other 

evidence available to the prosecution, whether there is clear 

proof the defendant committed the prior bad acts, the 

strength or weakness of the evidence on the relevant issue, 

and the degree to which the fact finder will be prompted to 

decide the case on an improper basis.

State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004). I will address each of 

these factors in turn. 

I. The State’s Need for the Evidence. 

The victim in this tragic case was an infant who could not testify 

and identify the person who brutally injured her. Yet, I do not believe 

this fact weighs strongly in favor of admission of the challenged evidence. 

There was substantial evidence other than the pornography tending to 

link Putman to the crime. For example, there was evidence supporting a 

finding that Putman was the only adult who slept upstairs on the same 

level of the house where L.R. slept on the night of the sexual assault. 

The State also offered evidence that Putman had twice behaved in a 
36

sexually aggressive manner toward L.R.’s mother earlier in the evening 

before the crime occurred. More importantly, L.R.’s father testified that 

Putman had blood on his hands and shirt in temporal proximity to the 

time when blood was observed on L.R.’s body and the crime was 

discovered. Other evidence offered by the State tended to prove that 

when L.R. saw Putman after the crime was committed, she cowered from 

him. These pieces of evidence suggest the State proffered other 

substantial evidence of Putman’s guilt, and thus the prosecution’s need 

of the pornographic evidence was not extraordinarily strong.

It should be noted that even when the State’s need for the evidence 

is great, “the need for the evidence does not make the evidence more 

likely to prove that which it is offered to prove.” United States v. Stout, 

509 F.3d 796, 800 (6th Cir. 2007). My analysis of the probative value of 

the pornographic evidence is found below. 

II. Clarity of Proof the Defendant Committed the Prior Bad 

Acts. 

The State presented clear evidence that Putman’s computer and 

related devices held a substantial quantity of pornographic images 

including two titles involving rape of infants. For the reasons stated in 

the dissent of Justice Wiggins, I am not persuaded Putman’s possession 

of pornography is an “act” within the meaning of rule 5.404(b). 

Accordingly, I shall not further address this factor here. 

III. The Strength or Weakness of the Evidence on the 

Relevant Issue. 

Although Putman’s possession of pornography including two titles 

involving rape of infants might suggest some positive correlation between 

Putman’s interest in a specific genre of pornography and the peculiar 

facts of the crime, social science literature suggests the correlation might 
37

be weak at best. See Melissa Hamilton, The Efficacy of Severe Child 

Pornography Sentencing: Empirical Validity or Political Rhetoric?, 22 Stan. 

L. & Pol’y Rev. 545, 579–80 (2011) (“Social science studies considering 

the correlation between viewing child pornography and contact sexual 

offenses against children are not consistent, though there is much 

evidence that only a subset of offenders who use child pornography also 

sexually offend against children. To support this, researchers 

conducting comprehensive reviews of empirical literature often conclude 

there is little evidence of any direct impact of viewing child pornography 

on the commission of contact sexual offenses. . . . In general, the 

literature supports the view that while child molesters may possess child 

pornography, those that possess child pornography are generally not 

likely to engage in contact offenses against children. Instead, child 

molesters are merely a small subset of child pornographers.”). Given the 

available social science, I cannot conclude the evidence of Putman’s 

possession of child pornography is strong evidence identifying him as the 

person who raped L.R.

IV. Degree to Which Jurors Will Be Motivated to Decide on 

Improper Basis. 

On this element of the analysis, I share the view of Chief Justice 

Hannah of the Arkansas Supreme Court who characterized the 

overwhelming prejudice occasioned by the admission of evidence that 

pornography was found on a defendant’s computer: “When the circuit 

court erroneously admitted into evidence the repugnant deviant 

pornographic pictures and titles that were found on the appellant’s 

computer, this case was over.” Johnston v. State, No. CR–13–371, 2014 

WL 1096142, ___ S.W.3d ____, _____ (2014) (Hannah, C.J., dissenting). It 

is beyond dispute in my view that when the jury heard evidence that 
38

Putman’s computer held extraordinarily repugnant images of infants 

being raped, Putman’s conviction was guaranteed. The subject matter of 

this evidence was so repugnant and exquisitely prejudicial that the 

jurors were almost certainly highly motivated to convict Putman on that 

propensity evidence alone. Cf. State v. Wright, 203 N.W.2d 247, 251 

(Iowa 1972) (noting risk of inflammatory and corrosive other-crimes 

evidence is its tendency to “stir such passion in the jury as to sweep 

them beyond a rational consideration of guilt or innocence of the crime 

on trial” (citation omitted) (internal quotation marks omitted)); see also 

United States v. LeCompte, 131 F.3d 767, 770 (8th Cir. 1997) (stating 

“the danger of unfair prejudice . . . presented by the ‘unique stigma’ of 

child sexual abuse . . . is one that all propensity evidence in such trials 

presents”). As Chief Justice Hannah aptly suggested, when that evidence 

was admitted, Putman’s trial was over. 

In my view, this case presents a classic example of the type of 

evidence rule 5.404(b) is intended to exclude in furtherance of a fair trial. 

Even if it is assumed for the sake of analysis that the evidence was 

probative of identity—and not merely of propensity—it should have been 

excluded because it was so uniquely and extraordinarily prejudicial as to 

deny Putman a fair trial on the crime charged in this case. Cf. United 

States v. Fawbush, 634 F.3d 420, 423 (8th Cir. 2011) (“Had the 

testimony been relevant to a material issue, we believe it still should not 

have been admitted. Under our standard, relevant other act evidence is 

admissible only if its probative value outweighs its potential for unfair 

prejudice. ‘ “Unfair prejudice” . . . means an undue tendency to suggest 

decision on an improper basis, commonly, though not necessarily, an 

emotional one.’ We believe the evidence that Fawbush had sexually 

abused his daughters and had fathered a child with one of them to have 
39

been so inflammatory on its face as to divert the jury’s attention from the 

material issues in the trial. Consequently, the prejudicial effect of this 

evidence outweighed any legitimate probative value it may have had.” 

(Citations omitted.)). Accordingly, I conclude the district court abused its 

discretion in admitting the evidence, and I would reverse and remand for 

a new trial. I therefore respectfully dissent.