IN THE COURT OF APPEALS OF IOWA

No. 12-1917 

Filed July 30, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ISAAC LEE KIDD,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J. 

Dryer (trial on underlying charge) and Bradley J. Harris (trial on habitual offender 

enhancement), Judges.

Isaac Kidd appeals his judgment and sentence for possession of a firearm 

as a felon, enhanced as a habitual offender. REVERSED AND REMANDED.

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

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney 

General, Thomas J. Ferguson, County Attorney, and Brook Jacobsen, Assistant 

County Attorney, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
2

VAITHESWARAN, J.

Isaac Kidd appeals his judgment and sentence for possession of a firearm 

as a felon, enhanced as a habitual offender. He raises several issues, one of 

which we find dispositive: the admission of prior-bad-acts evidence.

I. Background Facts and Proceedings

Waterloo police officers received information from a crime suspect that the 

suspect obtained a gun from Isaac Kidd. Officers executed a search warrant on 

a home identified by the suspect. The home was leased by a woman with whom 

Kidd once had a relationship. A search of one of two bedrooms uncovered a 

semiautomatic handgun. 

The State eventually charged Kidd with possession of a firearm as a felon, 

“having previously been convicted of Carrying Weapons and Possession of a 

Controlled Substance with Intent to Deliver, contrary to and in violation of Section 

724.26 of the Iowa Criminal Code.” Kidd denied that he was in fact Kidd and 

disrupted several pretrial proceedings, resulting in district court admonishments

to comport himself or risk exclusion. Kidd did not heed the warnings and was 

excluded from the proceedings and, later, from the entire trial.1 Following trial, 

the jury found Kidd guilty as charged. 

On appeal, Kidd contends (1) the district court abused its discretion in 

admitting evidence that, in his view, “went way beyond proving [his] prior felony 

convictions”; (2) the record lacks substantial evidence to support the jury’s finding 

that he possessed a firearm; (3) his trial attorney was ineffective in several 

respects; (4) the district court abused its discretion in declining to instruct the jury 

 

1 Kidd does not challenge his exclusion from trial.
3

to draw no inference from his silence; and (5) the district court erred in granting a 

belated motion to amend the trial information to add the habitual offender 

enhancement. Our disposition of the first issue obviates the need to address the 

final three issues. 

II. Admission of Prior Bad Acts Evidence on Status as a Felon

The jury was instructed that, to prove possession of a firearm as a felon, 

the State, in part, would have to establish that, “The defendant was previously 

convicted of Carrying Weapons or Possession of a Controlled Substance with 

Intent to Deliver.”

Before trial, the prosecutor expressed an intent to prove the prior felonies

by introducing “certified copies of a number of documents from [] two separate 

court files.” He identified the following documents: (1) the complaints, (2) face 

sheets of the trial informations, (3) written pleas of guilty, (4) the judgments, and 

(5) an application for appointment of counsel and financial affidavit in one of the 

cases. Kidd’s attorney moved “to exclude all of those items other than the 

judgment.” He reasoned as follows:

All the State is required to prove is that he has a prior conviction. 

That’s the judgment. You don’t need the allegations, the State 

doesn’t need the plea agreement, it doesn’t need the financial 

affidavit . . . . [N]ow the State is attempting to have this jury 

consider all the things in that prior case, not merely the fact of 

conviction, but the facts and circumstance . . . . [I]t goes way 

beyond what is necessary and now clearly is unfairly prejudicial to 

the defendant. 

The prosecutor responded by noting the absence of a stipulation concerning 

Kidd’s prior felony. He said the documents were needed because “[t]his 

defendant has identification information on all of those documents,” and “[w]ithout 
4

the defendant being present . . . the State is going to have to rely a little bit more 

on identification information that’s contained in the file.” The prosecutor also 

suggested he needed the facts contained in some of the documents because 

“[n]ot all carrying weapons convictions disqualify one from possessing a firearm

. . . .” The district court preliminarily declined to exclude the documents, 

reasoning that “identification would be an issue.”

Kidd’s attorney later renewed his objection to the documents. He said he 

had no intent to dispute the existence of a prior felony conviction notwithstanding 

the absence of a formal stipulation and he questioned the prosecutor’s motive in 

seeking “to not just establish the prior felony, but carrying weapons.” In his view, 

the introduction of documents relating to the carrying weapons conviction would 

impermissibly allow the jury to hear “that this defendant previously carried 

weapons, therefore, he should be punished this time under propensity for 

carrying weapons.” As for the State’s expressed need to identify Kidd, counsel 

argued the identity issue was “a straw man being erected for the purpose of 

hewing it down with the idea that the jury in a circumstantial case will make the 

connection that such evidence of past behavior is evidence that he did it on this 

occasion.” He noted the additional documents did nothing more than “la[y] out in 

excruciating detail not just the fact of conviction, but the purported reasons,” 

reasons that he argued were entirely irrelevant to establishing his status as a 

felon. Finally, Kidd’s attorney reiterated that, “[a]s [Kidd’s] lawyer,” he “made no 

defense that this is the wrong person” and he would not, through any of his 

questions or argument, challenge Kidd’s identity or the existence of a prior felony 
5

offense. He again moved to exclude “[a]nything that goes beyond a judgment 

that shows he was convicted of a prior felony, a non-gun felony.”2 

The district court found the documents “relevant to the issue of proving the 

prior offenses, to proving the identity of the individual who’s convicted of the prior 

offenses and “not unfairly prejudicial.” The court admitted all the documents 

listed by the prosecutor. 

On appeal, Kidd contends “the district court abused its discretion by 

admitting the court documents other than the judgment entries from Kidd’s 

previous cases for carrying weapons, theft in the 4th degree and possession with 

intent to deliver.” According to Kidd, “[t]he State only needed to simply establish 

Kidd had a felony on his record and that he possessed a firearm” and “[t]he 

amount and type of evidence presented to the jury was prejudicial overkill.” Our 

review of this issue is indeed for an abuse of discretion. See State v. Taylor, 689 

N.W.2d 116, 124 (Iowa 2004). 

The Iowa Supreme Court has had occasion to address the admissibility of 

“prior bad acts” evidence on several occasions, more recently, in State v. 

Putman, ___ N.W.2d ___, ___, 2014 WL 2619405 (Iowa 2014). In Putman, the 

court summarized the rule as follows: 

“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 

 

2 On appeal, the defense does not go so far as to seek redaction of the carrying 

weapons judgment, apparently conceding that the single judgment entry for three 

crimes, including carrying weapons, was admissible.
6

defendant is a bad person, from which the jury is likely to infer he or 

she committed the crime in question.” State v. Rodriquez, 636 

N.W.2d 234, 239 (Iowa 2001).

2014 WL 2619405, at *5. The court reiterated the three-step analysis courts 

must employ to decide whether to admit prior-bad-acts evidence: (1) whether 

“the evidence is relevant to a legitimate, disputed factual issue,” (2) whether 

there is “clear proof the individual against whom the evidence is offered 

committed the bad act or crime,” and (3) whether the evidence’s “probative value 

is substantially outweighed by the danger of unfair prejudice to the defendant.”

Id. at *5-6. 

On the relevancy question, we need go no farther than the marshalling 

instruction to conclude that some evidence of a prior felony conviction was 

necessary to prove the State’s case. Because Kidd refused to concede anything, 

including his name, the State was obligated to prove his status as a felon and 

could legitimately offer certified copies of the judgments, as Kidd’s appellate 

attorney concedes. See id. at *5.

With the judgments in evidence, the remaining documents proffered by the 

State were only marginally relevant to a legitimate disputed fact issue. The 

prosecutor’s purported reason for offering the documents was to confirm Kidd’s 

identity. However, identifying information, including Kidd’s social security number 

and birth date, was included in the judgments. The balance of the information 

contained in the additional documents was largely irrelevant to Kidd’s status as a 

felon. 

The complaints and trial informations contained unproven charges that, as 

Kidd’s attorney explained, did not “make the existence of any fact more or less 
7

true that’s of significance to any issue that’s in this trial.” See State v. Williams, 

315 N.W.2d 45, 54 (Iowa 1982) (affirming the exclusion of evidence of 

amendment and proposed amendment of trial information after concluding the 

evidence was not “material to determining defendant’s guilt or innocence of the 

charge”). Additionally, the “carrying weapons” complaint in the first case 

revealed details about the gun, Kidd’s explanation of how he obtained it, and an 

officer’s determination of its source—unproven allegations that had no bearing on 

whether Kidd was a felon. Similarly, the complaint in the second case provided 

details of a drug-related charge and identified a weapon that was found on the 

premises. Notably, the weapons enhancement in the second case was 

ultimately dismissed. 

The application for appointment of counsel described Kidd as “fully 

indigent” and revealed details about his support system that were immaterial to 

Kidd’s status as a felon. As for the plea agreements, both revealed the State’s 

agreement not to file additional charges which, again, was not material to his 

status as a felon.

We conclude all the documents introduced to establish Kidd’s status as a 

felon except the certified judgments were of limited probative value in 

establishing Kidd’s identity. 

This brings us to the “clear proof requirement.” There is no question that 

the certified judgments of the prior convictions constituted “clear proof” that Kidd 

was a felon. As noted, those judgments, entered in a single order, identified Kidd 

by his birth date and social security number. The social security number 

matched the number found in Kidd’s wallet in the bedroom that was searched. 
8

The remaining documents contained the same identifying information and, to that 

extent, amounted to clear proof of his identity although, they were duplicative of 

the information in the judgments.

We are left with the question of whether the contested evidence’s

“probative value is substantially outweighed by the danger of unfair prejudice to 

the defendant.” Putman, 2014 WL 2619405, at *6. Kidd’s trial attorney 

eloquently articulated the concerns with the non-judgment evidence the State 

proffered to establish Kidd’s status as a felon. First, he pointed out that the 

complaints, trial informations, guilty pleas, and financial affidavit were not needed 

to establish Kidd was a felon. See id. (noting the “need for the evidence” is a 

consideration in evaluating this factor). Second, he explained that, contrary to 

the State’s assertion, the judgments did not contain gaps the State was required 

to fill with other documents. But, even if there were gaps, counsel made a 

professional statement that he had no intention of disputing Kidd’s status as a 

felon notwithstanding the absence of a formal stipulation.3 See Williams, 315 

N.W.2d at 52-53 (“The term ‘professional statement’ . . . means a statement of 

fact presented to the court by an attorney in connection with a matter then before 

such court, verified in effect by the oath of such attorney, and designed or 

calculated to aid or influence the court in the determination of a given cause or 

 

3

In State v. Cole, No. 04-0811, 2006 WL 623216, at *4 (Iowa Ct. App. Mar. 15, 2005), 

this court held that the district court should not have admitted evidence relating to a 

defendant’s prior convictions after his attorney made an on-the-record offer to stipulate 

to the convictions. In this case, counsel did not formally offer to stipulate, given his 

client’s unwillingness to even acknowledge his name. However, counsel offered a 

reasonable equivalent, which was his representation that he would not contest the 

element. We see no material distinction. See Old Chief v. United States, 519 U.S. 172, 

174, 190 (1997) (holding court abused its discretion in admitting the full record of a prior 

judgment in the face of an offer to stipulate to the prior conviction and stating “the fact of 

the qualifying conviction is alone what matters”).
9

issue.”). Finally, he explained the additional documents would prompt the jury to 

reach a decision on an improper basis. See Putman, 2014 WL 2619405, at *11

(“Evidence is unfairly prejudicial if it has an undue tendency to suggest decisions 

on an improper basis commonly, though not necessarily an emotional one.”

(internal quotation marks omitted)). 

We agree with defense counsel’s characterization of the challenged 

evidence. As noted, the complaints and trial informations contained details about

past crimes similar to the crime with which Kidd was presently charged. 

Needless to say, the details placed Kidd in a bad light. See id. at *8 (stating rule 

that “generally similar prior-bad-acts evidence” is inadmissible); State v. Liggins, 

524 N.W.2d 181, 188 (Iowa 1994) (finding evidence that Liggins was a supplier 

of cocaine appealed to the jury’s instinct to punish drug dealers). The application 

for appointment of counsel and the reference to Kidd as being “fully indigent” 

could only be viewed as pejorative in this context. See State v. Wilson, 599 

N.W.2d 481, 487 (Iowa 1999) (“Evidence a defendant is indigent and 

represented by court-appointed counsel may be more prejudicial than probative if 

used merely to portray the defendant as an indigent.”); State v. Sallis, 574 

N.W.2d 15, 17 (Iowa 1998) (stating in a proper case a defendant’s affidavit of 

financial condition might prove crucial to establishing elements of offense 

charged but the prosecutor’s use to prove drug-dealing was too attenuated and 

cautioning prosecutors to “refrain from abusing the strategy lest it prejudicially 

impact defendants’ exercise of their Sixth Amendment right to counsel”); State v. 

Roghair, 353 N.W.2d 433, 435 (Iowa Ct. App. 1984) (noting a financial affidavit 

“prejudices the jury against the defendant because he used public funds for his 
10

defense”). As for the plea agreements, they were prejudicial on their face to the 

extent they implied Kidd committed other uncharged crimes. 

We conclude any probative value these documents might have had was 

substantially outweighed by the danger of unfair prejudice.

In reaching this conclusion, we have considered the fact that the district 

court gave the jury a cautionary instruction, at least with respect to the exhibits in 

one of the cases.

4

 The court advised the jurors they were only to consider the 

exhibits “for the purpose of establishing whether or not there was a prior 

conviction and whether or not this was the individual who had that prior 

conviction.” In our view, that instruction did not “alleviate the danger of unfair 

prejudice.” See State v. Elliott, 806 N.W.2d 660, 674 n.4 (Iowa 2011). As Kidd’s 

attorney stated, “I think we are overly optimistic in thinking that a jury can just 

disregard these prior bad acts and compartmentalize and only use them for a 

limited purpose even with a limiting instruction.” That was particularly true where 

some of the additional exhibits referred to details of similar crimes. 

We acknowledge the Putman court’s reaffirmation of the principle that 

cautionary instructions are only deemed insufficient in extreme cases. 2014 WL 

2619405, at *12. We view the proffer of voluminous documents to prove the 

simple fact of Kidd’s identity and felon status as falling within this “extreme case” 

exception. The documents did not make “brief, inadvertent reference to prior 

criminal activity.” State v. Belieu, 288 N.W.2d 895, 901 (Iowa 1980). The 

documents contained “numerous references to other alleged crimes which 

 

4 Defense counsel requested a cautionary instruction not be given following the offer of 

the second round of exhibits. 
11

remained part of the record.” Id. Given the extensive non-probative content of 

the documents, the cautionary instruction did not suffice to remove the prejudice 

to Kidd.

Because the probative value of the evidence was substantially outweighed 

by the danger of unfair prejudice, all documents admitted to establish Kidd’s 

status as a felon except the certified copies of the judgments should have been 

excluded. See State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). We reverse 

and remand for a new trial. Id. at 31. 

III. Sufficiency of the Evidence

Kidd contends there was insufficient evidence to support a finding he 

possessed a firearm. We must address this claim to determine whether retrial is 

permissible or whether jeopardy attached, requiring entry of a judgment of 

acquittal. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003). The jury’s 

verdict is binding on appeal if there is substantial evidence in the record to 

sustain it. State v. Hennings, 791 N.W.2d 828, 832-33 (Iowa 2010). 

The jury was instructed, in part, that the State would have to prove the 

following element: “On or about July 31, 2009, through August 3, 2009, the 

defendant knowingly possessed or had under his dominion and control a 

firearm.” See Iowa Code § 724.26(1) (2009). The jury was further instructed:

The law recognizes several kinds of possession. A person 

may have actual possession or constructive possession. A person 

may have sole or joint possession.

A person who has direct physical control over a thing on his 

person is in actual possession of it.

A person who, although not in actual possession, has both 

the power and the intention at a given time to exercise dominion or 

control over a thing, either directly or through another person or 

persons, is in constructive possession of it. . . .
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Whenever the word “possession” has been used in these 

instructions, it includes actual as well as constructive possession 

and sole as well as joint possession.

It is undisputed that Kidd had possession, if at all, on a constructive rather 

than actual basis. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (“The 

State may show the defendant had either ‘actual possession’ or ‘constructive 

possession’”). Because he was not the only person who lived in the home that 

was searched, we must determine whether there are any circumstances linking 

him to the firearm. See id. at 443. 

A reasonable juror could have found the following facts connecting Kidd to 

the firearm. The gun was discovered on the floor between a nightstand and a 

bed. On the second shelf of the nightstand were documents bearing Kidd’s 

name. On the same nightstand was a Bible also bearing Kidd’s name, as well as 

a baseball cap. A DNA sample taken from the cap was consistent with the 

known DNA profile of Kidd. On a crate in the bedroom was a wallet containing 

an Iowa ID and social security card belonging to Kidd. The ID card listed the 

searched home as Kidd’s address. The closet in the bedroom contained men’s 

clothing and no women’s clothing. 

These facts amount to substantial evidence in support of a finding that 

Kidd constructively possessed the gun found between the bed and nightstand. 

Accordingly, Kidd was not entitled to judgment of acquittal on the possession 

charge.

IV. Ineffective Assistance

Kidd contends his trial attorney was ineffective in failing to (a) file a motion 

to suppress evidence obtained during the search of the home, (b) object to 
13

evidence concerning a filed-off serial number on the gun, and (c) object to 

statements that he was in custody. We find it unnecessary to address these 

issues in light of our remand for a new trial.

V. Disposition

There is substantial evidence to support the jury’s finding of guilt. 

Accordingly, judgment of acquittal is not warranted. We find an abuse of 

discretion in the admission of prior-bad-acts evidence, which requires reversal 

and a remand for a new trial. We find it unnecessary to address the remaining 

issues raised on appeal. 

REVERSED AND REMANDED.