author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. John Arthur WEATHERLY, Appellant.
    No. 02-0904.
    Supreme Court of Iowa.
    April 7, 2004.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
   CADY, Justice.

John Arthur Weatherly was convicted of conspiracy to manufacture methamphetamine in an amount greater than five grams and two counts of interference with official acts causing bodily injury. On appeal, he challenges the sufficiency of the evidence underlying his conspiracy conviction. The court of appeals determined that insufficient evidence existed to uphold the conviction and reversed the district court’s judgment and sentence on that count. We granted further review and now vacate the court of appeals decision and affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Early in the morning on February 12, 2002, Des Moines police officers David Smith (Smith) and Jordan Roling (Roling) were dispatched to the vicinity of the Cozy Rest Motel on the east side of Des Moines on a matter unrelated to this appeal. While outside the motel, the officers detected the distinct odor of ether, which they believed indicated the presence of a methamphetamine manufacturing operation (meth lab). Smith walked to the rear of the motel where he saw a fan blowing through an open, second-floor window. This circumstance farther raised the officers’ suspicions that a meth lab was being operated at the motel. After the officers completed their investigation into the matter for which they originally had been dispatched, they returned to the motel with two additional officers: Eric Hartman (Hartman) and Scott Neely (Neely).

As the officers approached the motel, they observed a man and woman walking down an attached stairwell. The man was later identified as the appellant, John Arthur Weatherly (Weatherly). The officers engaged the couple and noticed both smelled of ether. Smith asked which room the couple had come from and they indicated room thirty-seven. Smith and Hartman went upstairs to the room. As they approached the room, they again smelled ether and noticed a garbage can outside the room in which there was at least one item — a can of camping fuel — commonly associated with meth manufacturing. Upon smelling ether and seeing this item, Smith signaled to the officers below to handcuff Weatherly and the woman.

As Neely attempted to handcuff Weath-erly, he slipped out of the coat he was wearing and ran from the officers. Hartman and Neely gave chase and eventually captured him. The officers returned Weatherly to the scene and searched the coat he had left behind in his attempt to escape. In one of the pockets of the coat, the officers discovered the bottom half of a twenty-ounce clear plastic pop bottle that contained a coffee filter “which smelled of ether.”

At the same time Weatherly was being chased, Smith knocked on the door to room thirty-seven. A woman opened the door, and as she did, Smith was struck again by a strong ether odor. Smith entered the room and handcuffed the woman. He then saw elements of what he believed was a meth lab in plain sight. A further search of the room revealed more items commonly used to manufacture meth. Smith left the room and the vice and narcotics unit was called in. A subsequent investigation revealed that neither Weath-erly nor the two women had rented room thirty-seven. Instead, another man, who was not present, had rented it.

Meanwhile, Weatherly was placed in a police car. While in the vehicle, Weatherly told Neely and Hartman that he was a “needle addict,” that his addiction was why “he was doing meth,” and “that he was willing to talk to anybody” but would talk to the vice and narcotics unit in particular to “give them names.” He also stated that he had run from the scene because “he was using meth and he had been shooting meth” and “knew he was doing something wrong.” Neither of the women arrested with Weatherly made any comments about using or manufacturing meth.

An officer from the vice and narcotics unit arrived and searched the room. He found a coffee filter in the sink; a can of starting fluid, a box of coffee filters, and the top of a twenty-ounce clear plastic pop bottle in a wastebasket; a glass jar sitting next to the wastebasket; two additional bottom halves of twenty-ounce clear plastic pop bottles; a plastic Tupperware container that held a solid white substance and a liquid; a plastic pill bottle containing salt; a capped twenty-ounce green plastic pop bottle; a piece of rubber tubing with a green cap attached; several additional coffee filters; a spoon with a white residue on it; and a small calculator. The officer also found a small baggie of marijuana in another plastic pill bottle on a bedside table and a marijuana pipe stowed between the mattress and box spring of the bed. The officers’ searches of the room and Weath-erly did not uncover a syringe or syringes.

Weatherly was charged by trial information with conspiracy to manufacture a controlled substance and manufacturing a controlled substance in violation of Iowa Code section 124.401(1) (2001) and two counts of interference with official acts causing bodily injury in violation of Iowa Code section 719.1(1). Testimony at trial revealed that the room contained the makings of a functioning meth lab. Additional laboratory analyses revealed that several of the items held certain chemical compounds indicative of stages of meth production even though a final stage had not been fully completed and there was only a very small amount of usable meth found at the scene. An officer also testified that the set of items found in the motel room was unusual in light of the size of the plastic bottles found at the scene and the way in which many of the bottles had been cut and modified for use in the manufacturing process. The officer explained that most meth labs included larger, two-liter plastic pop bottles or, more often, glass bottles rather than twenty-ounce plastic pop bottles.

A jury convicted Weatherly of conspiracy to manufacture meth in an amount greater than five grams and the two counts of interference causing bodily injury. The district court sentenced Weatherly to a term not to exceed twenty-five years with a mandatory minimum sentence of one-third of the twenty-five-year term. See Iowa Code §§ 124.413, 902.9(1), 903.1(1)(6); see also id. § 901.10.

Weatherly appealed, claiming there was insufficient evidence to support his conspiracy conviction. He asserted the State failed to show an agreement to manufacture meth between Weatherly and another. He also claimed his trial counsel was ineffective for a number of reasons. We transferred his appeal to the court of appeals.

The court of appeals found there was insufficient evidence of a conspiracy to manufacture meth based on our opinion in State v. Speicher, 625 N.W.2d 738 (Iowa 2001). Because of its disposition of the conspiracy issue, the court of appeals did not reach Weatherly’s ineffective assistance of counsel claims. The State sought further review, which we granted. We now vacate the court of appeals decision and affirm the judgment and sentence of the district court.

II. Standard of Review.

“Because a jury verdict is binding on us when supported by substantial evidence,” we review challenges to the sufficiency of the evidence underlying the verdict for correction of errors at law. Id. at 740. In undertaking our review, we apply several well-established principles:

Evidence is substantial if it could convince a rational jury of a defendant’s guilt beyond a reasonable doubt. In making an assessment of the sufficiency of evidence, we are obliged to view the record in the light most favorable to the State. But we must consider all the evidence in the record, not just the evidence supporting guilt.
Although direct and circumstantial evidence are equally probative, the inferences to be drawn from the proof in a criminal case must “raise a fair inference of guilt as to each essential element of the crime.” Evidence is not substantial if it raises only suspicion, speculation[,] or conjecture.

Id. at 741 (citations omitted).

III. Conspiracy to Manufacture Meth.

Weatherly was charged with violating the “conspiracy alternative” of Iowa Code section 124.401(1). See State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). To prove Weatherly conspired to manufacture meth,

the State was required to show that (1) [Weatherly] agreed with [another] that one or both of them would manufacture or attempt to manufacture a controlled substance, in this case methamphetamine; (2) [Weatherly] entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine, a class “B” felony; (3) [Weatherly] or [another] committed an overt act to accomplish the manufacturing of methamphetamine; and (4) [the other], the alleged co-conspirator, was not a law enforcement agent or assisting law enforcement when the conspiracy began.

Speicher, 625 N.W.2d at 741. Here, as in Speicher, the fighting issue is whether an agreement to manufacture meth existed between Weatherly and another. See id. In Speicher, we made a number of observations on the agreement element that are applicable to this case:

[Our] [p]rior decisions have described an agreement to form a conspiracy as a “concert of free wills,” “union of the minds of at least two persons,” and “a mental confederation, involving at least two persons.” Both direct and circumstantial evidence may be used to prove such a meeting of the minds. Circumstantial evidence includes the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence. Importantly, an agreement need not be — and often times is not — formal and express. A tacit understanding — one “inherent in and inferred from the circumstances”— is sufficient to sustain a conspiracy conviction.

Id. at 741-42 (citation omitted).

Weatherly contends our opinion in Speicher controls his appeal and directs a conclusion that insufficient evidence existed to support his conspiracy conviction. In Speicher, police officers observed the defendant smoking a cigarette outside of the garage of a home owned ■ by Kelly Page. Id. at 740. Police suspected the garage was being used to manufacture meth because they could smell ether around the garage. Id. The police subsequently observed Speicher and Page enter the garage and eventually leave together. Id. As the two men exited, they detected the presence of the police and ran. Id. After they were captured, Page gave the officers permission to search the garage. Id. In consenting to the search, Page stated, “ T may as well sign [the consent-to-search form], but I want you to understand that I was manufacturing the meth for my oim use.’ ” Id. (emphasis added). The search divulged “numerous devices and items used to make” meth, including “one air-purifying respirator and a pair of work gloves.” Id. (emphasis added).

Both Page and Speicher were charged with conspiracy to manufacture meth and Speicher was later convicted after a jury trial. Id. We reversed his conspiracy conviction. Id. at 743. We determined that “substantial circumstantial proof of conspiracy ... [was] woefully.missing in the record.” Id. at 742. We observed that a rational juror could find that Speicher. was in the garage where a meth lab was located, smelled of ether, and ran when made aware of the police. Id. We concluded, however, that these and other factors would only “permit a jury to infer from Speicher’s presence in the garage that he knew Page was mantifacturing methamphetamine.” Id. at 742. No further evidence existed to show “that Speicher agreed with Page to participate ,in the manufacturing process.” Id. at 742-43 (emphasis, added).

The holding in Speicher instructs that proof of a conspiracy to manufacture meth is not established when two people are seen together at a meth lab, smell of ether, and flee after seeing the police. Additional evidence is needed to show, conspiracy between the two or another person. However, Speicher does not control the outcome of this case simply because of the factual similarities of two persons, smelling of ether, walking from a meth lab, followed by flight. The task in this case is to search for the existence of additional evidence, absent in Speicher, to support a conspiracy.

Conspiracy is an inherently fact-based crime, and a close examination of the facts and circumstances of this case reveal several additional facts not present in Speicher. These factors and others, including Weatherly’s flight from the scene, constitute substantial evidence that he agreed with another person to manufacture meth. Id. at 741.

It is significant that Weatherly carried a distinctive portion of the meth lab with him as he left the motel. This fact supported an inference that he was engaged in the manufacturing of meth. Additionally, the circumstances revealed substantial evidence that Weatherly was involved with another in the manufacturing process. The single most important factor supporting a conspiracy was that another person, not Weatherly, rented the room. This is important because the activity in the room gave rise to an inference that the primary, if not sole, purpose for the room was to manufacture meth. At the time Weatherly was apprehended it was 3:45 a.m. and the meth lab was in full operation. This evidence not only supports a strong inference that the purpose of obtaining the room was to manufacture meth, but it also supports the inference that more than one person was involved in the process. Additionally, Weatherly made statements to the police that implied other persons were involved in the meth operation. The jury could find his further statement to police that he was only a “needle addict” was untrue and was made to disassociate himself as a participant in the operation. This false statement not only supports an inference of his knowledge of the meth operation, but also his participation in the meth operation with the other persons he implied were involved.

Ultimately, each of these factors distinguishes this case from Speicher and provides substantial evidence that Weatherly agreed with another “to participate in the manufacturing process.” Id. at 743. A rational jury could reach this conclusion based on the evidence presented and be convinced of Weatherly’s guilt beyond a reasonable doubt. See id. at 740. Sufficient evidence existed to support Weatherly’s conviction for conspiracy to manufacture meth.

IV. Ineffective Assistance of Counsel.

In light of our conclusion on the sufficiency of the evidence underlying Weatherly’s conspiracy conviction, it is necessary to also consider his claims of ineffective assistance of counsel. Ineffective assistance of counsel is established when a defendant shows that “(1) trial counsel failed to perform an essential duty and (2) [the defendant] was prejudiced by counsel’s errors.” State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003). “Failure to prove either of these elements is fatal to a claim of ineffective assistance.” Id. Our analysis launches from a presumption “that trial counsel acted within the normal range of competency.” Id. Prejudice is established by proof “that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. (citation omitted). Our review of claims of ineffective assistance of counsel is de novo in light of the constitutional dimensions of the claim. See id. We typically preserve claims of ineffective assistance of counsel for postconviction relief, but we will consider and dispose of ineffective assistance claims on direct appeal where an adequate record exists from which to analyze a claim so as to preserve valuable judicial resources. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001).

Weatherly claims he was provided ineffective assistance of counsel due to his trial counsel’s failure to move — either before trial or in the course of the trial — to exclude evidence of the marijuana and marijuana pipe found in room thirty-seven and the failure to raise a host of constitutional challenges to Iowa Code section 901.10, under which he was sentenced. Weatherly’s constitutional allegations are based on the assertion that section 901.10 violates federal and state constitutional guarantees related to jury trials and prohibitions against coerced guilty pleas, self-incrimination, oppressive punishment, and cruel and unusual punishment.

In State v. Biddle, 652 N.W.2d 191, 199-203 (Iowa 2002), we encountered and rejected several of the same constitutional challenges to Iowa Code section 901.10 that Weatherly raises in the context of his ineffective assistance of counsel claim. Therefore, in light of Biddle, Weatherly was not provided ineffective assistance of counsel insofar as his counsel failed to challenge the constitutionality of Iowa Code section 901.10 on federal and state constitutional grounds related to jury trials, coerced guilty pleas, self-incrimination, or oppressive punishment. See State v. Welch, 507 N.W.2d 580, 584-85 (Iowa 1993). One issue that we did not fully encounter in Biddle is the claim that Iowa Code section 901.10 constitutes cruel and unusual punishment under both the Eighth Amendment to the federal constitution and article one, section seventeen of the Iowa Constitution. We believe this issue deserves a fuller consideration than what we can provide with the record before us, so we preserve this claim for postconviction relief proceedings. We also preserve the claim of ineffective assistance of counsel relating to the admission of the marijuana evidence at trial. An additional record is needed to determine if trial counsel’s actions fell within the exercise of judgment. See Heuser, 661 N.W.2d at 166.

V. Conclusion.

Sufficient evidence existed for the jury to conclude Weatherly conspired to manufacture meth. While most of Weatherly’s claims of ineffective assistance of counsel are without merit, we preserve his claim related to cruel and unusual punishment and the admission of the marijuana evidence. Weatherly has not appealed his two convictions for interference with official acts. On the basis of each of these conclusions, we vacate the court of appeals decision and affirm the judgment and sentence of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . Weatherly also asserted that his counsel was ineffective to the extent he failed to preserve Weatherly's primary claim related to the sufficiency of the evidence underlying his conspiracy conviction. Given that his sufficiency claim was preserved, Weatherly’s claim for ineffective assistance based on this ground is eliminated.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Andrew Marcus SULLIVAN, Appellant.
    No. 02-0542.
    Supreme Court of Iowa.
    April 7, 2004.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Bob DiBlasi, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

Andrew Marcus Sullivan appealed his conviction and sentence for possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(<¾ (2001). Among other things, Sullivan contended the district court abused its discretion when it admitted evidence of a prior bad act. We transferred the case to the court of appeals, which reversed and remanded for a new trial. The State sought further review, which we granted. On further review, we affirm the court of appeals decision, reverse the district court judgment, and remand the case for a new trial.

I. Background Facts and Proceedings.

On the morning of October 17, 2001, West Des Moines Police Officer Jeffrey Hartshorn received a telephone call from the manager of Hamlet Apartments in West Des Moines. The manager told the officer that a tenant had complained about an odor of marijuana in the hallway.

Officer Hartshorn and Officer Jason Bryan went to the apartment. When the officers arrived, they smelled the odor of burnt marijuana in the hallway as the manager had reported. They noted that the smell was stronger around the door to apartment twenty-six.

When the officers knocked On the door to the apartment, Sullivan responded. Sullivan told the officers there was only one other person in the apartment. He denied he was a tenant but said “Chris,” who was inside the apartment, was a tenant. The officers asked to speak with Chris, and Sullivan gave them permission to enter the apartment for that purpose.

After entering the apartment, Officer Hartshorn followed Sullivan to the bedroom where Chris Greteman was located. Officer Bryan waited in the living room. Dawn Frink-McCall was also in the bedroom with Greteman. The two were the tenants listed on the lease for the apartment. Officer Hartshorn located another individual, Brian Fasbender, in another bedroom. Fasbender said he was living in the apartment and paying rent but had not signed the lease.

When Officer Hartshorn returned to the entry area of the apartment with the four individuals, Officer Bryan told him that he had seen items consistent with marijuana in the living room, some in a blue fish plate on an end table and some in a white Frisbee on the floor. There were also some Swisher Sweets cigar boxes on an end table, some “blunts” (cigars whose contents have been emptied and refilled with marijuana), and a stack of money ($515) on the floor by the chair. At trial, Officer Hartshorn testified that the items found in the living room were consistent with use of marijuana but were not packaged for individual sale. Sullivan admitted to the officers that he was sleeping in the living room.

Greteman and Frink-McCall at first denied the officers permission to search the apartment. Officer Hartshorn then arrested all of the individuals for possession of marijuana and requested assistance from the narcotics unit.

When the narcotics unit arrived, Sullivan and Fasbender were transported to jail. Greteman and Frink-McCall agreed to talk to the narcotics detectives, and Greteman eventually consented to the search of the apartment.

The detectives found a baggie of nearly an ounce of marijuana in a freezer located in the kitchen. They also found a marijuana pipe and one pack of Zig Zag cigarette papers, commonly used to roll marijuana cigarettes. In the bedroom where Grete-man and Frink-McCall were located, the detectives found crack cocaine in a cup on a closet shelf, plastic baggies, and an empty box of baggies. Plastic baggies were also found in the living room.

None of Sullivan’s belongings were found in the bedroom shared by Greteman and Frink-McCall. And there was no evidence suggesting that Sullivan had been in the kitchen.

Don Simpson, narcotics detective with the City of Urbandale, testified that the baggie of marijuana found in the freezer and the crack cocaine found in the bedroom were not consistent with personal use. The detective also conceded the amount of marijuana could be consistent with personal use. Detective Simpson further testified that he believed the baggies were used for the packaging of illegal drugs although no drug substances were found in the baggies. In addition, the detective testified that in his experience people not only smoke the “blunts,” but also sell them. Detective Logsdon testified that he believed the money found in the living room was proceeds from the sale of illegal drugs.

Eventually, Sullivan was charged and tried for possession of a controlled substance (marijuana) with intent to deliver, possession of a controlled substance (crack cocaine) with intent to deliver, and failure to possess a drug tax stamp for the crack cocaine. The State also sought a sentencing enhancement based on Sullivan’s status as a second or subsequent offender.

The parties tried the case to a jury. During trial, the State offered the following testimony from Detective Simpson, which the court received over Sullivan’s objections:

Q. Now, were you present when ... Detective Logsdon interviewed Andrew Sullivan? A. Yes, I was.
Q. And what did Mr. Sullivan tell you about the marijuana? A. After he waived his Miranda rights he stated that he brought back an ounce of marijuana from Davenport.

Later, pursuant to Iowa Rule of Evidence 5.404(6), the State sought to offer testimony from Barbara Maness, Sullivan’s attorney in a prior case of possession with intent to deliver, to establish Sullivan’s knowledge and intent in the present case. The court allowed the testimony so long as it was limited to facts underlying the conviction and no mention of the criminal proceedings or attorney relationship was made. The court stated the evidence was not being offered to prove conformity of conduct, rather it was offered to show Sullivan knew what he was doing. The court then admitted the following testimony from Maness over Sullivan’s objection under rule 5.404(6):

Q. All right. And is it fair to say that during the course of your relationship with Mr. Sullivan he admitted to you possessing crack cocaine with intent to deliver? A. Yes, I heard him make those admissions.
Q. And was that back in 1998? A. Yes.
Q. Could you tell the jury what he said to you as far as his admission goes? A. I heard him say that he was in possession of crack cocaine, that his intent was to deliver it.

At the close of the State’s case, the court granted Sullivan’s motion for judgment of acquittal on possession of crack cocaine with intent to deliver and failure to possess a drug tax stamp for crack cocaine. The court denied the motion on possession of marijuana with intent to deliver. Sullivan did not offer any evidence and renewed his motion for judgment of acquittal, which the court denied.

The jury found Sullivan guilty of possession of marijuana with intent to deliver, and following sentencing, Sullivan appealed.

We transferred the case to the court of appeals, which reversed and remanded for a new trial. The court of appeals determined the district court abused its discretion when it admitted testimony from attorney Maness about Sullivan’s 1998 admission that he possessed crack cocaine with intent to deliver it. We granted the State’s application for further review.

II. Prior Bad-Acts Evidence.

At issue here is the district court’s admission of evidence that in the past Sullivan possessed crack cocaine with the intent to deliver it.

The State contends such evidence was relevant to show Sullivan’s intent to deliver marijuana and therefore admissible pursuant to Iowa Rule of Evidence 5.404(6). Additionally, the State contends the probative value of such evidence was not substantially outweighed by the danger of unfair prejudice.

Not surprisingly, Sullivan contends the evidence was not relevant to any issue at trial, and even if relevant, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice.

A. Applicable law. Iowa Rule of Evidence 5.404(6) controls the admissibility of bad-acts evidence. It provides:

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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 5.404(6). Rule 5.404(6) codifies our common law on bad-acts evidence and is the counterpart to Federal Rule of Evidence 404(b).

For good reason, courts have long followed the rule against admitting bad-acts evidence to show “that the defendant has a criminal disposition in order to generate the inference that he committed the crime with which he is charged.” United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977). As the court in Myers said, “A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.” Id. This concept is “fundamental to American jurisprudence.” United States v. Foskey, 636 F.2d 517, 523 (D.C.Cir.1980).

Courts have also recognized the critical importance of guarding against inroads on the rule, not because bad-acts evidence has no probative value, but for the very reason that such evidence may have very substantial value not recognized in law. United States v. Goodwin, 492 F.2d 1141, 1155 (5th Cir.1974). For this reason, the public policy for excluding bad-acts evidence “is founded not on a belief that the evidence is irrelevant, but rather on a fear that juries will tend to give it excessive weight, and on a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.” United States v. Daniels, 770 F.2d 1111, 1116 (D.C.Cir.1985); see also Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218-19, 93 L.Ed. 168, 173-74 (1948).

Empirical studies have confirmed the courts’ fear that juries treat bad-acts evidence as highly probative. Daniels, 770 F.2d at 1116; see also Edward J. Imwink-elried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 581-82 (1990) (“[T]he available psychological studies indicate that once they have characterized the accused’s general character, the jurors are likely to attach great weight to that characterization in determining whether the accused acted ‘in character’ on the occasion of the charged offense.... Thus, having concluded that the accused is disposed to criminal misconduct, the jurors may ascribe great significance to that conclusion in deciding whether the accused committed the charged crime.” (Footnotes omitted.)) [hereinafter “Imwinkelried”]. Notwithstanding the popular notion that character is a good indicator of a person’s conduct on a given occasion, the empirical studies debunk this notion. Imwinkelried at 582. “Situational factors are often more determinant of human behavior,” and “[t]he upshot is that the jurors may give character far more weight than it deserves.” Id.

Bad-acts evidence diverts the jury’s attention from the question of the defendant’s responsibility for the crime charged to the improper use of the defendant’s bad character. United States v. Phillips, 401 F.2d 301, 305 (7th Cir.1968). Consequently, even if the trial court gives a carefully crafted instruction limiting the significance of such evidence, prejudice to the defendant is “well-nigh inescapable.” United States v. Carter, 482 F.2d 738, 740 (D.C.Cir.1973). Therefore the rule against bad-acts evidence is “ ‘just and wise’ in order to avoid the enormous danger of prejudice to the defendant that [such evidence] creates.... ” United States v. San Martin, 505 F.2d 918, 921 (5th Cir.1974).

Like the above authorities, this court has recognized the danger of bad-acts evidence. We have characterized rule 5.404(b) as “an exclusionary rule vis-á-vis evidence of other crimes or wrongful acts.” State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987). And this court has noted the types of prejudice our exclusionary rule seeks to avoid:

“(1) The over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts; (2) The tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses; ... (3) The injustice of attacking one necessarily unprepared to demonstrate that the attacking evidence is fabricated....”

State v. Cott, 283 N.W.2d 324, 329-30 (Iowa 1979) (citation omitted). Finally, we have recognized that a specific exclusionary rule such as rule 5.404(6) is necessary to exclude bad-acts evidence whose “only relevancy is to illustrate the character of the accused for purposes of establishing other actions in conformity with that character.” Barrett, 401 N.W.2d at 187. Such a rule is necessary, we said,

“not ... because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overper-suade them as to prejudice one with a bad general record and deny him a fair opportunity to defend against a particular charge.”

Id. (quoting Michelson, 335 U.S. at 475-76, 69 S.Ct. at 218, 93 L.Ed. at 174 (footnote omitted in original)).

So it is not surprising that we have required the State to establish the following conditions before bad-acts evidence can be considered admissible: (1) the evidence must be relevant and material to a legitimate issue in the case other than a general propensity to commit wrongful acts, and (2)there must be clear proof the individual against whom the evidence is offered committed the bad act or crime. State v. Roth, 403 N.W.2d 762, 765 (Iowa 1987); see also Barrett, 401 N.W.2d at 187.

If the bad-acts evidence is relevant and material to some legitimate issue in dispute, then it is prima facie admissible. State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001). Courts employ a two-step analysis to determine whether the bad-acts evidence is admissible. Id. First, the court must decide whether such evidence is relevant to a legitimate factual issue in dispute. Id. If the court determines the evidence is relevant to a legitimate factual issue in dispute, the court must then decide if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Id.; Iowa R. Evid. 5.403. An affirmative answer to the second question overcomes the evidence’s prima facie admissibility, and the court must exclude the evidence. Mitchell, 633 N.W.2d at 298-99.

B. Analysis. The challenged evidence here was that in 1998 Sullivan possessed crack cocaine with the intent to deliver it. The State contends the evidence was relevant to show Sullivan’s intent to deliver marijuana. In support of its contention, the State argues that under rule 5.404(5), bad-acts evidence is relevant and material where there is a legitimate issue on the question of intent. See Iowa R. Evid. 5.404(6).

1. Relevancy. Evidence is relevant when 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 test is ‘whether a reasonable [person] might believe the probability of the truth of the consequential fact to be different if [such person] knew of the proffered evidence.’ ” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (citation omitted) (first alteration in original). Evidence that is not relevant is not admissible. Iowa R. Evid. 5.402:

The State argues the consequential fact here is whether Sullivan possessed the nearly one ounce of marijuana found in the freezer with intent.to deliver it.

The first sentence of rule 5.404(6)

provides for the exclusion of evidence of a defendant’s other bad acts and crimes when that evidence is offered by the prosecution to prove that the defendant has a criminal disposition or a propensity for committing crime. The second sentence creates an exception for evidence offered not to prove character but some relevant issue in. the case, such as intent, identity, lack of accident, motive or some other noncharacter issue.- . :

Abraham P. Ordover, Balancing the Presumption of Guilt and Innocence: Rules 101(b), 608(b) and 609(a), 38 Emory L.J. 135, 135 (1989) (footnote omitted) (discussing Federal Rule of Evidence 404(b)) [hereinafter “Ordover”].

According to one writer, there are “frontal assaults on the first prong of the uncharged misconduct doctrine, prohibiting the prosecutor from offering evidence of an accused’s uncharged crimes on a character theory as circumstantial proof of conduct.” Imwinkelried at 577. The frontal assault is the use of an accused’s uncharged misconduct to prove the accused’s mens rea. Id. at 578. Use of an accused’s uncharged misconduct to prove the accused’s mens rea is “already the most widely used basis for admitting uncharged misconduct evidence” and “threaten[s] to expand the admissibility of uncharged misconduct to establish mens rea to the point that this use of the evidence may substantially undermine the character evidence prohibition.” Id. In short, one line of authority has gone so far as to advance “the proposition that the first sentence in rule 404(b) is automatically inapplicable whenever the prosecutor offers uncharged misconduct to support an ultimate inference of mental intent rather than physical conduct.” Id. (discussing Federal Rule of Evidence 404(b)); accord Ordover at 159 (“For the most part, courts do not look to see if the material is propensity evidence. So long as it is offered to prove intent, such evidence passes muster under [Federal] Rule 404(b) and can only be excluded pursuant to Rule 403.”).

The problem with this line of authority is that it

requires the jury to draw an intermediate inference as to the accused’s disposition or tendency to form a particular mens rea. The charged offense occurred at one time and place while the uncharged crime ordinarily occurs at a different time and place. To bridge the temporal and spatial gap between the two incidents, the prosecutor must assume the accused’s propensity to entertain the same intent in similar situations. That assumption is the inescapable link between the charged and uncharged crimes. The trier of fact can reason from the starting point of the uncharged crime to a conclusion about the mens rea of the charged crime only through an intermediate assumption about the accused’s character or propensity.

Imwinkelried at 583-84 (footnotes omitted).

Another writer likewise recognizes the danger of this line of authority:

The issue is whether the government should be permitted to offer other crimes committed by or allegedly committed by the defendant as evidence of his intent to commit the specific crime now charged. Overwhelmingly, the courts do admit just this sort of evidence on the issue of intent. However, opinions in the hundreds of cases on this subject are less than satisfying. For the most part, they are composed simply of conclusory statements without any supporting analysis....
It must be emphasized that we are not concerned with evidence of other crimes that are somehow connected to the crime charged in the indictment. Instead, we are dealing with a completely unconnected, but arguably similar, occurrence as probative of the intent to commit the specific crime now at issue.
... [E]vidence of an unconnected pri- or crime is always evidence of propensity and never evidence of a specific intent to commit the crime charged. Though an inference of general intent from the prior crime to the offense charged can be made, such an inference is based upon propensity, which is precisely the reasoning that is condemned by the statute and its philosophical underpinnings. This bold contention has the support of a few courts, but essentially flies in the face of conventional judicial wisdom on the subject.

Ordover at 156-57 (footnotes omitted).

The writer continues:

[WJhere the charge requires the prosecution prove a specific intent of the defendant to commit the specific crime charged, a prior unconnected similar act proves no more than a general intent. A general intent is propensity or character evidence, demonstrably different from evidence showing that the defendant had planned this crime on this day.
The conclusion that the defendant intended to commit this particular crime is the end product of a chain of inferences. It proceeds from the given proposition that the defendant at another place and time committed a crime similar to, but unconnected with, the present crime. From the proven fact — the “prior” — we are asked to infer that on a specific day and time this defendant had the specific intent to participate in the crime charged. The conclusion and its factual basis are widely separated. The gap can be bridged only by supplying an inference that the defendant has a tendency (that is, a propensity) to commit this kind of crime. It is this inference that is not permissible.

Ordover at 158; see also Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L.Rev. 988, 1032-33 (1938) (condemning this sort of reasoning as a perversion of the bad-acts evidence rule and stating that “[t]he broad rule, which seemed to give greater protection to the accused, has produced a rule depriving him of every shred of protection”).

Notwithstanding this trend, several federal circuits have recognized that bad-acts evidence should be tested against the exclusionary first sentence of Federal Rule of Evidence 404(b). See, e.g., United States v. Jenkins, 7 F.3d 803, 806-07 (8th Cir.1994) (barring evidence of prior drug-dealing where charge was drug-dealing); United States v. Cortijo-Diaz, 875 F.2d 13, 15-16 (1st Cir.1989) (barring evidence of prior attempted robbery conviction where charge was assault); United States v. Powell, 587 F.2d 443, 448-49 (9th Cir.1978) (barring use of prior conviction of possessing marijuana with intent to distribute where charge was possessing marijuana with intent to distribute it and conspiring to do the same); Thompson v. United States, 546 A.2d 414, 422-24 (D.C.1988) (admitting evidence of defendant’s prior drug-dealing to show intent held reversible error and stating that “[i]f proof of other crimes were admissible simply because intent must be shown, whether the defendant contests it or not, then such inherently prejudicial evidence would become routinely admissible ....”); see also 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5239, at 432 (Supp.1987) (stating that “the rule excludes evidence of other crimes in any case in which one of the inferences in the chain of circumstantial evidence is the inference from the act to the defendant’s character or propensity to commit crimes”).

Determining that the first sentence of rule 5.404(6) is automatically inapplicable whenever the prosecutor offers uncharged misconduct to support an ultimate inference of mental intent also creates a risk of prejudice to the accused:

[I]n attempting to decide at a conscious level whether the accused has a tendency to entertain a certain mens rea, the jurors may subconsciously conclude that the accused is a repulsive, immoral individual — the type of person who should be incarcerated even if there is a reasonable doubt of his guilt of the charged offense. Finally ... the jury can easily overestimate the probative value of the uncharged misconduct evidence.

Imwinkelried at 584 (footnotes omitted); see also Ordover at 185-36 (“Our ability to distinguish between the improper first-sentence purpose and the proper second-sentence purpose is frequently limited. The ability of a jury to use evidence admitted under the [Federal] Rule 404(b) exception for a proper purpose, at least in intent cases, is highly questionable. Moreover, the outcome of the trial will depend upon the procedure used in determining admissibility of the evidence, and upon the jury’s ability to follow the instructions of the judge. What has this to do with important public policy? Everything. It is the difference between giving defendants a fair trial and not.” (Footnotes omitted.)).

For these reasons, whenever the prosecutor offers uncharged misconduct to establish an ultimate inference of mens rea, the court should require the prosecutor to “articulate a tenable noncharacter theory of logical relevance.” Imwinkelried at 585. And absent such an articulation, the court should not admit the uncharged misconduct. Id. at 584-85. There are some factual situations where the prosecutor can easily develop a valid, noncharacter theory of admissibility. Id. at 585 (giving an example); see also Ordover at 157 (giving examples).

Until recently, we had not followed the lead of those courts that ignore the first sentence of the bad-acts evidence rule whenever the State offers bad-acts evidence to support an inference of specific intent. Rather, we had treated our rule 5.404(6) as an exclusionary one as it was meant to be. See, e.g., State v. Howell, 290 N.W.2d 355, 360 (Iowa 1980) (in prosecution for possession of controlled substance with intent to deliver, rebuttal testimony about defendant’s alleged prior drug sale was improper admission of prior crime); State v. Deanda, 218 N.W.2d 649, 651 (Iowa 1974) (evidence of subsequent marijuana sales by defendant was inadmissible in prosecution for delivery of a controlled substance); State v. Mullen, 216 N.W.2d 375, 377 (Iowa 1974) (in prosecution for delivery of marijuana, evidence of prior crimes of selling marijuana held inadmissible); State v. Wright, 191 N.W.2d 638, 639 (Iowa 1971) (admission of evidence showing that defendant, who was charged with stealing soybeans from farm, had participated in other soybean thefts in the neighborhood during several weeks preceding theft in question was reversible error).

We strayed from the exclusionary aspect of the rule in State v. McDaniel, 512 N.W.2d 305 (Iowa 1994). In that case, we held that evidence of an uncharged prior sale of marijuana was relevant to the intent issue in a prosecution for possession of marijuana with intent to deliver. McDaniel, 512 N.W.2d at 308-09. We approved the principle that “evidence of other illegal activities that tend to prove the [defendant’s] general propensity to deliver illegal drugs is relevant and should be admitted.” Id. at 308. We note this principle is the very thing that the proper application of the rule prohibits. This case ignored the first sentence of rule 5.404(6) and in effect turned the rule from one of exclusion to one of inclusion whenever bad-acts evidence is offered to prove specific intent. 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. Accordingly, we overrule McDaniel.

Here, the State offered a prior act of drug-dealing unconnected to the charge for which Sullivan was being tried without articulating a valid, noncharacter theory of logical relevance to support an ultimate inference of intent to deliver. Moreover, the temporal separation was three years, further casting doubt on the weight of this evidence. See State v. Casady, 491 N.W.2d 782, 785 (Iowa 1992) (remoteness of evidence affects its weight).

The State’s inherent argument for admitting the evidence was based on the character theory that if Sullivan entertained the intent to deliver during a similar prior incident, he probably harbored the same intent at the time of the charged offense. The evidence was therefore not admissible and for that reason the district court abused its discretion in admitting it. See Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000) (“We review a district court’s decision concerning the admission of relevant evidence for an abuse of discretion.”). Because we find the evidence was not admissible, we do not reach the second step of the analysis under rule 5.403, that is, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant.

2. Harmless error and Iowa Rule of Evidence 5.103(a). Our conclusion that the district court improperly allowed the bad-acts evidence does not end our inquiry because “[n]ot all evidentiary errors require reversal.... ” Shawhan v. Polk County, 420 N.W.2d 808, 810 (Iowa 1988). Consistent with this statement, Iowa Rule of Evidence 5.103(a) provides in relevant part: “Error may not be predicated upon a ruling [that] admits or excludes evidence unless a substantial right of the party is affected.... ” Iowa R. Evid. 5.103(a).

Before enactment of rule 5.103(a), this court applied what is commonly referred to as a harmless error analysis. The court recognized there were two harmless error analyses, one where a constitutional error is alleged and another where a nonconsti-tutional error is alleged. State v. Trudo, 253 N.W.2d 101, 107 (Iowa 1977). Here, we are dealing with a claim of nonconstitu-tional error.

Where a nonconstitutional error was claimed, the test for determining whether the evidence was prejudicial and therefore required reversal was this: “Does it sufficiently appear that the rights of the complaining party have been injuriously affected by the error or that he has suffered a miscarriage of justice?” Id. In applying this test, the court presumed prejudice when error appeared unless the contrary was affirmatively established. State v. Mattingly, 220 N.W.2d 865, 869 (Iowa 1974); accord Shawhan, 420 N.W.2d at 810; Lewis v. Kennison, 278 N.W.2d 12, 15 (Iowa 1979). However, where the defendant conceded the challenged evidence or the same evidence was overwhelmingly clear in the record, any error in the admission of the challenged evidence was deemed not prejudicial. Trudo, 253 N.W.2d at 108.

Rule 5.103(a) neither changed the test nor its application. See Iowa R. Evid. 5.103 cmt. (“Subparagraph[ ](a) ... of Rule 103 [now 5.103] [is] identical to existing Iowa law.”) (Second alteration in original.); Shawhan, 420 N.W.2d at 810. In further support of our conclusion that there has been no change in the test or its application, we view the language “a substantial right of the party is affected” in rule 5.103(a) as substantially similar to the language “the rights of the complaining party have been injuriously affected” in Trudo, 253 N.W.2d at 107.

The type of prejudice in our harmless error analysis differs from the rule 5.403 prejudice. As mentioned, rule 5.403 employs a balancing test, focusing on whether the prima facie admissibility of relevant evidence is overcome because the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to the defendant. The outcome of that balancing determines the admissibility of the evidence. If we conclude the district court was incorrect in applying the balancing test, we simply hold the district court abused its discretion in admitting the evidence.

In contrast, in a harmless error analysis where a nonconstitutional error is claimed, under rule 5.103(a) we presume prejudice — that is, a substantial right of the defendant is affected — and reverse unless the record affirmatively establishes otherwise.

Shawhan is a good example of where we employed rules 5.403 and 5.103(a) in tandem. 420 N.W.2d at 809-10. We first concluded that the district court abused its discretion under rule 5.403 in admitting the challenged evidence because it was unfairly prejudicial. Id. at 810. However, under rule 5.103(a) we concluded the evidence did not affect the substantial rights of the plaintiffs and for that reason was not prejudicial requiring reversal. Id.

Here, the record does not affirmatively establish a lack of prejudice. To the contrary, the evidence affirmatively establishes prejudice.

When jurors hear that a defendant, on earlier occasions, has committed essentially the same bad acts for which the defendant is on trial, “the information unquestionably has a powerful and prejudicial impact.” United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir.1994). And regardless of the stated purpose of such evidence, “the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered” — to convict the defendant because he or she is a bad person. Id.; see also United States v. Daniels, 770 F.2d 1111, 1118 (D.C.Cir.1985) (suggesting that “[t]o tell a jury to ignore the defendant’s prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond mortal capacities”); United States v. Burkhart, 458 F.2d 201, 204 (10th Cir.1972) (suggesting that “once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality”); State v. Daly, 623 N.W.2d 799, 803 (Iowa 2001) (suggesting that admitting evidence of prior conviction for impeachment purposes, which were exactly the same crimes for which defendant was on trial, “could very likely have a substantial effect on a jury, which, although instructed not to do so, could reasonably be expected to misuse the evidence as substantive proof of guilt”); Ordover at 177 (stating empirical studies show that introducing defendant’s criminal record increases likelihood of conviction).

In addition to the inherently prejudicial nature of the bad-acts evidence here, the properly admitted evidence was far from overwhelming that Sullivan possessed marijuana with intent to deliver.

Sullivan’s admission was the only substantial evidence that the State had to connect him with the marijuana in the freezer. The problem with that admission is that it is ambiguous at best. Although Sullivan admitted he “brought back an ounce of marijuana from Davenport,” that admission falls short of unequivocally tying that ounce of marijuana to the marijuana in the freezer. The jury would have to make that dubious connection.

Moreover, an ounce of marijuana is a small amount of a controlled substance, usually associated with personal use rather than drug-dealing. On this point, Detective Simpson presented a close question: He testified that while the amount of marijuana found in the freezer was inconsistent with such use, such an amount could be consistent with personal use. In addition, well-recognized indicia of drug-dealing, such as measuring scales and customer lists with amounts, were not found on the premises and connected to Sullivan. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). Given this state of the record, there was a likelihood that the jury would have concluded — absent the bad-acts evidence^ — the amount of marijuana was intended for personal use rather than for delivery.

Finally, despite the fact that $515 was found in the living room, there was no evidence the money belonged to Sullivan. In fact, there was testimony other parties claimed the money.

In sum, the State’s case was not so overwhelming that the State would have prevailed even in the absence of the boost it received when the jury heard that Sullivan had dealt crack cocaine several years before.

III. Disposition.

Because we conclude the district court abused its discretion in admitting Sullivan’s prior act of possessing crack cocaine with intent to deliver and such admission was prejudicial, that is, it affected his substantial rights, we reverse the judgment of the district court and remand the case for a new trial.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED FOR NEW TRIAL.


author: TERNUS, Justice.

text:
    In the Matter of the Albert B. CLEMENT and Vera V. Clement TRUST (Clement Charitable Trust). Mitchellville Community Center, Inc., Appellant, v. Paul E. Vos and Estellean Baldwin, Co-Trustees of the Clement Charitable Trust, Appellees.
    No. 01-2035.
    Supreme Court of Iowa.
    April 7, 2004.

      Robert C. Oberbillig, Des Moines, for appellant.

      Frank Murray Smith of Frank M. Smith Law Office, Des Moines, for appellees.
   TERNUS, Justice.

This appeal arises from the decision of the trustees of a charitable trust to deny funding for the construction of a community center in Mitchellville, Iowa. The nonprofit corporation building the community center claimed in this proceeding that the trustees acted unreasonably in revoking its offer of funding and in proceeding with efforts to construct a competing senior citizen center in Mitchellville. The district court ruled the trustees acted reasonably in refusing to contribute trust funds to the community center, but concluded the trustees’ action in using trust monies for construction of a senior citizen center in the same community was neither reasonable nor prudent. Both parties appeal. We affirm in part and vacate in part.

I. Background Facts and Proceedings.

Upon the death of Albert Clement in 1982, and pursuant to his will, the Albert B. Clement and Vera V. Clement Trust was created for the following purpose:

To sponsor programs and activities, that will be able to serve the Senior Citizens of the Northeastern portion of Polk County, and the Northwestern portion of Jasper County, and including but not limited to, the towns of Maxwell, Farrar, Santiago, Valeria, Ira, Mingo, Colfax, and Mitchellville.

According to the terms of the will, this trust was to be “managed and controlled” by the appellees, Paul E. Vos (Clement’s attorney) and Estellean Baldwin (Clement’s niece by marriage), as co-trustees.

During the first ten years of the trust, the trustees were required to manage the real estate and other property in the trust, using any excess income for the designated charitable purpose. Thereafter, they were allowed to “sell and convert into cash” the trust assets. Ten years after Clement’s death, the trustees were also “authorized and directed” to form a non-profit corporation that would be managed by the trustees and a three to five member advisory board to be appointed by the trustees.

In 1993, the trustees filed an application with the court asking whether the trust’s farm ground should be sold, whether a corporation should be formed to manage the trust’s affairs, and whether an advisory council should be appointed. The district court determined the farm was a good investment with a favorable rate of return and declined to order its sale. The court also found no reason to establish a corporation that would simply continue to operate the trust on the same basis as it had been managed the past ten years. The district court did not specifically address the trustees’ request concerning an advisory board.

In addition to managing the trust assets, the trustees sought to implement the testator’s charitable intent. Lacking express guidance in the will as to what programs and activities would serve the senior citizens in the identified geographical area, the trustees decided to contribute to community centers that housed a senior citizen center. In addition to funding the ongoing operation of the senior citizen centers, the trust contributed to the construction of buildings for such centers. They developed five basic requirements to guide their decisions. These were: (1) the plans for the senior citizen center must be approved by the trustees and the site adapted to assure maximum use for senior citizens; (2) the senior space must be named after Albert and Vera Clement; (3) the community must raise matching funds in an amount to be determined by the trustees; (4) the center must be available to senior citizens at no cost; and (5) the building must be owned by the community involved or by a tax-exempt organization so as not to jeopardize the trust’s non-profit, tax-exempt status. Between 1985 and 1991, the trust contributed to the construction of three community centers, one in Mingo, one in Bondurant, and one in Maxwell.

In 1994, a community group from Mitch-ellville submitted a proposal to the trustees, requesting funding for a new community building that would include a senior citizen center. Vos informed Mitchell-ville’s city manager of the requirements of the trustees for approval of the request, including that the trust “would need to be heavily involved in the planning of the building.” Vos later reviewed a proposed plan for the center and thereafter informed the community group that the trust would not commit any funds until certain specified changes were made.

In April 1995 a group of Mitehellville citizens incorporated the appellant, Mitch-ellville Community Center, Inc. (MCCI). According to its articles of incorporation, MCCI was organized to raise funds for a new community center, to own the land and building housing the center, and to manage the center. In May, Vos provided MCCI’s building committee with revised drawings prepared by the community group’s architect in collaboration with the trustees, together with explanations for the proposed changes. The committee agreed to most of the trustees’ suggestions except their desire to move the entrances to the building so as to more conveniently accommodate senior citizens.

On June 16, 1995, the trust notified MCCI of its terms for contributing to the community center. After noting the trustees’ objection to the location of the entrances and a few other minor details, the trust offered to contribute $50,000, provided the community raised $100,000 by August 31, 1995. The matching contributions were to come from private individuals and not from any taxing authority. In addition, the offer was contingent on (1) the building being owned by the city or a nonprofit corporation, and (2) the building being available to senior citizens throughout the day at no charge.

On August 21, 1995, the MCCI board of directors voted to proceed with the original building plan, but did not communicate this decision to the trustees. The trustees continued to operate under the belief that the community center was to be built with the changes approved by the building committee.

Meanwhile, on September 6, 1995, the trust revoked its offer to contribute to the building project because MCCI had failed to raise the required contributions and had not received IRS approval of its non-profit status by the end of August 1995. MCCI was told, however, that it could reapply for financial assistance. Notwithstanding this funding problem, MCCI proceeded with construction of the community center. Periodically MCCI wrote to the trustees, stating that it had now met the conditions imposed by the trustees and asking the trust to make the promised $50,000 contribution. Vos responded to the first such letter, stating again that the offer had been withdrawn when the conditions were not met by the deadline. The trustees did not reply to the other requests until March 13, 1997, when Vos notified MCCI that the trust planned to construct its own senior citizen center in Mitehellville. Vos also expressed the trustees’ dissatisfaction with MCCI’s decision to reject their suggested changes to the building plans, which he had discovered in a construction site visit, stating the trust’s contribution had always been contingent on those changes being implemented. In November 1997 the trust purchased a former grocery store in Mitehellville and announced to the general public its plans to remodel the building into a senior citizen center.

After an unsuccessful attempt to have the attorney general challenge the trust’s actions, MCCI filed a petition against the trustees, alleging they had unreasonably exercised their discretionary powers. MCCI specifically complained about Vos’s attempts to micro-manage the plans for the community center “well beyond the reasonable activities of a trustee,” and the trust’s subsequent refusal to contribute funds when MCCI did not make “all the minute changes requested by Vos.” In addition, MCCI criticized the trustees for making plans to build a senior citizen center in the same block as the community center, which was already serving the town’s elderly population. MCCI asked the court (1) to enjoin further trust expenditures absent court order; (2) to determine the trustees acted unreasonably and contrary to the terms of the trust; (3) to rule that the trust should have provided funding for the community center; (4) to require formation of the non-profit corporation as provided in the will; and (5) to consider removing Vos as a trustee.

After the trustees’ motion to dismiss based on MCCI’s alleged lack of standing was denied, the matter proceeded to trial. The court held the trustees had not strayed from the requirements of the will and the conditions imposed on MCCI’s funding request were not unreasonable. The court did, however, conclude the trustees abused their discretion when they expended monies to construct a separate senior citizen center in Mitchellville. Determining there was no showing that two centers were needed, the court directed the trustees to sell the Mitchellville property and apply the proceeds to existing senior citizen centers in the geographical area, or to the creation of new centers in the specified area.

With respect to Vos’s continuation as a trustee, the court acknowledged that he may have been over-zealous in carrying out the purposes of the trust, but decided his removal was not warranted. Finally, the court determined the will did not require the trust to sell its real estate and form a non-profit corporation. Nonetheless, the court concluded an advisory committee should be created.

II. Issues on Appeal.

MCCI raises four issues in its appeal: (1) the trial court erred in finding the trustees acted reasonably with respect to MCCI’s request for funding; (2) the court erred in failing to remove Vos as a trustee; (3) the court should have removed Baldwin as a trustee because she delegated her responsibilities to Vos; and (4) the trial court should supervise the selection of an advisory board. The trustees filed a cross-appeal. They assert MCCI had no standing to challenge their actions. In addition, they contend the court should have found that MCCI’s claim based on the trust’s denial of funding was barred by the statute of limitations. Finally, the trust argues the court erred in ruling the trustees had abused their discretion in planning a second senior citizen center in Mitchellville.

We will first consider the issue of standing, as it affects whether MCCI may properly maintain this suit. Because we conclude it only has standing to challenge the trustees’ refusal to provide funding after they had promised to do so, we also address whether the trustees acted properly in their decision to withdraw the trust’s financial support of the community center. Our resolution of these issues prevents the court from reaching the other issues raised on appeal or renders them moot.

III. Scope of Review.

An action for breach of a trustee’s duties is equitable in nature. See Iowa Code § 633.4501(2) (2001); Carstens v. Cent. Nat’l Bank & Trust Co., 461 N.W.2d 331, 333 (Iowa 1990) (“Generally, the remedies of a beneficiary against the trustee are exclusively equitable.”). Therefore, our review of the court’s rulings on these issues is de novo. See Iowa R. Civ. P. 6.4.

IV. Standing.

In a pretrial motion to dismiss, the trustees asserted that MCCI did not have a “special interest in the trust” within the meaning of Iowa Code section 633.5104 so as to have standing to bring suit against the trustees. The trial court overruled this motion, concluding MCCI was a proper party to bring this action “on behalf of the senior citizens of the Mitchellville area.” On appeal, we think MCCI had standing only to assert its claim that the trustees acted unreasonably in revoking their offer to contribute trust funds to construction of the Mitchellville community center. We hold the plaintiff did not have standing to protect the interests of senior citizens in the general administration of the trust.

We start our analysis with the Iowa Trust Code provision governing judicial intervention in the operation of trusts: “The administration of trusts shall proceed expeditiously and free of judicial intervention, except to the extent the jurisdiction of the court is invoked by interested parties or otherwise exercised as provided by law.” Iowa Code § 633.6201 (emphasis added). “The settlor, the trustee, the attorney general, and any charitable entity or other person with a special interest in the trust shall be interested persons in a proceeding involving a charitable trust.” Id. § 633.5104 (emphasis added); accord In re Trust of Rothrock, 452 N.W.2d 403, 405 (Iowa 1990); Restatement (Second) of Trusts § 391 cmt. d, at 280 (1959) (“A suit for the enforcement of a charitable trust cannot be maintained by persons who have no special interest in the enforcement of the trust.”).

“A charitable trust is one in which property is devoted to purposes beneficial to the community.” Amundson v. Kletzing-McLaughlin Mem’l Found. College, 247 Iowa 91, 94, 73 N.W.2d 114, 116 (1956); see Iowa Code § 633.5101 (identifying charitable purposes, including “the accomplishment of [a purpose] which is beneficial to the community”). The Clement Charitable Trust is a charitable trust within the meaning of the Iowa Trust Code because the trust was created for the support of programs and activities for senior citizens in the specified geographical area, a purpose beneficial to the communities in this locale. See Restatement (Third) of Trusts § 28 cmt. I, at 22 (2003) (stating the expansion of social and recreational opportunities for members of a community is a charitable purpose). Thus, to decide whether MCCI has standing to invoke the jurisdiction of the court, we must determine whether MCCI has a “special interest in the trust.” See Iowa Code § 633.5104.

In giving meaning to this statutory phrase, we keep in mind that the Iowa Trust Code is supplemented by the common law of trusts, “[ejxcept to the extent that [the trust code] modifies the common law governing trusts.” Id. § 633.1104. From our review of section 633.5104, the provision identifying those persons who may invoke the jurisdiction of the court, we conclude the only obvious change made in the common law was the addition of the settlor of the trust as an interested party. See Martin D. Begleiter, In the Code We Trust-Some Trust Law for Iowa at Last, 49 Drake L.Rev. 165, 292 (2001). Therefore, we look to our prior case law in deciding whether MCCI had a special interest that would allow it to maintain this suit.

It is well established that persons are not entitled to sue if their only benefit from enforcement of the trust is that shared by other members of the public. Amundson, 247 Iowa at 95, 73 N.W.2d at 117; accord Restatement (Second) § 391, cmt. <⅞ at 280. The community’s interest in the enforcement of a charitable trust must be vindicated by the attorney general. In re Estate of Ditz, 254 Iowa 444, 453-54, 117 N.W.2d 825, 830 (1962); Amundson, 247 Iowa at 96, 73 N.W.2d at 117. See generally Iowa Code § 633.5104 (stating attorney general is an “interested person[ ] in a proceeding involving a charitable trust”). This restriction is imposed to prevent frequent and disruptive litigation against charitable trusts. As the Missouri Supreme Court has noted,

The persons affected by such trusts are usually some or all of the members of a large and shifting class of the public. If any member of this class who deemed himself qualified might begin suit, the trustee would frequently be subjected to unreasonable and vexatious litigation .... Obviously, there is good reason for vesting in a single authority the discretion and power incident to the enforcement of such trusts, rather than in leaving the matter to the numerous, changing, and uncertain members of the group directly to be aided.

State ex rel. Nixon v. Hutcherson, 96 S.W.3d 81, 84 (Mo.2003).

For the same reason, “[t]he mere fact that a person is a possible beneficiary is not sufficient to entitle him to maintain a suit for the enforcement of a charitable trust.” Restatement (Second) § 391, cmt. c, at 279 (emphasis added); accord Warren v. Bd. of Regents, 247 Ga.App. 758, 544 S.E.2d 190, 193 (2001) (stating “those who can enjoy the status of beneficiaries only when selected by the trustees are generally held to have no right to initiate a suit for the enforcement of a charitable trust”). Thus, “individuals must show that they have a special or definite interest in the trust or are entitled to receive a benefit.” Forest Guardians v. Powell, 130 N.M. 368, 24 P.3d 803, 809 (N.M.Ct.App.2001). As one court has observed, “the necessary indefiniteness of charitable trust beneficiaries will leave few situations in which courts will hold that individuals have sufficient interest to have standing to sue for enforcement.” Kania v. Chatham, 297 N.C. 290, 254 S.E.2d 528, 530 (1979). Our research bears out this observation.

For example, a Delaware court held that adjoining landowners who objected to the proposed use of a trust’s real estate lacked standing, the court noting “plaintiffs are clearly not of that special class of trust beneficiaries who have standing to sue for their own special interest.” Pollock v. Peterson, 271 A.2d 45, 49 (Del.Ch.1970). In Warren, faculty members who objected to the university’s selection of a person to assume an endowed chair were denied standing, the court rejecting the idea that they could enforce the “charitable trust by virtue of their positions as faculty members arguably eligible to be selected ... to hold the [endowed chair].” 544 S.E.2d at 194. As a final example, the North Carolina Supreme Court refused to allow an unsuccessful candidate for a scholarship to sue the trustees of the charitable trust funding the scholarship, even though the plaintiff had made the initial cut to qualify for the award. Kania, 254 S.E.2d at 530. We highlight these cases simply to illustrate the difficulty in showing a special interest sufficient to support standing to sue a charitable trust.

In applying the special-interest requirement to the present case, we recognize that “[t]he meaning [of ‘interested person’ ”] as it relates to particular persons may vary from time to time according to the particular purpose of, and matters involved in, any proceeding.” Iowa Code § 633.1102(9); accord Associated Students of the Univ. of Or. v. Or. Inv. Council, 82 Or.App. 145, 728 P.2d 30, 33 (1986) (concluding that although plaintiffs had “a particular interest in the allotment of scholarships” from a charitable endowment, the allegations of their suit did “not relate to that interest” and so they had no standing); Lopez v. Medford Cmty. Ctr., Inc., 384 Mass. 163, 424 N.E.2d 229, 232-33 (1981) (finding standing as to some claims, but not as to others). Thus, in evaluating MCCI’s standing, we must consider the matters at issue in this action and whether MCCI has a special interest with respect to each of these matters.

MCCI made several claims and sought various types of relief in its suit against the trustees. It claimed the trustees acted unreasonably in refusing to donate trust funds to the construction of the Mitchell-ville community center and in attempting to control the details of construction. MCCI asked the court to construe the terms of the trust and order the trustees to fund MCCI’s center. MCCI also asked the trial court to order the formation of a non-profit corporation as suggested in the will, to remove Vos as a trustee, and to prohibit the trust’s construction of another senior citizen center in Mitchellville. Although we think MCCI had a special interest in the trustees’ decision to revoke their offer to contribute to the Mitchellville community center, we do not believe MCCI has an interest beyond that of the general public and other potential beneficiaries in the general administration of the trust.

Our conclusion that MCCI has some standing rests not on its purported ability to represent the senior citizens of Mitchell-ville, but rather arises from the trustees’ formal decision to contribute trust funds to MCCI’s building project. As a consequence of this commitment, notwithstanding that it was subject to conditions, MCCI became more than a possible beneficiary of the trust; it acquired a special interest in seeing that the trustees lived up to their promise. Thus, MCCI has standing to vindicate this interest, and only this interest, in this lawsuit.

In view of this conclusion, we agree with the district court’s denial of the trust’s motion to dismiss to the extent it permitted MCCI to pursue a claim against the trustees for revoking the trust’s funding of the community center. We disagree with that part of the trial court’s ruling on the trust’s motion recognizing standing by MCCI to challenge the general administration of the trust, including MCCI’s challenge to the trustees’ decision to build a senior citizen center in Mitchellville and to the trustees’ failure to set up a non-profit corporation and advisory board, as well as MCCI’s request that Vos be removed as trustee. These are matters that affect the public in general as much if not more than they affect MCCI and, therefore, MCCI is not entitled to sue for enforcement of the trust with respect to these issues. Based on MCCI’s lack of standing, we must vacate the district court’s final judgment to the extent it ruled upon and granted relief based upon these claims. Because we express no opinion on the merits of these questions, our decision does not preclude the probate court from addressing these issues in another context should these matters come before the court again.

V. Trustees’ Revocation of Fundinq Offer.

We turn now to MCCI’s claim that the trustees acted unreasonably in revoking the funding it offered to MCCI. MCCI identifies two particular ways in which it claims the trustees were unreasonable: (1) in insisting that their personal preferences with respect to the building plan had to be followed if MCCI was to receive funds from the trust; and (2) in setting a timetable of conditions unlike those that had been required of other communities, knowing the timetable could not be met.

Because the will setting up this charitable trust identified the beneficiaries of the trust quite broadly, the trustees had the discretion to select the specific beneficiaries. Iowa Code § 633.5101 (“If the terms of the trust do not indicate a particular charitable purpose or beneficiaries, the trustee may select one or more charitable purposes or beneficiaries.”); see In re Estate of Ditz, 254 Iowa at 450-52, 117 N.W.2d at 828-30 (finding trust did not fail for lack of specific beneficiaries since testator could rely on trustees to use their good judgment in choosing beneficiaries). When a trustee has discretionary power, the trustee must use that power “within the bounds of reasonable judgment and in accordance with applicable fiduciary principles and the terms of the trust.” Iowa Code § 633.4214(1). “Absent an abuse of discretion, a trustee’s exercise of discretion is not subject to control by a court.” Id. § 633.4214(2); accord Arnette v. Watson, 203 Iowa 552, 554, 213 N.W. 270, 271 (1927). Thus, we will not interfere with the administration of a trust based simply on a difference in judgment with respect to what should be done and who in particular should benefit from the trust. In re Clark, 174 Iowa 449, 455, 154 N.W. 759, 760 (1915); Restatement (Second) § 187 cmt. e, at 403.

In determining whether a trustee has abused his or her discretion in exercising or failing to exercise a power, we consider (1) the intended breadth of the trustee’s discretion under the trust instrument; (2) the purpose of the trust; (3) the nature of the power at issue; (4) “the existence ... of an external standard by which the reasonableness of the trustee’s conduct can be judged” and the definiteness of that standard; (5) “the motives of the trustee in exercising or refraining from exercising the power”; and (6) whether the trustee has an interest in conflict with the beneficiaries’ interest. In re Estate of Manahan, 255 Iowa 1060, 1066, 125 N.W.2d 135, 138 (1963); accord In re Tone’s Estate, 240 Iowa 1315, 1321, 39 N.W.2d 401, 405 (1949); Restatement (Second) § 187, cmt. d, at 403. When we apply these considerations, we conclude, as did the district court, that the trustees did not act unreasonably and did not abuse their discretion.

We first note that the testator gave the trustees broad discretion in determining what “activities and programs” would benefit the elderly in the designated geographical areas. The breadth of this discretion is magnified by the lack of any external, definite standard. Thus, it fell upon the trustees to impose conditions on any funding that would ensure the needs of senior citizens were in fact being addressed and met by the entities receiving trust monies. Many of the efforts viewed by MCCI as micro-managing by Vos were actually attempts by Vos to make certain that funds were not obtained under the promise that a senior citizen center would be established when in reality the recipient intended to use the .contribution to build a community center that would be available to elderly citizens on the same basis as any other members of the community. It appears Vos wanted to make sure senior citizens had a designated and identifiable space where they would feel comfortable and welcome. He also tried to ensure that conveniences seniors would need while at the center were available and easily accessible. These goals were consistent with the testator’s intent to promote programs and activities for senior citizens. Therefore, while Vos may have been over-zealous in this regard, as the trial court observed, we agree that he was not unreasonable.

MCCI complains that the conditions and timetable imposed on it were more onerous than those imposed on other communities receiving contributions from the Clement Charitable Trust. It is true that the trustees handled each situation somewhat differently, but not entirely so. As noted earlier the trustees developed five guidelines for funding projects that they applied to all applicants. While not all communities were given a deadline within which to comply with the conditions imposed by the trustees, funding for a community center in the town of Mingo was also contingent on the community’s ability to raise funds within a certain time period. Importantly, there is no cause to believe that the trustees had anything at heart in imposing conditions on their offer to MCCI other than their perception of the testator’s wishes and the special needs of the senior citizens who were to benefit from the trust’s expenditures.

Like the trial court, we conclude the trustees did not abuse them considerable discretion in requiring MCCI to meet the trust’s conditions in order to receive funding for its community center, including the imposition of a timetable for the accomplishment of those conditions. Nor did the trustees abuse their discretion in refusing to make a contribution when these conditions were not timely satisfied. The trustees clearly informed MCCI that it could reapply for a grant despite its initial inability to meet the requirements imposed by the trustees. The communications between the parties thereafter reveal that the stumbling block for funding was MCCI’s refusal to alter its building to accommodate the concerns of the trustees, a condition we have found not to be an abuse of the trustees’ discretion. Therefore, MCCI’s failure to meet the original deadline set by the trustees was, in the end, not the cause of its inability to obtain monies from the Clement Charitable Trust.

VI. Summary.

We affirm the trial court’s judgment that the trustees did not act “in an unreasonable or imprudent manner rising to the level of abuse of discretion in failing to make a grant to the Mitchellville Community Center Inc. in 1995 or 1996.” Because MCCI had no standing beyond its interest in obtaining the promised funding, we must vacate the remainder of the trial court’s judgment.

AFFIRMED IN PART ON APPEAL AND VACATED IN PART ON CROSS-APPEAL.

All justices concur except WIGGINS, J., who takes no part.

      . Although the Iowa Trust Code was adopted in 1999 with an effective date of 2000, see 1999 Iowa Acts ch. 125, § 109, it applies to all trusts whether or not created prior to enactment of the new trust provisions. See Iowa Code § 633.1106(1). Moreover, the Iowa Trust Code applies to all proceedings concerning trusts commenced on or after July 1, 2000. Id. § 633.1106(2). The petition in this case was filed on May 1, 2001.


author: /s/ Kathleen A. Blatz Chief Justice

text:
    STATE of Minnesota, Respondent, v. Christine LaFONTAINE, Appellant.
    No. C8-03-184.
    Supreme Court of Minnesota.
    April 29, 2004.
    Rehearing Denied May 20, 2004.
   ORDER

Based upon all the files, records, and proceedings herein, and upon an evenly divided court,

IT IS HEREBY ORDERED that the decision of the court of appeals filed August 19, 2003, be, and the same is, affirmed without opinion.

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice

ANDERSON, RUSSELL A., J„ took no part in the consideration or decision of this case.