Opinion
No. 1-003 / 99-917.
Filed February 28, 2001.
Appeal from the Iowa District Court for Black Hawk County, JAMES BAUCH, Judge.
Roberts appeals his conviction for second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Rahschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kasey Wadding, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and VOGEL and MAHAN, JJ.
Andrea Darnell Roberts appeals his conviction for second-degree sexual abuse.
I. Background Facts and Proceedings .
Roberts was charged with this offense for allegedly performing a sex act upon his five-year-old stepdaughter, J.M. The State's evidence included medical test results indicating both Roberts and J.M. tested positive for gonorrhea. Roberts unsuccessfully moved to suppress this evidence, citing the unreliability of the testing procedure and the resulting destruction of the substances tested. Roberts denied sexually abusing J.M. His evidence implicating two others with histories of sexual abuse and access to J.M. was excluded by the trial court's ruling on the State's motion in limine.
Roberts was convicted as charged. On appeal he challenges the trial court's ruling admitting gonorrhea test results and excluding evidence implicating others as J.M.'s abusers. Roberts also claims the court's judgment failed to properly account for the jail time he served pending trial.
II. Standard of Review .
Our review on evidentiary issues is for abuse of discretion. State v. Taylor, 516 N.W.2d 38, 40 (Iowa Ct.App. 1994). In order to show an abuse of discretion, one generally must show the court exercised its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id.
III. Admissibility of Test Results .
Roberts argues that the district court erred in admitting the results of his gonorrhea test because the testing procedure used was not the most reliable test available. We have in similar circumstances held that the question is not whether the particular test used is the best or most fool-proof test available. State v. Nelson, 480 N.W.2d 900, 903 (Iowa Ct.App. 1991). Rather the question is whether the testimony will aid the trier of fact in resolving a particular issue. Id.
In denying Roberts's motion to suppress, the district court found as follows:
As to the reliability of the test and the danger that it may confuse or mislead the jury, the Court has considered all of the relevant factors set out in United States v. Williams, 583 F.2d 1194 (1978); United States v. Downing, 753 F.2d 1224 (1985); and United States v. Jakobetz, 955 F.2d 786 (2d Cir. 1992). Although the test performed on Defendant, his wife, and stepdaughter is not the most reliable test available, it is a very reliable test. Persons in the medical professions find it acceptable to a reasonable degree of medical certainty. In a population of 10,000 persons where 200 are infected with gonorrhea and 9,800 are not, the test is expected to result in a false positive 49 times according to the most recent study (Defendant's Exhibit 1) at page 1178. 49 false positives out of 9,800 possible false positives is an error of 1/2 of 1 percent. . . . The fact that a more reliable test exists may go to the weight of this evidence but should not preclude its admission.
The record includes expert testimony supporting these findings. Although Roberts's expert testified that more discriminatory tests were preferred in a litigation context, there was no dispute concerning the reliability of the test used for diagnostic purposes. Under these circumstances, admission of the test results was not an abuse of discretion.
We also reject Roberts's claim that the destruction of samples used in the disputed diagnostic testing requires exclusion of the test results. Roberts cites no evidence indicating, nor will we presume, the State acted in bad faith. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997) (failure of State to preserve potentially useful evidence does not justify exclusion in the absence of bad faith).
IV. Evidence Implicating Other Persons .
Iowa Rule of Evidence 404(b) provides as follows:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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.
In applying rule 404, our primary task is to determine whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts. State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987). Courts have not limited their application of this principle to defendants alone. Rather, this analysis has been extended to witnesses in general and, more specifically, to cases in which a defendant wishes to introduce evidence of wrongdoing by another person in order to establish his or her own innocence. State v. Roth, 403 N.W.2d 762, 765 (Iowa 1987); State v. Nebinger, 412 N.W.2d 180, 186 (Iowa Ct.App. 1987). However, evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that such other person committed the offense. State v. Wilson, 406 N.W.2d 442, 447 (Iowa 1987); Nebinger, 412 N.W.2d at 186.
In finding that the prejudicial impact of the evidence "would far outweigh the probative value," the court noted that "what we have here is nothing more than mere suspicion that somebody is convicted of a crime; and, therefore, they have done something bad in the past so they must have done something bad now." We agree with this analysis. Roberts offers no substantive evidence linking these persons to the crime except their general propensity to commit similar wrongful acts. We accordingly affirm the district court on this issue.
V. Credit for Time Served .
Our review on this issue is for correction of errors at law. Iowa R. App. P. 4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
We find it sufficient to note this issue was effectively resolved against Roberts in State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000) (rejecting the defendant's "contention that the trial court must, at sentencing or as part of a written judgment entry, announce the credit to which the defendant is entitled for time served").
The judgment of the district court is affirmed in its entirety.
AFFIRMED.