State of Iowa v. Adan Sosa Puga

IN THE COURT OF APPEALS OF IOWA

No. 20-1184
Filed November 3, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ADAN SOSA PUGA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Allamakee County, Richard D.

Stochl, Judge.

A defendant appeals his conviction and sentence for third-degree sexual

abuse. CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Greer and Badding, JJ.
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BADDING, Judge.

Adan Sosa Puga was charged with sexual abuse in the third degree for a

sex act involving a teenage co-worker. At his jury trial, a different victim was

allowed to testify about a similar incident that occurred between her and Puga.

The jury found Puga guilty as charged, and he was sentenced to serve no more

than ten years in prison. No reasons were given for the sentence. Puga appeals,

challenging the admission of the prior sexual abuse, the failure to state reasons

for the sentence that was imposed, and a discrepancy between the oral

pronouncement of the sentence and the written judgment entry. We affirm the

conviction but vacate the sentence and remand for resentencing.

I. Background Facts and Proceedings

Fourteen-year-old M.D. was a waitress at a restaurant where Puga cooked.

On her day off, M.D. and a friend went to the restaurant to pick up food. When

they got there, Puga waved M.D. into the kitchen. She left her friend at the bar

and went back to talk to Puga. After some small talk, Puga grabbed M.D. He put

his hands on her buttocks, kissed her neck, and rubbed his penis on her vaginal

area through her clothes. M.D.’s friend walked into the kitchen and saw this

happen. She told M.D. they needed to go, and the two left the restaurant.

According to the friend, M.D. was “upset, embarrassed, [and] scared” after

this occurred. They told some other friends about what happened but not M.D.’s

parents or the police. One of those friends was fifteen-year-old R.K., who revealed

that Puga had done something similar to her several months earlier. R.K. was at

Puga’s house when he came up behind her, put his hands on her waist, and thrust

his penis into her buttocks while she was clothed. As she was walking out the front
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door, Puga spanked her on the buttocks. R.K. did not report this incident to the

police until after she got in trouble at school. During the investigation of R.K.’s

report, the incident with M.D. surfaced.

When questioned by police, Puga said that when M.D. went into the kitchen

to tell him hello, he raised his hand to give her a high five. But according to Puga,

M.D. put her arms out for a hug, so Puga hugged her. He denied grabbing her,

putting his hands on her buttocks, or rubbing his penis against her vaginal area.

Puga did not stick with this version at trial. He instead testified that when M.D.

came into the kitchen, he gave her the food with his left hand and patted her on

the back with his right hand. Puga did not talk about a hug or claim that any contact

was accidental during his testimony at trial.

In closing arguments, however, the State focused on Puga’s police-

interview version, asserting:

The defendant wants to say, well, no, this was—this was just a
misunderstood hug. But then we had fifteen-year-old [R.K.] come in
and testify that the defendant did a very similar act to her . . . . This,
ladies and gentlemen, was not an accidental hug or a touching,
innocent touching.

The jury returned a guilty verdict, following which Puga was sentenced to a

term of imprisonment not to exceed ten years. Puga appeals.

II. Scope and Standards of Review

“We review a district court’s evidentiary rulings regarding the admission of

prior bad acts for abuse of discretion,” although to the extent that constitutional

claims are at issue, our review is de novo. State v. Cox, 781 N.W.2d 757, 760

(Iowa 2010). Our review of sentencing decisions is for the correction of errors at
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law. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). When a sentence imposed

is within statutory limits, it will be affirmed absent an abuse of discretion. Id.

III. Prior Bad Acts Evidence

Puga claims the admission of R.K.’s testimony about a past act of sexual

abuse violates Iowa Rule of Evidence 5.404(b) and Iowa Code section 701.11

(2019), as well as the due process clause of the Iowa Constitution. We start with

rule 5.404(b)(1), which prohibits “[e]vidence of a crime, wrong, or other act . . . to

prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” The reason for this rule is not

grounded 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.” Cox, 781

N.W.2d at 760 (citation omitted). Yet evidence of other crimes, wrongs, or acts

may be admissible under rule 5.404(b)(2) if offered to show “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In sexual abuse cases, however, evidence of other acts of sexual abuse is

not limited to those categories. Id. at 761. Section 701.11 provides that “evidence

of the defendant’s commission of another sexual abuse is admissible and may be

considered for its bearing on any matter for which the evidence is relevant.” The

Iowa Supreme Court upheld the constitutionality of section 701.11 in State v.

Reyes, 744 N.W.2d 95, 102-03 (Iowa 2008), with respect to the admissibility of

other sexual abuse involving the same victim. The court reasoned the statute

passed constitutional muster as applied in that case because the evidence was

“not offered to show a general propensity to be attracted sexually to young girls,
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but instead to demonstrate the nature of the defendant’s relationship and feelings

toward a specific individual.” Reyes, 744 N.W.2d at 103.

The holding in Reyes was specifically limited to prior incidents involving the

same victim, leaving open the constitutionality of section 701.11 “where the prior

acts of sexual abuse involve persons other than the current alleged victim.” Id. at

102 n.1. That open question was decided in Cox, which held the due process

clause of the “Iowa Constitution prohibits admission of prior bad acts evidence

involving a different victim when admitted solely for the purpose of demonstrating

propensity. Instead, the evidence must be relevant to a ‘legitimate issue.’” 781

N.W.2d at 762. The court reasoned that a “focus on the criminal or aberrant

disposition of the defendant with regard to various victims is exactly the sort of

prejudice which the general rule seeks to avoid.” Id. at 767 (citation omitted).

Importantly, the court in Cox “did not hold that evidence of sexual abuse with

different victims is never constitutionally admissible under 701.11.” 7 Laurie Kratky

Doré, Iowa Practice Series: Evidence § 5.404:6.

For other acts of sexual abuse with a different victim to be admissible after

Cox, the analysis to be applied mirrors the general 5.404(b) analysis. See Cox,

781 N.W.2d at 769. The evidence must first be relevant to a legitimate issue in

dispute. See id.; see also State v. Putnam, 848 N.W.2d 1, 9 (Iowa 2014). Second,

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

committed the bad act or crime.” Putnam, 848 N.W.2d at 9 (citation omitted). And

third, the court must determine whether the evidence’s probative value is

substantially outweighed by the danger of unfair prejudice to the defendant. Id.
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A. Relevance

The State asserts the district court correctly found the evidence was

relevant to establish that Puga’s contact with M.D. was sexual and not accidental.1

But Puga argues that was not a legitimate issue in dispute because “it was only

the State referencing accidental touching and a ‘misunderstood hug’ in its closing

arguments.” We reject this argument for several reasons.

First, it is not entirely accurate. On cross-examination, after M.D. testified

that she was sure she felt Puga’s penis rub against her vaginal area, defense

counsel insinuated that M.D. misunderstood the contact:

So—so you’re not aware if perhaps Adan had something in
his pocket? A. I don’t know.
Q. You don’t know? Okay. And you don’t know if he had
some sort of a—perhaps a belt buckle on or something that was—
that would be around his waist? A. I don’t know.

Second, while it was the State’s witness who testified to Puga’s initial story

about a “misunderstood hug,” there is nothing in rule 5.404(b) or related cases that

require the evidence to be used by the State to rebut a defense theory. See State

v. Weltman, No. 20-0860, 2021 WL 2768910, at *6 n.3 (Iowa Ct. App. June 30,

2021). Instead, the evidence must just be relevant to a “legitimate issue in

dispute.” A legitimate issue in dispute was whether Puga’s contact with M.D. was

sexual in nature.

The jury was instructed that to find Puga guilty of third-degree sexual abuse,

one of the elements the State needed to prove was that “Puga performed a sex

1 The district court also found the evidence was relevant to explain M.D.’s delay in
reporting the sexual abuse. The State does not advance that theory of relevancy
on appeal, so we will not discuss it further.
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act with M.D.” See Iowa Code § 709.4(1)(b). “Sex act” was defined in part for the

jury as “any sexual contact . . . [b]etween the genitals of one person and the

genitals or anus of another.” See id. § 702.17. “Not all contact is a ‘sex act.’” State

v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). In determining whether a sex act

occurred, the jury was instructed it could “consider the type of contact and the

circumstances surrounding it in deciding whether the contact was sexual in nature.

Skin-to-skin contact is not required in order to establish a ‘sex act.’ Prohibited

contact may occur even though the specified body parts are covered by clothing.”

Seizing upon these considerations, the State argues “the fact that Puga assaulted

another teenage girl under similar circumstances—grinding his clothed penis into

her body without her consent—makes it more likely that his conduct with M.D. was

sexual in nature and less likely that his hug of M.D. had an innocent or non-sexual

purpose” or that it was accidental. We agree.

We have relied on this theory of relevance in several sexual abuse cases

to combat claims that contact between two individuals was not sexual or that it was

accidental. See, e.g., State v. Thoren, No. 20-0192, 2021 WL 1017405, at *3 (Iowa

Ct. App. Mar. 17, 2021) (finding testimony of five former massage therapy clients

“in similar settings, who experienced similar incidents” was relevant to show the

defendant’s lack of mistake); Weltman, 2021 WL 2768910, at *6 (concluding

evidence about defendant’s actions with the victim on a trip that occurred after the

sexual abuse was relevant to establish the lack of mistake or accident); State v.

Daugard, No. 06-0537, 2007 WL 1062867, at *3 (Iowa Ct. App. Apr. 11, 2007)

(allowing defendant’s coworkers to testify about prior interactions between the

victim and defendant because it was relevant to the defense of mistake or
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accident). Although Weltman, 2021 WL 2768910, at *6, and Daugard, 2007 WL

1062867, at *3, involved other acts of sexual abuse with the same victim, our

supreme court recognized in Cox that prior bad acts with different victims can be

relevant to motive or intent “when a defendant claims [the] touching was

accidental.” 781 N.W.2d at 771.

The court in Cox did go on to find that evidence of the defendant’s sexual

abuse of two other victims was not relevant to establish motive or intent in its case

because the State did not have to prove specific intent for the sexual abuse

charges, “only that the alleged sexual conduct occurred.” Id.; see also Putnam,

848 N.W.2d at 10 (finding that the perpetrator’s motive for sexual abuse was not a

legitimate issue in dispute because his state of mind was not an element of the

crime). While motive and intent are also not at issue in this prosecution for third-

degree sexual abuse, evidence of Puga’s similar sexual abuse of R.K. speaks not

to those issues but to whether his contact with M.D. was sexual in nature.2 Unlike

Cox, 781 N.W.2d at 771, the sexual nature of Puga’s contact with M.D. was an

element that was in dispute in this case. There was therefore no abuse of

discretion in allowing R.K. to testify about her experience with Puga. And because

R.K.’s testimony about the past sex act was relevant for a non-propensity purpose,

2 We decline the State’s invitation to find that Puga’s denial of the sexual nature of
the contact made his motive “relevant to provide an explanation for the contact.”
Puga’s state of mind was not an element of the crime and thus not at issue. See
Weltman, 2021 WL 2768910, at *6. The State simply needed to prove the contact
between the specified parts of Puga’s body with the specified parts of M.D.’s body
was sexual in nature. See id. Puga’s motive for making that contact was
immaterial. See id.
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it adhered to the due process guarantee under our state’s constitution. See Reyes,

744 N.W.2d at 103.

B. Clear Proof

Puga next argues the clear-proof requirement was not met because R.K.

was not a credible witness. In support of this argument, Puga relies on the timing

of R.K.’s disclosure of the sexual abuse to the police, noting it came after she got

in trouble at school for an incident involving Puga’s son. “[D]irect testimony from

the victim of a prior alleged assault, as a matter of law, is sufficient ‘clear proof’ to

meet the code requirement.” Id. at 101. R.K.’s trial testimony about the past

incident, which was subject to cross-examination and not denied by Puga, was

accordingly sufficient to satisfy the clear-proof requirement. See Putnam, 848

N.W.2d at 9 (noting that clear proof does not require the bad acts to be established

beyond a reasonable doubt or corroborated by other evidence); State v. Zeliadt,

541 N.W.2d 558, 561 (Iowa Ct. App. 1995) (finding testimony from a single witness

clear proof of the prior act).

C. Balancing Test

We are left with whether the probative value of the evidence was

substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403;

Cox, 781 N.W.2d at 761, 769. Factors relevant to this balancing test include:

the need for the evidence in light of the issues and the other evidence
available to the prosecution, whether there is clear proof the
defendant committed the prior bad acts, the strength or weakness of
the evidence on the relevant issue, and the degree to which the fact
finder will be prompted to decide the case on an improper basis.

Putnam, 848 N.W.2d at 9-10 (citation omitted).
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On the probative side of the scales, Puga argues the need for the evidence

was not great because the State had testimony from M.D.’s friend who witnessed

the sex act. But as the State points out, the sexual contact “was brief and occurred

through clothing while Puga and M.D. were in a relatively public place.” See

Weltman, 2021 WL 2768910, at *6 (finding that the need for the other acts

evidence was strong given the short duration of the touch). While there was a

witness to the contact, Puga denied that anything improper had occurred, thus

increasing the need for the other sexual abuse evidence. See, e.g., State v.

Blaufuss, No. 15-2174, 2016 WL 6396345, at *3 (Iowa Ct. App. Oct. 26, 2016)

(finding evidence of prior sexual abuse of same victim crucial to the State’s case

because the defendant denied any sexual contact with her); State v. Query, 594

N.W.2d 438, 444 (Iowa Ct. App. Feb. 24, 1999) (concluding the State needed the

prior bad acts evidence to rebut defendant’s claims the acts were innocent or

accidental).

On the unfairly prejudicial side of the scales, the State did not spend much

time developing testimony about the prior bad act during trial. See State v. Wright,

No. 12-2138, 2014 WL 956064, at *4 (Iowa Ct. App. Mar. 12, 2014). R.K.’s

testimony about the act was “concise, direct, and noninflammatory, and of a nature

similar to that in the underlying charge,” thus decreasing the chance that it would

incite “overmastering hostility” toward the defendant. Reyes, 744 N.W.2d at 100.

The uncharged act with R.K. was also close in time to the charged act with M.D.,

further mitigating the potential for unfair prejudice. Wright, 2014 WL 956064, at *4.

The district court’s failure to give a limiting instruction to the jury on the

permissible use of R.K.’s testimony does give us some pause. See id. (recognizing
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the importance that limiting instructions have in minimizing prejudice). But Iowa

law does not require that such cautionary instructions be given. See State v. Plain,

898 N.W.2d 801, 816 (Iowa 2017). And though a limiting instruction was not given,

the district court was careful to screen out other sex acts between Puga and R.K.

that were remote in time or not similar to his conduct with M.D. See Putnam, 848

N.W.2d at 15 (indicating “that concerns about prejudice to a defendant might be

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

jury”). We are therefore unable to say that the lack of a limiting instruction made

R.K.’s testimony unfairly prejudicial, particularly considering the leeway to be given

to trial judges faced with making these discretionary calls. See State v. Rodriquez,

636 N.W.2d 234, 240 (Iowa 2001) (“Analyzing and weighing the pertinent costs

and benefits of admitting prior acts evidence is no trivial task. Wise judges may

come to differing conclusions in similar situations.”).

IV. Sentencing Errors

Puga claims the district court abused its discretion in failing to state any

reasons for sentencing him to prison and ordering him to pay category “B”

restitution in its written judgment entry after finding on the record that he did not

have a reasonable ability to pay that category of restitution. The State concedes

error on both counts. See Iowa R. Crim. P. 2.23(3)(d) (requiring the sentencing

court to state on the record its reasons for selecting a particular sentencing); State

v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998) (vacating sentence and remanding for

resentencing where court failed to state reasons for nonmandatory sentence);

State v. Hess, 533 N.W.2d 525, 526 (Iowa 1995) (noting where there is a
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discrepancy between the oral pronouncement of sentence and the written

judgment, the oral pronouncement controls).

We accordingly vacate Puga’s sentence and remand his case for

resentencing. On remand, the district court should state its reasons on the record

for selecting Puga’s particular sentence and address the issue of category “B”

restitution.

V. Conclusion

The district court did not abuse its discretion in allowing a different victim to

testify about Puga’s past sexual abuse of her because the evidence was relevant

to show that Puga’s contact with the victim here was sexual in nature and not

accidental. The court did, however, abuse its discretion in failing to give reasons

for the sentence it imposed and requiring Puga to pay category “B” restitution in its

written judgment entry. Puga’s conviction is therefore affirmed, but his sentence

is vacated and the case remanded for resentencing.

CONVICTION AFFIRMED, SENTENCED VACATED, AND REMANDED

FOR RESENTENCING.