State Of Iowa Vs. Calvin Clarence Nelson, Jr.

IN THE SUPREME COURT OF IOWA
No. 08–1384
Filed December 10, 2010
STATE OF IOWA,
Appellee,
vs.
CALVIN CLARENCE NELSON, JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Don C.
Nickerson, Judge.
The State seeks further review of a decision of the court of appeals
reversing the defendant’s conviction for first-degree murder. DECISION
OF THE COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant
Attorney General, John P. Sarcone, County Attorney, and Stephanie L.
Cox and James P. Ward, Assistant County Attorneys, for appellee.

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WIGGINS, Justice.
The State seeks further review of a court of appeals decision
reversing a defendant’s first-degree murder conviction. A jury found the
defendant guilty of first-degree murder. On appeal, the court of appeals
reversed the conviction because it concluded the district court should
not have admitted evidence of the defendant’s drug dealing. On further
review, we find the evidence is not excludable under Iowa Rule of
Evidence 5.404(b). Therefore, we vacate the decision of the court of
appeals and affirm the judgment of the district court.
I. Background Facts and Proceedings.
On the evening of June 26, 2007, Michael Collins and his
girlfriend, Tracy Lewis, bought some crack and smoked it at a friend’s
house. Afterwards, Collins and Lewis left to purchase more crack.
Eventually, they parked at the intersection of Seventh Street and
Hickman Road in Des Moines.
Collins was willing to approach strangers to purchase crack. At
approximately midnight, Collins got out of the car, took Lewis’s cell
phone, and told her he was going to walk to an apartment complex
located at the intersection of Eighth Street and Jefferson Avenue where
he had previously purchased crack. Accordingly, Collins began to walk
south on Seventh Street while Lewis waited in the car. Lewis waited for
approximately fifteen to twenty minutes and began to worry. Just as she
was about to start the car and go looking for Collins, she heard two “pop
pop” sounds. Lewis drove to the intersection of Seventh Street and
Franklin Avenue and saw Collins lying in the grass.
Earlier, at approximately 11 or 11:30 p.m. the same day, Calvin
Nelson Jr. and his paramour, Dody Lester, were at the Double Deuce
bar. While there, Nelson received a phone call and told Lester that he

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had to “go make things right with a friend of his.” Nelson told Lester his
friend “wanted some stuff,” but all he had was gank, which is fake crack.
Eventually, Nelson and Lester drove to a house located at Seventh Street
and Franklin Avenue, where Nelson’s friend lived. When they pulled up
to the house, there were a large number of people standing in the yard.
Nelson repeatedly tried to call his friend but he would not answer. While
there, Lester observed a white male talking on a cell phone on the corner
of Seventh Street and Franklin Avenue. The white male was Collins.
Nelson finally got in touch with his friend and told him to meet
Nelson on Eighth Street. Lester parked their vehicle on Washington
Avenue between Seventh and Eighth Street; Nelson got out and waited in
the road for his friend to arrive. His friend never arrived, but Collins
approached Nelson and the two began to converse. In response to
Collins’ statements, Lester heard Nelson say twice, “I don’t know what
you’re talking about.” Subsequently, Nelson got back into the vehicle
with Lester, and they again headed towards Seventh Street and Franklin
Avenue.
As they pulled up to Seventh Street and Franklin Avenue, Nelson
saw his friend standing outside. Nelson exited the vehicle, while Lester
waited inside. Nelson and the friend talked for a few minutes, and then
Collins approached Nelson again. Nelson said, “Who are you, dude?”
Nelson’s friend then said, “I don’t know who he is.” Nelson pulled a gun
out of his pocket and pointed it at Collins. Collins put his hands in the
air and said, “I am nobody, I am nobody.” Nelson then shot Collins in
the face, and he fell to the ground. Collins was on all fours, trying to
crawl away. Nelson walked towards Collins and shot him again in the
back of the head. Lester witnessed the entire incident between Nelson
and Collins. After the shooting, Nelson got back into the vehicle with

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Lester and drove away. Paramedics rushed Collins to Mercy Medical
Center, where he was pronounced dead.
Lester saw Nelson again later the next day. Nelson told her he did
not want to kill Collins, but he thought Collins was a police officer trying
to apprehend him for drugs and he had to kill Collins because Collins
had seen his face. Nelson also threatened to kill Lester if she told anyone
about the shooting.
At approximately 2:30 p.m. the next day, a seven-year-old boy
found a gun under a rock in his backyard. The boy’s mother called the
police and turned the gun over to them. A firearms specialist from the
Iowa Division of Criminal Investigation later confirmed the two cartridge
cases found at the scene of the Collins’ shooting were fired from the
recovered gun. Nelson’s girlfriend used to live at the duplex where the
boy discovered the gun. Moreover, Nelson began calling the boy’s mother
numerous times the day after the shooting, urgently requesting to speak
with her in person and asking if she had seen him in her backyard
earlier that morning. After reporting this to the police, the mother agreed
to meet Nelson at her home. When Nelson arrived, the police
immediately arrested him. The State charged Nelson with the crime of
murder in the first degree, in violation of Iowa Code sections 707.1 and
707.2 (2005).
Nelson filed a pro se motion in limine seeking to prohibit the
testimony of narcotics officer Chad Nicolino. Nicolino’s expected
testimony concerned his general knowledge of crack and drug trafficking,
which Nelson argued would be highly prejudicial. Nelson’s counsel
supplemented the pro se motion by filing an additional motion in limine.
The motion sought to preclude the State from mentioning in voir dire and

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opening statement or offering any evidence at trial regarding Nelson’s
prior criminal record as well as to prohibit the testimony of Nicolino.
In considering the motion in limine, the court stated it was more
inclined to allow Nicolino to testify about specific drug trafficking in the
area where the crime occurred but not about the general nature of drug
trafficking due to the prejudice it would engender. However, the court
decided to reserve its ruling on the motion until it heard more about the
evidence in the case.
The State never called Nicolino as a witness. Instead, the State
called Sergeant Chris Hardy to testify against Nelson. Before he became
a detective, Hardy worked as a plainclothes undercover narcotics officer.
After Hardy described his involvement in the present case, the State
asked to take up a legal issue with the court outside the presence of the
jury. Subsequently, the State notified the court that the police found
plastic bags and marijuana in Nelson’s vehicle as well as an empty
cardboard box for a digital scale in Nelson’s home. The State informed
the court that it planned to ask Hardy whether these items were
consistent with drug dealing. Nelson’s counsel argued this evidence was
irrelevant and an attempt by the State to improperly show Nelson’s bad
character. In response, the State argued this evidence corroborated
Lester’s testimony, explained the context in which the crime took place,
and explained why the crime occurred. The court requested the State to
make an offer of proof.
After the offer of proof, Nelson’s counsel again argued this evidence
was not relevant. The court refused to allow Hardy to testify about the
marijuana. As for the plastic bags and the empty cardboard digital scale
box, the court ruled, “To the extent that the paraphernalia found in the
van [and home] could be used in connection with crack sales, I will allow

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that testimony.” Hardy then testified that, based on his experience as an
undercover narcotics officer, he was knowledgeable about the items
consistently found with crack dealers. Hardy testified plastic bags are
consistent with crack sales. He stated that after the crack is weighed, it
is placed inside a plastic bag, and a knot is tied so the crack can be kept
in a person’s pocket or mouth without dissolving. Hardy also testified
crack dealers commonly use a gram or digital scale to weigh the drugs
before they sell them.
The State also called identification technician Nancy Lamasters,
who searched Nelson’s vehicle pursuant to a search warrant. Through
Lamasters, the State introduced pictures of the plastic bags and the
plastic bags themselves into evidence. After each offer to introduce the
pictures and plastic bags into evidence, Nelson’s counsel renewed his
previous relevance objection. In addition, the State called officer Jason
Halifax, who assisted in the execution of a search warrant at Nelson’s
residence. Through Halifax, the State introduced pictures of the empty
cardboard digital scale box and the box itself into evidence. After each
offer to introduce the pictures and the box into evidence, Nelson’s
counsel again renewed his previous relevance objection.
The jury returned a verdict finding Nelson guilty of first-degree
murder. Nelson filed a notice of appeal, and we transferred the case to
the court of appeals. Considering Iowa Rule of Evidence 5.404(b), the
court of appeals concluded the evidence linking Nelson to drug dealing
was marginally relevant to complete the story of the crime but not
relevant to Nelson’s motive or intent because these elements could be
inferred from Nelson’s use of a deadly weapon to commit the crime.
Although determining the evidence was marginally relevant to complete
the story of the crime, the court of appeals concluded this evidence

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primarily served to paint Nelson as a bad person. Therefore, the court of
appeals concluded the evidence’s probative value was far outweighed by
its prejudicial effect. Consequently, the court of appeals held the
admission of the drug-dealing evidence was not harmless error, reversed
the judgment of the district court, and remanded the case for a new trial.
Subsequently, the State sought further review, which we granted.
II. Issue.
The issue we must decide on this further review is whether the
admitted testimony of a narcotics officer detailing the sale and
distribution of crack as well as the evidence of the plastic bags and the
empty digital scale box, which the officer explained are consistently
found with crack-drug dealers, requires us to reverse Nelson’s conviction.
III. Scope of Review.
We review evidentiary rulings for an abuse of discretion. State v.
Stone, 764 N.W.2d 545, 548 (Iowa 2009). When a trial court admits
evidence on grounds or for reasons clearly untenable or to an extent
clearly unreasonable, the court has abused its discretion. State v.
Maghee, 573 N.W.2d 1, 5 (Iowa 1997). When the trial court makes a
ruling based on an erroneous application of the law, its ruling is clearly
untenable. In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005).
IV. Analysis.
A. Admissibility as Intrinsic Evidence that Completes the
Story of the Crime. At trial, the State claimed it was not offering the
testimony of the narcotics officer and the introduction of the plastic bags
and empty scale box as character evidence. Rather, it sought to admit
this evidence to give the jury the complete story of the crime and show
Collins was in the area to purchase drugs. It was on this basis that the

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court admitted the testimony of the narcotics officer and permitted the
introduction of the plastic bags and empty scale box into evidence.
1. The inextricably intertwined doctrine. Not all evidence of other
crimes, wrongs, or acts falls within the scope of rule 5.404(b). One
category of other crimes, wrongs, or acts evidence not covered by rule
5.404(b) is evidence deemed inextricably intertwined with the crime
charged.1 See, e.g., United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir.
2000); State v. Walters, 426 N.W.2d 136, 140–41 (Iowa 1988).
“Inextricably intertwined evidence is evidence of the surrounding
circumstances of the crime in a causal, temporal, or spatial sense,
incidentally revealing additional, but uncharged, criminal activity.”
Jennifer Y. Schuster, Uncharged Misconduct Under Rule 404(b): The
Admissibility of Inextricably Intertwined Evidence, 42 U. Miami L. Rev.
947, 973 (1988) [hereinafter Schuster]; see also State v. Garren, 220
N.W.2d 898, 900 (Iowa 1974) (citing Iowa law dating back to 1915 that
repeatedly recognized “events and circumstances which immediately
surround an offense may be shown even though they may incidentally
show commission of another crime”). The inextricably intertwined
doctrine bypasses rule 5.404(b) because rule 5.404(b), by its express
terms, is only applicable to evidence of other crimes, wrongs, or acts,
which is considered to be extrinsic evidence. Edward J. Imwinkelried,
1The inextricably intertwined doctrine developed in the federal circuit courts in
relation to Federal Rule of Evidence 404(b). However, since its conception, it has gained
widespread acceptance in every federal circuit court as well as among the states.
Edward J. Imwinkelried, The Second Coming of Res Gestae: A Procedural Approach to
Untangling the “Inextricably Intertwined” Theory for Admitting Evidence of an Accused’s
Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 723 (2010). Moreover, we have
recognized that Iowa Rule of Evidence 5.404(b) is “similar” and “the counterpart to”
Federal Rule of Evidence 404(b). State v. Cox, 781 N.W.2d 757, 762 (Iowa 2010); State
v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004). Thus, for purposes of this opinion, we will
generally refer to Iowa Rule of Evidence 5.404(b) when discussing the inextricably
intertwined doctrine.

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The Second Coming of Res Gestae: A Procedural Approach to Untangling
the “Inextricably Intertwined” Theory for Admitting Evidence of an
Accused’s Uncharged Misconduct, 59 Cath. U. L. Rev. 719, 724–25 (2010)
[hereinafter Imwinkelried].
The inextricably intertwined doctrine holds other crimes, wrongs,
or acts evidence that is inextricably intertwined with the crime charged is
not extrinsic evidence but, rather, intrinsic evidence that is inseparable
from the crime charged. Bowie, 232 F.3d at 927; Jason M. Brauser,
Intrinsic or Extrinsic?: The Confusing Distinction Between Inextricably
Intertwined Evidence and Other Crimes Evidence Under Rule 404(b), 88
Nw. U. L. Rev. 1582, 1584–85 (1994) [hereinafter Brauser]; Imwinkelried,
59 Cath. U. L. Rev. at 722, 724–25. Therefore, although there are two
separate offenses, the testimony about the two offenses is so closely
intertwined and indivisible that the court must admit the evidence of the
technically uncharged crime. Imwinkelried, 59 Cath. U. L. Rev. at 725.
Furthermore, because rule 5.404(b) is inapplicable to inextricably
intertwined evidence, the court admits the technically uncharged-crime
evidence without limitation and irrespective of its unfair prejudice or its
bearing on the defendant’s bad character. Brauser, 88 Nw. U. L. Rev. at
1585; Milton Hirsch, “This New-Born Babe an Infant Hercules”: The
Doctrine of “Inextricably Intertwined” Evidence in Florida’s Drug Wars, 25
Nova L. Rev. 279, 289–90 (2000) [hereinafter Hirsch]. Instead, the
inextricably intertwined evidence is subject to the same general
admissibility requirements as other evidence that is used to provide the
fact finder with a complete picture of the charged crime. Schuster, 42 U.
Miami L. Rev. at 973.
In summary, the inextricably intertwined doctrine permits the
admission of other crimes, wrongs, or acts evidence based on a special

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relationship between this evidence and the charged crime, regardless of
the strictures of rule 5.404(b). Imwinkelried, 59 Cath. U. L. Rev. at 725–
26.
2. History and criticism of the inextricably intertwined doctrine. The
inextricably intertwined doctrine grew out of the inseparable crimes
exception. Brauser, 88 Nw. U. L. Rev. at 1600. Common law courts
generally refused to admit evidence of other crimes, wrongs, or acts
because they viewed such evidence as irrelevant and unfair. Hirsch, 25
Nova L. Rev. at 281–82. The common law, however, made certain
exceptions to this general rule, including the “inseparable crimes”
exception. Brauser, 88 Nw. U. L. Rev. at 1594. “This exception was
invoked [and evidence of an uncharged crime was admitted] whenever a
court found that the charged crime could not be proved without mention
of another [uncharged] crime.” Id. at 1594–95. From this exception,
courts began to develop a doctrine
that evidence of uncharged misconduct was admissible when
it was “so [closely] blended or connected with the one on trial
. . . that proof of one incidentally involves the other; or
explains the circumstances thereof.” This exception
broadened the class of admissible other crimes evidence by
permitting not only the introduction of uncharged
misconduct evidence when it was impossible to prove the
crime charged without revealing the uncharged misconduct,
but also when the uncharged misconduct evidence explained
the circumstances surrounding the charged crime.
Schuster, 42 U. Miami L. Rev. at 955 (quoting Bracey v. United States,
142 F.2d 85, 88 (D.C. Cir. 1944)). Courts began to refer to other crimes,
wrongs, or acts evidence that explained the circumstances of the crime
charged, or was necessarily revealed in proving the crime charged, as
res gestae. Id. at 955–56. Thus, the inseparable crimes exception was
enlarged by the courts when they began to use the amorphous phrase

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res gestae. Brauser, 88 Nw. U. L. Rev. at 1600. “The courts developed
the res gestae or ‘completes the story’ doctrine in order to ensure that
otherwise relevant evidence would not be excluded when it incidentally
involved uncharged criminal activity . . . .” Schuster, 42 U. Miami L. Rev.
at 971.
Shortly after the passage of Federal Rule of Evidence 404(b), courts
began to characterize certain other crimes, wrongs, or acts evidence as
inextricably intertwined with the crime charged in order to avoid the
limitations of rule 404(b). Id. at 970–71. “The inextricably intertwined
doctrine is arguably the second coming of the common-law res gestae
principle.” Imwinkelried, 59 Cath. U. L. Rev. at 728–29 (arguing the
inextricably intertwined doctrine is the “modern de-Latinized” equivalent
of res gestae). As one commentator has explained:
Inextricably intertwined evidence stands in a different
relationship to the crime charged than does evidence of
wholly independent crimes. The inextricably intertwined
evidence is causally, temporally, or spatially connected to the
crime charged, and the crime charged and the uncharged
acts both involved the defendant. The uncharged
misconduct evidence is not offered to prove the defendant’s
character in order to imply that it was more likely that the
defendant committed the crime charged, although in some
cases an exact independent theory of relevance may be
difficult, if not impossible, to articulate. Rather, the evidence
is introduced to facilitate the jury’s understanding of the
context within which the charged crime occurred, because
without this contextual setting the jury would be forced to
reach a verdict in a vacuum.
Schuster, 42 U. Miami L. Rev. at 971–72. The federal appellate courts
have attempted to define the vague term “inextricably intertwined” in
various ways. Compare United States v. Ramirez, 45 F.3d 1096, 1102
(7th Cir. 1995), with United States v. Carboni, 204 F.3d 39, 44 (2d Cir.
2000). Moreover, at least one commentator has discovered five broad

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categories of other crimes, wrongs, or acts evidence, which has been
found admissible under the federal inextricably intertwined doctrine.
See Schuster, 42 U. Miami L. Rev. at 961–62. These five categories
include: (1) uncharged misconduct that was a “necessary preliminary
step toward completing the crime charged,” (2) uncharged misconduct
that is “directly probative of the crime charged,” (3) uncharged
misconduct that arises from the “same transaction or transactions as the
crime charged,” (4) uncharged misconduct that forms “an integral part of
a particular witness’ testimony concerning the crime charged,” and (5)
uncharged misconduct that “complete[s] the story of the crime charged.”
Id. at 962 (emphasis added).
Although Iowa has never referred to other crimes, wrongs, or acts
evidence as inextricably intertwined, we have long recognized the rule
that, “[w]hen acts are so closely related in time and place and so
intimately connected that they form a continuous transaction, the whole
transaction may be shown to complete the story of what happened [even
though they may incidentally show the commission of another uncharged
crime].” State v. Oppelt, 329 N.W.2d 17, 19 (Iowa 1983) (emphasis
added); accord Walters, 426 N.W.2d at 140–41; State v. Hood, 346
N.W.2d 481, 483–84 (Iowa 1984); State v. Nowlin, 244 N.W.2d 596, 601
(Iowa 1976); State v. Fryer, 243 N.W.2d 1, 6 (Iowa 1976); Garren, 220
N.W.2d at 900; State v. Drake, 219 N.W.2d 492, 494 (Iowa 1974); State v.
Lyons, 210 N.W.2d 543, 546–47 (Iowa 1973); State v. Wright, 203 N.W.2d
247, 251 (Iowa 1972); State v. Holoubek, 246 Iowa 109, 112–13, 66
N.W.2d 861, 863 (1954); State v. Robinson, 170 Iowa 267, 276, 152 N.W.
590, 593 (1915). Although Iowa courts have variably referenced the
inseparable crimes, res gestae, and complete the story doctrines in
support of this rule, these three doctrines really consist of one evolving

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principle. See, e.g., State v. Bowers, 656 N.W.2d 349, 354 (Iowa 2002)
(reciting the inextricably intertwined test and citing federal eighth circuit
cases for support); Oppelt, 329 N.W.2d at 19 (referencing the inseparable
crimes doctrine when concluding the trial court did not abuse its
discretion by admitting other crimes, wrongs, or acts evidence); Fryer,
243 N.W.2d at 6 (admitting uncharged evidence of a rape to complete the
story of multiple charged homicides); Lyons, 210 N.W.2d at 545–47
(allowing res gestae evidence to help describe what actually happened at
the time of the commission of the charged crime, even though it was not
directly relevant to the elements of the charged crime). Accordingly, we
appear to follow the inextricably intertwined doctrine. However, because
most of our cases applying the doctrine simply recite the doctrine, the
applicability and scope of the doctrine under our case law has never been
well-defined.
Although the inextricably intertwined doctrine has gained
widespread acceptance, it has also become the target of intense scholarly
criticism. Imwinkelried, 59 Cath. U. L. Rev. at 723. This doctrine has
been criticized for two principal reasons. Id. at 728. First, the phrasing
“inextricably intertwined” is extremely vague and amorphous. Id. at 728–
30. Critics argue this vagueness has allowed courts to engage in result-
oriented decision-making and invites abuse. Id. at 729–30 (stating
courts can justify the admission of other crimes, wrongs, or acts evidence
by the simple expedient of describing it as inextricably intertwined with
the charged offense). Second, critics claim courts have abused the
doctrine by applying it in an overly broad manner. Id. at 730. “In case
after case, the courts have invoked the doctrine even though, on careful
scrutiny, the testimony about the charged and uncharged offenses could
readily have been separated.” Id.

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Of all the different categories of inextricably intertwined evidence,
none has received as harsh criticism as evidence found to be admissible
because it completes the story of the crime charged. See, e.g., Brauser,
88 Nw. U. L. Rev. at 1606; Hirsch, 25 Nova L. Rev. at 300–05. Evidence
that completes the story of the crime charged is admissible under the
inextricably intertwined doctrine simply to put the crime charged into
context, provide background, and generally explain or set up the charged
crime. Brauser, 88 Nw. U. L. Rev. at 1606; Hirsch, 25 Nova L. Rev. at
300; see also Old Chief v. United States, 519 U.S. 172, 187–89, 117 S. Ct.
644, 653–54, 136 L. Ed. 2d 574, 592–93 (1997) (recognizing the
importance of telling a “colorful story with descriptive richness” when
presenting evidence to prove a crime). Thus, to complete the story of the
crime, the other crimes, wrongs, or acts evidence need only pertain, in
some fashion, to the chain of events explaining the context, background,
or set-up of the crime charged. Hirsch, 25 Nova L. Rev. at 300. Critics
argue almost any uncharged conduct could meet this lax test. Brauser,
88 Nw. U. L. Rev. at 1606 (“Under the ‘completing the story’ doctrine,
almost any uncharged misconduct is admissible if it somehow explains
how the charged crime occurred.”); Hirsch, 25 Nova L. Rev. at 300 (“Is it
possible to imagine any evidence so evanescent in any given case as not
to pass this test?”). Moreover, at least one commentator has warned that
this category of inextricably intertwined evidence poses the greatest
threat of eviscerating rule 5.404(b) and has led to the admission of other
crimes, wrongs, or acts evidence that is neither closely related to the
charged crime nor necessary to prove it. Brauser, 88 Nw. U. L. Rev. at
1606.
3. Application of the inextricably intertwined doctrine in Iowa.
Critics of the inextricably intertwined doctrine argue the doctrine must

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be narrowed and toughened to ensure prejudicial other crimes, wrongs,
or acts evidence that is severable from the crime charged is excluded.
See, e.g., Hirsch, 25 Nova L. Rev. at 312–15; Imwinkelried, 59 Cath. U. L.
Rev. at 737–41. These commentators argue the court should only admit
evidence of uncharged conduct under the inextricably intertwined
doctrine when the evidence cannot be severed from the narrative of the
charged crime without leaving the narrative unintelligible,
incomprehensible, confusing, or misleading. Hirsch, 25 Nova L. Rev. at
312–15; Imwinkelried, 59 Cath. U. L. Rev. at 737–41. Accordingly, these
commentators urge, “ ‘Inextricably intertwined’ evidence should be
received infrequently, as a narrow exception to the general rule against
the admission of evidence of uncharged crimes.” Hirsch, 25 Nova L. Rev.
at 313. We agree the inextricably intertwined doctrine should be used
infrequently and as a narrow exception to the general rule against
admitting evidence of other crimes, wrongs, or acts.
To ensure a court does not admit unnecessary and prejudicial
evidence of other crimes, wrongs, or acts, we reaffirm the language from
one of our earlier cases and hold we will only allow such evidence to
complete the story of what happened when the other crimes, wrongs, or
acts evidence is so closely related in time and place and so intimately
connected to the crime charged that it forms a continuous transaction.
Oppelt, 329 N.W.2d at 19. Thus, the charged and uncharged crimes,
wrongs, or acts must form a continuous transaction. Id. Moreover, we
will only allow the admission of other crimes, wrongs, or acts evidence to
complete the story of the charged crime when a court cannot sever this
evidence from the narrative of the charged crime without leaving the
narrative unintelligible, incomprehensible, confusing, or misleading. In
this way, we can be sure rule 5.404(b) remains the standard for the

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admission of evidence of other crimes, wrongs, or acts and the
inextricably intertwined doctrine is construed as a narrow and limited
exception to rule 5.404(b). Therefore, under this narrow interpretation of
Iowa’s inextricably intertwined doctrine that completes the story of the
crime, we must analyze the State’s argument that the evidence the
defendant was a drug dealer is not evidence of other crimes, wrongs, or
acts but is, in fact, intrinsic evidence completing the story of the charged
crime of murder in the first degree.
It is clear that omitting evidence of the plastic bags, empty digital
scale box, and the testimony linking these items to crack-drug dealing
would not have left the narrative of this crime unintelligible,
incomprehensible, confusing, or misleading. The State argues the story
of the murder cannot be intelligibly told without explaining why Nelson
would shoot someone who merely approached him and asked him for
drugs. However, Lester had already testified that Nelson was in the area
where the murder occurred because “somebody wanted some stuff.”
Lester also testified Nelson told her the day after the murder that he
killed Collins because he thought Collins was a police officer trying to
apprehend him for selling drugs and because Collins had seen his face.
The evidence of the plastic bags, empty digital scale box, and testimony
linking these items to drug dealing simply permitted the jury to make the
general inference that Nelson was involved in drug trafficking. This
evidence did not fill in any gaping holes in the narrative of the story of
the crime. Additionally, these items were not so closely related in time
and place and so intimately connected to the charged crime that they
formed a continuous transaction.
At most, the plastic bags, empty digital scale box, and testimony
linking these items to drug dealing support the State’s proposed motive

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for the killing—Nelson was a drug dealer who believed Collins was an
undercover narcotics officer attempting to apprehend him for selling
crack, and he decided to kill Collins because Collins had seen his face. If
this evidence was offered for the noncharacter purpose of establishing
motive, it must be subjected to a rule 5.404(b) analysis. Accordingly, we
hold the evidence of the plastic bags, the empty digital scale box, and the
testimony linking these items to crack-drug dealing was not admissible
as inextricably intertwined evidence offered to complete the story of the
crime.
B. Admissibility Under Rule 5.404(b). At trial, the State did not
claim the plastic bags, the empty digital scale box, and the testimony
linking these items to crack-drug dealing was admissible under Iowa
Rule of Evidence 5.404(b). On appeal, the State claims for the first time
the evidence is admissible under rule 5.404(b). Normally, we would not
reach this claim because the State failed to preserve error by not arguing
this evidence is admissible under rule 5.404(b) in the trial court. DeVoss
v. State, 648 N.W.2d 56, 60–61 (Iowa 2002). However, we have adopted
an exception to the general rule of error preservation when dealing with
evidentiary rulings. Id. at 62–63. Therefore, we will address the State’s
claim regarding the admissibility of this evidence under rule 5.404(b).
1. General legal principles concerning rule 5.404(b). Iowa Rule of
Evidence 5.404(b) governs the admissibility of evidence of other crimes,
wrongs, or acts. 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.

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Iowa R. Evid. 5.404(b). Rule 5.404(b) is a rule of exclusion. State v.
Sullivan, 679 N.W.2d 19, 24 (Iowa 2004). The public policy for excluding
other crimes, wrongs, or acts evidence is not that the evidence is
irrelevant. Id. Rather, the public policy for excluding such evidence is
based on the premise that a jury will tend to give other crimes, wrongs,
or acts evidence excessive weight and the belief that a jury should not
convict a person based on his or her previous misdeeds. Id.
Other crimes, wrongs, or acts evidence cannot be used to show the
defendant has a criminal disposition and, therefore, was more likely to
have committed the crime in question. State v. Reynolds, 765 N.W.2d
283, 289 (Iowa 2009). However, other crimes, wrongs, or acts evidence is
admissible if it is probative of some fact or element in issue other than
the defendant’s general criminal disposition. State v. Taylor, 689 N.W.2d
116, 123 (Iowa 2004). Rule 5.404(b) lists several examples of when prior
conduct can be probative of some fact or element in issue other than the
defendant’s general criminal disposition. The examples included in rule
5.404(b) are “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Iowa R. Evid.
5.404(b). The examples listed in rule 5.404(b) are not exclusive; rather,
“[t]he important question is whether the disputed evidence is ‘relevant
and material to some legitimate issue other than a general propensity to
commit wrongful acts.’ ” State v. Mitchell, 633 N.W.2d 295, 298 (Iowa
2001) (quoting State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987)).
To be admissible, the prosecutor must articulate a noncharacter
theory of relevance. Sullivan, 679 N.W.2d at 28. The court then must
determine whether the other crimes, wrongs, or acts evidence is relevant
and material to a legitimate issue in the case, other than a general
propensity to commit wrongful acts. State v. Cox, 781 N.W.2d 757, 761

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(Iowa 2010). If the court determines the evidence is relevant to a
legitimate issue in dispute, the court must determine whether the
probative value of the other crimes, wrongs, or acts evidence is
substantially outweighed by the danger of unfair prejudice to the
defendant. Id. In determining whether the probative value of other
crimes, wrongs, or acts evidence is substantially outweighed by the
danger of unfair prejudice, the court should consider
the need for the evidence in light of the issues and the other
evidence available to the prosecution, whether there is clear
proof the defendant committed the prior bad acts, the
strength or weakness of the evidence on the relevant issue,
and the degree to which the fact finder will be prompted to
decide the case on an improper basis.
Taylor, 689 N.W.2d at 124. If the evidence’s probative value is
substantially outweighed by its unfair prejudice, it must be excluded.
Mitchell, 633 N.W.2d at 298–99.
2. Application of rule 5.404(b). The State articulates a
noncharacter theory of relevance—the evidence of drug dealing is
probative to motive and intent. To the extent the challenged evidence
tends to support the general inference that Nelson is a crack-drug dealer,
it is relevant to the issues of Nelson’s motive and intent for killing
Collins. The evidence of drug dealing is relevant to motive because a
drug dealer would be more inclined to shoot an individual seeking to
purchase crack if they believed the person was an undercover narcotics
officer. Motive can be relevant to whether a defendant acted with malice
aforethought. See State v. Hoffer, 383 N.W.2d 543, 549 (Iowa 1986)
(“Although motive is not a necessary element of murder, lack of motive
may be considered in determining whether an assailant acted with
malice aforethought.”). Additionally, the evidence is also relevant to

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intent because a drug dealer would be more inclined to intentionally kill
an undercover narcotics officer who could later identify and apprehend
him or her. Thus, the challenged evidence is relevant to the legitimate
issues of Nelson’s motive and intent.
The State next claims the probative value of the drug-dealing
evidence is not substantially outweighed by the danger of unfair
prejudice to Nelson. We agree, the evidence of drug dealing is not
substantially outweighed by the danger of unfair prejudice to Nelson.
The record contains sufficient evidence to establish Nelson sold
drugs and was in the area on the night in question to engage in a drug
deal. Although, the court instructed the jury that it could infer malice
aforethought and intent from Nelson’s use of a dangerous weapon, the
jury was free to accept or reject that inference. On the other hand, the
challenged evidence of drug dealing is direct evidence supporting the
conclusion that Nelson intentionally and with malice aforethought killed
Collins because Nelson thought Collins was an undercover police officer
who saw Nelson’s face. The State needed this type of evidence to prove
its case.
Finally, we doubt the jury decided the case on the basis Nelson
was a drug dealer. Lester witnessed the shooting. The next day, Nelson
told Lester he shot Collins because Collins saw his face and he thought
Collins was a police officer. A child found the murder weapon in the yard
of a duplex where Nelson’s prior girlfriend used to live. Nelson repeatedly
made contact with the child’s mother, inquiring whether she had seen
him in the yard. The evidence was replete with testimony regarding drug
dealing in the area where the charged crime took place. In light of all
this evidence, the mere fact Nelson was a drug dealer does not lead us to
believe the jury decided the case on that basis.

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Therefore, the plastic bags, the empty digital scale box, and the
testimony linking these items to drug dealing were not excludable under
rule 5.404(b).
V. Disposition.
We vacate the decision of the court of appeals and affirm the
judgment of the district court because the plastic bags, the empty digital
scale box, and the testimony linking these items to drug dealing were not
excludable under rule 5.404(b).
DECISION OF THE COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.

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