James Christensen appeals his conviction for second-degree sexual abuse by aiding or abetting another, arguing: (1) the evidence is insufficient to support his conviction; (2) the verdict is contrary to the weight of the evidence; (3) the court erred in excluding evidence; and (4) the court erred in not granting a mistrial. We affirm.
Christensen, the chief of police, and Sickels, the assistant chief of police, were co-defendants at trial. A jury found Sickels guilty of second-degree sexual abuse of L.S. and found Christensen guilty of second-degree sexual abuse of L.S. by aiding and abetting. Christensen argues the State's evidence was insufficient to support his conviction. Under Iowa law, one who aids and abets a crime is charged, tried and punished as a principal. Iowa Code § 703.1 (2007). The jury was instructed:
We review sufficiency of the evidence issues for correction of errors at law. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005). The jury's verdict is binding upon a reviewing court unless there is an absence of substantial evidence in the record to sustain it. Fenske v. State, 592 N.W.2d 333, 343 (Iowa 1999). The jury is "free to reject certain evidence and credit other evidence." State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). "[W]e view the evidence in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record." State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006).
Starting in July 2006, L.S. worked as a bartender/waitress at a country club. The club manager testified L.S. was dependable, hard working, and "kind of like my right hand." In April 2008, L.S. was working the Thursday "men's night" shift from 6:00 p.m. until close. By 1:30 a.m., Sickels, Christensen, and L.S. were the only people remaining at the club. Sickels and Christensen had been drinking throughout the evening and L.S. had a drink as her work shift was winding down.
L.S. and Sickels both testified that while Christensen was present, Sickels asked her to perform oral sex on both men and she said no. Christensen testified he does not remember Sickels asking for a sex act for both men. L.S. testified Sickels and Christensen moved behind the bar, cornered her, and Sickels made the same request. L.S. again said no. L.S. testified Sickels left the bar while Christensen kept her behind the bar. In contrast, Sickels and Christensen testified Christensen left the bar and then returned.
L.S. testified when Sickels returned to the room he walked behind her and both men began to touch her. L.S. tried to spin around and get away but Sickels and Christensen surrounded her with their arms and moved with her. As Sickels began having sex with L.S., they were all behind the bar and Christensen was beside L.S. with one arm on her shoulder and one arm on the bar. As the assault progressed, Christensen moved to sit in a bar stool directly across from L.S. and stroked her hair, held her hand, and "shushed her." During the assault L.S. verbally protested and cried.
As the two men were leaving, Christensen pointed his finger at L.S.'s face, looked her "straight in the eye and said, `Nothing happened.'" L.S. interpreted this as a threat: "nothing happened, and if you say something, something, you know, bad will happen. So these are the two chief officers and I just was freaked out . . . ." L.S. testified:
Sickels testified after the men left the club around 2:00 a.m., they sat and talked while parked outside of Christensen's house. Sickels stated they talked about work-related issues and there was no discussion about events at the country club.
Lesha Clark, the club manager, testified she arrived at the club the next morning and was surprised to find the club in disarray. Suzie Stofferahn, the club bookkeeper/board member, arrived ten minutes later and also observed the disarray. Some doors were unlocked, chairs were not pushed underneath tables, popcorn was left on the floor, tables were not wiped off, and a check was left "beside the cash register." Clark described the condition of the bar area:
Because Clark was worried about L.S.'s safety, she tried to call L.S. at her school, but she wasn't there. Clark testified L.S.'s boyfriend had subjected her to domestic abuse in the past. Clark wanted to "know if something took place . . . . I didn't have any idea what had happened." Next, Clark called numerous club members and through a series of phone calls discovered Sickels and Christensen had been the last customers. Clark called the police station and eventually talked to Christensen. Christensen confirmed he and Sickels had been at the bar and stated they left together around 1:00 a.m. Over an hour later, Christensen called Clark and stated he had talked to Sickels and he was calling to correct the time they left, it was closer to around 2:00 a.m.
L.S. was not scheduled to work again until the next Thursday evening. Clark asked L.S. to meet her Thursday morning at the club and stated:
Based on L.S.'s statements, Clark called Stofferahn to come to the club and join the discussion. At trial, Stofferahn also testified L.S. was upset during the Thursday morning meeting. After the meeting, Stofferahn told the DCI that L.S. stated Christensen left the bar for a few moments, not Sickels. Clark urged L.S. to contact the authorities and L.S. stated she would think about it. L.S. explained:
L.S. also worked Friday night and Saturday night. After working Saturday, L.S. requested and was granted a leave of absence: "I was having a difficult time being there. I gave it three times and it was not getting any easier. I was feeling really anxious when I was there . . . ."
L.S.'s boyfriend discovered her crying in the bathroom after her last Saturday at work and she eventually told him about the sexual abuse. Her boyfriend did online research for resources and L.S. first talked to the Rural Iowa Crisis Center and then to the DCI.
The DCI arranged for L.S. to conduct recorded conversations with Christensen. Meanwhile Christensen and Sickels had meetings with Tom Hartsock, the retired chief of police and their former boss. Hartsock testified: "I recommended to both James Christensen and Johnny Sickels that they should wear a recording device when meeting with [L.S.]." Christensen also recorded the conversations. Christensen testified:
Christensen did not contact any authorities about L.S.'s desire to report a sexual assault by his assistant police chief, Sickels. Christensen testified:
A few days later, the DCI contacted Christensen. Christensen and Sickels agreed to an interview with the DCI and also met again with the retired police chief before the interview. Christensen and Sickels drove into Des Moines together. The DCI interviewed Sickels and Christensen in different rooms. At first, Sickels denied he had sex with L.S. and Christensen told the DCI nobody touched her. Christensen stated he saw Sickels and L.S. behind the bar, but "I never saw any sex act." Sickels had investigated sexual assault-type crimes and asked the DCI about DNA evidence. Sickels testified at trial:
Next, Sickels and Christensen had a private discussion in the parking lot. When they returned to their separate interview rooms after the discussion, Sickels admitted to consensual sexual intercourse with L.S. that started while Christensen left the bar to use the restroom. At trial, Sickels testified L.S. became more flirtatious after the other members left and silently agreed to have sex with him when Christensen left the room.
After the parking lot discussion, Christensen also changed his story. Christensen told the DCI Sickels told him for the first time that Sickels had sex with L.S. Christensen also admitted actions and statements consistent with L.S.'s claims, including: Christensen held her hand, what she said, and what Christensen said as he left.
Christensen's trial testimony contradicted his DCI interview statements: he denied holding L.S.'s hand, hearing her protest statements, or saying anything as he left. Christensen explained this change in testimony by stating his statements to the DCI were hypothetical in the context of "is it possible" and anything is possible.
On cross-examination, the DCI tape was played for the jury. After the tape was played, Christensen testified:
Christensen argues the evidence is insubstantial because the only evidence implicating him is the testimony of L.S. and the "other evidence either contradicts [L.S.'s] testimony or shows she had a motive to either lie or misremember what happened." Christensen ignores the testimony from both the club manager and the club bookkeeper describing the disarray in the bar area the morning after the assault. His argument also completely ignores both his own statements to the DCI consistent with L.S.'s description of the assault and the confirming statements of Sickels. We note the credibility of witnesses is for the factfinder to decide except for those rare circumstances where the testimony is absurd, impossible, or self-contradictory. State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998). None of those factors apply to L.S.'s testimony. In contrast, both Christensen and Sickels lied to the DCI and then change their stories after they talked privately in the DCI parking lot. When viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could have found Christensen guilty. Because substantial evidence supports the jury's determination, we affirm the verdict.
Christensen next argues the court erred in denying his motion for a new trial because "it is clear that the verdict is contrary to the weight of the evidence." We review for an abuse of discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). After reviewing the record, we find no abuse of discretion and adopt the trial court's resolution of this issue:
Christensen claims the court erred when it ruled testimony concerning L.S.'s allegedly kissing another club member several months prior to the sexual assault is inadmissible. We review "standard claims of error in admission of evidence for an abuse of discretion." State v. Stone, 764 N.W.2d 545, 548 (Iowa 2009).
Before trial the State made a motion in limine to exclude the testimony. The court granted the State's motion, stating: "The [witnesses] allege [L.S.] engaged in inappropriate behavior of a sexual nature. The Court believes the type of behavior alleged is precisely the type of evidence which [Iowa] Rule [of Evidence] 5.412 is intended to keep out of trial." After the defendants made an offer of proof at trial, the court affirmed its prior ruling.
Rule 5.412 is "the rape shield law" and it "prohibits introduction of reputation or opinion evidence of [a victim's] `past sexual behavior' and substantially limits admissibility of evidence of specific instances of a complainant's past sexual behavior." State v. Alberts, 722 N.W.2d 402, 408 (Iowa 2006). Its purpose "is to protect the victim's privacy, encourage the reporting and prosecution of sex offenses, and prevent parties from delving into distractive, irrelevant matters." Id. at 409.
We find no abuse of discretion. Evidence L.S. may have kissed one man several months prior to the sexual assault is legally irrelevant to the issue of consent at the time of the assault. See State v. Ball, 262 N.W.2d 278, 280 (Iowa 1978) (stating "evidence of the victim's prior sexual conduct with a third party had no bearing on the issue of her consent").
Christensen seeks a new trial arguing the prosecutor's improper rebuttal argument deprived him of a fair trial. Christensen notes the prosecutor began the rebuttal of her closing argument with a slide stating: "Not guilty/Nothing
The prosecutor discussed the concept of reasonable doubt and addressed the "girl gone wild defense." During this discussion, the prosecutor argued:
Sickels objected the prosecutor misstated the law. The court held a hearing outside the presence of the jury and sustained the objection, stating: "[T]elling the jury that as a peace officer he should have known she couldn't consent is just an inaccurate statement." When the jury returned, the court stated:
Next the prosecutor discussed: (1) the challenges to L.S.'s credibility based on a jealous boyfriend and prior domestic abuse; (2) the "I'll get fired [for drinking on the job] defense"; (3) an ambiguous time line is not reasonable doubt; and (4) the "against the will" element and the defendants' argument L.S. did not run, did not go to the hospital, did not call the police. The prosecutor argued:
The court sustained Christensen's objection to improper argument and the prosecutor resumed her rebuttal, stating:
After the defense lawyers objected, the parties met in chambers. The defendants argued the prosecutor had shifted the burden of proof and urged the court to grant a mistrial. The court denied their motions. Upon continuing her rebuttal, the prosecutor immediately stated: "We have the burden of proof in this case. You heard the defendants testify. You have to ask yourself about their believability." The prosecutor concluded her rebuttal without further objection and properly argued the credibility of the witnesses and reasonable doubt.
Neither defendant sought a cautionary instruction, but the issue of prosecutorial misconduct was raised again in defense motions for a new trial. The trial court denied the motions, ruling the defendants established prosecutorial misconduct, but failed to prove prejudice. On appeal, the State argues the trial court correctly determined Christensen was not prejudiced.
"Prosecutorial misconduct entitles a defendant to a new trial only when it appears to have been so prejudicial as to deprive the defendant of a fair trial." State v. Chadwick, 328 N.W.2d 913, 916 (Iowa 1983). We intervene on appeal "only if the trial court abuses the broad discretion which it has to determine whether prejudice results." Id. We view the statements of the prosecutor in the context of the entire trial. State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989). Christensen has the burden to establish:
State v. Graves, 668 N.W.2d 860, 876-77 (Iowa 2003).
Guided by the Graves decision, the trial court carefully analyzed the prejudice issue, including the "strength of the State's case" element of prejudice:
The court also analyzed the "severity and persuasiveness" element of prejudice:
(Citations omitted.)
The court concluded "the defendants failed to establish that the misconduct of the prosecutor denied them a fair trial or deprived them of due process," stating:
(Citations omitted.)
We note generally, a jury is presumed to follow its instructions. State v. Frank, 298 N.W.2d 324, 327 (Iowa 1980). "[B]ecause the trial court is a firsthand observer of both the alleged misconduct and any jury reaction to it," we recognize "a trial court is better equipped than appellate courts can be to determine whether prejudice occurs." Anderson, 448 N.W.2d at 34. When we view the prosecutor's misstatements in the context of the entire trial, we are convinced the misstatements did not deprive Christensen of a fair trial and conclude he has failed to prove prejudice.
