IN THE COURT OF APPEALS OF IOWA
No. 16-0808
Filed September 13, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES DEAN ARNESON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee (sentencing), Kurt L. Wilke (trial and posttrial motions), and Thomas
J. Bice (motion to suppress), Judges.
James Arneson appeals his convictions following a jury trial for two counts
of third-degree sexual abuse. AFFIRMED.
Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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VAITHESWARAN, Presiding Judge.
The State charged James Arneson with two counts of third-degree sexual
abuse in connection with sex acts performed on a fourteen-year-old child, K.L.1
A jury found James Arneson guilty as charged. On appeal, Arneson contends (1)
there was insufficient evidence of a sex act, (2) the evidence was insufficient to
support the age-disparity element on the second count, (3) the district court erred
in admitting hearsay evidence and allowing a law enforcement officer to arguably
vouch for the credibility of K.L., (4) the district court should have granted his
motion to suppress a police interview under the Sixth Amendment to the United
States Constitution and article I, section 10 of the Iowa Constitution, and (5) his
trial attorney was ineffective in failing to move for suppression of the police
interview and a DNA sample taken during the interview under the Fourth and
Fifth Amendments to the United States Constitution and article I, sections 8 and
9 of the Iowa Constitution.
I. Sufficiency of the Evidence: Sex Act
The jury received several pertinent instructions on third-degree sexual
abuse. Under count I, the jury was instructed the State would have to prove
Arneson (1) “performed a sex act with K.L.” and (2) did so “by force or against
the will of K.L.” See Iowa Code § 709.4(1)(a) (2014). Under count II, the State
was required to prove (1) Arneson “performed a sex act with K.L.,” (2) Arneson
did so “while K.L. was 14 or 15 years old and [Arneson] was 4 or more years
older,” and (3) Arneson “and K.L. were not then living together as husband and
wife.” Id. § 709.4(1)(b)(3)(d). In pertinent part, “sex act” was defined for the jury
1
The two charges were contained in an amended trial information.
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as “any sexual contact”: “2. Between the mouth of one person and the genitals of
another. . . . 4. Between the finger or hand of one person and the genitals or
anus of another person.” Cf. id. § 702.17(2), (3). The jury was not instructed on
the type of sex act associated with each count.
Arneson moved for judgment of acquittal, arguing the State failed to
present sufficient evidence of a sex act. The district court denied the motion.
Following trial, the jury signed two verdict forms, the first finding Arneson guilty of
count I and the second finding him guilty of count II.
Arneson argues “[t]he State submitted the case under alternative factual
theories, but the verdicts returned were general verdicts,” requiring the State “to
demonstrate that there was sufficient evidence of both factual theories to survive
a motion for judgment of acquittal.” See State v. Hogrefe, 557 N.W.2d 871, 881
(Iowa 1996) (“With a general verdict of guilty, we have no way of determining
which theory the jury accepted.”). In his view, “judgment of acquittal or a new
trial is required because there was insufficient evidence of a sex act to convict.”
As a preliminary matter, we are not persuaded by Arneson’s premise that
the case was submitted on alternative factual theories. The State charged
Arneson with two counts of third-degree sexual abuse, the jury received separate
instructions on each count, and the jury signed verdict forms finding Arneson
guilty of each count. The State did not rely on multiple theories under a single
count. Cf. State v. McGrean, No. 12-0537, 2013 WL 1453147, at *4 (Iowa Ct.
App. Apr. 10, 2013) (stating “if substantial evidence does not support each
alternative theory, then the case has to be remanded for a new trial because we
do not know whether the verdict rests on valid or invalid grounds” and reversing
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for a new trial where “sufficient evidence does not support one of the two theories
submitted to the jury in the criminal mischief marshaling instruction and we have
no way of knowing which theory the jury accepted”); State v. Sanford, No. 11-
0009, 2011 WL 5391340, at *2 (Iowa Ct. App. Nov. 9, 2011) (reversing and
remanding for new trial where the jury was allowed to consider two alternatives of
child endangerment and only one of the theories was supported by substantial
evidence). For that reason, we conclude Arneson’s reliance on Hogrefe, and our
application of Hogrefe, is misplaced. We will review Arneson’s argument as a
simple challenge to the sufficiency of the evidence supporting the jury’s finding of
guilt as to the “sex act” element of each count. We will affirm the district court’s
denial of Arneson’s motion for judgment of acquittal if the record contains
substantial evidence to support this element. See State v. Shorter, 893 N.W.2d
65, 70 (Iowa 2017).
The jury reasonably could have found from K.L.’s testimony that Arneson
placed his fingers into her vagina while she was lying on the couch at his home.
The jury also reasonably could have found from other evidence of record that
Arneson licked K.L.’s vagina. Although K.L. denied this sex act, the jury could
have credited the testimony of a nurse who examined K.L. and who testified for
the State. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The jury is
free to believe or disbelieve any testimony as it chooses and to give weight to the
evidence as in its judgment such evidence should receive.”). According to the
nurse, K.L. “stated that [Arneson] had . . . licked her vagina.” A medical report
offered by the defense and admitted during cross-examination of the nurse
corroborated the nurse’s testimony. Under “victim’s description of assault,” the
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report described the hand-to-genital sex act and then stated, “Pt reports after an
unknown amount of time suspect began to lick her genitals [and] inserted his
tongue into her vagina.” The report was prepared one day after the assault.
Substantial evidence supports a finding of two sex acts.
II. Sufficiency of the Evidence: Age-Disparity
As noted, the jury instruction governing count II required the State to prove
that “K.L. was 14 or 15 years old and the defendant was 4 or more years older.”
Following closing arguments and submission of the case to the jury, Arneson’s
attorney moved for judgment of acquittal on the ground there was insufficient
evidence to support this element. The court denied the motion, reasoning as
follows:
Here, the defendant was in the courtroom and subject to
observation by the jury. The defendant is over sixty years of age
and looked every day of it. There was testimony by the
complaining witness that the defendant represented a grandfather
figure to her. . . . [T]he jury could easily surmise by observation
that defendant was more than four years older than the complaining
witness.
Arneson takes issue with this ruling. He concedes he may not have
preserved error by timely raising the age-disparity issue. Accordingly, he
alternatively raises the issue under an ineffective-assistance-of-counsel rubric.
We will preliminarily address the error preservation concern.
There is no question Arneson’s motion for judgment of acquittal on the
age-disparity element of count II was untimely. See Iowa R. Crim. P. 2.19(8)(a)
(stating motion should be lodged “after the evidence on either side is closed”);
id. Iowa R. Crim. P. 2.19(8)(b) (allowing the court to reserve ruling on motion that
“is made at the close of all the evidence”). But the district court ruled on the
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merits of the motion notwithstanding its untimeliness. Because we have a ruling
to review, we conclude error was preserved. See Lamasters v. State, 821
N.W.2d 856, 864 (Iowa 2012) (“Where the trial court’s ruling, as here, expressly
acknowledges that an issue is before the court and then the ruling necessarily
decides that issue, that is sufficient to preserve error.”); State v. Tullar, No. 13-
1567, 2014 WL 6680927, at *2 n.2 (Iowa Ct. App. Nov. 26, 2014) (“[B]ecause the
district court issued a ruling on the merits of the [arrest-of-judgment and new trial]
motions, they are now properly before us.”).
The jury was instructed, “In considering the evidence, make deductions
and reach conclusions according to reason and common sense.” The jury heard
K.L. testify to her birthdate and state she was fourteen years old at the time of
the sexual abuse and sixteen at the time of trial. The jury also heard her testify
she knew Arneson from the time she was four or five and was friends with his
daughter, who was seventeen at the time of trial. Finally, the jury saw K.L.
identify Arneson in the courtroom. As the district court found, the jury could have
deduced that Arneson was four or more years older than K.L. See State v.
Teasley, No. 12-2043, 2013 WL 6119321, at *1 (Iowa Ct. App. Nov. 20, 2013)
(concluding the defendant “was in the courtroom and subject to observation by
the jury, and the jury reasonably could have surmised that he looked to be over
four years older than the complaining witness.”); State v. Schaefer, No. 09-0586,
2011 WL 768817, at *1-2 (Iowa Ct. App. Mar. 7, 2011) (citing several pieces of
evidence supporting the age-disparity element, including defendant’s presence
“in court during trial” and the fact “he was recognized and identified by [the child]
as the person who had had indecent contact with her”); State v. Thompson, 365
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N.W.2d 40, 43 (Iowa Ct. App. 1985) (“The defendant was present in the
courtroom during the entire trial. He was recognized and identified by the
witnesses.”). Substantial evidence supports the age-disparity element.
III. Hearsay and Vouching Testimony
At trial, a police officer testified to his questioning of K.L. and her mother
about the sexual abuse allegation. He described K.L.’s reaction, as well as her
mother’s reaction, and then said the following:
A. Okay. Yeah, [K.L.] put down her head and said, “No, mom, it’s
true.” She said it right away, and you know, based on everything,
you know, I felt like—
[Defense Counsel]: I object to his opinion of what he thought of her
statement.
[Prosecutor]: That’s fine. I’ll continue.
(Emphasis added.)
Arneson argues K.L.’s statement as recounted by the officer was
inadmissible hearsay. See Iowa R. Evid. 5.801(c) (stating hearsay is any out of
court “statement” made by the “declarant” that is offered “into evidence to prove
the truth of the matter asserted in the statement”); Iowa R. Evid. 5.802 (stating
hearsay is inadmissible except as provided by the Iowa Constitution, a statute,
the rules of evidence, or a supreme court rule). The State responds that the
statement was admissible to explain responsive conduct. See State v. Plain, 898
N.W.2d 801, 812 (Iowa 2017) (“An out-of-court statement offered only to explain
responsive conduct that is relevant to an aspect of the State’s case is not offered
to prove the truth of the matter asserted and therefore is not hearsay.”). We
cannot accept this rationale. The child’s response to her mother’s reaction was
entirely irrelevant to a material issue in the case. See id. (“[T]he court considers
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‘whether the statement is truly relevant to the purpose for which it is being offered
or whether the statement is merely an attempt to put before the fact finder
inadmissible evidence.’” (quoting State v. Mitchell, 450 N.W.2d 828, 832 (Iowa
1990))). The statement was precisely what it appeared to be—an out of court
statement made by K.L. and offered to prove the truth of the matter asserted.
See State v. Tompkins, 859 N.W.2d 631, 643 (Iowa 2015); see also Plain, 898
N.W.2d at 812-13.
That said, the evidence was cumulative. Plain, 898 N.W.2d at 813
(“Tainted evidence that is merely cumulative does not affect the jury’s finding of
guilt.”). The child described the police officer’s encounter with her mother, said
the officer told her mother what happened, and testified that her mother’s
reaction was “[n]ot so good.” She also testified she told her mother what
happened. Because her trial testimony was duplicative of the hearsay statement,
we conclude the district court’s admission of the hearsay evidence was not
prejudicial.
In reaching this conclusion, we have considered Arneson’s argument that
the hearsay evidence was introduced to bolster and vouch for the child’s
credibility. See State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014) (finding expert
testimony vouching for credibility of a child was prejudicial and required reversal
of conviction and remand for new trial); State v. Dudley, 856 N.W.2d 668, 678-79
(Iowa 2014) (same). Because the prosecutor abandoned the line of questioning
following the defense objection, we conclude the exchange did not cross the line.
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As for additional statements by the officer describing the child as “hesitant
to come forward” and “genuinely hurt,” we are not persuaded those statements
amounted to improper vouching.
IV. Suppression Ruling
Before charges were filed, a police officer asked Arneson if he would
agree to an interview. Arneson went to the police station and was questioned
about the sex-abuse allegation. During the interview, he provided police with a
DNA sample.
Arneson moved to suppress the evidence on the ground that it was
obtained in violation of his right to counsel under the Sixth and Fourteenth
Amendments to the United States Constitution and article I, section 10 of the
Iowa Constitution. Following a suppression hearing, the district court denied the
motion, reasoning that the rights implicated do “not attach until a prosecution for
an offense is actually commenced” or “at or after the initiation of an adversary
proceeding.” The court noted that at the time of the interview, “Arneson was
clearly not under arrest,” the interview was “noncustodial,” and “Arneson was free
to leave as he wished.”
On appeal, Arneson reiterates, “[T]he trial court erred in denying the
motion to suppress under the Sixth Amendment and article I, section 10 of the
Iowa Constitution.” At the same time, he admits “the district court was correct
that under current federal precedent, the Sixth Amendment . . . right to counsel
does not usually attach until charges are filed.” See Texas v. Cobb, 532 U.S.
162, 172 (2001) (“[I]t is clear that the Sixth Amendment right to counsel attaches
only to charged offenses . . . .”); State v. Effler, 769 N.W.2d 880, 890 (Iowa 2009)
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(“We have determined the Sixth Amendment attaches upon the initiation of
adversarial criminal proceedings, generally by formal charge, arraignment,
preliminary hearing, information, or indictment.”). He focuses on the Iowa
Constitution, framing the issue as “whether, under the facts of this case, the Iowa
Constitution provides a right to counsel under article I, section 10 . . . that
attaches during an interrogation of a felony suspect after he asks for an attorney,
but is denied one.”
The Iowa Supreme Court recently addressed this issue. See State v.
Green, 896 N.W.2d 770, 773 (Iowa 2017). There, as here, the defendant agreed
to be interviewed at a police station and was told he was free to leave. Id. In
addition, “[m]ultiple times throughout the interview, one of the officers would
leave the interview room to consult with the county attorney. During these
consultations, the county attorney would direct the officers to ask specific
questions.” Id. at 774. The court concluded, “[T]he level of prosecutorial
involvement at the time of the interview did not create a prosecution or case that
would trigger the right to counsel under article I, section 10.” Id. at 773. The
court further concluded
The facts and circumstances of this case confirm that Green was
not formally or informally an “accused,” and the interview was not a
“criminal prosecution” under our existing jurisprudence. Green
appeared voluntarily at the police station. He could have left the
interview room or stopped the interview at any time. There was no
warrant for his arrest, and there were no charges filed against him.
These facts signal a police investigation, not a criminal prosecution.
Id. at 778.
The facts here are virtually indistinguishable. We conclude Green is
controlling and Arneson’s right to counsel under article I, section 10 of the Iowa
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Constitution was not violated. We affirm the district court’s denial of Arneson’s
suppression motion.
V. Ineffective Assistance of Counsel
Arneson contends his trial attorney was ineffective in failing to challenge
the interview and the seizure of his DNA under the Fourth and Fifth Amendments
to the United States Constitution and article I, sections 8 and 9 of the Iowa
Constitution. Arneson and the State agree that we generally preserve
ineffective-assistance claims for postconviction relief. We do so here to allow
counsel the opportunity to weigh in on the matter. See State v. Thorndike, 860
N.W.2d 316, 319 (Iowa 2015).
We affirm Arneson’s judgment and sentence for two counts of third-degree
sexual abuse and preserve his ineffective assistance of counsel claim for
postconviction relief.
AFFIRMED.