IN THE COURT OF APPEALS OF IOWA
No. 17-0549
Filed May 2, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT E. SINN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, Michael J. Schilling,
Judge.
Defendant challenges his conviction and sentence for sexual abuse in the
third degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.
Robert Sinn appeals his conviction for sexual abuse in the third degree, in
violation of Iowa Code section 709.4 (2016). Sinn raises two arguments on appeal.
He contends the district court erred in declining to give his requested spoliation
instruction. He also argues there is insufficient evidence to support his conviction.
I.
In August 2016, Sinn was temporarily staying with C.W., his former partner
and mother of his seventeen-year-old daughter S.S. During his stay with C.W.,
Sinn repeatedly propositioned C.W. for fellatio and sexual intercourse. On one
occasion, he exposed his penis to her and asked her to perform oral sex. She
declined his repeated advances. On the night of August 4, C.W. testified she drove
Sinn to the bar for drinks because Sinn was not licensed to drive. While out with
Sinn, C.W. consumed four drinks. C.W. testified she had no recollection of any
events after consuming her last drink until she awoke and found herself lying on
her stomach in a ditch. She testified her head was inside a metal pipe, it was
raining, she was cold, and she felt pain in her eye and vagina. She was naked
from the waist down—wearing only a shirt but no underwear, shorts, or shoes.
C.W. clawed her way up the muddy ditch, walked to a nearby home, and banged
on the door. The homeowner answered the door. The homeowner testified C.W.
was hysterical and covered in mud. He called the police. Then he took C.W. into
the bathroom and placed her in the shower because she was so caked in mud she
was having trouble seeing.
C.W. was taken to the Henry County Health Center. She was treated and
released, but she came back later in the day because she was having anxiety and
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suffering pain in her ribs. The examining physician testified C.W. had suffered
trauma to her face and head. Her eye was bruised and almost swollen shut. C.W.
had scratches and abrasions on her lower extremities. C.W. reported pain in her
vaginal area. The physician noted an area of abrasion on the vaginal introitus that
appeared to be recent. The physician completed a rape kit. There was no semen
detected. The doctor believed C.W. had been assaulted with possible penetration
of the vagina. Bloodwork tested positive for the presence of alcohol and marijuana
but no other substances.
S.S., Sinn and C.W.’s daughter, was living with Teresa Roberts, C.W.’s
neighbor. S.S. testified when she got home from work, Sinn was at Roberts’
house. He was nervous and soaking wet. He told S.S. four different versions of
the events of the evening, but all of the versions ended with C.W. being left in the
ditch because, according to Sinn, C.W. got out of the car and refused to get back
in. Nonetheless, S.S. did not go search for C.W., concluding her mother would
call if she needed help. S.S. testified Sinn later asked her “if Mom had a black
eye,” which caused S.S. to grow concerned. S.S. testified she saw Sinn with a
little blue pill earlier in the day. He called the pill “his happy pill.”
Roberts testified Sinn woke her up that evening around 11 p.m. He was
wet and pacing. He told her he was with C.W. and C.W. had gotten out of the car
to vomit. Sinn told Roberts C.W. would not get back in the car so he left C.W. in a
ditch. He told Roberts C.W. did not have her phone because it was in his car. He
also told Roberts he saw C.W. “being handsy” with a man at the bar earlier in the
evening and appeared upset by this. Roberts gathered up a friend of her son and
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went to go look for C.W. They looked for approximately one hour, but they did not
find her.
New London Assistant Chief of Police Brandon Fowler spoke with Sinn on
the night in question. Officer Fowler initially went to C.W.’s residence to conduct
a welfare check on C.W.’s ten-year-old son, who was at home alone. After
speaking to C.W.’s son, Fowler went to Roberts’ house to ask her some questions.
Fowler learned Sinn was at Roberts’ house, and he asked for Sinn to come outside
and speak with him. Sinn did, and Fowler asked him where he had been and with
whom. Fowler testified Sinn kept asking over and over again if C.W. was all right
and repeating “he hoped he wasn’t in any trouble for this.” Sinn told Fowler C.W.
had gotten drunk and performed oral sex on him while Sinn drove around. Sinn
told Officer Fowler C.W. exited the car after the two fought and fell down “like three
different times.” Fowler testified Sinn told him he tried helping C.W. into the car
but could not so he left her there to try and get help. At this time, Fowler had not
yet told Sinn C.W. was found and at the health center.
Henry County Deputy Sheriff Jesse Bell also interviewed Sinn on the night
in question. Deputy Bell had been at the health center with C.W., but he left when
he learned Fowler had located Sinn at Roberts’ house. Sinn initially told Deputy
Bell C.W. left the bar with another man. Sinn told the deputy he got a ride home
with a cousin. Deputy Bell told Sinn he believed C.W.’s phone was in Sinn’s car,
and Bell asked if they could retrieve it. Sinn consented. The deputy observed a
brown sandal on the passenger floorboard. Sinn located the matching sandal and
C.W.’s phone in the backseat and gave them to Deputy Bell. The phone had mud
stuck to it. The deputy walked around the vehicle and shined his flashlight through
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the window. He observed jean shorts on the driver’s side in the backseat. Sinn
consented to the deputy taking the shorts out of the vehicle. The shorts were wet
and muddy. Sinn told Deputy Bell the shorts belonged to him and the shorts were
wet and muddy because Sinn had fallen down while wearing them. The shorts
were women’s shorts, and the deputy concluded the car was part of the crime
scene and secured the vehicle to be searched pursuant to a warrant. Upon
searching the vehicle later, the authorities found a pair of women’s underwear in
the backseat. C.W.’s driver’s license was in the pocket of the denim shorts. C.W.
later identified the underwear, shorts, and sandals as the clothing she wore that
night. Deputy Bell observed Sinn had white gravel and dirt caked onto his jeans.
After Deputy Bell told Sinn he did not believe his story, Sinn’s version of
events changed. Sinn stated he and C.W. left the bar together and drove around
while C.W. performed oral sex on him. Sinn said the two tried to have sex but
were too drunk. At some point, according to Sinn, C.W. exited the vehicle because
they were arguing or because she needed to vomit. She refused to get back into
the vehicle. Sinn told police he left C.W. there and went to get help. He said he
did not call anyone for help because “he doesn’t use his phone.” He was adamant
he and C.W. did not have sexual intercourse. Sinn also said he lied initially
because he was afraid he would be in trouble for leaving C.W. on the side of the
road.
Sinn also gave the deputies a cell phone he pulled from his pocket. Sinn
did not know to whom it belonged, but he stated he must have got it at the bar. It
was determined the phone belonged to Troy Stith, the owner of one of the bars
Sinn and C.W. went to on the night in question. Stith told police he asked C.W. to
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leave the bar because she appeared very intoxicated. She groped Stith and then
tripped over a barstool. Stith reviewed surveillance footage from the bar, which
showed C.W. took his phone when she groped him and handed it to the bartender,
who gave it to Sinn. The bar did not retain the footage.
Two persons from the jail testified at trial. The first was the jail administrator.
She testified Sinn spoke to her after Sinn’s initial appearance in the case. He was
upset and said “that he didn’t know how he could get this—this charge from just
getting a blow job from some girl.” Christopher Conrad, who shared a jail cell with
Sinn, testified at trial. Conrad had already resolved his case and was serving his
sentence in jail. He did not ask for nor receive any benefit for his cooperation. He
claimed he came forward because a relative had been raped. Conrad testified
Sinn told him he forced a woman into the car with him and drove her around while
he waited for the drugs he had given her to take effect. Sinn said he took the
woman to a gravel road where no one was around. Sinn told Conrad he punched
the woman and knocked her unconscious. Conrad testified Sinn told him he “took
advantage of her, took her-- tore her panties off and scratched her p*ssy.” He also
“made her suck his d*ck.” Sinn said he took the woman’s phone and “left the b*tch
for dead.”
Sinn was charged with theft and sexual abuse in the second degree as a
habitual offender. The district court granted Sinn’s motion for judgment of acquittal
on the theft charge. The jury found Sinn guilty of the lesser included offense of
sex abuse in the third degree. The district court sentenced Sinn to an
indeterminate term not to exceed fifteen years as a habitual offender.
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II.
Sinn argues the district court erred in concluding he was not entitled to a
spoliation instruction relating to the unavailability of the bar surveillance footage.
This court reviews the refusal to give a spoliation instruction for errors at law. See
State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004). The district court does not
have discretion to refuse a spoliation instruction when there is sufficient evidence
in the record to generate a jury question on the spoliation inference. See id.
“A spoliation instruction is a direction to the jury that it [may] infer from the
State’s failure to preserve [evidence] that the evidence would have been adverse
to the State.” Id. To justify a spoliation instruction, substantial evidence must
show: “(1) the evidence was in existence; (2) the evidence was in the possession
of or under control of the party charged with its destruction; (3) the evidence would
have been admissible at trial; and (4) the party responsible for its destruction did
so intentionally.” Id. (citing State v. Langlet, 283 N.W.2d 330, 335 (Iowa 1979)).
Even if a spoliation instruction should have been given, we will not reverse the
judgment of the district court if no prejudice occurred. See id. at 633 (“Instructional
error is not reversible error unless there is prejudice.”). “Prejudice exists when the
rights of the defendant have been injuriously affected or the defendant has suffered
a miscarriage of justice.” Id.
The district court did not err in declining to give Sinn’s proposed spoliation
instruction. Sinn failed to establish the State was ever in possession or control of
the surveillance footage. A deputy did view the surveillance footage and asked
Stith for a copy. Law enforcement followed up with Stith on several occasions, but
Stith did not make a copy of the footage because he did not know how. When
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Stith was deposed pretrial, he stated he thought the footage was still available. By
the time of trial, however, the footage had been automatically recorded over and
was no longer available. Stith is not the State, and he is not a party to this case.
See State v. Majerus, No. 16-1000, 2017 WL 4570361, at *5–6 (Iowa Ct. App. Oct.
11, 2017) (holding declination of spoliation instruction not erroneous where the
State failed to obtain surveillance footage from a third party). Stith’s possession
of the surveillance footage is not the State’s possession of the same. Nor can the
State be charged with intentionally failing to take possession of the footage “in
order to avail itself of the third-party possessor’s neutral record destruction policy.”
See State v. Schrock, No. 13-1832, 2014 WL 5243444, at *2 n.4 (Iowa Ct. App.
Oct. 15, 2014).
In addition, there is no evidence of intentional destruction of the surveillance
footage. Stith testified that he did not understand how to burn a copy of the footage
and that the footage was overwritten in the normal course. “Ordinarily evidence
destroyed under a neutral record destruction policy is not considered intentionally
destroyed so as to justify a spoliation instruction.” See Hartsfield, 681 N.W.2d at
632. We recognize that the State’s knowing failure to preserve the video could
satisfy this prong of the four-part test. Id. at 633. However, Stith believed the video
would be available for trial. There is no evidence the State had a reason to believe
to the contrary. See Schrock, 2014 WL 5243444, at *2 (“It is true under Hartsfield
that the State need not destroy the evidence itself, but it must nevertheless have
had some knowledge that its inaction would result in the destruction of the
evidence. Schrock has made no such showing here.”). “Mere negligence is not
enough, for it does not sustain the inference of consciousness of a weak case.”
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See State v. Stephen, No. 10-0286, 2011 WL 5393453, at *13 (Iowa Ct. App. Nov.
9, 2011) (quoting Langlet, 283 N.W.2d at 333)).
In any event, there is no showing of prejudice with respect to the sexual
abuse charge. Unlike Hartsfield, the contents of the video were described by an
impartial witness. The impartial witness testified the video showed Sinn and C.W.
conversing at the bar and captured C.W.’s drunken stumbling. It was not disputed
at trial that Sinn and C.W. were at the bar together. It was not disputed C.W. was
drunk. It was not disputed C.W. and Sinn left the bar together. It was also not
disputed C.W. later found herself nearly naked face down in a ditch during the
middle of a rain storm and that Sinn left her there. Her phone, sandals, muddy
shorts, and underwear were found in Sinn’s car. The video had limited, if any,
relevance to the sexual-abuse charge. At trial, defense counsel conceded the
video surveillance footage was more relevant to the theft charge. Defense counsel
conceded the relevance of the footage was limited after the district court dismissed
the theft charge.
The district court did not commit reversible error in declining the requested
spoliation instruction.
III.
In his next claim of error, Sinn challenges the sufficiency of the evidence
supporting his conviction for sexual abuse. He contends there was insufficient
evidence of a sex act. We will uphold a verdict if substantial record evidence
supports it. See State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). “Evidence is
substantial if it would convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt.” Id. at 75–76. When reviewing for the sufficiency of
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the evidence, we view the evidence in the light most favorable to the State but
consider all evidence in the record. Id. at 76. “The State must prove every fact
necessary to constitute the crime with which the defendant is charged. The
evidence must raise a fair inference of guilt and do more than create speculation,
suspicion, or conjecture.” Id. (internal citations omitted). “Inherent in our standard
of review of jury verdicts in criminal cases is the recognition that the jury [is] free
to reject certain evidence, and credit other evidence.” State v. Nitcher, 720 N.W.2d
547, 556 (Iowa 2006).
We evaluate the sufficiency of the evidence in light of the instructions given
where, as here, the instructions were given without objection. See State v. Canal,
773 N.W.2d 528, 530 (Iowa 2009) (“[Defendant] did not object to the instructions
given to the jury at trial. Therefore, the jury instructions become the law of the
case for purposes of our review of the record for sufficiency of the evidence.”). The
marshaling instruction provided:
1. On or about August 4, 2016, through August 5, 2016, the
defendant performed a sex act with C.W.
2. The defendant performed the sex act by force or against the will
of C.W. or while C.W. was suffering from a mental incapacity or
physical incapacity which prevented C.W. from giving consent. The
terms “mental” and “physical incapacity” are defined elsewhere.
3. The defendant knew or reasonably should have known that C.W.
was mentally incapacitated or physically incapacitated.
The jury instruction defined “sex act” to mean any sexual contact:
1. By penetration of the penis into the vagina or anus.
2. Between the mouth of one person and the genitals of another.
3. Between the genitals of one person and the genitals or anus of
another.
4. Between the finger or hand of one person and the genitals or
anus of another person.
5. By a person’s use of an artificial sex organ or a substitute for a
sexual organ in contact with the genitals or anus of another.
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When the evidence is viewed in the light most favorable to the verdict, there
is substantial evidence to support a reasonable inference Sinn committed a sex
act by penetration of the penis into the vagina. C.W. awoke in a ditch missing her
underwear, shorts, and shoes. She complained of pain in her vagina both upon
awaking and at the hospital. She testified Sinn had previously exposed his penis
to her, and she observed his penis was pierced. She testified she “felt gross down
there.” She had scratch marks on her legs consistent with fingernails. The
emergency-room physician concluded C.W. had injuries consistent with an assault
and possible penetration of the vagina. S.S. testified Sinn was in possession of
his blue happy pill prior to leaving with C.W. Police were unable to locate any pills,
from which the jury could infer Sinn used it. Conrad testified Sinn told him he drove
the woman to a gravel road where no one was around and “took advantage of
[C.W.], tore her panties off and scratched her p*ssy.” Scratch is a slang term
meaning to “engage in a sexual act with, most commonly intercourse.” Scratch,
Urban Dictionary, https://www.urbandictionary.com/define.php?term =scratch.
There is also substantial evidence of a sex act between the mouth of one
person and genitals of another. Conrad testified Sinn told him “he made her suck
his d*ck.” Officer Fowler testified Sinn told him that he drove around with C.W.
while she performed oral sex. Deputy Bell testified Sinn made similar statements
to him.
Sinn’s admissions were corroborated by other evidence. See State v.
Meyers, 799 N.W.2d 132, 139 (Iowa 2011) (discussing the requirement of
corroborating evidence to show a sex act occurred). Stith testified Sinn and C.W.
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were together at the bar. Conrad testified Sinn told him he drove the woman to a
gravel road where no one was around and punched the woman and knocked her
unconscious. Sinn’s vehicle was caked with fresh mud, corroborating Sinn’s
admission he drove around on rural roads during a rain storm while C.W.
performed oral sex on him. Deputy Bell testified he observed white gravel and
stains on Sinn’s pants. C.W. was in a ditch by a gravel road. She had a bruised
and swollen eye consistent with being punched unconscious.
Because we have concluded there is substantial evidence establishing both
sex acts, we need not address Sinn’s claim new trial is required pursuant to State
v. Tyler, 873 N.W.2d 741 (Iowa 2016) and State v. Schlitter, 881 N.W.2d 380 (Iowa
2016) because the jury returned only a general verdict when alternative factual
methods of committing a single legal offense were presented to the jury.
IV.
For the above-stated reasons, we affirm Sinn’s conviction for sexual abuse
in the third degree.
AFFIRMED.