State of Iowa v. Spaulding

Iowa, Appellee, The STATE SPAULDING, Appellant.

Robert Dean

No. 65439.

Supreme of Iowa. Court

Dec. Hawk County Attorney,

Black D. James Coil, Asst. County Black Hawk for Atty., appellee.

HARRIS, Justice. assigns ap- Defendant four errors in his peal judgment on conviction of third- degree 709.4, sexual abuse. Code We find no error and affirm the trial court.

During question, defendant together and wife his lived their two daughters, fifteen-year-old natural vic- tim and the older then sev- September enteen. On again 23, 1979, on September while his wife was town, out of defendant had intercourse with the victim. Each occurrence was in having victim’s bed. Defendant had been sexual relations with the victim for at least September years. five On defendant entered victim’s sister’s bedroom and held her down on her bed he while mastur- her bated on abdomen. mother,

Upon return of the seven- reported hap- what teen-year-old sister had pened. daughters The mother took both police report station where a was made. there, spoke Spaulding While Mrs. by phone police defendant while officer arrangement on an listened extension. The Spaulding’s was with Mrs. consent. De- fendant knew wife at the police his was station but did know the conversation being monitored. prosecution solely based younger two mentioned incidents with the sister. The mother both sisters stated candidly they testify were reluctant doing Through resisted so. their own attor- ney, quash the sisters filed a motion to their offering subpoenas, transcript instead of their from an earlier trial which resulted in mistrial. That motion Gottschalk, Kjas Long T. Shinkle & was overruled. When the mother was Long, Waterloo, appellant. testify both she called and defendant Miller, Gen., Atty.

Thomas J. privilege Michael Jor- asserted the marital a bar dan, Gen., Correll, Atty. Asst. H. David through of any . . commission first chal- .

I. Defendant’s [t]he ruling required a child as lenges the trial abuse with or to defined 232.68, testify her own and Spaulding Mrs. over chapter 709 Code. ....”§ was correct. vides in 622.9, husband and wife. tion for a crime wife shall N.W.2d other .. . admitting testimony Section protects 188, part: except: . A ” protest. 190 any statutory rape 622.7, “Neither committed one companion communications between (Iowa 1978), case be witness 1. In a The Code We State v. a the criminal think section, case. wife of a de we husband against Hubbs, 1979, pro approved The vic prosecu against section ruling 268 nor foundation to show ter 232. that the oral effect of section the record Spaulding, ant to . . . ny was report was sufficient As a derived report chapter shows the the sexual abuse was “from a victim’s did not 232.74 defendant ^[232] ground made the challenged report support . . . . We believe mother, pursuant lay contrary. Mrs. ” resisting made made an adequate testimo finding argues pursu police. chap step-daugh tim in Hubbs was defendant’s correctly hold the trial court in We wife, mother, ter. Hubbs’ victim’s terpreted legislative admitting intent in testify. allowed to testimony. Spaulding’s Mrs. here believes not Defendant Hubbs does II. chal- Defendant’s apply Spaulding joined because Mrs. in her admitting lenges rulings court the tes- trial protest whereas husband’s Hubbs’ wife victim, sister, timony and Mrs. willing apparently a witness. But section acts inter- Spaulding which described 622.7 calls for no such And we distinction. course with the victim and incident legislature do not believe the intended that sister. Defendant believes victim’s prosecutions un- for criminal it testimony this was inadmissible because 622.7(1) apply only der section should crimes,” any and fell was of “other outside spouses willing who are witnesses. exceptions might have allowed the which also supports Another statute Johnson, 224 v. N.W.2d State ruling. provides: Section 232.74 617, (Iowa 1974); Wright, v. 191 619 State 622.7, [previously 622.9 men- Sections 638, 1971). objec- N.W.2d 640 622.10 [communications tioned] victim, testimony tions to and of professional any other confidence] separate- will be treated statute or rule of evidence excludes ly following in the subdivisions. privileged testimony or makes of a ., against husband or wife the other . . acts with the victim A. apply regarding shall not recog generally were admissible under a injuries any child’s or the cause thereof in “exclusionary nized exception to the above criminal, judicial proceeding, civil re- or passion propen rule” order “to show a or sulting report pursuant from a this sity par sexual relations with illicit chapter relating subject matter ticular concerned in the on crime report. of such trial.” McCormick’s Handbook the Law Evidence, (2d Cleary Ed. 190 at 449 E. seeks Defendant to avoid the effect Maestas, 248, 1972); 224 v. N.W.2d State grounds. on two section 232.74 He first Rankin, (Iowa 1974); v. 250 181 not apply claims the section does because 169, 171 Kin State v. offense, says, he does involve a kade, 1261-62, 1259, 43 N.W.2d 241 Iowa injuries” meaning “child’s within the 736, Neubauer, (1950); 145 738 ground light section. This falls 345-46, (1910); Iowa 124 N.W. 315 statutory chapter definitions set out in the Annot., (1978); Annot., 12 77 appears. which it Child abuse is defined 88 A.L.R.3d Annot., occurring (1961); 167 “harm or threatened harm A.L.R.2d 841 A.L.R. 565

881 State, (1947); Ind.App. presents question. Merry v. 166 closer The trial court (Ind.App.1975). carefully considered the matter 335 N.E.2d in exercis- explained: its discretion separate question presented B. A that, ruling The reasons for court’s testimony on the of the victim’s sister. She taking all of the circumstances into con- during described which occurred act sideration, appeared it that one or more period two incidents two-day between the of the bases set out in case the Johnson We, giving to this and a num rise present probative were and that val- courts, testimony ber of have held such outweighed testimony preju- ue of this its admissible as an to the exclusion dicial effect. The court advised counsel ary rule. it permit would not con- 251-52; 262; State, Merry N.E.2d at cerning any alleged acts acts (Mo. Simerly, State v. 463 S.W.2d between the witness and the defendant Kazee, App.1971); Cal.App.3d come into evidence for the reason that Cal.Rptr. offenses, any, such other if would not Covert, 220, 225, Cal.Rptr. State v. 57 249 have been deemed to have been close (1967); Jackson, Cal.App.2d 81 State v. enough point time to have sufficient (Ohio Ohio App. 81 N.E.2d 548-49 probative the value this case. And App.1948); Edwards, N.C. attempt then not to did elicit testi- (1944); 31 S.E.2d see McCor mony concerning any acts other mick, 450; supra, at 190 footnote 41 An § specific witness and the defendant. The not., Annot., 88 A.L.R.3d 12 77 A.L. feeling reasons for that the evidence falls (1961); Annot., R.2d 841 167 A.L.R. 565 the com- within Johnson rule is that (1947). out, Although, pointed as has been present. mon circumstances were Both “by number of admit testimony cases question crime in and this incident forcing the exceptions evidence into the re substantially occurred in man- same McCormick, lating design intention,” ner; daughters both involved de- generally received in the fendant; both involved the claim that the belief “that certain sex unnatural defendant came into their bedroom are in themselves so unusual and distinctive woke them. ... both instances that any such acts the accused gone. mother And incident with anyone strongly probative are of like two question occurred between the acts the occasion involved in the principal acts that victim of the of- ” charge Also, page .... fense occurred. as an addi- reason, tional felt [because separate questions There remain the victim’s concession on cross-examina- of] of whether the evidence of each sister was possible . . tion that it was . she dreamed prejudicial. more informative than it was previously the events ... she had testi- question prejudice Without the level of in (and pri- fied constitute the [which] type herent in this high. of evidence It mary charged), the offense nevertheless admissible if its value question an the evidence in had increased searching charges out the truth of the be probative value. relatively higher. comes or remains McCor evi The seems to that the rule be mick, supra, at 453-54. easily dence of such acts are more admissi The testimony impor- of the victim was they point ble closer occurred in claim, tant in view of defendant’s based on giving act rise during concession the victim’s cross-exam- A.L.R.3d at 14. The victim’s sister’s testi ination, may that she have dreamed the act. occurring mony related an act between The testimony properly victim’s admit- involving younger gave sister. It ted. story, victim’s considerable credence to the testimony person of such acts with tended contradict always than the may immediate victim claim that the victim have dreamed Though testified activities. she her social of discre- no abuse We find

the occurrence. of her not then afraid trial she was admitting the sister’s tion in him at she was afraid of she also said father is without Defendant’s assault. Defendant’s chal- the time of the merit. oscillat- lenge to the assignment de his third III. For Her not well founded. uncertain is sufficiency challenges the memory not from a clouded vacillation was allegation in the to establish testify. from her reluctance but alterna are three There trial information. without assignment is merit. abuse proving sexual ways tive third threshold cohabiting with the fourteen or household as the the other blood person is related to If ^[1] so, the crime degree under section person affinity question participant and uses is in a fifteen is a member may to the fourth position the other defendant as years whether the perpetrated participant, authority over 709.4(4). The participant degree, or age this authori victim is and not if “. . . spouse. ^[2] same ^[3] court is without unconstitutional, based on the contention 1981). Cobb, As AFFIRMED. all of defendant’s IV. Defendant’s affirmed. Wright, 309 merit without merit. State judgment of the trial that section final assignments are assignment, 907.3is to sub ty participant to coerce the other ALLBEE, except UH- concur All Justices 709.4(4). necessary mit.” It was McCORMICK,JJ., who dis- and LENHOPP committing the prove means of all three sent. McGinnis, 243 N.W.2d offense. State v. (Iowa 1976). ALLBEE, (dissenting). Justice charged here The trial information ground that trial reverse on the I would authority parental exercised that defendant admitting of sexual in court erred submis the victim in order to coerce over and the activity between defendant failed to sion. Defendant claims the record subject to testimony was older sister. authority or existence of the establish the evidence of prohibits the rule here was that it was so used. Defendant by a defend- committed or bad acts crimes charged a member of the same also as exception ant, within no valid and it came by related to the victim household and one Therefore, trial exclusionary rule. to that prohibited de affinity blood or within the to admit the evi- no discretion court had gree. ample to estab There was dence. charge. lish the evidence of other which excludes The rule long part been a of acts has evidence was crimes or bad We also think the jurisprudence. and Iowa alleged Anglo-American misuse of sufficient to show the prevent the this rule is to purpose of parental authority. We view The which has considering evidence and light most favorable the de- except to show that support the con no relevance all reasonable inferences character and therefore is of bad accepted are established. State viction the crime Schrier, (Iowa 1981). likely to have committed more 300 N.W.2d Cott, 283 N.W.2d charged. We consider all v. Rob the evidence. State Handbook of the inson, (Iowa 1980). McCormick’s 288 N.W.2d (2d ed. Law of Evidence credibility § witnesses is for the The evi- Robinson, 1972). Accordingly, when other-crimes fact finder. 288 N.W.2d at purpose some is offered for jury question was made dence Under this test a in acted that the defendant than to show out. The victim testified her father coerced character, it es- bad conformity with his by threatening to limit cooperation her into of rule capes argued the ban admissible. been that certain unnatural sex Cott, 283 N.W.2d at 326. This court has so crimes are themselves unusual and recognized objec- number of noncharacter distinctive that such acts proof of may anyone proba- tives for which such evidence accused with strongly are admitted, including: upon tive of like acts the occasion in- charge, danger volved in the but the intent, of (1) motive, (2) (3) absence mis- here, prejudice is likewise enhanced accident, (4) a common take scheme or past most courts have excluded embracing system activity of criminal persons pur- such acts with other for this or more so commission re- pose. signs More recent cases show proof one prove lated that tends to lowering particular barrier other, to admis- (5) person identity charged sion. with the commission crime. (empha- categories proof Id. These are often omitted). added) (footnotes sis “exceptions”

referred to as to the exclusion- ary rule. upon also relies Maestas, (Iowa 1974). 224 N.W.2d 248 I upon by exception so-called relied believe that Maestas has been discredited majority differs from the well-established opinion above, our exceptions listed in that it identifies opportunity that we should take this no purpose noncharacter for which the evi- Rather, attempt overrule Maestas rather than dence offered. the rationale is revive it. who has committed “certain past is very unnatural sex crimes” In where the defendant was likely to have committed a similar act charged committing with lascivious acts the occasion involved upon his twelve-year-old daughter, present case, example, evidence of de- court indicated that evidence the defend- activity fendant’s with his older ant’s sexual relations with the two daughter is relevant to the crime prosecuting older sisters witness “ar- only by way of an inference that man guably” came within either the engaged activity who in sexual relating a common scheme of criminal daughter likely one do so with his activity permitting intro- daughters. agree tempt- While I it is duction of evidence to show the dis- “lewd inference, ing precisely to draw such an position” defendant. this kind of character inference that dispo- at N.W.2d 250-51. The broad “lewd exclusionary designed prevent rule was to exception sition” referred into Maestas was Thus, making. recog- unlike the rejected by later this court in Cott: exceptions, actually nized which fall outside tending prove dispo- to a lewd [E]vidence scope rule, exclusionary the ex- charged defendant with las- sition ception upon by today relied cuts originally civious acts with a minor right to the heart of that rule and eviscer- only relevant insofar as it considered ates it. solely prose- showed his intent toward the majority’s reliance cuting imperceptibly, witness. Almost by is supra, misplaced. This is revealed over- disposition exception was lewd paragraph full text of the from which the the de- evidence of permit extended quoted only part: First, fendant’s acts with other victims. Schlak, for purposes which evi- Iowa [One 289] [253 crept synonym dence other crimes is admissible it in as a for motive. is] [t]o Then, Maestas, passion propensity show a illicit it was used as an alter- for particular per- sexual relations with the to the common scheme native rationale However, proving dispo- son concerned exception. in the crime on trial. Oth- lewd persons er like purpose sexual crimes with other sition has never the sole for been qualify purpose. do not approved for this It has which this court has the admis- soybeans who had stolen on sever- concerning prior acts sion of prosecutrix. prior very likely than the occasions was to have persons with al disposed we to endorse lewd now on this occasion Nor are stolen them also —the separate, exclusively ade- disposition designed to very rationale the rule is prohibiting quate exception to the rule against. guard testimony regarding pri- the admission Id. the criminal or or victims. A focus on Likewise, case also entitled in another the defendant disposition aberrant Wright, 203 N.W.2d 247 exactly regard to various victims 1972), it that the de- was held evidence of prejudice general sort of his nat- fendant’s lascivious conduct toward By creating rule seeks avoid. an ex- daughter in a trial ural was inadmissible kind, seriously ception of this we would statutory where he was impact rule, general pro- erode rape stepdaughter. of a The court noted scribing criminal con- only that the evidence would be admissible duct, in the of sex crimes. The context separate were “so related to if the offenses to those accused of resultant unfairness proof of one each other that tend[ed] sex crimes self-evident. other,” observed that establish the added) Cott, (emphasis 283 N.W.2d at 327 prove utterly to that State failed “[t]he (footnotes omitted). relationship Id. here.” Thus, possible rationale for the only prosecution lascivi- Finally, in decision which remains after Cott Maestas child, ous acts with a we found the common came within the com- that inapplicable to excep- scheme exception. mon Even that scheme tion, however, lascivious acts inapplicable other- he employed crimes evidence at issue in Maestas and with a different child in which Previous operandi. case bar. decisions similar modus N.W.2d court have made it clear that a mere show- 328. There we said: ing high- that the defendant has committed The fact that defendant committed bring ly similar offenses does not the evi- against crimes of the same nature exception. dence within the common scheme girls bring is insufficient to the testi- Wright, example, For mony excep- within common [the scheme] 1971), this court held only apply- tion .... basis our [T]he soybeans, in a for the theft of case would be in this [that] partici- evidence that the defendant had accused was com- assumption pated soybean in other thefts in the same plan or pelled some sort of internalized neighborhood during general the same place would us character defect. That period was not within the common scheme relying the de- perilously close exception. The court observed: rele- disposition fendant’s criminal find Assuming the evidence shows what disputed vance it, claims that most can omitted). (citations Id. soybeans said is that defendant first stole exception is the common scheme Because and, being from one the other farms clearly inapplicable to of de- successful, engage was emboldened activity with the victim’s fendant’s ultimately

other thefts until he came un- in- and because defendant’s suspicion. sug- der there any Nowhere is motive, intent, gestion dependent no issue as to mistake that volved one crime identity, apparent that any connected with of the others. was, record, separate special exemption Each under this has carved out a independent crime. exclusionary vague- rule for what the court sex crimes.” ly refers as “unnatural appears beyond dispute It that words, persons charged with these sought to introduce evidence of oth- protection er will receive persuade that a crimes exclusionary rule that other criminal de- basis,

fendants receive. There is no how- Iowa, Appellee, STATE ever, for such a difference treatment. implicit As we assump- noted in “[t]he MULDER, Appellant. John treating tion in sexual offenders differently from other criminals is No. 63358. they that have a greater propensity for recidivism. Most Supreme Court of Iowa. assumption studies show this unwarranted. Dec. 283 N.W.2d at 327 n.2. Until [Citations.]” has showing some sound data evidence of a defendant’s involvement in a substantially

similar crime is proba- more

tive in the case aof sex crime than for crime, types the exclusionary rule applied

should be equally types to both

defendants. among trend a number of courts to protections

dilute the exclusionary

rule in sex crime cases widely has been See,

criticized the commentators. e.g.,

Gregg, Other Acts of Sexual Misbehavior

and Perversion as Evidence in Prosecutions Offenses,

for Sexual Ariz.L.Rev.

(1965); Note, Change: Time for Evidentia

ry Safeguards Needed in Trials for Sexual

Offenses, (1978); Note, 11 Ind.L.Rev. 895

Evidence of Defendant’s Other Crimes: Ad Minnesota,

missibility in 37 Minn.L.Rev. Comment, Defining Stan Determining

dards for Admissibility Offenses,

Evidence of Other Sex 25 U.C.L. (1977).

A.L.Rev. After

steps taken in begin Cott to counteract

nings law, of such a trend in our own case I

regret now, the court its deci case,

sion in this chosen to turn back the

clock. This basing court should resist its

decision on an emotional reaction to a re

pugnant crime rather than on sound eviden-

tiary principles. McCORMICK, JJ.,

UHLENHOPP and

join this dissent.

Case Details

Case Name: State of Iowa v. Spaulding

Court Name: Supreme Court of Iowa

Date Published: Dec 23, 1981

Citation: 313 N.W.2d 878

Docket Number: 65439

Court Abbreviation: Iowa