State v. AndersonState v. Anderson
- Reporters:
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- Before:
- Cady
The primary issue we face in this appeal is whether the child abuse exception to the marital communications privilege applies to testimony presented in a criminal trial charging statutory rape by a person not responsible for the care of the child-victim. We conclude the district court erred in admitting evidence of marital communications under the facts of this ease. We reverse the judgment and sentence of the district court, and remand the case for a new trial.
I. Background Facts and Proceedings.
The circumstances leading to this criminal prosecution date back to the summer of 1998. At that time, Mark Anderson lived in Keota, Iowa, with his wife and two children. Anderson was a life-long resident of Keota and farmed with his father on the family farm located four miles north of the town. Anderson grew corn and beans on the farm, and raised hogs. He was also a girls’ softball and basketball coach for the Keota Community School District. He was thirty-seven years old.
A year later, on September 14, 1999, the principal of the Keota high school notified J.D.’s parents of a report he received that Anderson had engaged in inappropriate contact with J.D. during the summer and fall of 1998. The parents then confronted J.D., who admitted to the report.
On September 15, 1999, J.D. and her mother met with a deputy county sheriff. J.D. gave a detailed statement disclosing four separate occasions in which she engaged in sexual intercourse with Anderson during the summer and fall of 1998. A criminal complaint was then filed on the same date, and the county attorney filed two trial informations against Anderson for sexual abuse in the third degree under Iowa Code section 709.4(2)(c)(4) (1997), commonly known as statutory rape.
On September 17, 1999, the school principal also called J.D. into his office at the school, and asked her to fill out a written report or complaint of abuse of a student by a school employee. The principal did this as a designated abuse investigator for the school district, and J.D. complied with the request. She was subsequently interviewed by the child protective service agency in Cedar Rapids. During the interview, J.D. again described the incidents of sexual intercourse with Anderson.
The trial information was later amended to charge Anderson with two counts of sexual abuse in the third degree, based solely on the commission of a sex act with a minor and the disparity in the age of the participants. Trial commenced on May 2, 2000.
J.D. testified at trial that Anderson first made sexual advances towards her on the evening of July 4,1998. This occasion was followed by another incident of more aggressive sexual advances a few days later after J.D. had accompanied Anderson to his camper parked at Lake Darling. She then described four occasions in which she engaged in sexual intercourse with Anderson. She testified she had sexual intercourse with Anderson on two occasions in the camper, once in the bedroom of Anderson’s home, and once in a schoolroom of the elementary school in Keota. J.D. was able to describe the interior of the camper’ and bedroom in detail, and described Anderson as having a hairy chest.
The State also called Anderson’s ex-wife as a witness at trial. She testified that their seventeen-year marriage ended in divorce on December 20, 1999, four months prior to the trial. She described the interior of the camper and the bedroom, as well as Anderson’s body, consistent with the description given by J.D. She also testified to various conversations she had with Anderson about his relationship with J.D., including concerns she expressed to him during the summer of 1998 about the amount of time he was spending with J.D. She also testified to a private conversation she had with Anderson following his arrest in which she asked him why he “let himself get into that situation.” In response, Anderson told her “You’re right. I should have listened to you before.”
Anderson testified at trial and acknowledged J.D. visited the camper with him, and accompanied him on numerous occasions to various places during the time
Anderson requested the jury be permitted to consider the offenses of assault with intent to commit sexual abuse and simple assault as lesser-included offenses of the charge of sexual abuse in the third degree. The district court refused to submit the offenses.
The jury found Anderson guilty of both counts of sexual abuse in the third degree. Anderson was subsequently sentenced to two concurrent ten-year terms of incarceration. He appeals.
Anderson raises two issues on appeal. First, he claims the district court erred in allowing his former wife to testify about their privileged marital communications. Second, he claims the district court erred in refusing to submit the offenses of assault and assault with intent to inflict sexual abuse as lesser-included offenses of sexual abuse in the third degree.
II. Standard of Review.
Our standard of review of the statutory privilege is for correction of errors at law.
III. Marital Communications Privilege.
It is generally recognized that every person may be liable to testify to relevant factual matters in a court proceeding. See 8 John Henry Wigmore, Evidence § 2232, at 227-28 (McNaughton rev. 1961). However, our law has long recognized certain privileges to protect against the disclosure of specific types of communications. These privileges are ordinarily grounded in public policy and generally exist to promote certain confidential relationships and encourage candid communications between the parties to those relationships. 7 James A. Adams & Joseph P. Weeg, Iowa Practice § 501.1, at 273 (2d ed. 1998); see 8 Wigmore, Evidence § 2285, at 527-28. They exist because the societal interest protected by the privilege exceeds the value of the testimony to the administration of justice.
One recognized privilege involves confidential marital communications. Since medieval times, the law recognized a wife could not testify against her husband.
See Trammel v. United States, 445 U.S.
40, 43-44, 100 S.Ct. 906, 909, 63 L.Ed.2d 186, 190 (1980). Although this ancient doctrine has been abrogated in Iowa, as well as in nearly all other jurisdictions, our laws still recognize a companion privilege that prohibits the disclosure of testimony concerning a spousal communication made during the marriage.
See
1 Kenneth S. Broun et al.,
McCormick on Evidence
§ 78, at 292-94 (John William Strong ed., 4th ed. 1992); 7 Adams
&
Weeg,
Iowa
The privilege for marital communications is recognized in Iowa by statute. Iowa Code section 622.9 provides:
Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted.
The privilege, however, is not absolute. Both common law and legislative exceptions have surfaced under circumstances where the purpose for the privilege is diminished or lost.
See State v. Klindt,
389 N.W.2d 670, 675-76 (Iowa 1986). We adopted a common law exception to the marital privilege in prosecutions for crimes committed by one spouse against the other.
3
Id.
at 676. Moreover, our legislature crafted another exception to the marital privilege concerning evidence of injuries to children in a civil or a criminal proceeding that resulted from or related to a report of suspected child abuse.
Sections 622.9 and 622.10 and any other statute or rule of evidence which excludes or makes privileged the testimony of a husband or wife against the other or the testimony of a health practitioner or mental health professional as to confidential communications, do not apply to evidence regarding a child’s injuries or the cause of the injuries in any judicial proceeding, civil or criminal, resulting from a report pursuant to this chapter or relating to the subject matter of such a report.
Id.
We have previously indicated this statute reveals our legislature’s intention to abrogate the spousal privilege in most cases involving crimes against children under eighteen years of age. State v. Cahill, 186 N.W.2d 587, 589 (Iowa 1971). However, we have not yet considered the contours of those cases that may fall outside the child abuse exception. We first turn to the history and language of the statute to make this determination.
The statutory exception to the marital privilege was first enacted in 1965.
See
1965 Iowa Acts ch. 217, § 8 (codified at
This case does not implicate the first two requirements. An alleged admission of statutory rape constitutes evidence of an injury to a child-victim or the cause of injury, and the evidence in dispute in this case was presented in a criminal trial. We focus our attention on the third requirement. The exception to the marital privilege not only requires a report to be made, but further requires the report to be made “pursuant to this chapter” or relate to the subject, matter of such a report.
Anderson argues the statutory exception does not apply to this case because the criminal charges brought against him by the State do not constitute child abuse and were not subject to the child abuse reporting provisions of chapter 232. The State argues the exception applies because the reporting provisions of the law are broad
Before examining the specific reporting requirements under the chapter, it is important to consider that
In 1979, our legislature enacted the comprehensive Juvenile Justice Act.
See
Iowa Code ch. 232 (1979). At the same time, the reporting, investigation, and exception to the marital privilege provisions were transferred to this comprehensive chapter of the Code,
see
Today, as before, any person may report child abuse under chapter 232.
Under section 232.68(2), “child abuse” or “abuse” is defined six ways. However, each definition not only describes some form of harm to a child, but also requires the harm to result from the acts or omissions of a person responsible for the care of the child.
5
See id.
Although chapter 232 generally limits its reporting requirements to child abuse, mandatory reporters are also now given additional reporting requirements under
Thus, unlike the original reporting provisions, chapter 232 has extended the reporting scheme for mandatory reporters to include some cases of non-child abuse, but has continued to limit the reporting provisions for permissive reporters to child abuse. The important consequence of this distinction comes into play when the reporting requirements are applied to
the
exception to the marital privilege. If we apply the literal language of
We understand why our legislature would want to expand the reporting requirements in the area of sexual offenses against children. The policy and purpose of reporting requirements is to protect children from abuse as much as possible.
We think our legislature only intended the exception to the marital privilege under
Statutes creating privileges are to be liberally construed.
State v. Bedel,
193 N.W.2d 121, 124 (Iowa 1971). They are founded on longstanding principles representing strong prevailing public policy. Thus, any exceptions to a privi
We also recognize that the fundamental purpose of maintaining the marital privilege is served in cases involving injuries to children as a result of a non-care provider with much greater strength than in cases involving a care provider. Like the exception for crimes by one spouse against the other, child abuse inflicted by a spouse upon a child of the family undermines the very relationship the privilege seeks to maintain. United States v. Allery, 526 F.2d 1362, 1366 (8th Cir.1975). It is an offense against the family harmony and, at the same time, a wrong against the other spouse. Id. These consequences gave rise to the creation of the recognized exceptions to the privilege. On the other hand, the marital relationship is not directly undermined by acts of a spouse directed to a child outside the marriage relationship.
We further recognize that a limitation on the exception to the marital privilege to cases that fall within the statutory definition of child abuse is compatible to the approach followed in most jurisdictions that have enacted a child abuse exception to the marital privilege. The three federal circuits that have adopted the child abuse exception to the marital privilege did so only in cases where the victim of the offense was a child of one of the spouses, or was at least a child within the household. See United States v. Bake, 128 F.3d 1440, 1446 (10th Cir.1997); United States v. White, 974 F.2d 1135, 1138 (9th Cir.1992); Allery, 526 F.2d at 1367. Furthermore, most states that have adopted the child abuse exception to the marital privilege appear to have narrowly applied the exception to crimes against children of either spouse or children under their care. See Commonwealth v. Boarman, 610 S.W.2d 922, 925 (Ky.Ct.App.1980) (marital privilege not applicable to the prosecution of a man for sexual abuse of adopted daughter); Adams v. State, 563 S.W.2d 804, 809 (Tenn.Crim.App.1978) (marital privilege does not apply to acts of violence by a defendant upon the children of either spouse or upon minor children in the custody or dominion or control of either spouse); State v. Widdison, 4 P.3d 100, 111-12 (Utah Ct.App.2000) (exception to marital privilege applies to injuries by husband to a child residing in home of either spouse); State v. Sanders, 66 Wash.App. 878, 883-84, 833 P.2d 452, 455-56 (1992) (under state statute, the marital privilege does not apply to crimes committed by a husband or wife against any child of whom the husband or wife is a parent or guardian). But see Ludwig v. State, 931 S.W.2d 239, 244 (Tex.Crim.App.1996) (interpreting rule to extend exception to marital privilege to any crime against any child).
Finally, the statutory history of
The State also asserts the statutory exception to the marital privilege should be read to apply to any reports of injuries to children. We have said on prior occasions that our legislature intended a “report” to be broadly defined. State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981); Cahill, 186 N.W.2d at 589. Yet, this broad definition essentially means all child abuse that leads to a judicial proceeding will necessarily be preceded by a report under chapter 232, or at least relate to the subject matter of the report. See Johnson, 318 N.W.2d at 439 (“[although the [criminal] proceedings did not result from, the report, they clearly relate to the subject matter of the report”). It means the legislature did not intend the reporting requirements to be technical, and that most reports of child abuse will constitute a report under the chapter. However, the broad meaning of “report” cannot be extended beyond the meaning intended by our legislature.
The State’s position would require us to read the “report pursuant to this chapter” language out of the statute. We avoid interpreting a statute to render any part of it superfluous.
State v. Graves,
491 N.W.2d 780, 782 (Iowa 1992). Instead, each part of the statute is presumed to have a purpose.
Id.
We cannot interpret
IV. Harmless Error.
The State further argues that any error in admitting evidence in violation of the marital privilege did not affect the outcome of the trial. We recognize not all trial error requires a reviewing court to reverse the judgment of the district court. Instead, under the harmless error rule, reversal is not required if the State can establish the error did not cause prejudice to the defendant. State v. Griffin, 576 N.W.2d 594, 597 (Iowa 1998). The inquiry turns to whether the guilty verdict was unattributable to the error. See State v. Leutfaimany, 585 N.W.2d 200, 206 (Iowa 1998). In making this determination, we consider the probative force of the evidence considered by the jury against the evidence erroneously admitted. Id.
The State asserts the evidence of guilt was strong enough to support a verdict of guilty without the evidence of the implied admission of guilt by Anderson. Furthermore, the State maintains that Anderson offered an explanation in response to the evidence of an admission that would support a finding that the evidence did not constitute an admission. We agree the child-victim in this case offered detailed evidence of the crime, which was corroborated by Anderson’s former wife. Anderson was also alone with the child on numerous occasions and the child did not accuse Anderson until she was confronted by her parents and authorities almost a year later.
Nevertheless, there was no physical evidence offered at trial and no eye witness testimony to the crime. Instead, the verdict was essentially a product of the credibility of the defendant and the victim. Anderson offered evidence to rebut the testimony offered by the State. Under these circumstances, we cannot conclude beyond a reasonable doubt the guilty verdict was unattributable to the evidence admitted in violation of the marital privilege. In a case of this nature, an admission of guilt could have very well been the decisive piece of evidence that tipped the scale in favor of guilt. Moreover,
We are obligated under our governing principles of law to reverse the conviction. The admission of the evidence of the marital communications was prejudicial to Anderson in this case.
V. Lesser-included Offenses.
We address Anderson’s additional argument that the conviction must be reversed because the district court failed to instruct the jury on all the lesser-included offenses of the crime. Anderson claims he was entitled to the lesser-included offenses of assault with intent to commit sexual abuse and simple assault. We address this issue to assist the trial court in the event it is presented again on remand.
Generally, a district court commits reversible error by failing to instruct the jury on all lesser-included offenses. A lesser-included offense is included in the greater offense “if it is impossible to commit the greater offense without also committing the lesser offense.” State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988).
Anderson claims we have previously determined that assault and assault with intent to commit sexual abuse are lesser-included offenses of sexual abuse in the third degree, even in cases involving children.
See State v. Wilson,
523 N.W.2d 440, 440-41 (Iowa 1994);
State v. Turecek,
456 N.W.2d 219, 222-23 (Iowa 1990). However, our prior cases involved specific allegations of sexual abuse by force or acts against the will of the victim. In this case, the State only charged Anderson with the statutory rape alternative of sexual abuse in the third degree.
See
Nevertheless, Anderson argues that evidence was presented at trial to support a finding by the jury that J.D. did not consent to the sex acts. He also made an offer of proof concerning J.D.’s unwillingness to submit to Anderson’s advances. This evidence, however, is not material to the proceeding, and cannot be used to alter the State’s theory of prosecution. The district court properly denied the request for lesser-included offenses.
VI. Conclusion.
We conclude the trial court erred in admitting evidence of marital communications. We find the error was prejudicial. Consequently, we are obligated to reverse the judgment and sentence of the district court and remand the case for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
Notes
. The rule of spousal disqualification can be traced to 1628 when Lord Coke wrote “it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband.”
Trammel,
445 U.S. at 43-44, 100 S.Ct. at 909, 63 L.Ed.2d at 190 (quoting 1 E. Coke,
A Commentary upon Littleton
6b (1628)). Iowa repealed the competency statute, formerly Iowa Code section 622.7, in 1983.
See
1983 Iowa Acts ch. 37, § 6 (codified at
. Other reasons support the existence of the marital privilege. See 7 Adams & Weeg, Iowa Practice § 503.1, at 297 n.4. One additional reason is to respect human privacy, especially in the context of the marital relationship. Id. (citing 2 Louisell & Mueller, Federal Evidence § 219, at 637-38 (1978)). Another reason is that “it is unseemly, even offensive to many, to use the power of the state to force revelation of marital confidences.” Id. (quoting 2 Louisell & Mueller, Federal Evidence § 219, at 637-38 (1978)). Additionally, “this protected privacy, and the confidence between spouses which it encourages, are utterly essential to the complete fulfillment of marriage.” Id. The privilege “provides support for the insti-tulion of marriage itself — a proposition which is sound even if it be conceded that spouses do not consciously rely upon the privilege in confiding in one another.” Id.
. Many other jurisdictions, including federal courts, have established an exception to the marital privilege where a spouse commits an offense against the other spouse. See Wyatt v. United States, 362 U.S. 525, 526-27, 80 S.Ct. 901, 902-03, 4 L.Ed.2d 931, 933 (1960); 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5592, at 748 (1989) (it is generally agreed that assault, battery, and other types of corporal violence are within the exception).
. In
State v. Countryman,
we specifically recognized child abuse and crimes against a spouse as the two exceptions to the marital communications privilege.
See State v. Countryman,
572 N.W.2d 553, 561 (Iowa 1997). We created the latter exception, while the child abuse exception is strictly statutory. Additionally,
. A “person responsible for the care of a child” is a defined term.
See
a. A parent, guardian, or foster parent.
b. A relative or any other person with whom the child resides and who assumes care or supervision of the child, without reference to the length of time or continuity of such residence.
c.An employee or agent of any public or private facility providing care for a child, including an institution, hospital, health care facility, group home, mental health center, residential treatment center, shelter care facility, detention center, or child care facility.
d. Any person providing care for a child, but with whom the child does not reside, without reference to the duration of the care.
Id.
. There was no evidence produced at trial to show the school principal actually made a report to the Department of Human Services (DHS). However, the record reflects that a deputy sheriff took J.D. to Child Protective Services for an examination and interview. Although we are not required to decide the question, this evidence may constitute an oral report to the DHS under section 232.70.
. Although the justification for abrogating the marital privilege in cases involving family members does not apply with the same force to cases not involving the same family, there are other reasons for abrogating the marital privilege in child abuse cases that would apply whether or not the abuse occurred within the family. The policy which helps justify the marital privilege relates not only to the sanctity of the relationship and nature of the communications between spouses, but also considers whether the injury that would inure to the marital relationship by permitting disclosure is greater than the benefit that would result from the judicial pursuit of the truth. See 8 Wigmore, Evidence § 2285, at 527. Thus, an exception to the marital privilege in cases of child abuse can be justified by the general need for evidence to assist in the prosecution of such cases. United States v. Allery, 526 F.2d 1362, 1366 (8th Cir.1975). The marital privilege is criticized because it impedes justice by excluding even reliable evidence. See id. Our legislature certainly could consider this delicate balancing process in extending the exception to some cases of child sexual offenses not involving family members or care providers.