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State v. McEndree

Court of Appeal of Iowa

July 10, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
VERNON LEE MCENDREE, Defendant-Appellant.

Appeal from the Iowa District Court for Adams County, David L. Christensen, Judge.

Vernon McEndree appeals from convictions of eight counts of third-degree sexual abuse.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Susan R. Krisko, Assistant Attorney General, and Duane Golden, County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

POTTERFIELD, J.

Vernon McEndree appeals from convictions of eight counts of third-degree sexual abuse arising from allegations made by his granddaughter, born in 1986, that he committed several sex acts with her between Thanksgiving of 2000 and the summer of 2002. On appeal, McEndree asserts the district court abused its discretion in allowing the testimony of the State's expert witness forensic interviewer, April Anderson, and in excluding the testimony of the defense's expert witness, psychologist Craig Rympa. McEndree also contends his trial counsel was ineffective (1) in allowing the State to elicit testimony from the complaining witness about prior instances the defendant touched her improperly, which occurred out-of-state, and (2) failing to seek a limiting instruction with regard to Anderson's testimony. Finally, the defendant claims his motions for judgment of acquittal on counts IV and V should have been granted. For the reasons that follow, we affirm.

I. Background Facts and Proceedings.

The defendant was charged in eight counts[1] alleging he committed sex acts with B.V., a person fourteen or fifteen years of age, [2] at various times and places: Count I alleges a sex act occurring "[i]n the month of November, 2000" "in B.V.'s home"; Count Number II, "[d]uring the of summer of 2001 . . . in a motor home parked outside B.V.'s home"; Count III, "[o]n or between April 2001 and October 30, 2001, on a date different than count II . . . in B.V.'s home"; Count IV, "[o]n or about the month of December 2001 . . . in B.V.'s house . . . in her living room"; Count V, "[o]n or about the month of December 2001, and on a different day then alleged in Count IV . . . in B.V.'s house . . . in her living room"; Count VI, "[d]uring the summer of 2002 . . . in a vehicle parked in front of homes"; Count VII, [d]uring the summer of 2002 . . . in a vehicle while parked on a gravel road"; and Count VIII, "[d]uring the summer of 2002 . . . in a corn field."

Prior to trial, the district court granted the State's motion in limine, excluding the testimony of the defense's proffered expert witness, psychologist Craig Rypma, as his proposed testimony went to the credibility of the complaining witness.

The defendant moved to exclude any testimony by the State's expert, April Anderson, arguing that it was being offered to bolster the complaining witness's credibility. The court ruled it was admissible to explain delayed disclosure of child sexual abuse.

At trial, B.V. testified that her grandfather, McEndree, started touching her "inappropriately" at age eight when she lived with her family in Colorado: "it was just my breasts and kissing me around. And eventually when I got older, like 11-ish, he would start going further, and he would put his hands down my pants and touch me down there." She clarified that by "down there" she meant "[m]y vagina." She said she did not tell anyone because "at first, I don't know, it was scary."

B.V. and her family moved from Colorado to Iowa in September 2000. McEndree lived in Colorado still. B.V. stated she was "[r]elieved.... I thought it was done. I really did." She testified she had planned to keep her grandfather's conduct a secret. "I didn't want to hurt anybody or make anybody go through what we're going through now. It's just—you know, it hurts and that—I don't want to see anybody hurt."

B.V.'s grandparents came to Iowa in their motor home to visit for Thanksgiving in 2000. B.V. testified that McEndree came into the bathroom where she was and "put his hand in my pants, put his finger in my vagina, and he whispered, 'I missed this.'"

B.V. and her family moved from Creston to Corning in March 2001. Her grandparents came to visit in the summer of 2001 when B.V. was fourteen. She stated that one day no one else was home, and McEndree asked her to come into his motor home. She testified this was the "first time he actually took my pants off and—licked my vagina." She testified she agreed to go into the motor home because she "didn't want him to do it to my sisters, and so maybe if he would do it to me, then he wouldn't touch them."

B.V. testified that McEndree sexually abused her "quite often" but one particular memory was "I think it was in December" 2001.

The reason why I think it's around December is because we—he used a blanket. And we were on the couch and he put a blanket over me and sat down while we were watching a movie and again stuck his finger into my vagina.
Q. At—what age were you at the time?
A. Fifteen.
Q. And why does this time stick out in your mind?
A. Well, because my sister was in the room.
Q. And he had a blanket over you and him?
A. Yes.
Q. Were there any other times?
A. Yes.
Q. What's the next time that sticks out in your mind?
A. There was another time when I was laying on the couch, and he came down, and he knelt down next to me on his knees, and he again put his finger into my vagina.
Q. Can you help us understand the time frame of this? Was this before or after the time on the couch when ...

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