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State v. Royce

Court of Appeal of Iowa

October 2, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
DAVID ROYCE, Defendant-Appellant.

Appeal from the Iowa District Court for Greene County, Gary L. McMinimee, Judge. David Royce appeals his convictions for second-degree sexual abuse.

James S. Nelsen, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Nicola J. Martino, County Attorney, and Laura Roan, Assistant County Attorney, for appellee.

Heard by Vogel, P.J., and Danilson and Tabor, JJ.

DANILSON, J.

David Royce was convicted of three counts of second-degree sexual abuse. The trial court entered a judgment of acquittal on one count, finding no evidence established that the complaining witness was under the age of twelve at the time of the sexual abuse alleged in that count. On appeal, Royce contends the district court abused its discretion in denying his motions for mistrial and new trial based on allegations of juror misconduct and prosecutorial misconduct, and in admitting expert witness testimony concerning delayed reporting of sexual abuse. We find no abuse of discretion in the trial court's overruling the defendant's motions for new trial based on his claims of juror and prosecutorial misconduct. The general subject of the expert's testimony has been found to be proper, and the expert did not testify as to the credibility of the complaining witness. We therefore affirm the convictions.

I. Background Facts and Proceedings.

Twenty-five-year-old R.R. is the daughter of the defendant, David Royce. R.R. was born in 1986. In January 2010, R.R. disclosed that Royce sexually abused her beginning when she was six or seven years old and stopping before she reached puberty when she was twelve or thirteen.

At trial, R.R. testified she kept the sexual abuse a secret because she "was scared of my dad" and "didn't want to hurt my family." She stated her first memory of abuse was when she was six or seven years old. Royce touched her breasts and vagina while she was on the bed in her parents' bedroom in Rippey, Iowa. Royce told her not to tell anyone. She felt "sick and confused and overwhelmed." R.R. stated she did not tell her mother because she did not want to hurt her—"I was afraid I was going to ruin her life."

The family moved to a farm house outside of Rippey in September 1994, where they lived until February 1995. R.R. testified Royce sexually abused her there. She recalled that while in the "first room" upstairs, Royce once made her fondle his penis. Her mother walked up the stairs and they quickly "sat on the edge of the bed like nothing happened."

On another occasion, Royce and R.R. were in the "second room, the back room" of the house and he made her suck his penis. She felt "dirty and sick and horrible." She testified again that she did not tell her mother because she was scared and did not want to hurt her family.

Royce's family then moved to Grand Junction, Iowa, where the family lived until 2009. R.R. testified Royce committed sex acts upon her at the Grand Junction house.

I remember us two in the downstairs bathroom, which was very small and there was a little ledge by the sink and he put me on that and he shoved his penis in my butt and my head hit the wall and it hurt and I cried a lot and I felt so sick to my stomach and overwhelmed and traumatized.

R.R. recalled another incident that occurred in the Grand Junction house.

It was in our living room and my dad and I were on the couch and he was in his underwear and I was too, . . . and he was like on top of me and I remember my—seeing my sister and she saw it and my dad yelled at her to get back upstairs . . . .

R.R. stated that her sister, S.R., who was almost five years younger, was between eight and ten years old when this occurred. The two sisters did not speak of what S.R. had seen until 2010.

R.R. recalled another incident in which they were on her parents' bed in Grand Junction, and Royce penetrated her anally as she cried and begged him to stop. She also remembered Royce once ejaculated on her abdomen. R.R. did not remember the defendant ever forcing her to submit to vaginal intercourse.

R.R. testified that she had a good relationship with her mother, her sister, and her grandmother. She stated she did not want to tell her grandmother "because I always been close to her and I knew she probably would have a heart attack or something." She also testified she sometimes got along with her father when growing up and it did not make sense to her that he could abuse her and yet be nice to her at times.

R.R. stated her father stopped the sexual abuse when she was twelve or thirteen and did not ever speak about the sex acts. She was asked about two telephone voice messages Royce left for her in January 2010 after the investigation of R.R.'s allegations had begun. The transcriptions of those messages were submitted as an exhibit, which read:

[R.R.], please come home. I love you. Please. I want to talk to you. Please call me back or come home.
[R.R.], I just wanted to tell you that I'm really sorry if I did anything to hurt cha. Can you find it in your heart to forgive me? Please come home. Don't leave like this 'cause we don't want to hurt Mommy and Grandma and everybody. If you want to get a place of your own and get a job, that's fine. Please don't, don't leave like this. Come home, please.

S.R. testified that she recalled an incident when the family was living in Grand Junction when she was eight years old and R.R. was twelve. She and R.R. were playing in their room when R.R. said she was going downstairs to get a drink of water. S.R. heard Royce call R.R. into the living room. She began to wonder why it was taking her sister so long to come back upstairs to play, so she walked downstairs. S.R. saw R.R. "laying on the floor and my dad laying on top of her and his pants down to his ankles." They were in the living room by a green couch. Royce ordered S.R. to go back upstairs, so she complied. When R.R. came upstairs, S.R. asked R.R. what had happened. R.R. responded, "I don't want to talk about it, " and got into the shower. The sisters did not discuss the subject again during their childhood. S.R. was her father's favorite. S.R. did not tell her mother or anyone else because she did not want to "break up the family." S.R. did report her memory to her mother and the police in 2010 after R.R. reported sexual abuse by Royce.

The girls' mother and Royce's former wife also testified at trial. She stated she had no knowledge of the sexual abuse before R.R. disclosed it in 2010. The mother testified that although she used birth control pills and the couple never used condoms after they were married, she once found a condom in her husband's dresser in Grand Junction. She divorced Royce after R.R. disclosed the sexual abuse.

Over Royce's objection, the court allowed the testimony of Lana Herteen, a forensic interviewer and licensed mental health counselor. She did not testify as to the specifics of the case, but discussed the dynamics of delayed disclosure in child sexual abuse cases generally. Herteen explained that most children do not report sexual abuse immediately, citing a number of factors, including the likelihood he or she will be ...


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