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State v. Bertolone

Court of Appeal of Iowa

November 20, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
ANTHONY BERTOLONE, Defendant-Appellant.

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Anthony Bertolone appeals his convictions to five counts of sexual abuse in the third degree.

Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gribble, Gentry & Fisher, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano and Nan Horvat, Assistant County Attorneys, for appellee.

Heard by Vogel, P.J., and Potterfield and McDonald, JJ.

VOGEL, P.J.

Anthony Bertolone appeals his convictions following a bench trial to five counts of sexual abuse in the third degree. Bertolone claims the district court erred in denying his motion for new trial based on previously undisclosed medical records because this nondisclosure violated his right to present a defense pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Article I, sections 9 and 10 of the Iowa Constitution. He further claims the district court abused its discretion when it denied his motion for post-verdict discovery, as well as asserts there was insufficient evidence supporting the guilty verdicts. Because we find the district court did not abuse its discretion in denying Bertolone's motion for additional discovery, the nondisclosure of the medical records did not prejudice him, and substantial evidence supports each count, we affirm.

I. Factual and Procedural Background

J.D. and Bertolone were fraternity brothers who lived in the same fraternity house in rooms next to one another. They formed a friendship in which Bertolone insisted on purchasing gifts for J.D. such as an iPod, and they exchanged many text messages. They went on several out of state trips, usually accompanied by other fraternity brothers and friends. Bertolone also purchased alcohol and marijuana for J.D., and J.D. testified he drank and smoked to the point of unconsciousness two to three times each month. J.D. Described Bertolone as a "helicopter friend, " prying too much into the details of J.D.'s daily and personal life.

Witnesses testified Bertolone was unusually fixated with J.D., as he would keep track of J.D.'s schedule and would repeatedly inquire as to where J.D. was, when he was coming back, and whom he was with. One fraternity brother who shared a room with J.D. woke up one night to see Bertolone on his hands and knees looking at J.D. as he slept. Another fraternity brother also saw Bertolone in J.D.'s room with his hands up toward J.D.'s bed.

It was difficult for J.D. to distance himself from Bertolone, as the two were involved in many of the same activities. J.D. also considered himself to be a "nice person" and so stayed friends with Bertolone, whom J.D. characterized as "socially awkward." To help him set some boundaries within the relationship, J.D. sought the help of a counselor regarding how to handle Bertolone's behaviors. However, his attempts were unsuccessful. When Bertolone's grandfather died, J.D. accompanied Bertolone to his home. Grieving from his loss, Bertolone insisted J.D. sleep in his bed. During the night he tried to put his hand on J.D.'s penis, which J.D. rebuked, and after which J.D. made a barrier in the bed. In the summer of 2010, J.D. and Bertolone attended a triathlon in Wisconsin, and when they were in the hotel room, J.D. reported Bertolone tried to "make a move" on him, which he again rebuffed.

In October and November of 2009, Bertolone contacted three acquaintances in search of sleep medications, including cyclobenzaprine. In July of 2010, J.D., another friend, and Bertolone went to the Ozarks with Bertolone's parents. Bertolone's mother asked J.D. to upload photos onto Bertolone's computer, at which point J.D. found pictures of what appeared to be his boxer shorts and penis. With family and friends present in the room, he quickly navigated away from the photos. A few days later, on a fraternity trip to North Carolina, J.D. pretended to work on Bertolone's computer so he could further investigate the files. He found over eight gigabytes of data consisting of hundreds of photos and videos of Bertolone performing various sex acts on J.D. while J.D. was unconscious and unresponsive.[1] After phoning his father, J.D. flew home to Chicago a few days late, and shared his situation with his parents. He and his father then went to Des Moines, and informed school officials and police as to what J.D. had discovered.

On September 10, 2010, the State filed a trial information charging Bertolone with one count of sexual abuse in the third degree—which was later amended to five counts—pursuant to Iowa Code sections 709.1, 709.4(1), and/or 709.4(4) (2009). On October 6, 2010, Bertolone filed a motion to produce, to which the State responded. On February 21, 2012, Bertolone filed a supplemental motion to produce seeking J.D.'s "medical and mental health records" and also filed a Cashen motion.[2] The court ordered the requested medical and counseling records to be provided to both parties.

Bertolone waived his right to a jury trial, and a bench trial was held from March 19, 2012, until March 23. On May 4, 2012, the district court entered its findings of facts and conclusions of law finding Bertolone guilty of all charges. Bertolone filed a motion for new trial, which was denied. Sentencing was held on June 18, 2012.

As explained in more detail below, post-trial motions were filed, including motions for new trial and a motion for further discovery. After an appeal and a limited remand, the district court eventually denied ...


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