January 11, 2017
STATE OF IOWA, Plaintiff-Appellee,
JULIUS NATHANIEL TURNER, Defendant-Appellant.
from the Iowa District Court for Woodbury County, John D.
Turner appeals the judgment and sentence entered after a jury
found him guilty of sexual abuse. AFFIRMED.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey &
Daane, Sioux City, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
Turner appeals the judgment and sentence entered after a jury
found him guilty of two counts of second-degree sexual abuse
and one count of third-degree sexual abuse. He raises four
claims on appeal: (1) the admission of certain evidence
violated the Confrontation Clauses of the Federal and Iowa
Constitutions; (2) his trial counsel was ineffective in
failing to request a limiting instruction regarding evidence
of other bad acts; (3) there is insufficient evidence to
support his convictions; and (4) his convictions are contrary
to the weight of the evidence.
Background Facts and Proceedings.
2011, the State charged Turner with two counts of
second-degree sexual abuse and one count of third-degree
sexual abuse following allegations that Turner had committed
acts of sexual abuse on three minors. A jury found Turner
guilty as charged. His convictions were vacated in a
postconviction-relief action, and Turner was retried on all
three counts. A jury again found Turner guilty as charged,
and Turner was sentenced to life in prison without the
possibility of parole on each count.
first asserts he is entitled to a new trial because the trial
court admitted evidence in violation of the Confrontation
Clause of the Federal and Iowa Constitutions. Specifically,
he complains that when the State failed to procure a witness
at trial, the court admitted that witness's transcript of
testimony from the first trial-even though the State failed
to show the witness was unavailable to testify at the second
Confrontation Clause provides that the accused has a right
"to be confronted with the witnesses against him."
See State v. Kennedy, 846 N.W.2d 517, 522 (Iowa
2014) (quoting both U.S. Const. amend. VI and Iowa Const.
art. I, § 10). It ensures that testimonial statements
from prior proceedings can only be admitted in subsequent
proceedings if the declarant is unavailable and the accused
has had a prior opportunity for cross-examination of the
declarant. See id. There is no doubt the evidence at
issue here was testimonial in nature and therefore falls
under the Confrontation Clause protections. See id.
(noting former trial testimony is testimonial evidence).
See id. at 522-23. Likewise, Turner had an
opportunity to cross-examine the witness during the first
trial. The fighting issue is whether the witness was
unavailable under the Confrontation Clause.
witness is not "unavailable" for Confrontation
Clause purposes "unless the prosecutorial authorities
have made a good faith effort to obtain [the witness's]
presence at trial." State v. Holland, 389
N.W.2d 375, 379 (Iowa 1986) (quoting Barber v. Page,
390 U.S. 719, 724-25 (1968)). The State bears the burden of
establishing unavailability, and whether the State made a
good faith effort to obtain a witness's presence at trial
is a question of reasonableness. See State v. Wells,
437 N.W.2d 575, 579 (Iowa 1989). Our supreme court has held a
witness's act of leaving the state-on its own-is
insufficient to establish unavailability. See State v.
Kite, 513 N.W.2d 720, 721 (Iowa 1994) (noting the State
could have paid for the witness's "mileage, room,
and board in advance to alleviate any financial
hardship" in returning to the state to testify at
trial); Holland, 389 N.W.2d at 379 (holding the
State failed to meet its burden of showing a witness's
unavailability because "[t]he prosecutor should have
subpoenaed the witness again for trial").
evidence here establishes that the State made a good faith
effort to procure the witness's testimony at the second
trial. The State attempted to timely serve the witness with a
subpoena at her last known address. It was only three weeks
before trial began when the State learned the witness was no
longer at that residence and had left the area. The county
attorney attempted to contact the witness through an attorney
who represented her in an unrelated criminal matter. Although
the attorney was unaware of where the witness was living and
had difficulty staying in contact with her, the attorney was
able to relay the county attorney's messages to her.
Eventually, the witness called the county attorney from a
Tampa, Florida phone number, but she refused to reveal her
location more specifically than stating she was in the
southern part of Florida. The county attorney offered to pay
for the witness's expenses to travel to and stay in Iowa
during the trial but was ultimately unable to persuade her to
State met is burden of proving the witness was unavailable.
Accordingly, the trial court properly admitted her testimony
from Turner's first trial into evidence at his second
next contends the trial court should have given the jury a
limiting instruction regarding evidence of other bad acts.
Specifically, he complains the court should have instructed
the jury that it could not use one child's testimony
regarding Turner's sexual abuse to find Turner had a
propensity to commit sexual abuse or to find him guilty of
sexually abusing the two other children. Because Turner's
trial counsel did not request a limiting instruction, Turner
raises this claim under an ineffective-assistance-of-counsel
rubric. See State v. Ondayog, 722 N.W.2d 778, 784
(Iowa 2006) ("Ineffective-assistance-of-counsel claims
are not bound by traditional error-preservation
review ineffective-assistance claims de novo. See
id. In order to succeed on such a claim, a defendant
must show that counsel failed to perform an essential duty
and, as a result, prejudice occurred. See State v.
Effler, 769 N.W.2d 880, 890 (Iowa 2009). Unless the
defendant proves both prongs, the ineffective-assistance
claim fails. See State v. Clay, 824 N.W.2d 488, 495
(Iowa 2012). Generally, we presume counsel was competent, and
the defendant must overcome that presumption. See
Ondayog, 722 N.W.2d at 785.
of other bad acts is admissible for limited purposes.
See Iowa R. Evid. 5.404(b) (listing "proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident" as valid
purposes for admitting evidence of other bad acts). However,
it may not be used to prove the defendant committed a crime
based on proof that the defendant committed another criminal
act or has a criminal disposition. See State v.
Conner, 314 N.W.2d 427, 429 (Iowa 1982). In admitting
evidence of other bad acts, the question is whether the
evidence is relevant and whether its probative value is
substantially outweighed by the danger the defendant will be
unfairly prejudiced, and one way the trial court may
alleviate the danger of unfair prejudice is to instruct the
jury on the limited purpose for which it may consider the
evidence of a defendant's prior bad acts. See
id. ("Only in extreme cases will such a cautionary
instruction be deemed insufficient to remove the danger of
State concedes that counsel could have requested a limiting
instruction, but it argues that failing to request one does
not amount to a breach of duty. The State posits that counsel
may have had strategic reasons for not requesting a limiting
instruction as it may have drawn the jurors' attention
back to the other-bad-acts evidence, putting it in the
forefront of their minds during deliberations.
assuming counsel had a duty to request a limiting instruction
regarding the other-bad-acts evidence, Turner failed to show
his counsel's failure prejudiced him. To prove prejudice,
a defendant must show a reasonable probability that the
outcome of the proceeding would have been different if
counsel had performed competently. See Clay, 824
N.W.2d at 496. "In determining whether this standard has
been met, we must consider the totality of the evidence, what
factual findings would have been affected by counsel's
errors, and whether the effect was pervasive or isolated and
trivial." Id. (citation omitted). In other
words, if the jury would have returned a guilty verdict even
if the court had given the limiting instruction Turner argues
his counsel should have requested, prejudice has not been
shown. See State v. Thorndike, 860 N.W.2d 316, 322
(Iowa 2015) (finding no prejudice shown where court was
"confident the jury would have returned the same verdict
of guilty" had counsel objected to an erroneous jury
instruction and had the trial court had removed the offending
the introduction of evidence of other bad acts was a product
of the multiple charges Turner faced at trial. Trials
involving multiple charges against a defendant must strike a
proper balance between the defendant's right to a fair
trial and judicial efficiency. See State v. Owens,
635 N.W.2d 478, 482 (Iowa 2001). The trial court attempted to
strike that balance by instructing the jury as to why Turner
faced multiple charges in one trial and its duty to reach a
determination of Turner's guilt on each individual
The defendant has been charged with three counts. This is
just a method for bringing each of the charges to trial. If
you find the defendant not guilty or guilty on one of the
three counts, you may not conclude guilt or non-guilt on the
other counts. The defendant's non-guilt or guilt must be
determined separately on each count.
the instruction given by the trial court differs from the one
Turner now asserts counsel should have requested, it serves
the same purpose. "When the State charges crimes
separately and the court gives a limiting instruction, we
presume the jury follows the instruction, thereby minimizing
any possible prejudice." Id. at 483. Taking
into account the limiting instruction that the trial court
gave the jury, Turner is unable to show a reasonable
likelihood the outcome of trial would have differed if trial
counsel had requested a limiting instruction regarding
other-bad-acts evidence. Accordingly, his ineffective-
assistance-of-counsel claim fails.
Sufficiency of the Evidence.
also contends the trial court erred in denying his motions
for judgment of acquittal because substantial evidence does
not support his convictions. We review challenges to the
sufficiency of the evidence for correction of errors at law.
See State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). If
substantial evidence-evidence that would convince a rational
factfinder the defendant is guilty beyond a reasonable
doubt-supports the guilty verdict, we will uphold it. See
id. at 75-76. In evaluating the sufficiency of the
evidence, we view it in the light most favorable to the State
and make every legitimate inference and presumption that may
fairly and reasonably be deduced from the record in the
State's favor. See id. at 76.
complains the only evidence supporting a finding of guilt was
the testimony of the three children the State charged him
with sexually abusing. He argues their allegations are not
credible. However, credibility determinations are solely a
matter for the factfinder. See State v. Myers, 382
N.W.2d 91, 97 (Iowa 1986). "The jury is free to believe
or disbelieve any testimony as it chooses and to give weight
to the evidence as in its judgment such evidence should
receive." State v. Thornton, 498 N.W.2d 670,
673 (Iowa 1993). The "very function of the jury is to
sort out the evidence presented and place credibility where
it belongs." State v. Blair, 347 N.W.2d 416,
420 (Iowa 1984); see also State v. Musser, 721
N.W.2d 758, 761 (Iowa 2006) ("It is not the province of
the court . . . to resolve conflicts in the evidence, to pass
upon the credibility of witnesses, to determine the
plausibility of explanations, or to weigh the evidence; such
matters are for the jury."). We will not interfere with
such credibility determinations absent "those rare
circumstances where the testimony is absurd, impossible, or
self-contradictory." See State v. Neitzel, 801
N.W.2d 612, 624 (Iowa Ct. App. 2011). Having heard the
evidence presented, including those facts Turner claims
undermines the children's testimony, the jury found the
children's claims credible. On the record before us, we
are unable to find their testimony so absurd, impossible, or
self-contradictory as to warrant judgment of acquittal.
also argues there is insufficient evidence that he committed
an act of second-degree sexual abuse on one of the children
because the child would only describe Turner as having
touched her "private parts" on her
"front." He argues the child's description is
too vague to support a finding he engaged in a sex act.
Although the child never explicitly stated that Turner
touched her genitalia with his mouth or hand, see
Iowa Code § 702.17(2), (3) (defining a sex act), when
the testimony is viewed in context-and drawing all reasonable
inferences from that testimony in favor of the State-it is
clear that the child was describing acts that support his
evidence supports Turner's convictions. Therefore, we
affirm the denial of his motions for judgment of acquittal.
Weight of the Evidence.
Turner claims the district court erred in denying his motion
for a new trial because the verdict is against the weight of
the evidence. The weight-of-the-evidence analysis is
"much broader" than the sufficiency-of-the-evidence
analysis "in that it involves questions of credibility
and refers to a determination that more credible evidence
supports one side than the other." See State v.
Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). The question
before us is whether the defendant has shown the trial court
abused its discretion in ruling on the motion for new trial.
See State v. Reeves, 670 N.W.2d 199, 202-03 (Iowa
2003). An abuse of discretion occurs when the court exercised
its discretion on grounds or for reasons clearly untenable or
to an extent clearly unreasonable. See id. at 202.
denying Turner's motion for new trial, the district court
found this case was not one of the "exceptional cases in
which the evidence preponderates heavily against the
verdict." State v. Ellis, 578 N.W.2d 655, 659
(Iowa 1998). Turner disagrees, citing evidence he alleges
undermines the children's credibility, including the
timing of the accusations made against him, the lack of other
evidence supporting the allegations, and inconsistencies in
children's testimony. However, it is not our place to
consider whether the verdict is against the weight of the
evidence. See Reeves, 670 N.W.2d at 203. Rather, we
are limited to a review of the trial court's exercise of
discretion. See id. Although Turner cites reasons
that could have led the court to conclude the verdict was
against the weight of the evidence, we are unable to conclude
the district court abused its discretion in reaching the
opposite conclusion. Therefore, we affirm the denial of
Turner's motion for new trial. We also deny Turner's
pro se motion for limited remand.
 To the extent Turner claims the
evidence of other bad acts was inadmissible, we concur with
the State that it was relevant to the issue of Turner's
opportunity to commit the crimes, his identity, and his modus
operandi. See Iowa R. Evid. 5.404(b) (listing all
three as exceptions to the prior-bad-acts rule). Issues
regarding opportunity and identity were raised-or were
planned to be raised-by Turner at trial. Cf. State v.
Cox, 781 N.W.2d 757, 769, 771 (Iowa 2010) (rejecting the
argument that prior-bad-acts evidence was admissible under
the "opportunity" exception where it did "not
appear that opportunity and preparation were legitimate
issues in this particular case" or under the "modus
operandi" exception where the defendant "did not
raise a defense of mistaken identity").