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State v. Kula

Court of Appeals of Iowa

August 2, 2017

STATE OF IOWA, Plaintiff-Appellee,
LEROY DANIEL KULA JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.

         The defendant appeals his convictions and sentences. AFFIRMED.

          Mark C. Smith, State Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., Mullins, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         Defendant Leroy Kula Jr. appeals his convictions and sentences for two counts of sexual abuse in the second degree and two counts of sexual exploitation of a minor, entered following a bench trial. He contends the trial court erred (1) in admitting evidence of prior bad acts and (2) relying upon improper factors in imposing sentence. For the reasons discussed below, we reject Kula's claims and affirm.

         I. Procedural Background.

         On November 7, 2014, Kula was charged with two counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3(1)(b) (2013), class "B" felonies, for events occurring between January and October 2014 involving two children under age twelve. On November 17, Kula entered a plea of not guilty. Kula waived his right to a jury and consented to a bench trial.

         On October 13, 2015, the State filed an amended trial information charging Kula with (count I) sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3(1)(b), alleging Kula, during "the calendar year 2014 . . . did perform a sex act on J.K., a child under the age of twelve"; (count II) sexual abuse in the second degree, in violation of same code sections, for allegedly during "the calendar year 2014 . . . [performing] a sex act on S.K., a child under the age of twelve"; (count III) sexual exploitation of a minor, a class "C" felony, in violation of Iowa Code section 728.12(1), alleging that Kula during "the calendar year 2014 . . . did employ, use, persuade, induce, coerce, solicit, knowingly permit, or otherwise cause S.K., a minor, to engage in a prohibited sexual act while having knowledge or intending that the prohibited sexual act be photographed, filmed, or otherwise preserved in a visual depiction"; and (count IV) sexual exploitation of a minor in violation of the same code section but as to L.R.

         On January 6, 2016, Kula confirmed his waiver of a jury and consent to a bench trial and trial commenced to the court. On March 24, the trial court filed findings of fact and conclusions of law, finding Kula guilty on all four counts of the amended trial information. Kula was later sentenced to twenty-five years each on counts I and II and ten years each on counts III and IV. Counts I and II were ordered to be served consecutively with each other; counts III and IV were ordered to be served concurrently with each other, but consecutively with the sentences in counts I and II. In addition, Kula was ordered to register as a sex offender, serve a lifetime special sentence on each count, comply with DNA profiling, and pay victim restitution.

         Kula appeals.

         II. Facts.

         The district court entered written findings, which are summarized here. Kula is thirty-five years of age. He married his wife, Suzette, in 2007, but they have been separated since April of 2011. She lives in Grinnell with her three children, including J.K. (born 2008) and S.K. (born 2010). After their separation in 2011, both Kula and Suzette lived in Grinnell and shared care of the children. In January 2014 Kula moved to Arlington with his fourteen-year-old son from a prior relationship. Suzette assumed primary care of J.K. and S.K., and Kula had visits on alternating weekends and extended time during the summer. Suzette had surgery in June of 2014 and was unable to care for the children. J.K. and S.K. stayed with Kula in Arlington for two weeks. When they returned to their mother, they were very emotional and acting strangely. They were both crying for unknown reasons, wetting their pants and reluctant to go on visits with Kula. They were also acting out sexual behavior with Barbie dolls. Their behaviors continued into the fall of 2014.

         When staying with Kula, J.K. shared a bedroom with S.K. E.K. and Kula had their own room. During visits, J.K. and S.K. would play with their friends, L.R. and her sister, M.M. L.R. (born 2008), lives in Arlington with her dad, brother and sister. She is in second grade. She knows Kula because she used to go to his house with her dad and siblings. When she visited the Kula home, Kula let her try on different clothes. He had different swimsuits for her to wear, and she changed in and out of those suits in J.K.'s bedroom. She was not allowed to keep the clothes. L.R. often spent the night at Kula's house. She slept in J.K. and S.K.'s bedroom but also slept with Kula in his bed beside him. L.R. testified, "[H]e [Kula] had sex with me." She said it happened in the middle of the night in his bedroom while the other children were sleeping. She did not know what "have sex means" but remembered that Kula was naked and she had no shirt on but had pants on. She is unable to specifically remember what happened.

         On several occasions, J.K. came back from visits with redness in her vaginal area. Kula explained to Suzette the redness was likely caused by a new soap. Suzette also mentioned her observations of the children's behavioral changes to Kula. He told her that he had not witnessed any problems. In October of 2014, the children were riding home with Suzette following a visit with Kula. J.K. told her mother she had a secret. She said, "[Kula] put his penis on me." S.K. then told her that Kula "does the same thing to me" and made a simulated masturbation motion.

         J.K. and S.K. were able to identify body parts, including the vagina and penis. Each referred to her vagina as her "pee pee." On more than one occasion Kula put his penis on J.K.'s and S.K.'s "pee pees." Each girl saw Kula's penis in his bedroom and it actually touched her "pee pee." Each time this happened in Kula's bedroom on his bed. J.K. also saw Kulago into the bedroom with either S.K. or L.R. There were occasions when J.K., S.K., or L.R. slept with Kula in his bed.

         S.K. also remembers Kula taking pictures of her "pee pee" with his phone. Her legs were "out" or spread apart when he took pictures of her "pee pee." He asked her to keep some things secret. No photographs matching this description were found or offered into evidence.

         Based upon the disclosures J.K. and S.K. made to their mother, Suzette contacted child protective services. After the girls were interviewed, the matter was reported to the Fayette County Sheriff. Fayette County Deputy Sheriff James Davis obtained an arrest warrant for Kula and a search warrant for Kula's rented home in Arlington. Pursuant to the search warrant, sheriff's deputies conducted a search on October 31, 2014. They immediately noticed a camera surveillance system set up both outside and inside the home. The cameras were hooked up to various recording devices. The officers discovered numerous DVDs and VHS tapes located throughout the house in duffel bags, closets and drawers. Over 200 tapes were seized.

         Deputy Davis viewed all of the DVDs and VHS tapes. He discovered nude photographs and videos of L.R. changing her clothes in a bedroom in Kula's rented home. Davis knew L.R. and identified her in the tape. One of the videos shows L.R. in a bed under the covers; Kula enters the bedroom, puts his hand over the covers, rubs L.R.'s back, pulls back the covers, wipes her off with what appears to be a towel and tells her to get dressed and come eat some supper. L.R.'s father is also seen on the same video. Another video was taken from a camera that was located about one foot off of the floor in J.K. and S.K.'s bedroom. It shows L.R. changing clothes, and between several outfits she is naked. Videos also contain images of other children dressing and undressing. Davis was able to identify some of the minors as family members. However, some of the other videos appear to have been taken by Kula when he lived in Grinnell, Independence, and Oelwein.

         J.K and S.K. both testified outside of the presence of Kula via closed circuit television. L.R. testified in the courtroom with Kula present. Deputy Davis testified as to the content of the videos confiscated from Kula during execution of the search warrant. The videotapes themselves were not offered into evidence.

         III. Prior Bad Acts.

         A. Standard of Review.

         We review a ruling on the admission of evidence of prior bad acts for abuse of discretion. State v. Cox, 781 N.W.2d 757, 760 (Iowa 2010). "A court abuses its discretion when its 'discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.'" State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014) (citations omitted). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Id. (quoting In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013)). Even if a trial court has abused its ...

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