from the Iowa District Court for Fayette County, Richard D.
defendant appeals his convictions and sentences. AFFIRMED.
C. Smith, State Appellate Defender, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Blane,
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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
Prior Bad Acts.
Standard of Review.
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 ...