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State v. Arneson

Court of Appeals of Iowa

September 13, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JAMES DEAN ARNESON, Defendant-Appellant.

         Appeal from the Iowa District Court for Webster County, Gary L. McMinimee (sentencing), Kurt L. Wilke (trial and posttrial motions), and Thomas J. Bice (motion to suppress), Judges.

         James Arneson appeals his convictions following a jury trial for two counts of third-degree sexual abuse. AFFIRMED.

          Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee.

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

          VAITHESWARAN, Presiding Judge.

         The State charged James Arneson with two counts of third-degree sexual abuse in connection with sex acts performed on a fourteen-year-old child, K.L.[1]A jury found James Arneson guilty as charged. On appeal, Arneson contends (1) there was insufficient evidence of a sex act, (2) the evidence was insufficient to support the age-disparity element on the second count, (3) the district court erred in admitting hearsay evidence and allowing a law enforcement officer to arguably vouch for the credibility of K.L., (4) the district court should have granted his motion to suppress a police interview under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution, and (5) his trial attorney was ineffective in failing to move for suppression of the police interview and a DNA sample taken during the interview under the Fourth and Fifth Amendments to the United States Constitution and article I, sections 8 and 9 of the Iowa Constitution.

         I. Sufficiency of the Evidence: Sex Act

         The jury received several pertinent instructions on third-degree sexual abuse. Under count I, the jury was instructed the State would have to prove Arneson (1) "performed a sex act with K.L." and (2) did so "by force or against the will of K.L." See Iowa Code § 709.4(1)(a) (2014). Under count II, the State was required to prove (1) Arneson "performed a sex act with K.L., " (2) Arneson did so "while K.L. was 14 or 15 years old and [Arneson] was 4 or more years older, " and (3) Arneson "and K.L. were not then living together as husband and wife." Id. § 709.4(1)(b)(3)(d). In pertinent part, "sex act" was defined for the jury as "any sexual contact": "2. Between the mouth of one person and the genitals of another. . . . 4. Between the finger or hand of one person and the genitals or anus of another person." Cf. id. § 702.17(2), (3). The jury was not instructed on the type of sex act associated with each count.

         Arneson moved for judgment of acquittal, arguing the State failed to present sufficient evidence of a sex act. The district court denied the motion. Following trial, the jury signed two verdict forms, the first finding Arneson guilty of count I and the second finding him guilty of count II.

         Arneson argues "[t]he State submitted the case under alternative factual theories, but the verdicts returned were general verdicts, " requiring the State "to demonstrate that there was sufficient evidence of both factual theories to survive a motion for judgment of acquittal." See State v. Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996) ("With a general verdict of guilty, we have no way of determining which theory the jury accepted."). In his view, "judgment of acquittal or a new trial is required because there was insufficient evidence of a sex act to convict."

         As a preliminary matter, we are not persuaded by Arneson's premise that the case was submitted on alternative factual theories. The State charged Arneson with two counts of third-degree sexual abuse, the jury received separate instructions on each count, and the jury signed verdict forms finding Arneson guilty of each count. The State did not rely on multiple theories under a single count. Cf. State v. McGrean, No. 12-0537, 2013 WL 1453147, at *4 (Iowa Ct. App. Apr. 10, 2013) (stating "if substantial evidence does not support each alternative theory, then the case has to be remanded for a new trial because we do not know whether the verdict rests on valid or invalid grounds" and reversing for a new trial where "sufficient evidence does not support one of the two theories submitted to the jury in the criminal mischief marshaling instruction and we have no way of knowing which theory the jury accepted"); State v. Sanford, No. 11-0009, 2011 WL 5391340, at *2 (Iowa Ct. App. Nov. 9, 2011) (reversing and remanding for new trial where the jury was allowed to consider two alternatives of child endangerment and only one of the theories was supported by substantial evidence). For that reason, we conclude Arneson's reliance on Hogrefe, and our application of Hogrefe, is misplaced. We will review Arneson's argument as a simple challenge to the sufficiency of the evidence supporting the jury's finding of guilt as to the "sex act" element of each count. We will affirm the district court's denial of Arneson's motion for judgment of acquittal if the record contains substantial evidence to support this element. See State v. Shorter, 893 N.W.2d 65, 70 (Iowa 2017).

         The jury reasonably could have found from K.L.'s testimony that Arneson placed his fingers into her vagina while she was lying on the couch at his home. The jury also reasonably could have found from other evidence of record that Arneson licked K.L.'s vagina. Although K.L. denied this sex act, the jury could have credited the testimony of a nurse who examined K.L. and who testified for the State. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) ("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."). According to the nurse, K.L. "stated that [Arneson] had . . . licked her vagina." A medical report offered by the defense and admitted during cross-examination of the nurse corroborated the nurse's testimony. Under "victim's description of assault, " the report described the hand-to-genital sex act and then stated, "Pt reports after an unknown amount of time suspect began to lick her genitals [and] inserted his tongue into her vagina." The report was prepared one day after the assault. Substantial evidence supports a finding of two sex acts.

         II. Sufficiency of the ...


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