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.
Arneson appeals his convictions following a jury trial for
two counts of third-degree sexual abuse.
Campbell of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
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.
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.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.
Sufficiency of the Evidence: Sex Act
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.
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.
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
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).
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.
Sufficiency of the ...