from the Iowa District Court for Polk County, Michael D.
defendant appeals his convictions and sentences for burglary
in the second degree and stalking in violation of a
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
Majerus appeals his convictions and sentences for second
degree burglary, in violation of Iowa Code sections 713.1 and
713.5 (2015), and stalking in violation of a protective
order, in violation of Iowa Code sections 708.11(2) and
708.11(3)(b)(1). He claims the prosecutor improperly obtained
a presentence investigation report (PSI) from a prior case in
which Majerus was convicted of assaulting the same victim as
in this case. Majerus argues the district court erred in
allowing into evidence derivative evidence of the prior PSI.
He claims his conviction for stalking should be vacated on
the ground of issue preclusion. He claims the district court
erred in not granting his request for a spoliation
instruction. He also claims a statutory surcharge was
has spent much of his life in and out of placements. He is a
borderline-functioning adult with a self-reported history of
violence and sex abuse, both as a victim and perpetrator. In
2011, Majerus was placed at the Woodward Resource Center for
programming. There he met Megan Hill, the treatment program
manager. Majerus developed an obsession with Hill. He openly
expressed and documented both his desire to harm Hill and his
sexual fantasies involving Hill. In 2013, Majerus acted on
his impulses and punched Hill in the face, breaking her nose
and orbital bone. Majerus pleaded guilty to assault with
intent to inflict serious injury. The district court
sentenced Majerus to prison and issued a sentencing
conduct at issue in this proceeding arose after Majerus was
released from prison in August 2014. Upon his release,
Majerus moved to Des Moines. From the fall of 2014 until the
fall of 2015, Hill reported to the police several encounters
with Majerus, but the police informed her there was little
they could do.
November 2015, Hill went out for drinks with friends after
work. She arrived home at approximately 1:45 a.m. accompanied
by a friend. Several days later, Hill discovered a basement
window in her home had been broken out and a table was pushed
under a window, allowing a person to access and climb out the
window. Hill took photos of the window, but she deleted them
at some point. It is unclear when she deleted the photos.
Hill's discovery of the broken window caused her to
review video captured by her home surveillance system. The
record reflects the video from the night Hill went out with
friends showed a man approaching the front door of Hill's
home. The man tried to open the door, peered inside, looked
under the doormat, and briefly disappeared from view. The man
reappeared at the door and then walked out of view. The
record reflects the sound of breaking glass followed by
footsteps can be heard on the recording. The headlights to
Hill's car appear on the video when she returns home at
reviewing the security footage, Hill contacted the police.
She provided the investigating detective with two pieces of
video from her surveillance system. One piece of footage
showed the man approaching her home and the sound of breaking
glass. The second contained footage from the time Hill
arrived at her home that night. Hill identified the man in
the security footage as Majerus. At trial, others identified
the man on the film as Majerus. The pieces of surveillance
video were clips edited from longer pieces of footage. Hill
provided the pieces of video because they showed relevant
activity and because her security system had limited storage
capacity and automatically deleted footage after seven days.
Hill did not provide the photos of the broken window to the
police. She assumed the police took photos.
to Iowa Code section 664A.7(1), the State sought to hold
Majerus in contempt for violating the sentencing no-contact
order issued in 2013. The summary contempt hearing was held
on December 7, 2105. The district court dismissed the
application because the prosecutor failed to offer into
evidence the no-contact order. Specifically, the district
court stated, "[T]he Court finds that there has not been
evidence established beyond a reasonable doubt that the
defendant violated the No-Contact Order, as alleged in the
affidavit, because the Court has no idea what's in the
addition to the contempt proceeding, the State also filed
felony criminal charges against Majerus. The amended trial
information charged Majerus with burglary in the second
degree arising out of the entry into Hill's home and
stalking in violation of a protective order arising out of
conduct from 2011 until November of 2015.
discovery issue relevant to this appeal arose prior to trial.
In March 2016, the State notified Majerus it had obtained a
copy of the PSI prepared in connection with the 2013 case.
How the prosecutor came to be in possession of the 2013 PSI
is not in dispute. The prior case involving Majerus and Hill
was prosecuted by Assistant Boone County Attorney Kailyn
Heston. At some point after the 2013 case was closed, Heston
became employed by the Polk County Attorney's Office.
Heston was assigned to prosecute this case involving Majerus.
Heston requested from the Boone County Attorney's Office
a copy of Heston's file from the prior prosecution.
Included in the file was a copy of the 2013 PSI.
State filed a motion to disclose the 2013 PSI to the defense.
The motion provided the State intended on using information
in the file, including the PSI. The State acknowledged Iowa
Code section 901.4 provides that a PSI is confidential and
requested a court order allowing the State to provide a copy
of the PSI to Majerus as part of its required
disclosure. Marjerus resisted the motion to disclose,
contending use of information obtained from ...