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State v. Wineinger

Court of Appeals of Iowa

November 22, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL RAY WINEINGER, Defendant-Appellant.

         Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.

         A defendant appeals his convictions on four counts of sexual abuse in the second degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., McDonald, J., and Goodhue, S.J. [*]

          GOODHUE, Senior Judge.

         Michael Wineinger was convicted by a jury of four counts of sexual abuse in the second degree. A motion in arrest of judgment and for a new trial was denied. Wineinger was sentenced to four concurrent terms of twenty-five years. Wineinger appeals. We affirm.

         I. Factual Background

         In December of 2011, Wineinger moved into an apartment with Fred, Fred's three children, and Stephanie, who the children considered their mother. The living accommodations included only two small bedrooms. The children shared one bedroom. At the time of trial, the oldest child, a male, J.L., was fourteen years of age; L.L., the alleged victim, was a female age ten; and there was a younger child, age nine. The children eventually came to share their bedroom with Wineinger. The children referred to Wineinger as Uncle Mike, and they appeared to have a good relationship with him.

         Stephanie became concerned with Wineinger's drinking problem, and confronted Wineinger, requesting he permanently move from the apartment. Wineinger complied. The children overheard the confrontation.

         Soon after, in April of 2014, J.L. reported to school authorities that Wineinger had inappropriately touched L.L. J.L. has been diagnosed with autism and mental-health issues that require medication, and he was not always considered truthful. On April 14, 2014, immediately after being notified about J.L.'s statement, Fred and Stephanie took L.L. to Project Harmony, where L.L. was interviewed by Mindee Rolles, a social worker. Project Harmony is an organization that helps children by providing various services. L.L. told Rolles nothing had happened between her and Wineinger. That evening, Stephanie confronted J.L. about lying concerning the inappropriate contact with L.L., but J.L. insisted he had been truthful. When Stephanie confronted L.L., she admitted lying, and on the following day, Stephanie took L.L. back to Project Harmony, where she was again interviewed by Rolles. Videos were made of both interviews.

         At the second interview, L.L. stated that Wineinger awakened her one night by touching her private parts and he otherwise sexually abused her. L.L. testified the abuse started when she was in the second grade. She further testified that Wineinger made her perform oral sex and he put his penis in her vagina and her anus. She testified the abuse took place over and over. L.L. had frequently asked Wineinger to stop, but he would continue and say "no." She testified she had hesitated to tell anyone because Wineinger had told her that if she told anyone about the sexual abuse, "her mom would go away." At trial, Wineinger contended L.L. concocted the story to punish him after his confrontation with Stephanie and to protect J.L. from being punished for lying.

         Sarah Cleaver, a pediatric nurse, examined L.L.'s genitalia for any abnormalities that might have resulted from sexual abuse. She discovered a suspicious notch at the three o'clock position of the hymen. L.L. was tested for a variety of conditions and diseases associated with sexual contact, but none were found. Cleaver testified the results did not prove or disprove that L.L. had been sexually abused.

         Prior to trial, Wineinger filed a motion in limine to keep the second video interview out of evidence. Counsel agreed, however, that under State v. Rojas, 524 N.W.2d 659, 663 (Iowa 1994), if the second interview came in then the first interview should also come in. The State agreed both videos could come in but opposed the first coming in without the second. The district court found the parties to be "on the same page." With the court ...


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