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State v. Gordon

Court of Appeals of Iowa

December 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JONATHAN DAVID GORDON, Defendant-Appellant.

         Appeal from the Iowa District Court for Johnson County, Lars G. Anderson (trial) and Patrick R. Grady (sentencing), Judges.

         Jonathan David Gordon appeals from his conviction and sentence for third-degree sexual abuse as an habitual offender. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., Tabor, J., and Goodhue, S.J. [*]

          GOODHUE, SENIOR JUDGE

         Jonathan David Gordon appeals from his conviction and sentence for third-degree sexual abuse as an habitual offender pursuant to a verdict of guilty after a trial by jury. We affirm.

         I. FACTUAL BACKGROUND.

         Katie and Gordon were involved in a relationship that produced a child. Except for maintaining contact with his child, Katie testified the relationship with Gordon had otherwise ended and she no longer wanted a sexual relationship with him. There had been a physical altercation between them that had occurred in January 2014, when she was pregnant with Gordon's child. Katie and Gordon got into an argument, and Gordon physically carried her upstairs to her bedroom where he held her against her will for thirty minutes. She repeatedly tried to leave but, as a result of her efforts, injured her hand. The police were called because of the incident, Gordon was jailed for a time, and a no-contact order was entered.

         In spite of the no-contact order, Katie continued to have contact with Gordon but claimed she advised Gordon that she did not want to continue a sexual relationship with him. Gordon testified that in spite of a no-contact order, he moved in with Katie and continued to have sexual relations with her until March or April 2015. Katie admitted that her sexual relationship with Gordon continued until March 2015. Because of the January 2014 incident, Katie became fearful of Gordon and felt she was powerless to resist him. She was afraid of what would happen if she disagreed with him or refused what he wanted.

         On October 11, 2015, Katie picked up Gordon so he could visit with their eighteen-month-old child. After picking up Gordon, Katie took him to her home. She went to her bedroom to take a nap while Gordon visited with the child. Katie testified that ten or fifteen minutes later, Gordon came in and sat on the bed. He pulled off the covers and began pulling her shorts down. Katie resisted the removal of her shorts, but Gordon continued and pulled down her shorts anyway. Gordon pushed her legs apart and began to have oral sex with her. She protested and said "stop" and "no, " but he continued. Their son came into the room, and Gordon testified that he thought that Katie's "no" related to the presence of the child; accordingly, he removed the child to another room. Gordon returned to the bedroom, pulled a blanket over them, and began having vaginal intercourse. Katie quit resisting and started crying. She testified she continued to tell him "no" and "stop." When Gordon finished, he dressed, and Katie took him home.

         When Katie got back to her place of residence, she talked with a friend on the telephone and then went to the police station, where she filed a written statement. Thereafter, Katie went to a hospital for examination. Sherry Kovar, the nurse medical examiner, testified Katie had swollen, puffy eyes, complained of nausea and a headache, and was still tearful. No physical injuries were noted.

         The next day, Katie met with Detective Ruben Ross, who suggested that she record a telephone call with Gordon to attempt to get an admission of a forcible sex act. The phone call was made and recorded by the detective. Gordon admitted to the sex act but denied his actions were unwelcome or against Katie's will. He did admit she made a token resistance to his act of pulling down her shorts and said "no" once when he was involved in the oral sex but not when he was involved in the vaginal sex. Detective Ross interviewed Gordon, and Gordon's statements during the interview were substantially consistent with the statements that he had made during the telephone conversation.

         Gordon was arrested and charged with sexual abuse in the third degree- habitual offender. The matter went to a jury trial on June 21, 2016. Prior to the trial, the State moved to have the January 2014 incident admitted as a prior-bad-act exception to explain why Katie did not significantly physically resist Gordon. Gordon filed a motion in limine to have evidence of the prior domestic assault excluded from the record as prior-bad-act evidence. See Iowa R. Evid. 5.404(b). The court ruled that the prior incident was admissible but qualified its admission by instructing the jury that the prior incident could only be used to determine whether Gordon's actions on October 11, 2015, were by force or against the will of Katie but not for the purpose of ...


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