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State v. Retterath

Court of Appeals of Iowa

December 20, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MARK BERNARD RETTERATH, Defendant-Appellant.

         Appeal from the Iowa District Court for Mitchell County, James M. Drew (motion) and Gregg R. Rosenbladt (trial), Judges.

         A defendant challenges his convictions for sexual abuse in the third degree, attempted murder, and solicitation to commit murder. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Tabor and Bower, JJ.

          TABOR, Judge.

         Sex acts, vengeance, and castor beans. After digesting salacious testimony offered by prosecution witnesses on these subjects, a jury convicted Mark Retterath of sexual abuse in the third degree, solicitation to commit murder, and attempted murder. Retterath appeals the three guilty verdicts, challenging the sufficiency of the evidence and alleging a number of errors by the trial court.

         When viewing the proof in the light most favorable to the State, we find substantial evidence to support the convictions for sexual abuse and solicitation to commit murder. But because the State did not prove Retterath performed an act that met the statutory definition of assault, we reverse and remand for dismissal of the attempted-murder count. We find no grounds for reversal in Retterath's remaining issues, though we do remand for an in camera review of the counseling records of two witnesses whose credibility was critical to the State's case on solicitation to commit murder.

         I. Facts and Prior Proceedings

         According to the prosecution's theory, Retterath was reenacting a murderous plotline from an episode of Breaking Bad[1] as he solicited associates Aaron Sellers and J.R. to exact revenge against C.L., the young man who accused Retterath of sexual abuse.

         The accusations of sexual abuse surfaced in January 2015, but the events dated back more than ten years. As a young teenager, C.L. was friends with Casey Rolland, whose mother, Deb Rolland, lived with Retterath. When visiting Casey, C.L. was occasionally left alone with Retterath, who used those opportunities to introduce the topic of masturbation. Initially, C.L. told police he was thirteen years old when Retterath first touched his penis as they sat in Retterath's pickup after planting trees out in the country. C.L. recalled Retterath subtly displayed a handgun, which C.L. later believed to be a Luger, and warned C.L. not to tell his parents or Deb Rolland. During a videotaped interview, C.L. told police the touching occurred repeatedly when he was thirteen and fourteen years old.[2]

         But during his trial testimony, C.L. revised his allegations, recalling instead that during his encounters with Retterath as a young teenager, each masturbated himself, and Retterath did not touch C.L.'s penis until he was sixteen years old. C.L. recalled going to Retterath's house and Retterath asking whether C.L. wanted to "pull it"-meaning to masturbate. Retterath then "leaned over and grabbed [C.L.'s penis], and looked like all around and compliment[ed C.L.] on how big [he] had gotten from the previous time [Retterath] had seen it." C.L. remembered feeling "frozen" and "powerless" to stop Retterath. The unwanted touching also occurred when C.L. was seventeen years old, according to his testimony. In high school, C.L. struggled with alcohol abuse. His parents, not knowing about the sexual encounters, urged C.L. to seek addiction counseling from Retterath. Retterath was a recovering alcoholic and active in Alcoholic Anonymous (AA). When C.L. went to Retterath for advice, Retterath again "grabbed" C.L.'s penis.

         After high school, C.L. enlisted in the Army. He served for two years before he was discharged for alcohol-related violations. Following his discharge, he developed an addiction to opiates. In the fall of 2014, C.L. overdosed on heroin and was resuscitated by his mother. Prompted by the overdose, C.L. entered treatment, and for the first time, he disclosed that he had been sexually abused by Retterath. C.L. eventually shared the information with his parents, who encouraged him to report the abuse to the police. C.L. was twenty-four years old when he detailed the abuse in an hour-long interview with Mitchell County Deputy Jeff Huftalin on January 28, 2015. During the video-recorded interview, C.L. said Retterath sometimes showed him pornography on the television while they masturbated and once Retterath tried to access a website showing child pornography on his laptop. C.L. also told police Retterath (1) had a blue-colored sword tattoo running the length of his penis and (2) joked to the teenaged C.L. that he named it "S-Excalibur." At the deputy's request, C.L. drew a picture of the tattoo, which proved to be a close likeness to the photograph later taken by law enforcement during a search of Retterath's person.

         After hearing C.L.'s accusations, Deputy Huftalin arranged for C.L. to secretly record a telephone conversation with Retterath. During the call, C.L. told Retterath he had been thinking about the past when they were planting trees or watching movies together and he was having a "hard time dealing with it." Retterath claimed to have a bad connection, but Retterath also asked C.L. if he was "feeling like it was really bad or wrong?" After C.L. told Retterath he was "getting really depressed" and had contemplated hurting himself, Retterath assured C.L. that it was "not really different than when you're alone" and "not that big of a deal."

         After the phone call, police arrested Retterath and charged him with sexual abuse. Retterath admittedly was livid over C.L.'s accusations. Retterath testified: "I'm sure I've cussed him plenty. But killing him wasn't even a thought to me." The State's witnesses told a different story. Two acquaintances who met Retterath at their AA meetings testified Retterath incessantly "vented" about wanting C.L. dead. Sellers, who was thirty-five years old at the time of the trial and had spent nearly ten years in federal prison, testified Retterath repeatedly asked him to "kill that little mother fucker." Sellers did not know whether to take Retterath seriously. But Sellers initially entertained the idea out of "some loyalty" to Retterath whom Sellers believed to be falsely accused. When Sellers made it clear he would not kill C.L., Retterath asked if Sellers knew anybody who would. Retterath talked about using the silver commodities that he traded to pay someone to commit the murder, according to Seller's testimony.

         Retterath also implored J.R. to kill C.L. J.R., who was twenty years old at the time of the trial, told Retterath about a Breaking Bad episode where ricin was extracted from castor beans and used as a poison. After that discussion, Retterath suggested J.R. should leave a ricin-laced batch of drugs on C.L.'s property where he would "stumble across it" and "hopefully would shoot it up." J.R. testified he and Retterath went to Mason City to purchase methamphetamine but Retterath decided heroin would be better because its brownish color would help disguise the ricin. Retterath wanted J.R. to plant the drugs because Retterath was the subject of a no-contact order after the filing of the sexual abuse charges. Sellers likewise recalled the storyline: "I guess you can extract some poison from these beans and it will kill you. And it was untraceable. . . . And [Retterath] was talking about where he could find them . . . if you started looking around online."

         In April 2015 Retterath signed onto eBay to purchase castor beans, along with other seeds and supplies. Retterath insisted he only wanted the poisonous beans to kill "varmints." Retterath recalled J.R. looking over his shoulder as he ordered the seeds, which prompted J.R. to recall the television episode involving ricin. Retterath also performed searches on Google related to ricin and castor beans on April 15, 2015. His search terms included "castor bean plants", "how is ricin made from castor beans, "[3] and "how fast does ricin degrade."

         In June 2015 Sellers and J.R. contacted Deputy Huftalin to report Retterath's plot to kill C.L. After they came forward, the deputy obtained another search warrant for Retterath's house. In that search, investigators found a forty-plus-page printout in Retterath's file cabinet that outlined how to extract ricin from castor beans. The printout was slipped into a folder labelled Roth IRA and was entitled: "Combined Castor Marker and Isotope Profile for Ricin Forsensics: Final Report." It included five examples of ricin-purification recipes. The searchers also found a jar of castor beans in Retterath's refrigerator, as well as a baggie holding about ten beans in the pocket of a pair of Retterath's blue jeans.

         In another pocket of the same jeans, the searchers found a handwritten list of the following items:

-6 Big Rolls Wide Duct Tape
-50 or 60 Large Heavy Duty Heft Bags (No draw strings if possible)
-Saws All w/3 New blades, 6 inches long at least
-power cord
-2 5-gallon containers gasoline
-Large Sections of Vcqueen and/or Tarps 15 X 15 or larger[]
-your vacumm sealer (foodsaver) with the bags that aren't pre-cut
-$220 cash

         Sellers testified he jotted down the list[4] as Retterath dictated it over the phone and then gave the note to him when Retterath arrived at the house. Sellers said he added the item "$220 cash" at the bottom because Retterath owed him that amount. Sellers recalled writing the note close in time to Retterath's arrest for attempted murder.

         After the second search of Retterath's house and the seizure of the castor beans, investigators sought help from the seed laboratory at Iowa State University and the state hygienics laboratory in Coralville to determine if the toxin ricin was inside the castor beans. The beans tested positive for ricin. Dr. Neel Barnaby, a scientist with the FBI, testified ricin is a "biological threat agent" naturally produced from castor beans. Dr. Barnaby described ricin as a "dangerous toxin" because it "shuts down protein synthesis in cells. . . . If you kill enough cells, you start to kill tissues. If you kill enough tissues, you start to kill organs, and if you start to kill organs, you can kill the entity." Dr. Barnaby discussed different methods for extracting the toxin from the bean: "It could be as simple as cracking the seed coat open to get access to the pulp of the seed to very high-tech procedures to get 100 percent pure ricin." He testified that as few as eight beans could produce a lethal dose of ricin. On cross-examination, Dr. Barnaby acknowledged the FBI does not monitor the sale of castor beans on the internet.

         At his jury trial in August 2016, Retterath faced three charges: sexual abuse in the third degree, solicitation to commit murder, and attempted murder. Before the presentation of the evidence, Retterath unsuccessfully moved to dismiss the charges for attempted murder and sexual abuse. See Iowa R. Crim. P. 2.11(6)(a). At trial, the State presented testimony from C.L., J.R., Sellers, numerous police officers, and expert witnesses. Retterath called Deb Rolland and her children as witnesses; he also testified in his own defense, denying C.L.'s allegations about the masturbation sessions and insisting he never touched C.L.'s penis. The jury returned guilty verdicts on all three counts. Retterath now appeals.

         II. Scope and Standards of Review

         The wide-ranging challenges in this appeal call for a variety of reviewing standards. When considering the district court's rulings on Retterath's motion for judgment of acquittal, objections to jury instructions, and request for admission of a video-recording over the State's hearsay objection, we review for legal error. See, e.g., State v. Tipton, 897 N.W.2d 653, 694 (Iowa 2017) (presuming errors in jury instructions are prejudicial unless lack of prejudice is shown beyond reasonable doubt); State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003) (upholding jury's verdict if it is supported by substantial evidence).

         We employ an abuse-of-discretion standard when considering the district court's rulings on Retterath's discovery requests, mistrial motion, and motion for new trial based on the weight of the evidence. See generally State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).

         We review de novo Retterath's challenges to the search of his property and the alleged violation of his due process rights in connection with the disclosure of mental health records. See State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997); see also State v. Cashen, 789 N.W.2d 400, 405 (Iowa 2010) (reviewing de novo claims resting on due process right to present a defense), superseded by statute, 2011 Iowa Acts ch. 8, § 2 (codified at Iowa Code § 622.10 (2011)), as recognized in State v. Thompson, 836 N.W.2d 470, 490 (Iowa 2013).

         III. Analysis

         A. Sufficiency and Weight of the Evidence

         Retterath challenges both the sufficiency and the weight of the State's evidence for all three crimes. On the sufficiency question, we assess the record in the light most favorable to the State, including all reasonable inferences that we may fairly draw from the evidence. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). We will uphold the jury's verdicts if they are supported by substantial evidence. Id. Evidence is substantial when a reasonable jury could rely on it to find the defendant guilty beyond a reasonable doubt. Id. Evidence is not substantial if it raises only suspicion, speculation, or conjecture. Id. If the evidence is not substantial, we must reverse and remand for dismissal. Id.

         On the alternative claim challenging the weight of the evidence, we must grant a new trial if the jury's verdicts are contrary to law or evidence. Iowa R. Crim. P. 2.24(2)(b)(6). A verdict is contrary to evidence when it is against the greater weight of the evidence presented at trial. State v. Taylor, 689 N.W.2d 116, 133- 34 (Iowa 2004). Unlike the sufficiency standard, where the district court must approach the evidence from a standpoint most favorable to the State and assume the truth of the prosecution's case, the weight-of-the-evidence standard allows the court to balance the evidence and consider the credibility of witnesses. Id. at 134. In deciding whether to grant a new trial on this ground, the district court enjoys wide discretion, but it must exercise that discretion carefully and sparingly. Id. We will discuss each distinct claim for all three convictions.

         1. Sexual Abuse in the Third Degree

         To convict Retterath of third-degree sexual abuse, the State had to show he performed a sex act with C.L., by force or against C.L.'s will. See Iowa Code §§ 709.1(1), 709.4(1)(a) (2016). One definition of "sex act" is contact between the hand of one person and the genitalia of another. Id. ยง 702.17(3). The ...


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