from the Iowa District Court for Scott County, Henry W.
Latham II, Judge.
defendant appeals from his convictions for sexual abuse in
the third degree. AFFIRMED.
Legue of Legue Law, P.C., Davenport, for appellant. Thomas J.
Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.
POTTERFIELD, Presiding Judge.
McBride appeals from his convictions for two counts of sexual
abuse in the third degree, in violation of Iowa Code section
709.4(1)(b)(2) (2016). McBride maintains there is insufficient
evidence to support either conviction. He also challenges two
of the district court's evidentiary rulings and maintains
he should have been granted a new trial due to juror bias.
Background Facts and Proceedings.
November 2016, McBride was charged by trial information with
two counts of sexual abuse in the third degree. In count I,
it was alleged that on or about September 5, 2016, McBride
performed a sex act on J.W., who was then thirteen years old.
In count II, it was alleged that on or about June 1, 2015,
McBride performed a sex act on J.W., who was then twelve
years old. McBride shared a residence with J.W., her mother,
and several of J.W.'s siblings.
matter proceeded to a trial by jury in January 2017.
trial, J.W.'s godmother testified she was at the home of
J.W. and McBride on September 5, 2016 for a Labor Day
celebration. J.W. appeared to be really sad and bothered; at
some point, J.W. stated she wanted to kill herself. When the
godmother attempted to speak to her about what was wrong,
J.W. expressed that her mother picks McBride over her
children. Later, J.W. informed her godmother that McBride had
been having sex with her. J.W.'s godmother then took J.W.
to her home and called the local police. J.W. seemed
reluctant to speak to officers and indicated she was afraid
she would be taken away from her family. However, J.W. made
the same allegation to an officer over the phone and reported
that McBride had "touched her" within the previous
twenty-four hours. The officer then directed the godmother to
take J.W. to a local hospital for a sexual-assault
who turned fourteen shortly before the trial began in 2017,
testified she had last lived in the same home as her family
on Labor Day 2016 and had since been staying with her
godmother. She initially testified McBride had
"hurt" her, with the most recent occurrence
happening in McBride's bedroom on Labor Day. She
testified he hurt her the same way every time and that it
happened more than two times. J.W. later specified that
McBride used his "private part" to touch "on
the inside" of her "private part." She agreed
that was what she meant when she testified as to him hurting
her. Additionally, J.W. testified about a second specific
incident in which McBride had sexual intercourse with her.
She testified that while they lived in the same residence,
McBride "hurt" her on the living room floor while
they were under a blanket. She described her mother walking
into the room and pulling the blanket off of them and then
"cussing and yelling." J.W. testified she got up
and ran into the bathroom crying when her mother arrived. She
stated she was wearing shorts at the time her mother removed
the blanket while McBride was wearing boxers and shorts. J.W.
testified this incident occurred "[a] short time
before" the Labor Day incident. When asked, J.W.
testified she had never engaged in sexual intercourse with a
the nurse who conducted the sexual assault exam testified.
She testified that she asks the patient if they know the
person who assaulted them "[p]rimarily for the safety of
the patient. Once they are discharged, we want to make sure
that they are not going to be in harm's way once they
leave. And that is basically the primary reason. Especially
with a 13 year old." Over McBride's objection, the
nurse was allowed to testify that during the exam on
September 5, J.W. "stated to me that her, quote,
unquote, dad, who she later on explained to be Darrell
McBride that has acted as her father since she was an infant,
had been raping her for months." The nurse testified
that during the exam, a hospital aide entered the room and
indicated to J.W. that her father was on the telephone and
would like to speak to her; J.W. became visibly upset at the
news. Additionally, during the exam, the nurse noted a
substance that resembled seminal fluid coming out of
J.W.'s cervical os and testified she could see that part
of J.W.'s cervix was inflamed with small
bumps-representing some sort of trauma to the cervix. When
asked, J.W. told the nurse she was a virgin prior to any
contact with McBride and that she never been sexually active
with anyone else.
older sister, I.W., testified for the State at trial. During
I.W.'s testimony, the State admitted into evidence a
letter McBride had sent to I.W., stating in part, "Hey,
baby girl, how are you? Baby, I need you again, so listen
closely, okay? If and when I have to call you to the stand at
court, I need you to say you saw [J.W.] that night doing
something to me while I was asleep." I.W. confirmed she
had not witnessed what McBride asked her to say she saw. The
State also played for the jury a phone call McBride had made
from jail to I.W. while he was incarcerated pending trial.
During the call, McBride asks I.W. to get some of J.W.'s
friends to tell a teacher that J.W. told them that if they
were having trouble with their parents not letting them go to
parties, they should "do [their] thing" on their
father when he was drunk or passed out because she did that
and now her father was in jail and she could do whatever she
wanted. During the call, McBride tells I.W. to offer the
friends $100 each if they agree to say it, says he needs two
to three friends to do it, and tells I.W. he is "setting
[him]self up for trial."
mother testified about the time when she found McBride and
J.W. under a blanket in the living room. According to the
mother's testimony, McBride and J.W. were on the floor
with McBride lying next to J.W. when the mother removed the
blanket. She then saw J.W. was naked as J.W. got up and ran
to the bathroom crying. The mother testified the incident
occurred "actually a week" before the Labor Day
incident and that the family had not moved into the residence
until July 3, 2016.
criminalist in charge of conducting the DNA testing on the
evidence submitted for the case testified as well. She
testified she located two spots of seminal fluid on the
interior lining of the underwear J.W. indicated she had been
wearing on Labor Day. The first spot had the DNA of both J.W.
and a second contributor. The DNA of the second contributor
was "consistent with" the DNA of McBride, with
fourteen out of fifteen loci matching. She testified that
"[t]he probability of finding th[at] profile in a
population of unrelated individuals chosen at random would be
less than 1 out of 100 billion." The second spot also
had both the DNA of J.W. and a second contributor. With the
second spot, she was able to say the second contributor's
DNA matched McBride's DNA as all fifteen out of fifteen
of the loci matched. The State noted earlier testimony that
J.W.'s underwear that had been tested had been retrieved
from a laundry pile by an officer on the night of September 5
in order to be taken as evidence; the criminalist was asked
whether it was possible the DNA found on J.W.'s underwear
that was not hers could have transferred from other clothing
in the pile. She testified it was "possible" though
"not very likely." When asked why, she elaborated:
It would be more-because of the profiles I developed, they
are pretty strong in nature, the ones that I have reported
on. It would have taken either a wet stain-two wet stains to
touch, because both DNA came out of the cutting stain. Or it
could probably have taken some friction, so rubbing together
or that nature, to get transfer to [a] dry a DNA profile. So
just having a pair of boxers touch a pair of underwear may
not necessarily have any transfer happen.
State then clarified that the criminalist would not expect
"two items of clothing in a pile of laundry together . .
. to have a very strong chance of transfer of DNA
profiles," to which the criminalist responded,
"That's correct. It wouldn't be likely that I
would expect a large amount of DNA to transfer." Another
piece of evidence came from a test for DNA on the swab that
was taken of J.W.'s cervix where the criminalist found a
second contributor's DNA, with indications the second
individual was male. She could not identify the second
the criminalist tested for DNA a swab that had been taken of
McBride's penis on Labor Day after J.W. spoke to the
police; the penile swab contained both the DNA of McBride and
DNA consistent with that of J.W.-with ten of fifteen loci
matching and a probability of finding that profile in a
population of unrelated individuals chosen at random of less
than one out of eighty-nine billion. When asked, the
criminalist testified that she could not conclusively
eliminate J.W.'s mother as the second contributor of the
DNA found on the penile swab of McBride, stating, "I
can't eliminate the mother's DNA without seeing her
profile, but that would be uncommon to have a mother share
the exact DNA at all the different locations."
resting, the defense called a social worker with the Iowa
Department of Human Services to testify; she indicated that
the family did not move into the residence in question until
jury convicted McBride as charged. He later filed a motion
for new trial, which the district court denied. The court
sentenced McBride to two consecutive fifteen-year terms of
Sufficiency of the Evidence
claims the State presented insufficient evidence to support
either of his convictions for sexual abuse in the third
degree. We review sufficiency-of-the-evidence claims for
correction of errors at law. State v. Romer, 832
N.W.2d 169, 174 (Iowa 2013). "In reviewing challenges to
the sufficiency of the evidence supporting a guilty verdict,
courts consider all of the record evidence viewing the light
most favorable to the State, including all reasonable
inferences that may be fairly drawn from the evidence."
Id. (citation omitted).