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State v. McBride

Court of Appeals of Iowa

August 1, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
DARRELL LEE McBRIDE, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.

         The defendant appeals from his convictions for sexual abuse in the third degree. AFFIRMED.

          Nathan 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.

         Darrell 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)[1]. 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.

         I. Background Facts and Proceedings.

         In 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.

         The matter proceeded to a trial by jury in January 2017.

         At 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 examination.

         J.W., 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 boyfriend.

         Next, 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.

         J.W.'s 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."

         J.W.'s 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.

         The 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.

         The 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 contributor.

         Additionally, 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."

         Before 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 August 2015.

         The 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 incarceration.

         McBride appeals.

         II. Discussion.

         A. Sufficiency of the Evidence

         McBride 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).

         1. ...


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