from the Iowa District Court for Cass County, Richard H.
Davidson (motion) and Gregory W. Steensland (trial), Judges.
Cook appeals his convictions for two counts of second-degree
sexual abuse and one count of disseminating or exhibiting
obscene material to a minor. AFFIRMED.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
VAITHESWARAN, PRESIDING JUDGE.
State charged Douglas Cook with two counts of second-degree
sexual abuse arising from sex acts performed on two children.
See Iowa Code §§ 709.1(3), 709.3(1)(b),
709.3(2) (2017). The State also charged him with one count of
disseminating or exhibiting obscene material to a minor.
See id. § 728.2.
moved to sever the charges for separate trials. He asserted,
"There is no indication that the alleged molestation of
the two minors were part of a common scheme or plan"
and, "Count Ill. (dissemination of pornography) is
dissimilar to Counts I and II and apparently occurred at
times and at a location unrelated to the allegations in
Counts I and II." The district court denied the motion,
and the case proceeded to trial on all three counts. A jury
found Cook guilty as charged.
appeal, Cook contends the district court abused its
discretion in denying his motion to sever the charges.
See State v. Romer, 832 N.W.2d 169, 174
(Iowa 2013) (setting forth standard of review). He implicitly
acknowledges the court applied the correct law but argues
that law should be "re-examine[d] . . . in light of how
federal courts and other state courts apply their
corresponding rules relating to severance and joinder."
Iowa Supreme Court explained the law on severance in a trio
of opinions cited by both parties. See id. at
181-83; State v. Elston, 735 N.W.2d 196, 198-200
(Iowa 2007); State v. Lam, 391 N.W.2d 245, 249-51
(Iowa 1986). This law is controlling, and we are not at
liberty to overturn it. State v. Miller, 841 N.W.2d
583, 584 n.1 (Iowa 2014) ("Generally, it is the role of
the supreme court to decide if case precedent should no
longer be followed.").
district court applied the law as follows:
All three counts charged in this case are alleged to have
occurred over the same time period and involve sexual abuse
of the two minor children or displaying pornographic material
to the two minors. Count I is alleged to have occurred during
a camping trip when both M.H. and M.F. were present with the
defendant. M.H. reports instances when the defendant showed
her pornographic material. M.F. makes similar allegations and
both girls describe a black box where at least some of the
material was kept. Both M.H. and M.F. separately state that
they saw the defendant watching pornographic movies or the
defendant required they watch such movies. Both describe
instances when the defendant exposed his penis. And both M.H.
and M.F. reported that the defendant threatened bad things
would happen if they told anyone. Both children as well as
other individuals are anticipated to be witnesses concerning
each of the three counts. The Court concludes that the
separate occurrences show a common scheme and plan to pervert
the children's morals and to use the children for the
defendant's own sexual purposes.
Finding a common scheme, the Court must now determine whether
the defendant has shown that he would be prejudiced by a
consolidated trial. It is important to note our Supreme Court
has expressly rejected a Rule 5.404(b) prejudice analysis
when determining whether to sever or consolidate charges for
trial. Rather, the Court must consider whether the
State's interest in judicial economy outweighs any
prejudice to the defendant. The Court finds the defendant has
not shown sufficient prejudice to outweigh the interests in
judicial economy. Many of the same witnesses would be called
to testify in separate cases. While the evidence concerning
these three counts may overlap, the trial court will have the
opportunity to caution jurors that they must determine
whether the defendant is guilty or not guilty separately on
each count. Accordingly, based on the potential duplication
of witnesses in separate trials and the ...