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State v. Sierra-Rojas

Court of Appeals of Iowa

February 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
CARLOS SIERRA-ROJAS, Defendant-Appellant.

          Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.

         Carlos Sierra-Rojas appeals from his conviction and sentence for harboring a runaway. AFFIRMED.

          Seth Harrington of Harrington Law LC, Urbandale, for appellant.

          Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Mahan, S.J., * and Danilson, S.J. [*]

          DANILSON, Senior Judge.

         Carlos Sierra-Rojas[1] appeals from his conviction and sentence, following a jury trial, for harboring a runaway, in violation of Iowa Code section 710.8(3) (2017). Rojas contends the district court erred in denying his pretrial motion to dismiss for improper venue; erred in denying his motion for directed verdict based on insufficient evidence; abused its discretion in admitting an untimely disclosed, irrelevant, and unfairly prejudicial exhibit; and erred in not instructing the jury that he did not have an affirmative duty to report the runaway's whereabouts to law enforcement.

         Because venue is non jurisdictional, Rojas's failure to file a pretrial motion for change of venue was not preserved. Because there was sufficient evidence Rojas committed the crime of harboring a runaway, the complained-of exhibit was disclosed as early as practicable and was not irrelevant and cumulative, and we determine he was not prejudiced by the court's refusal to give his proposed jury instruction, we affirm.

         I. Background Facts and Proceedings.

         The following facts were presented to the jury. On or about February 15, 2017, fifteen-year-old R.C. left her mother's home in Madison County, Iowa, without first obtaining her mother's permission. R.C. left a note, telling her mother the family was better off without having R.C. there and that R.C. would eventually return-R.C. testified the note may have said "a few days." An adult male named

         Tom[2] and a female named Lexi picked R.C. up from her mother's home and drove her to Des Moines, which is in Polk County, to Kathy and Jacob's house. When R.C.'s mother realized her daughter was gone, she called the Madison County Sheriff for help. R.C.'s mother reported R.C. was a runaway.

         On the night of February 15, R.C. stayed at Jacob's house. The next day, Kathy drove R.C. to her mother's house so R.C. could get a backpack containing money and other items. Kathy drove R.C. back to Des Moines, and they stopped at an apartment. Around noon, R.C. went with Tom and another adult, David, to a fast-food restaurant. R.C., Tom, and David sat together at the restaurant, and Rojas was sitting diagonally from them.

         Rojas looked over at the table several times and smiled. R.C. characterized Rojas as "staring" at her. David made a comment to R.C. about Rojas, and R.C. went over to the table to say hello. R.C. introduced herself and told Rojas she was nineteen years old. Rojas told R.C. he was twenty years old. R.C. eventually left the restaurant with Rojas and David and went to a nearby retail store. R.C. and David then got into an argument, and David left. R.C. and Rojas returned to the fast-food restaurant, then later R.C. and Rojas went to Rojas's house, which was nearby. Rojas lived with his father.

         From Rojas's house, the two of them took a bus to the mall. R.C. paid both fares. After walking around the mall, R.C. and Rojas returned to Rojas's house via the bus-R.C. again paying the fares. The rest of the evening, R.C. and Rojas watched television together and then slept in the same bed.

         The morning of February 17, R.C. and Rojas went to the fast-food restaurant to get food and use the restaurant's wireless internet. R.C. paid for both of their food. After an hour or two, they returned to Rojas's house and watched television the rest of the day. R.C. and Rojas again spent the night in the same bed.

         On February 18, R.C. and Rojas watched more television. They again went to the nearby fast-food restaurant. R.C. again paid for food for both of them. While they were at the restaurant, R.C. used Rojas's phone to login to her Facebook account. A friend of R.C.'s mother had messaged R.C., telling her R.C. was on the news. R.C. then did an internet search of herself and found a news article. The article showed a photo of R.C., established she was fifteen years old, and explained she had run away from home on February 15. R.C. showed the article to Rojas, and the two of them discussed its contents. R.C. and Rojas left the restaurant and returned to Rojas's house. They watched more television, and R.C. spent the night. R.C. and Rojas had sex that night.

         On February 19, R.C. used Rojas's phone to message E.L.[3] R.C. testified she contacted E.L. to see if they could meet at the mall and go to a movie. E.L. contacted R.C.'s mother and informed her R.C. had messaged him. R.C.'s mother testified she asked E.L. if he could get R.C. to meet up with him, and he said he could.

         R.C. and Rojas took the bus to the mall-R.C. paid the fares-and met E.L. there. R.C.'s mother testified E.L. told her R.C. "was getting spooked" being at the mall, and the plan to see a movie there was abandoned. E.L. then told R.C. he was going to take them to a movie in Indianola. R.C. and Rojas got into E.L.'s car, and E.L. drove them to a park in Indianola, which is in Warren County.

         After she knew R.C. was in Indianola with E.L., R.C.'s mother contacted the police and went to Indianola with her two other daughters and E.L.'s father. R.C. testified she knew she was meeting up with her mom after E.L. took her to the park. Two police officers, Kyle Peterson and Brian Stern, arrived in separate cars around the same time R.C.'s mother arrived. Both officers testified at trial.

         Officer Peterson first spoke with R.C.'s mother and confirmed R.C. was a runaway. Officer Peterson then approached E.L.'s vehicle and spoke with R.C. R.C. told Officer Peterson about her activities between February 15 and February 19. Officer Peterson learned R.C. and Rojas had sex. After speaking with R.C., Officer Peterson spoke with Rojas. He testified Rojas told him Rojas was "helping [R.C.] out" and knew she was a runaway. Rojas confirmed to Officer Peterson that Rojas and R.C. had sex.

         Officer Stern initially spoke with R.C. and was eventually able to confirm her identity. Officer Stern then spoke to Rojas outside the vehicle and learned Rojas was aware R.C. was a runaway. Stern testified Rojas "said that he was trying to- he thought she was trying to leave the state, so he was trying to help her with that, to get her out of the state."[4] Officer Stern testified Rojas told him Rojas did not know R.C. was fifteen years old. He did not remember whether Rojas told him R.C. had been staying with Rojas, but Officer Stern "got the impression, just from the conversation with him, that they had been together at least for a little while."

         The officers conferred with one another, and Officer Peterson arranged for Rojas to go with R.C. and her family back to Rojas's house to retrieve R.C.'s personal belongings. Later, charges were filed against Rojas for harboring a runaway, and he was arrested.

         According to the trial information, the State accused Rojas of harboring a runaway child, in violation of Iowa Code section 710.8(2). However, the charging language mirrors that found in Iowa Code section 710.8(3) rather than 710.8(2):

The said Carlos Carmelo Sierra-Rojas, on or about February 19, 2017, in the County of Warren, and State of Iowa, did harbor R.C., a runaway child, with the intent of allowing the runaway child to remain away from home against the wishes of the child's parent, guardian, or custodian.[5]

         Rojas filed a pretrial motion to dismiss, arguing venue was not proper in Warren County because if any offense occurred it happened outside Warren County. The court denied the motion.[6] The case proceeded to trial.

         During trial, the State offered as an exhibit a screenshot of what appeared to be a text message between Rojas and R.C., sent at 7:56 p.m. the day before trial. Rojas's text to R.C. states:

So If you do all you would have to say is that we didn't have sex if they bring it up. There's a 50 50 chance they will but THE MAJOR PART IS TO SAY IF THEY ASK IF WE HAD SEX IS NO. NO MATTER WHAT WAS SAID. I ALREADY AM GOING TO SAY NO. YOU AND ME SAY NO AND WE'RE GOOD.

         Rojas objected to the exhibit on the grounds that the evidence was not disclosed until the morning of trial and was irrelevant and prejudicial. The court admitted the exhibit, finding it was relevant to the question of Rojas's intent and excusing the timeliness of disclosure based on the fact the message had been sent the day before trial. At the close of the State's case-in-chief, Rojas moved for a directed verdict based on improper venue and insufficient evidence of Rojas's intent. The court denied the motion.

         Rojas rested without presenting any additional evidence. Citing State v. Freemont, No. 03-0139, 2004 WL 2168424, at *2 (Iowa Ct. App. Sept. 29, 2004), Rojas proposed a jury instruction which stated, "The Defendant did not have an affirmative duty to report R.C.'s whereabouts to the authorities." The court summarily ruled it would not include the proposed instruction. The jury found Rojas guilty.

         Prior to sentencing, Rojas filed a motion for a new trial based, in part, on the admission of State's Exhibit 2, the screenshot. That motion was denied. Rojas was sentenced to two years' incarceration, which was ...

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