from the Iowa District Court for Warren County, Kevin A.
Parker, District Associate Judge.
Sierra-Rojas appeals from his conviction and sentence for
harboring a runaway. AFFIRMED.
Harrington of Harrington Law LC, Urbandale, for appellant.
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.
Sierra-Rojas 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.
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
Background Facts and Proceedings.
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 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.
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
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
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.
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.
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.
February 19, R.C. used Rojas's phone to message
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.
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.
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.
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.
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." 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."
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.
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.
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. The case proceeded to trial.
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.
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.
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.
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
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 ...