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State v. Olson

Court of Appeals of Iowa

April 3, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KURT ALAN OLSON, Defendant-Appellant.

          Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly, Judge.

         Kurt Alan Olson appeals from his convictions for two counts of indecent contact with a child and three counts of assault with intent to commit sexual abuse.

          Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC, Cedar Falls, for appellant.

          Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., Bower, J., and Blane, S.J. [*]

          BLANE, SENIOR JUDGE.

         Kurt Alan Olson appeals from his convictions for two counts of indecent contact with a child and three counts of assault with intent to commit sexual abuse. He contends the jury's verdicts are not supported by sufficient evidence and the district court erred in not granting him a new trial based on his weight-of-the-evidence and evidentiary claims. Finally, he contends his trial counsel was ineffective. We affirm.

         I. BACKGROUND FACTS AND PRIOR PROCEEDINGS

         Olson began dating Lindsay in 2010. Lindsay has two children, E.R. and a younger son. When Lindsay and Olson first began dating, E.R. was eight years old. Lindsay, E.R., and E.R.'s younger brother would spend weekends at Olson's home. At trial, E.R. testified that when she was eight years old, Olson began touching her in a sexual manner.

         In October 2016, E.R. confided in her grandmother that Olson had been touching her in a sexual manner for several years. E.R.'s grandmother encouraged her to tell a school counselor. E.R. spoke with her school counselor, Carrie Elsinger, a mandatory reporter, who contacted the Iowa Department of Human Services (DHS). Law enforcement investigated and charged Olson with two counts of indecent contact with a child and three counts of assault with intent to commit sexual abuse.

         E.R. testified at trial and described the following incidents: When she was eight years old, she was sitting on a couch in Olson's home, and Olson sat down next to her. He started "grazing his hand against [her] leg, and he got close to [her] private area," at which point E.R. moved away. Olson did it again, and E.R. got up; Olson told E.R. "it was okay" and she "needed to just sit back down." E.R. testified she was scared and went to the bathroom and cried. She told her mother about the incident the next day, but her mother said Olson was "just trying to help" her.

         On another occasion, when E.R. was ten years old, Olson was in his garage grilling with Lindsay and E.R. He asked Lindsay to go inside the house and get something for the grill. He then "told [E.R.] to come closer to him." E.R. testified, "I was scared and I didn't really want to. And then he made me give him my hand." He told E.R. to close her eyes and he then "put my hand by his private area and he made me touch him that way." He also told E.R. he was not wearing underwear. E.R. testified she told her mother about this incident but Lindsay did not do anything.

         When E.R. was twelve, she and her brother were sleeping on the couch bed at Olson's home. E.R. had "tucked [a blanket] underneath" her foot "so he wouldn't touch me," but she felt Olson "digging." She testified she "moved really close and . . . put my body kind of into a ball and . . . tucked my blanket underneath more," but Olson got closer. She testified she said, "No, stop, this isn't okay." Olson got up and responded, "Okay, fine, goodnight drama queen."

         E.R. also testified to repeated incidents of "wrestling"-Olson would wrestle with E.R. and touch her inappropriately. She testified,

[H]e would like attack me and he would try to get on top of me and then he would like try like thrash around . . . . [T]hen he would stick his hand through my shirt sleeve and then into my bra and then he would touch my chest that way.

         On cross-examination, E.R. testified her mom was often present during the wrestling but Olson kept the touching from her view or E.R. "figured that she knew so she would have said something, but she didn't." E.R. also testified Lindsay was sleeping in a blue chair by the couch while the incidents on the couch happened. E.R. clarified after cross-examination that Olson only touched her genitals, which she called "private parts," over clothing but touched the skin of her breasts.

         Sheriff's deputy Detective Bruce Rhoads testified about his interview with Lindsay. Lindsay admitted to him she "knew something was wrong" and that E.R. had told her she was being touched inappropriately. Detective Rhoads testified Lindsay was charged with child endangerment. Lindsay testified she was getting a "deal" in exchange for her testimony in Olson's case. Lindsay admitted that E.R. told her about the incident in the garage but she continued to bring her children over to Olson's house and did not report any incidents to the police.

         Kamille Martin, a child and dependent adult abuse protection worker with the DHS testified. She attended an interview of E.R. at the child protection center (CPC) after the allegations came to light. Kristen Kasner, a nurse at CPC, also testified and said that E.R. showed no physical signs of sexual abuse upon examination.

         The defense put on evidence from one witness, Ken Hart, a counselor at E.R.'s school. E.R. testified she told Hart about the abuse when she was eight. Hart testified E.R. never reported to him she had been sexually abused; they had only discussed some family issues.

         The jury found Olson guilty on all five counts as charged. Olson filed a motion for new trial, which ...


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