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State v. Delong

Court of Appeals of Iowa

May 15, 2019

STATE OF IOWA, Plaintiff-Appellee,
EDDIE DELONG, Defendant-Appellant.

          Appeal from the Iowa District Court for Cherokee County, Nancy L. Whittenburg, Judge.

         Eddie DeLong appeals the judgment and sentence entered upon his convictions for third-degree sexual abuse and providing alcohol to a minor.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          TABOR, Judge.

         After hearing evidence Eddie DeLong plied fourteen-year-old M.G. with alcohol and committed a sex act against her, a Cherokee County jury found him guilty of sexual abuse in the third degree and supplying alcohol to a minor. The district court sentenced him as a habitual offender. On appeal, DeLong argues the district court abused its discretion in denying his motion to present testimony about M.G.'s sex life under the source-of-injury exception in Iowa's rape-shield law. See Iowa R. Evid. 5.412. He also challenges the habitual-offender colloquy and the fine imposed under Iowa Code sections 902.8 and 902.9(1)(c) (2016).

         Because the district court reasonably viewed as speculative the proposed testimony suggesting an alternative explanation for M.G.'s pain the morning after her encounter with DeLong, we find no abuse of discretion in the court's rape-shield ruling. Accordingly, we affirm DeLong's convictions. But we reverse the habitual-offender judgment and remand for further proceedings because DeLong's stipulation of prior offenses fell short of the requirements in State v. Harrington, 893 N.W.2d 36');">893 N.W.2d 36, 45-46 (Iowa 2017). We need not reach the issue concerning the concededly erroneous fine as resentencing will be required.

         I. Facts and Prior Proceedings

         A reasonable jury could have found the following facts. M.G. was fourteen years old in the summer of 2016 when she met DeLong's twelve-year-old daughter at a local swimming pool. M.G. and DeLong's daughter eventually made plans for a sleepover at DeLong's house on the night of June 30.

         At the house, DeLong took a bottle of wine out of the refrigerator and asked the girls if they wanted a drink. M.G. said yes and took a sip out of the bottle. DeLong told M.G. not to tell anyone about the drinking or he would get in trouble. Later that night, DeLong's daughter took a shower, and M.G. changed into pajamas. While M.G. was alone in the bedroom, DeLong came in and said "he wanted [her] to feel comfortable and at home in his house and [that] he wouldn't judge [her] for anything [she] did or said." As he said this, DeLong was "moving closer" to M.G., which made her "uncomfortable."

         About five minutes later, DeLong offered M.G. a can of "Straw-Ber-Rita," an alcoholic beverage described as a strawberry-flavored margarita. At DeLong's prompting, M.G. took a sip. When M.G. said she liked it, DeLong left the room for a few minutes and returned with "the drink in a tall blue glass." DeLong warned M.G. not to tell his daughter that M.G. was drinking alcohol. M.G. drank the whole glass and thought it tasted "[s]lightly different" than her first sip. The drink made M.G. feel "fuzzy" and "weak." It also made her head and stomach hurt.

         M.G.'s mother called her as many as twenty times that night and- uncharacteristically-M.G. did not answer. When M.G. eventually answered around 1:00 a.m., she "did not sound like herself." According to her mother, M.G. "sounded very lethargic," "[h]er words were very drawn out," and it was "like she wasn't almost even coherent of even acknowledging that she was on the phone with [her mother]." After a short pause, DeLong's daughter (who "sounded very awake, very peppy") took the phone and told M.G.'s mother "[e]verything was fine." Later, the girls watched a movie in the living room, but M.G. remembered feeling so tired it was like she "couldn't move." DeLong's daughter went to bed, leaving M.G. alone.

         At some point in the night, DeLong joined M.G. on the couch and started "rubbing and squeezing [her] chest" with his hands. DeLong rubbed M.G.'s vagina with his hands over her pajamas. She recalled he was breathing "heavy." DeLong then pulled M.G.'s pants down to her knees. M.G. remembered being too scared to say anything. M.G. fell asleep and did not wake up until noon. When she awoke, she found vomit on her shirt. She went to the bathroom and noticed her pants were on backwards and her underwear was spotted with blood. She knew she had put her pants on facing the right way when she changed the night before. Her vaginal area hurt when she wiped after using the bathroom. M.G. testified her genitals were not sore before she went to bed.

         M.G.'s mother and father noticed a change in their daughter's behavior after the sleepover. M.G. was "just sad, very sad, very distant, wouldn't talk, wouldn't eat. She wasn't going out, hanging with her friends. She was no longer going to the pool. She just wanted to stay home and just be left alone." M.G. also had trouble sleeping and would even curl up on the floor near her parents' bedroom ...

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