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State v. Parmenter

Court of Appeals of Iowa

December 18, 2019

STATE OF IOWA, Plaintiff-Appellee,

          Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Judge.

         Defendant Eric Parmenter appeals from the judgment and sentence imposed following his conviction on two counts of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).

          Matthew M. Boles and Adam C. Witosky of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann, Des Moines, for appellant.

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

          Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, Judge.

         Defendant Eric Parmenter appeals from the judgment and sentence imposed following his conviction on two counts of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2010).[1] On appeal, Parmenter argues (1) the State's abandonment of the charged timeframe for both counts deprived him of his due process rights; (2) the State committed prosecutorial misconduct by telling the jury to ignore the dates of the alleged incidents specified in the jury instructions; (3) Parmenter's right to a fair trial was violated when the district court admitted the testimony of a non-sequestered rebuttal witness; and (4) the verdict was contrary to the weight of the evidence.

         I. Factual Background

         In 2010, Parmenter lived with his parents and sibling in Perry. He was twenty-one years old at the time. The complaining witness, K.G., also lived in Perry with her family. She was seventeen. Parmenter's father and K.G.'s father had become friends working together at the local Hy-Vee, and the two families began spending time together in 2005. These interactions included getting together to play board games, swimming in the Parmenters' pool, and having campfires. Parmenter and K.G. began a dating relationship that lasted from September 2008 to August 2009. The two kept the relationship a secret because K.G.'s parents had disapproved K.G. dating an older boy before and they believed K.G.'s parents would not approve her dating someone four years older than her. The relationship "was mostly physical" and ended when Parmenter's parents found out about it. The two remained on good terms.

         The first alleged sexual assault happened sometime in the summer of 2010. At trial, K.G. testified it happened "sometime in July" because she recalled her then-boyfriend was away on vacation at the time. Parmenter had asked K.G. to come over to his parents' house to talk "in private." When K.G. arrived at Parmenter's parents' house, he took her to his room in the basement. There, he laid her on his bed and proceeded to sexually assault her. K.G. testified Parmenter told her to "at least pretend like I was enjoying myself."

         The second alleged assault occurred later that same summer. K.G. was working at a Hy-Vee in Perry at the time. Parmenter came into Hy-Vee to speak with K.G. He handed her a letter and informed her that he was going to hang himself. K.G. did not act on that information during her shift. After returning home, K.G. received a text message from Parmenter in which Parmenter stated he was going to kill himself. K.G. begged him not to, and ran to his house- which was only a few miles away-to stop him. Parmenter had moved out of his parents' house in July 2010 and was in the process of renovating his new home. She arrived to find him standing on a stool with a noose around his neck. When Parmenter saw K.G., he kicked the stool out from under his feet. K.G. supported his legs and talked him into getting back on the stool. Exhausted, K.G. sat down in Parmenter's living room. K.G. smelled alcohol on Parmenter's breath when he came and sat down next to her. Parmenter proceeded to "d[o] the same thing that he in . . . the bedroom at his parents' house." He again told her to "at least act like I liked it."

         K.G. did not tell anyone about either incident until 2013, when she told a counselor about both incidents. K.G. told her brother D.G. about the incidents in late 2016 or early 2017. D.G. decided to confront Parmenter about the allegations in April 2017. D.G. invited Parmenter to a park in Perry and secretly recorded Parmenter on his cellphone. A redacted version of the recording was played for the jury. In the recording, Parmenter does not admit to any wrongdoing but states at various points "I'm not saying what I did was right" and when asked about what he believed K.G. told the police said "knowing your sister, she'd probably say the truth."

         K.G. contacted the Perry Police Department in June 2017. Detectives interviewed K.G., D.G., their father, Eric. Parmenter and his family declined to give interviews. During D.G.'s interview with Perry police, he informed them that he had the recording of the conversation with Parmenter but he had lost it when he broke his phone. D.G. was able to recover the recording and turned it over to Perry police in November 2017. Parmenter was arrested in March 2018.

         II. Procedural Background

         Leading up to the jury trial, Parmenter moved to exclude D.G.'s recording. He challenged the recording's foundation and argued it constituted hearsay and was unfairly prejudicial. The district court denied Parmenter's motion, instead redacting the forty-four minute recording to the ten-and-a-half minute clip that was ultimately played to the jury. Parmenter does not challenge that evidentiary ruling on appeal.

         At trial, Parmenter challenged a number of the details in K.G.'s account of both sexual assaults including when they allegedly happened. The trial information gave specific date ranges for both sexual assaults: it stated the sexual assault at Parmenter's parents' house happened "between July 15, 2010 and July 31, 2010"; the sexual assault at his house happened "between August 15, 2010 and August 31, 2010." Parmenter challenged these dates throughout trial. Parmenter testified that he had moved his bed from his parents' house to his house in Perry in early July, and no bed was moved in to replace it, contradicting K.G.'s allegation that he had laid her down on the bed before sexually assaulting her at his parents' house. His account was further corroborated by his mother, who testified there was no bed in the basement bedroom after Parmenter moved his bed out. In regard to the second alleged incident, Parmenter offered evidence about an incident occurring July 29; K.G. had informed law enforcement. Parmenter was hospitalized as a result. At the close of the State's case in chief, Parmenter moved for directed verdict on both counts, arguing the State had not shown the alleged sexual assaults occurred in the date ranges specified in the trial information. The district court denied the motion.

         Parmenter further testified K.G. had never seen him with a noose around his neck and did not talk him into getting back on a stool. He maintained drywall had been hung in the house, making it impossible for a noose to be hung from the ceiling. To rebut Parmenter's testimony, the State called K.G.'s father to testify. He had not been sequestered and had observed K.G.'s testimony. He testified he was familiar with Parmenter's home, and had seen a noose hanging from the ceiling in a hallway sometime in "late summer of 2010." Parmenter preserved an objection to the testimony before K.G.'s father testified.

         On the third day of trial, the court heard argument related to K.G.'s father's testimony and discussed the jury instructions with the parties before closing arguments. The court first addressed K.G.'s father's testimony and overruled Parmenter's objection:

The rebuttal testimony did not contradict the majority of the testimony at all except to say that there was a part that he observed of the house that-where there was an open ceiling, and he saw a noose hanging there.
I believe, number one, that the state is entitled to put on that rebuttal testimony; number two, that witness was listed. I believe that witness had a deposition taken earlier, and I don't-I believe that justice required that the state be allowed to present that evidence, especially given the fact that defendant raised that particular issue in its own presentation.

         Parmenter also renewed his earlier motion for directed verdict arguing again that the inconsistencies between K.G.'s timeline of events and other testimony and evidence showed there was insufficient evidence to ...

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