Opinion
No. 6-008 / 05-0091
Filed February 15, 2006
Appeal from the Iowa District Court for Bremer County, Paul W. Riffel, Judge.
Martin Paul Zuke appeals his conviction and sentence for eleven counts of sexual abuse in the third degree. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Kasey E. Wadding, County Attorney, and Bryan Barker, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Martin Paul Zuke appeals his conviction and sentence for eleven counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1 and 709.4. We reverse and remand for new trial.
The various counts in the trial information span a period of several years, from 1991 through 1997. The following versions of the Iowa Code are relevant to the period of time at issue: 1991 and 1993 (Counts II through IV); 1993 and 1995 (Counts V through VIII); and 1995 and 1997 (Counts IX through XII). Section 709.1 was not amended during the period of time at issue. The legislature amended section 709.4 in 1994 and 1997, but these amendments are not relevant to the issues in this case. See 1994 Iowa Acts ch. 1128, § 1; 1997 Iowa Acts ch. 78 § 1.
I. Background Facts and Proceedings
Jennifer Randall was five years old when her mother, Teresa, married Martin Zuke in 1985. Teresa and Martin had a son, Matt, in 1986. The family lived in Readlyn in Bremer County, Iowa from 1991 until 1997, when Teresa and Martin divorced. Martin moved to Waterloo to live with his girlfriend, Theresa Harbaugh, in 1997.
In July 2003 the State filed a trial information charging Martin Zuke with three counts of second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.3; and eleven counts of third-degree sexual abuse, in violation of sections 709.1 and 709.4. The State later amended the trial information, charging Zuke with one count of second-degree sexual abuse and eleven counts of third-degree sexual abuse. Zuke's jury trial commenced in November 2004.
Jennifer Randall was twenty-four years old at the time of trial. She testified that on a Tuesday in 1991, when she was eleven years old, Zuke allowed her to stay up past her normal bed time. He proceeded to play a pornographic video that the two watched for half an hour. Zuke then laid Randall on the floor, took off his underwear and Randall's underwear, and attempted to penetrate her vagina with his penis. Randall testified Zuke continued to perform sex acts on her when she was twelve and thirteen, including oral sex. According to Randall, Tuesdays became a "regular night" for sex acts with Zuke because her mother was participating in a bowling league and Matt was in bed.
Between 1994 and 1996, when Randall was fourteen and fifteen years old, Zuke and Randall continued to engage in sexual intercourse and oral sex on Tuesday nights. Zuke began using sex toys during the sexual abuse. After Randall began working for her grandfather at age fourteen, Zuke would have sexual intercourse with her in his truck when he picked her up from work. Randall also testified Zuke would call her to the basement or shed and perform sex acts on her. According to Randall, Zuke would ask her if she "wanted to" prior to the incidents. She would reply no and Zuke would "just take it." She gave in because she did not want Zuke to force himself on her and because she was afraid of him. She testified that Zuke owned numerous guns and carried a gun in his truck and on his person. The abuse continued until 1997, when Zuke and Teresa divorced.
In June 1993, Zuke shot Randall in the chest. Randall testified the incident occurred when Zuke was asking her if she wanted sex. She said no and the gun went off as he had it pointed toward her chest. Randall acknowledged, however, that at the time the incident was investigated, she told investigators it was an accident that occurred when Zuke was cleaning his gun.
Two nurses who took care of Randall in the hospital after the shooting testified. Both testified they had trouble getting Zuke to leave the room when they tried to assist Randall with going to the bathroom. Zuke would see Randall naked and be in the bathroom with her. The nurses would walk into the room to find Zuke with his hand on Randall's leg or laying in bed with her. On one occasion, one of the nurses noticed the covers were down and Randall's pubic hair was exposed. When she pulled the covers up to cover Randall, Zuke pulled them back down. Although the nurses conceded they had no personal knowledge of how Zuke and Randall normally interacted, they testified they found Zuke's behavior suspicious. One of the nurses filed a report with the Department of Human Services, which ultimately determined the allegations of sexual misconduct were unfounded.
Randall admitted she did not tell anyone about the abuse at the time it was happening, including her family, a counselor she saw during the divorce, her doctor, school counselors, or persons investigating the 1993 shooting. She testified she did not tell her mother because she was afraid of Zuke and concerned of the harm it would do to the family. Randall continued to visit and communicate with Zuke following the divorce. The first person she told of the abuse was her grandmother, six years after the divorce.
Teresa Zuke testified she began participating in a bowling league in 1988 or 1989. She bowled on Tuesday nights from the end of August to April. She also testified that during their marriage, she and Zuke used sex toys, engaged in oral and anal sex, and videotaped their sex acts. She confirmed that Zuke kept fifteen to twenty guns at the house in Readlyn and carried a gun.
Matt Zuke testified his mother bowled on Tuesday nights from August to April. He believed he had wrestling practice on Tuesday nights from September through April, beginning in 1991 and continuing until the divorce in 1997. Zuke would typically attend practice with him. According to Matt, Randall would sometimes accompany her mother to bowling on Tuesdays. Due to the home's thin walls and large vents, Matt could see and listen into the living room from his bedroom and hear noises in Randall's room. However, Matt never saw or heard anything inappropriate between Zuke and Randall. Matt testified he heard Randall say she had sex for the first time at age seventeen. Matt also contradicted Randall's testimony related to the 1993 shooting, explaining that Randall ran into Zuke when Matt and Randall came in to the dining room while Zuke was cleaning his gun.
Lacy Beck, a friend of Randall's, testified that Randall told her she first had sex on a park bench at age fourteen. Beck and Randall discussed problems between Randall and her mother, but she never mentioned Zuke.
Martin Zuke testified in his own defense, denying the allegations. He explained that he attended wrestling practice with Matt on Tuesdays, beginning in 1991. Randall would either go bowling with her mom or to a friend's house. Zuke testified he often worked seventy to seventy-five hours a week and spent very little time at home, particularly once the marriage began to deteriorate. He denied any sexual contact with Randall and testified other people could hear and see things from one room of the house to another due to the thin walls and large vents. He acknowledged owning guns, pornographic videos and sexual devices during the period from 1991 to 1997.
Zuke explained that on the day of the shooting in 1993, Randall came into the room with Matt right behind her and accidentally hit Zuke in the elbow, causing the gun to discharge. He denied having a conversation with Randall before the gun discharged. He denied doing anything inappropriate at the hospital.
A friend of Zuke's, Jim Rhodenbaugh, described Zuke as a "working fool" and explained Zuke would often work eighteen-hour days. He also testified Zuke would take Tuesday evenings off to take Matt to wrestling practice. Rhodenbaugh confirmed Zuke's house in Readlyn had large vents and no insulation, making it easy to hear noises throughout the house.
Theresa Harbaugh, Zuke's girlfriend, testified the sexual devices and pornographic videos found during a July 2003 search of the residence she and Zuke shared in Waterloo belonged to her. The officers conducting the search never asked her to whom these items belonged. Harbaugh confirmed that Zuke had guns at the Waterloo residence which were kept locked in a safe.
The jury acquitted Zuke of the second-degree sexual abuse charge but found him guilty of the remaining eleven counts of third-degree sexual abuse. The district court overruled Zuke's motion for new trial and sentenced him to an indeterminate term of imprisonment not to exceed ten years on each count. The court used a combination of concurrent and consecutive sentencing to reach a total sentence of thirty years. In addition, the court ordered Zuke to register as a sex offender and undergo psychiatric and other evaluations for the purpose of treatment.
Zuke appeals his conviction, arguing (1) the district court erred in admitting certain evidence at trial and (2) his trial counsel was ineffective for failing to move for a new trial challenging the weight of the evidence against him.
Additional facts will be discussed as they relate to the issues presented.
II. Evidentiary Issues
In July 2003, officers executed a search warrant on Zuke's Waterloo residence and found guns, sexual devices, and pornographic videos. Zuke filed to motions in limine, asking the court to order the State not to display or make reference to evidence of pornographic videos and sexual paraphernalia seized during the search but not specifically identified by Randall as being owned by Zuke at the time of the alleged abuse. The district court denied the motions.
Photographs of items found in the Waterloo residence during the July 2003 search, including guns, sexual devices, and pornographic videos, were admitted into evidence at trial, over Zuke's objections. Specifically, Zuke objected to the evidence as improper character evidence and on relevance grounds. The State argued the evidence corroborated Randall's statements related to the sexual abuse that occurred in Readlyn between 1991 and 1997. The district court admitted the evidence, concluding it was "relevant to the issues that are involved and the allegations that are the basis of the charges that are being tried in this case."
In his motion for new trial, Zuke argued the court erred in admitting the evidence related to guns, sexual devices, and pornography tapes found during the July 2003 search of the Waterloo residence. Zuke claimed the evidence was irrelevant and prejudicial. Zuke also argued the court erred in permitting a pornographic video tape to go to the jury. The district court denied the motion for new trial, concluding the evidence was "relevant to the claims and the incidents that brought the claims made by the victim in these matters."
On appeal, Zuke once again contends the district court erred in admitting evidence regarding his possession of sexual devices, pornographic videos and guns. He also contends the court erred in admitting testimony of his ex-wife Teresa related to their sexual activities during the marriage. Zuke argues the evidence was irrelevant to the charges, likely to shock the jury and highly prejudicial.
A. Standard of review.
We review evidentiary rulings for an abuse of discretion. State v. Belken, 633 N.W.2d 786, 793 (Iowa 2001). An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Id. (citation omitted). Even though an abuse of discretion may have occurred, reversal is not required if the court's erroneous admission of evidence was harmless. State v. Henderson, 696 N.W.2d 5, 10 (Iowa 2005).
B. Applicable law.
Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." Iowa R. Evid. 5.404( b). Rule 5.404( b) codifies the common-law rule that "one crime cannot be proved by proof of another." State v. Castaneda, 621 N.W.2d 435, 439 (Iowa 2001). "The purpose of the common-law rule was to `exclude from the jury's consideration evidence which has no relevancy except to show that the defendant is a bad person and thus likely committed the crime in question.'" Castaneda, 621 N.W.2d at 439.
To determine whether the challenged evidence is admissible, the trial court must employ a two-step analysis. State v. Query, 594 N.W.2d 438, 443 (Iowa Ct.App. 1999). First, the court must determine whether the evidence is relevant. Castaneda, 621 N.W.2d at 440. Irrelevant evidence is inadmissible. Iowa R. Evid. 5.402. The basic test of relevancy is "whether the evidence offered would make the desired inference more probable than it would be without the evidence." Query, 594 N.W.2d at 443-444; see also Iowa R. Evid. 5.401.
If the court determines the challenged evidence is relevant, it must then decide whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Castaneda, 621 N.W.2d at 440; see also Iowa R. Evid. 5.403. "An affirmative finding in this balancing process precludes admissibility of even relevant evidence." State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988).
Photographs of pornographic videos, sex toys, and guns.
As mentioned, the photographs at issue were taken in July 2003 during a search of the Waterloo residence Zuke shared with Theresa Harbaugh. At trial, Harbaugh testified the pornographic videos and the sex toys in the photographs were hers. She explained that officers conducting the search never asked her whether various items seized and/or photographed during the search were hers or Zuke's. The detective who executed the search warrant testified Randall could not identify the sex toys depicted in the photograph. No one could identify the guns in the photographs as those owned by Zuke between 1991 and 1997.
Randall and Teresa Zuke identified two photographs (exhibits 2A and 2B) as depicting firearms similar to those owned by Zuke at the time of the alleged abuse.
We conclude the photographs were irrelevant to any legitimate issue in the case and therefore inadmissible. There was no testimony at trial linking the items seized at the Waterloo residence to the alleged sexual abuse in Bremer County six years prior. The State claims this evidence was necessary to corroborate Randall's testimony related to the use of sex toys and pornographic videos during the alleged abuse, and her delay in reporting the abuse out of fear. Such corroboration came through other testimony in the record. Teresa Zuke corroborated testimony that Zuke owned guns during the marriage. Zuke himself acknowledged owning guns, pornographic videos and sexual devices during the period from 1991 to 1997. The evidence of items seized six years after the alleged abuse ended and not connected to the alleged abuse through testimony or otherwise at trial is irrelevant to issues of abuse occurring between 1991 and 1997. The district court abused its discretion in admitting the photographs into evidence.
Admission of irrelevant evidence, however, does not mandate reversal unless prejudice results. Rodriquez, 636 N.W.2d at 244. The test of prejudice for harmless error is "whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice." State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998) (citation omitted). In applying this test, "we presume prejudice — that is, a substantial right of the defendant is affected — and reverse unless the record affirmatively establishes otherwise." Henderson, 696 N.W.2d at 12 (quoting State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004) (emphasis omitted)).
"Prejudice" in this context is distinct from prejudice under Iowa Rule of Evidence 5.403. We need not reach Zuke's claim of prejudice under rule 5.403 in light of our determination the challenged evidence is irrelevant.
We conclude error in admission of the photographs was not harmless. The evidence of guilt in this case was not overwhelming. Zuke adamantly denied the charges. In addition to the conflicting testimony between Randall and Zuke, the State and Zuke each presented testimony from other witnesses to support Randall's and Zuke's testimony, respectively. The record does not "affirmatively establish" Zuke's substantial rights were not affected by the introduction of irrelevant evidence. Therefore, we reverse and remand for new trial. REVERSED AND REMANDED.
Our conclusion renders it unnecessary to address the remaining issues raised by Zuke on appeal.