Iowa v. Atkins, 20-0488

CourtCourt of Appeals of Iowa
Writing for the CourtSCHUMACHER, JUDGE.
PartiesSTATE OF IOWA, Plaintiff-Appellee, v. MICKIE LEE ATKINS, Defendant-Appellant.
Decision Date01 September 2021
Docket Number20-0488

STATE OF IOWA, Plaintiff-Appellee,
v.

MICKIE LEE ATKINS, Defendant-Appellant.

No. 20-0488

Court of Appeals of Iowa

September 1, 2021


Appeal from the Iowa District Court for Decatur County, Dustria A. Relph, Judge.

Defendant appeals from his convictions on two counts of sexual abuse in the second degree.

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

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

Considered by May, P.J., and Greer and Schumacher, JJ.

SCHUMACHER, JUDGE.

Mickie Atkins appeals from convictions on two counts of sexual abuse in the second degree following a jury trial. Atkins argues the evidence was insufficient to support the jury's verdict, the district court erred in permitting a noncorroboration jury instruction, the district court abused its discretion in admitting prior bad acts evidence, and the district court abused its discretion in imposing consecutive sentences. We find the record contains substantial evidence, the inclusion of the jury instruction does not require reversal, and the district court did not abuse its discretion in admitting evidence or imposing consecutive sentences. Accordingly, we affirm.

I. Facts & Prior Proceedings

On January 5, 2018, Atkins was charged with two counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3(1)(b) (2018). Both counts alleged that Atkins committed a sex act upon B.T., a child under the age of twelve, between October 1, 2015, and November 16, 2017.

B.T. was eleven years old at the time of trial. B.T. has a younger brother, L.S., who was nine years old at the time of trial. B.T. and L.S.'s mother is S.S. S.S.'s mother, B.A., is married to Atkins. B.A.'s grandson, J.M., lived with her. J.M. was a co-defendant in the case.[1]

In September 2015, Atkins, B.A., and J.M. moved to a trailer home in Lamoni. They moved from the trailer home to a house in October 2016. They lived there for about two years, then moved to Mount Ayr. When Atkins lived in Lamoni, B.T. and L.S. would visit Atkins's home three to five times a week. S.S. would drop the children off at Atkins's home for babysitting when she worked. Sometimes the children would stay overnight. The children also frequently went to the Atkins's residence directly after school-either being picked up by B.A. and Atkins or dropped off by the school bus.

On November 16, 2017, S.S. found L.S. and her younger son naked and in a sexual position. When S.S. asked what the boys were doing, L.S. said he had learned the behavior from Atkins. L.S. further reported that Atkins made him do similar sexual things to his sister B.T. S.S. asked B.T. if "[Atkins] made her and [L.S.] do stuff together." B.T. turned "very white" and "started shaking and looking at the floor and said that she didn't remember." After reassurance from S.S., B.T. disclosed that Atkins had sexually abused her.

S.S. contacted the Lamoni police department. B.T. was interviewed and a physical exam was performed. The physical exam indicated that an injury had not occurred within the last seventy-two hours.

On January 5, 2018, Atkins was charged with two counts of sexual abuse in the second degree. A jury trial commenced on September 16, 2019. On September 23, the jury found Atkins guilty on both counts. On December 7, 2019, Atkins filed a motion for a new trial. The district court issued an order denying Atkins's motion. A sentencing hearing was held on February 19 and final judgment was entered the next day. Atkins was sentenced to an indeterminate twenty-five year period of incarceration on each count to be served consecutively. The sentences were subject to a seventy percent mandatory minimum pursuant to Iowa Code section 902.12.[2]

II. Analysis

A. Sufficiency of the Evidence

Atkins argues there was insufficient evidence to support his convictions. Sufficiency of evidence claims are reviewed for correction of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A verdict is binding upon this court and will be upheld unless it is not supported by substantial evidence. State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). Substantial evidence is evidence that would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. We view all relevant evidence in the light most favorable to the State. Id.

Atkins argues B.T.'s testimony was the only evidence offered against him and contends that alleged inconsistencies leave it insufficient to support his convictions. At trial, B.T. testified that Atkins first began abusing her at the trailer home. B.T. was nine years old and in fourth grade at the time. B.T. told the jury that as she went to get a glass of water, she could see that Atkins was "on the couch with no clothes on." She said Atkins told her "to come to him" and "to take off her clothes." She said Atkins closed the curtains and "start[ed] putting his body all over [her]." B.T. told the jury Atkins put his penis on or inside her vagina and touched her vagina with his hands.[3]

B.T. also testified about abuse that occurred at the house Atkins moved to after the trailer home. B.T. told the jury Atkins "was doing the same stuff but in different places" around the house. She said Atkins "was making [her] have sex" with her brother, L.S., while he watched. B.T. also described an incident where Atkins pulled her to the laundry room and made her take her clothes off. B.T. said Atkins put her on the washer or dryer and "just put his parts on [her] parts." B.T. said that Atkins told her not to tell "the people" about what he had done to her.

L.S. also testified at trial. L.S. corroborated B.T.'s testimony regarding Atkins making the children perform sex acts on one another. L.S. described an incident where Atkins stood by the door and told him and his sister to take their clothes off and get on top of each other. L.S. specifically described putting his penis into B.T.'s vagina. L.S. also described incidents in which he was sexually abused by J.M.

Atkins points to alleged inconsistencies in B.T.'s testimony which he argues make it unreliable. Specifically, Atkins notes that B.T. testified that the first instance of abuse occurred in the trailer home, where the Atkins lived in 2016, but also that the abuse began when she was in fourth grade, during the 2017-2018 school year at which time Atkins had moved from the trailer home to the house. Atkins further alleges B.T.'s testimony concerning the room in which an incident of abuse at the house occurred was inconsistent with her previous statements offered in deposition. Additionally, Atkins argues B.T.'s description of the alleged abuse in the laundry room lacks specificity, and it could not have occurred because other people were in the house. Finally, Atkins argues B.T.'s testimony is not supported by direct physical evidence.

In support of his position, Atkins cites this court's decision in State v. Smith, 508 N.W.2d 101, 103-05 (Iowa Ct. App. 1993), in which the Iowa Court of Appeals found the testimony offered by the alleged victims lacked the probative value necessary to support a guilty verdict. Atkins argues the doctrine articulated in Smith is applicable to the testimony of B.T. as it was "inconsistent, self-contradictory, lacking in experiential detail, and at times, bordering on the absurd." See Smith, 508 N.W.2d at 105.

We reject Atkins's invitation to adopt the doctrine articulated in Smith on the facts of this case.[4] The use of the doctrine relied upon in Smith to vacate a conviction "is exceedingly rare." See State v. Hobbs, No. 12-0730, 2013 WL 988860, at *3 (Iowa Ct. App. Mar. 13, 2013). It is the jury's role as factfinder to "resolve [evidentiary] conflicts in accordance with its own views as to the credibility of the witnesses." State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984). Smith relied on a narrow exception to this rule where "[t]he testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court." 508 N.W.2d at 103 (quoting Graham v. Chicago & Nw. Ry. Co., 119 N.W. 708, 711 (Iowa 1909)). The inconsistencies raised in this appeal are of the kind commonly found in prosecutions for child sex abuse, and they do not render the substance of the testimony impossible, as was found in Smith.

Inconsistencies in B.T.'s testimony regarding the particular time and location of specific instances of abuse over the relevant time period do not preclude a conviction. Second-degree sexual abuse under section 709.3 does not make a particular time period a material element of the offense. Further, "under Iowa law the State does not have to elect or prove a date certain in order to prove sex crimes such as incest or statutory rape since the exact time of the act is not material." State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App. 1986) (citing State v. Rankin, 181 N.W.2d 169, 171 (Iowa 1970)).

Similarly, the lack of direct physical evidence implicating Atkins does not foreclose a guilty verdict. See State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995) ("The only direct evidence is the complainant's testimony. But under today's law that is sufficient to convict."); State v. Schurman, 205 N.W.2d 732, 733-34 (Iowa 1973) (outlining the required standard of proof to sustain a jury verdict on a sufficiency of the evidence claim).

The testimony offered was sufficient to convince a rational jury Atkins committed a sex act on B.T. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) ("We find that the alleged victim's testimony is by itself sufficient to constitute substantial evidence of defendant's guilt."). Viewing the evidence in the light most favorable to the State, we find the record contains substantial evidence to support the jury's verdict.

B. Jury Instruction

Atkins argues the district court erred...

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