State Of Iowa v. Bohnenkamp
| Decision Date | 11 August 2010 |
| Docket Number | No. 09-1041,No. 0-420,0-420,09-1041 |
| Parties | STATE OF IOWA,Plaintiff-Appellee, v. LAWRENCE JAMES BOHNENKAMP,Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Mark C. Smith, State Appellate Defender, and Bradley M. Bender Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Janet M. Lyness, County Attorney, and Anne M. Lahey, Assistant County Attorney, for appellee.
Appeal from the Iowa District Court for Johnson County, Douglas S. Russell, Judge.
Defendant appeals from his conviction and sentence of sexual abuse in the third degree. AFFIRMED.
Considered by Sackett, C.J., and Eisenhauer and Mansfield, JJ. Tabor, J., takes no part.
Lawrence J. Bohnenkamp appeals from his conviction and sentence of sexual abuse in the third degree in violation of Iowa Code sections 709.4(2)(c) and 702.17 (2007). He contends (1) the district court should not have admitted the alleged victim's cell phone records because they contained hearsay and were not admissible as a business record, and (2) there is insufficient evidence to support the jury's verdict. We affirm.
I. BACKGROUND AND PROCEEDINGS. The jury was presented with the following evidence. Defendant and the alleged victim, A.Y., met in May 2007. At the time, A.Y. was fourteen and the defendant was twenty-seven. At trial, A.Y. testified she met defendant when she was at a friend's house and the defendant gave her and her friends a ride to and from a party. The defendant allegedly told A.Y. he was twenty years old. Shortly after this initial meeting, defendant and A.Y. began communicating over the phone and the defendant invited A.Y. to "hang out." On approximately June 2, 2007, knowing her parents would not allow her to hang out with an older man, A.Y. lied to her parents and received permission to spend the night at a friend's house. A.Y. then called defendant and arranged for him to pick her up in Kalona, Iowa. She walked with a friend to the designated meeting place and waited until he arrived. Defendant and A.Y. watched a movie at defendant's apartment and then had vaginal sex in his bedroom. A.Y. testified she had vaginal bleeding on the mattress during this encounter. Defendant drove A.Y. home the next day. A.Y. believed she spentthe night at defendant's perhaps one or two other nights and had sex with defendant at those times also.
A.Y.'s father testified that in early June of 2007, A.Y. told him she had had sex with someone. Eventually she stated it was with the defendant. A.Y.'s father then obtained the records for A.Y.'s cell phone and identified the calls made between A.Y. and the defendant. A.Y. and her parents then filed a report with the police and gave them the cell phone records.
A police officer that investigated the allegations testified that he executed a search warrant on defendant's apartment and discovered two spots on a mattress that appeared to be blood stains. He cut off the top portion of the mattress and sent it to the department of criminal investigation laboratory, along with buccal swabs obtained from A.Y. A criminalist from the lab testified that she performed screening tests on the stains and positively identified it as blood. She then extracted a DNA mixture from the stains indicating the presence of more than one person's DNA. She identified a major and secondary contributor. The DNA profile of the major contributor matched the DNA located on the buccal swabs taken from A.Y. The other DNA identified in the stain was too weak for conclusive interpretation. She could identify that the secondary contributor was male. She was never delivered a DNA sample from the defendant. She testified that even with a known sample from the defendant, due to the weak stain sample, she would only be able to either exclude Bohnenkamp as a contributor or not exclude him as a potential contributor.
One of A.Y.'s friends testified that she walked with A.Y. and waited with her until defendant picked her up on the evening of June 2. She testified that the next day A.Y. told her she had sex with defendant. She also stated that at one point defendant called her and asked her not to tell the police that she saw him and A.Y. together.
The defendant testified and agreed that A.Y. had stayed at his apartment one night but denied ever having sexual contact with her. He testified that A.Y., another female, and an unidentified male arrived at his apartment late one night and wanted a ride home. He agreed to give them a ride but not until morning. The group fell asleep watching a movie. When he awoke, A.Y. and the male were in his bed under the covers. Eventually the male woke up and left the apartment without talking to the defendant. When A.Y. and her friend woke up, the defendant gave them a ride home. When asked why he had young people at his apartment, defendant testified that he was interested in one of A.Y.'s older friends.
II. CELL PHONE RECORDS. Defendant contends the court erred in admitting A.Y.'s cell phone records. He argues the records contained hearsay evidence and were not admissible under the business record exception. The State asserts the telephone records were not hearsay because there is no declarant and they were not offered to prove the truth of the matter asserted. It also claims even if the records did constitute hearsay evidence, there was no resulting prejudice.
Our review of hearsay claims is for correction of errors at law. State v. Musser, 721 N.W.2d 734, 751 (Iowa 2006). Hearsay evidence is inadmissible unless permitted by another rule, statute, or constitutional provision. Iowa R. Evid. 5.802; State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(c).
The State first asserts that the records were only used to prove the plain fact that calls were made between defendant's phone and A.Y.'s phone and not "offered to prove the truth of the matter asserted." We find the records were offered and relevant to prove the truth of the contents of the records: the time and frequency of calls between A.Y. and defendant. The records were "offered to prove the truth of the matter asserted." See State v. Lain, 246 N.W.2d 238, 242 (Iowa 1976) ().
If the cell phone records were produced through a fully automated system and generated by a computer, there was no declarant and it is not hearsay. See State v. Reynolds, 746 N.W.2d 837, 843-44 (Iowa 2008) (). However, to reach this conclusion, there must be some evidence in the record to establish that the information is computer-generated non-hearsay as opposed tocomputer-stored hearsay. See id. Likewise, a court cannot admit a telephone record under the business record exception, without evidence and foundation in the record showing that it meets the requirements of the exception. Lain, 246 N.W.2d at 242. An adequate foundation requires evidence that the phone records were made in the regular course of the telephone company's business, near the time the actual calls were made, or other evidence showing the sources of information used to generate the record. Id. There is no such evidence in the record before us.
If hearsay evidence is erroneously admitted, we presume prejudice unless the contrary is affirmatively established. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996); State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986). If the hearsay evidence is cumulative because other evidence in the record establishes the same fact, the error will not be considered prejudicial. State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003); State v. McGuire, 572 N.W.2d 545, 547 (Iowa 1997).
We agree with the State that defendant suffered no prejudice by the introduction of the cell phone records. The records were admitted to establish defendant's interest in A.Y. and the timeline of events on June 2 and 3. The defendant admitted he had socialized with A.Y. so the records do not contradict his account of the events. The nature of the relationship between A.Y. and defendant was also described by A.Y. and her friend. The timeline of the alleged sex abuse was also established by A.Y. and her friend's testimony. Since thecell phone records provided cumulative evidence, defendant suffered no prejudice by their admission.
III. SUFFICIENCY OF THE EVIDENCE. Defendant also contends the jury verdict cannot stand because there is insufficient evidence to support a finding that there was a sex act between defendant and A.Y. Counsel for defendant moved for a judgment of acquittal at the close of the State's evidence and before the case was submitted to the jury. Both motions were overruled.
We review the court's denial of a motion for judgment of acquittal challenging the sufficiency of the evidence for the correction of errors at law. Iowa R. App. P. 6.907; State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008). A guilty verdict is binding on appeal if it is supported by substantial evidence. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008); State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App. 1999). Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Johnson, 770 N.W.2d 814, 819 (Iowa 2009). We view the evidence in a light most favorable to the State, including any legitimate inferences and presumptions that can be fairly deduced from the record. State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). In determining whether there is substantial evidence to support...
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