State v. Anderson

• Decision Date: 15 November 2001
• Docket Number: No. 00-1081.,00-1081.
• Citation: 636 N.W.2d 26
• Parties: STATE of Iowa, Appellee, v. Mark Allan ANDERSON, Appellant.
• Court: Iowa Supreme Court

636 N.W.2d 26

STATE of Iowa, Appellee, v. Mark Allan ANDERSON, Appellant.

No. 00-1081.

Supreme Court of Iowa.

November 15, 2001.

Lawrence F. Scalise, Jennifer Jaskolka-Brown, and Jill Mataya-Corry of Sullivan & Ward, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Mary E. Tabor and Virginia Barchman, Assistant Attorneys General, and John E. Schroeder, County Attorney, for appellee.

CADY, Justice.

The primary issue we face in this appeal is whether the child abuse exception to the marital communications privilege applies to testimony presented in a criminal trial charging statutory rape by a person not responsible for the care of the child-victim. We conclude the district court erred in admitting evidence of marital communications under the facts of this case. We reverse the judgment and sentence of the district court, and remand the case for a new trial.

I. Background Facts and Proceedings.

The circumstances leading to this criminal prosecution date back to the summer of 1998. At that time, Mark Anderson lived in Keota, Iowa, with his wife and two children. Anderson was a life-long resident of Keota and farmed with his father on the family farm located four miles north of the town. Anderson grew corn and beans on the farm, and raised hogs. He was also a girls' softball and basketball coach for the Keota Community School District. He was thirty-seven years old. In July of 1998, Anderson hired a fifteen-year-old girl, whom we identify as J.D., to help work on the farm. J.D. had just completed the eighth grade and was a schoolmate of Anderson's children. Anderson had known J.D.'s parents for many years. J.D. and her parents also lived in Keota. J.D.'s parents eventually made J.D. quit her employment with Anderson after they began to feel uncomfortable with the amount of time the two were spending together.

A year later, on September 14, 1999, the principal of the Keota high school notified J.D.'s parents of a report he received that Anderson had engaged in inappropriate contact with J.D. during the summer and fall of 1998. The parents then confronted J.D., who admitted to the report.

On September 15, 1999, J.D. and her mother met with a deputy county sheriff. J.D. gave a detailed statement disclosing four separate occasions in which she engaged in sexual intercourse with Anderson during the summer and fall of 1998. A criminal complaint was then filed on the same date, and the county attorney filed two trial informations against Anderson for sexual abuse in the third degree under Iowa Code section 709.4(2)(c)(4) (1997), commonly known as statutory rape.

On September 17, 1999, the school principal also called J.D. into his office at the school, and asked her to fill out a written report or complaint of abuse of a student by a school employee. The principal did this as a designated abuse investigator for the school district, and J.D. complied with the request. She was subsequently interviewed by the child protective service agency in Cedar Rapids. During the interview, J.D. again described the incidents of sexual intercourse with Anderson.

The trial information was later amended to charge Anderson with two counts of sexual abuse in the third degree, based solely on the commission of a sex act with a minor and the disparity in the age of the participants. Trial commenced on May 2, 2000.

J.D. testified at trial that Anderson first made sexual advances towards her on the evening of July 4, 1998. This occasion was followed by another incident of more aggressive sexual advances a few days later after J.D. had accompanied Anderson to his camper parked at Lake Darling. She then described four occasions in which she engaged in sexual intercourse with Anderson. She testified she had sexual intercourse with Anderson on two occasions in the camper, once in the bedroom of Anderson's home, and once in a schoolroom of the elementary school in Keota. J.D. was able to describe the interior of the camper and bedroom in detail, and described Anderson as having a hairy chest.

The State also called Anderson's ex-wife as a witness at trial. She testified that their seventeen-year marriage ended in divorce on December 20, 1999, four months prior to the trial. She described the interior of the camper and the bedroom, as well as Anderson's body, consistent with the description given by J.D. She also testified to various conversations she had with Anderson about his relationship with J.D., including concerns she expressed to him during the summer of 1998 about the amount of time he was spending with J.D. She also testified to a private conversation she had with Anderson following his arrest in which she asked him why he "let himself get into that situation." In response, Anderson told her "You're right. I should have listened to you before."

Anderson testified at trial and acknowledged J.D. visited the camper with him, and accompanied him on numerous occasions to various places during the time period she worked for him. However, he denied engaging in any sexual intercourse with her or that any inappropriate behavior occurred. Anderson also acknowledged the comment made to his ex-wife, but testified he was talking about his poor judgment in allowing himself to be placed in the position of being accused of the crime. Anderson also called several witnesses at trial who testified they never observed any inappropriate conduct between Anderson and J.D., including a witness who observed them in the camper on one occasion.

Anderson requested the jury be permitted to consider the offenses of assault with intent to commit sexual abuse and simple assault as lesser-included offenses of the charge of sexual abuse in the third degree. The district court refused to submit the offenses.

The jury found Anderson guilty of both counts of sexual abuse in the third degree. Anderson was subsequently sentenced to two concurrent ten-year terms of incarceration. He appeals.

Anderson raises two issues on appeal. First, he claims the district court erred in allowing his former wife to testify about their privileged marital communications. Second, he claims the district court erred in refusing to submit the offenses of assault and assault with intent to inflict sexual abuse as lesser-included offenses of sexual abuse in the third degree.

II. Standard of Review.

Our standard of review of the statutory privilege is for correction of errors at law. Iowa R. App. P. 4; State v. Richmond, 590 N.W.2d 33, 34 (Iowa 1999). Our standard of review for the admissibility of evidence alleged to be privileged is for an abuse of discretion. Richmond, 590 N.W.2d at 34; State v. Alspach, 524 N.W.2d 665, 668 (Iowa 1994). Our standard of review on issues of jury instructions is for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000).

III. Marital Communications Privilege.

It is generally recognized that every person may be liable to testify to relevant factual matters in a court proceeding. See 8 John Henry Wigmore, Evidence § 2232, at 227-28 (McNaughton rev. 1961). However, our law has long recognized certain privileges to protect against the disclosure of specific types of communications. These privileges are ordinarily grounded in public policy and generally exist to promote certain confidential relationships and encourage candid communications between the parties to those relationships. 7 James A. Adams & Joseph P. Weeg, Iowa Practice § 501.1, at 273 (2d ed. 1998); see 8 Wigmore, Evidence § 2285, at 527-28. They exist because the societal interest protected by the privilege exceeds the value of the testimony to the administration of justice.

One recognized privilege involves confidential marital communications. Since medieval times, the law recognized a wife could not testify against her husband. See Trammel v. United States, 445 U.S. 40, 43-44, 100 S.Ct. 906, 909, 63 L.Ed.2d 186, 190 (1980)

. Although this ancient doctrine has been abrogated in Iowa, as well as in nearly all other jurisdictions, our laws still recognize a companion privilege that prohibits the disclosure of testimony concerning a spousal communication made during the marriage. See 1 Kenneth S. Broun et al., McCormick on Evidence § 78, at 292-94 (John William Strong ed., 4th ed. 1992); 7 Adams & Weeg, Iowa Practice § 503.1, at 297.¹ Like its ancient counterpart, this privilege largely exists to promote marital harmony and stability.² See Stein v. Bowman, 13 Pet. 209, 38 U.S. 209, 223, 10 L.Ed. 129, 136 (1839); Sexton v. Sexton, 129 Iowa 487, 489, 105 N.W. 314, 315 (1905); 7 Adams & Weeg, Iowa Practice § 503.1, at 297. Marriage has long been considered to be the traditional foundation of the family, and subject to legal protection.

The privilege for marital communications is recognized in Iowa by statute. Iowa Code section 622.9 provides:

Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted.

The privilege, however, is not absolute. Both common law and legislative exceptions have surfaced under circumstances where the purpose for the privilege is diminished or lost. See State v. Klindt, 389 N.W.2d 670, 675-76 (Iowa 1986)

. We adopted a common law exception to the marital privilege in prosecutions for crimes committed by one spouse against the other.³

Id. at 676. Moreover, our legislature crafted another exception to the marital privilege concerning evidence of injuries to children in a civil or a criminal proceeding that resulted from or related to a report of suspected child abuse.⁴ Iowa Code § 232.74. It provides:

Sections 622.9 and 622.10 and any other statute or rule of evidence which excludes or makes privileged the testimony of a husband or wife against the other or the testimony of a health practitioner or mental health professional as to

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