State v. Babb, 11–0564.
| Citation | 815 N.W.2d 779 |
| Decision Date | 11 April 2012 |
| Docket Number | No. 11–0564.,11–0564. |
| Parties | STATE of Iowa, Plaintiff–Appellee, v. Joel Blane BABB, Defendant–Appellant. |
| Court | Court of Appeals of Iowa |
OPINION TEXT STARTS HERE
Appeal from the Iowa District Court for Webster County, Gary L. McMinimee (trial) and Joel E. Swanson (sentencing), Judges.
Defendant appeals his conviction for third-degree sexual abuse. AFFIRMED.
Nicholas Sarcone and Dean Stowers of Stowers Law Firm, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Ricki N. Osborn, County Attorney, and Jennifer Bonzer, Assistant County Attorney, for appellee.
Considered by EISENHAUER, C.J., and DANILSON and BOWER, JJ.
Joel Babb appeals his third-degree sexual abuse conviction. Iowa Code §§ 709.1(2), .4(2)(a) (2009) ( victim's mental defect or incapacity precludes consent). Babb argues: (1) the court erred in instructing the jury; (2) the evidence is insufficient to support his conviction; (3) the court erred in denying his motion for an independent psychiatric examination of the victim; and (4) a videotape of the victim's physical therapy session was erroneously admitted into evidence. We affirm.
In July 2007, S.P. suffered a brain injury in a car accident that killed her daughter and injured her son. S.P. spent months in a coma. After S.P. regained consciousness, she was transferred to a rehabilitation facility in Ankeny. In January 2008, S.P. became a resident on the dementia floor at Friendship Haven, a residential care facility.
On May 23, 2010, Babb was working as a certified nurse assistant (CNA) at Friendship Haven. Courtney Amonson, another CNA, and Babb transferred S.P. to her bed for an afternoon nap and filled S.P.'s water pitcher. Amonson and Babb left the room.
Shortly thereafter, around 2:20 p.m., Babb was in S.P.'s room with the lights off and the door shut. Friendship Haven rules require S.P.'s door to be left open unless staff are assisting with her personal hygiene. Amonson noticed S.P.'s door was closed and was concerned another resident had wandered into the room. Amonson knocked and opened the door. Amonson saw Babb leaning over S.P. with his underwear and pants pulled down. Babb told Amonson he was merely adjusting his body wrap/Ace bandage. Amonson alerted other Friendship Haven staff to the incident. The police were contacted.
Officer Hayek arrived and interviewed Babb in a Friendship Haven office. Babb stated he entered the room to check S.P.'s water. Babb told officer Hayek S.P. was sleeping and he pulled his pants down, but not his underwear, in order to adjust his Ace bandage. Babb claimed he was never near S.P.'s bed.
When Detective Husske arrived, he interviewed Amonson. Subsequently, at 4:45 p.m., Detective Husske interviewed Babb. Babb consistently stated he entered S.P.'s room to fill her water and ice. Babb acknowledged S.P.'s door was closed and the lights were off. Babb's version of the incident changed during this interview. First, Babb insisted he pulled down his pants, but not his underwear, to adjust his back-support Ace bandage. Eventually, Babb admitted he walked over to S.P.'s bed and put his knee on it in order to adjust her comforter. Babb claimed S.P. grabbed his crotch, pulled his pants down, and performed oral sex on him.
On July 1, 2010, Babb was charged by trial information with third-degree sexual abuse and wanton neglect of a resident in a healthcare facility. S.P. did not testify at Babb's March 2011 trial. The jury convicted Babb of third-degree sexual abuse and acquitted him of the wanton neglect charge. Babb now appeals his conviction.
For the third-degree sexual abuse charge, the jury was instructed the State must prove Babb performed a sex act with S.P. and Babb “performed the sex act while S.P. was suffering from a mental defect or incapacity which precluded S.P. from giving consent.” Sex act was defined as “any sexual contact between the mouth of S.P. and the genitals” of Babb. Additionally:
[A] person is precluded from giving consent if the person was, at the time of the sex act, mentally defective or incapacitated to the extent that the person could not understand the nature and consequences of the sex act, rendering the person unable to offer effectual resistance to the approach of persons who might take advantage of the weakness.
Babb argues the district court erred in including the italicized language because it lessened the State's burden to prove mental incapacity and the language is not helpful in understanding the phrase “understands the nature and consequences.”
“We review challenges to jury instructions for correction of errors at law.” State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010). Trial courts are required to instruct the jury as to the law applicable to all material issues. Id. at 837. However, the trial court “is not required to give any particular form of an instruction; rather, the court must merely give instructions that fairly state the law as applied to the facts of the case.” Id. “Jury instructions must be read in their entirety and not piecemeal .” Id. at 838.
Under State v. Sullivan, 298 N.W.2d 267, 271–73 (Iowa 1980), the jury instruction fairly states the law. The Sullivan court ruled Iowa Code section 709.4(2) “protects persons who are so mentally deficient or incapacitated they cannot give a rational consent.” 298 N.W.2d at 271. The court explained:
[The statute] protects not only completely incompetent persons but those who “while having some degree of intellectual power and some capacity for instruction and improvement, are still so far below the normal in mental strength that they can offer no effectual resistance to the approach of those who will take advantage of their weakness.”
In short, subsection 709.4(2) protects those who are so mentally incompetent or incapacitated as to be unable to understand the nature and consequences of the sex act. Such persons cannot give the meaningful “consent” required by the enactment. There is abundant authority from other jurisdictions to support our view that the capacity to “consent” in these situations presupposes ... intelligence capable of understanding the act, its nature and possible consequences.
Id. at 272 (quoting State v. Haner, 186 Iowa 1259, 1262, 173 N.W. 225, 226 (1919)) (emphasis added) (citations omitted). See State v. Farnum, 554 N.W.2d 716, 720–21 (Iowa Ct.App.1996) ().
Additional support for our conclusion is found in State v. Chancy, 391 N.W.2d 231, 235 (Iowa 1986), where the court ruled the “key issue” under section 709.4(2) “is whether the mental strength of the victim is so far below normal that it precludes effective resistance.” Under long-established case law, we find no error.
Babb challenges the sufficiency of the evidence showing S.P. suffered from a mental defect or incapacity which precluded her from giving consent at the time of the oral sex act. Babb argues a reasonable trier of fact could not have found S.P. incapable of understanding the nature and consequences of sexual activities.
We review sufficiency-of-the-evidence claims for the correction of errors at law. State v. Leckington, 713 N.W.2d 208, 212–13 (Iowa 2006). We apply a deferential standard and review the evidence in the light most favorable to the State. Id. at 213. “We will uphold a verdict if it is supported by substantial evidence.” State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). Substantial evidence is evidence that could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id.
Several Friendship Haven employees testified at trial, including Michelle Jackman, a registered nurse and the director of nursing. Jackman initially met with S.P. and her parents to determine if Friendship Haven could meet S.P.'s needs. S.P. was the first resident with a traumatic brain injury. Due to her behavior and her memory impairment, S.P. was placed on the fifth floor. Jackman explained the fifth floor nurses have special training in dementia. When S.P. became a resident, Friendship Haven brought in the Brain Injury Association of Iowa to give extra training to the fifth floor staff. Jackman opined S.P. had slightly improved her physical limitations during her stay, but mentally “she's still pretty much the same as when she came in to us.”
Dana Ayala, a charge nurse on the fifth floor, testified S.P. has a secondary diagnosis of dementia caused by her brain injury. S.P.'s reflexes and interactions “are a lot slower than somebody who is a normal person.” Dana explained:
[T]oday I even asked her ... who I am and she told me Dan, but then I said, do you know why I'm here with you and she goes, you're my waiter. Which the other day she told me I was in church with her.... [S]ome things she can remember, like people. She can remember her parents real well, but she doesn't do tasks. Like we got to do everything for her.... She needs assistance with all her cares.
....
Q. When you have a conversation with [S.P.], explain for the jury how she is able to carry on that conversation? A. Well, you have to [ask] short questions, yes or no questions, or simple questions, nothing she [would] have to deeply think about because doesn't work like that with her.
Q. Can she carry on a conversation like a normal adult person would be able to do? A. No, she can't.
....
Q. Has she always been compliant with taking her medications? A. No. Her behaviors sometimes go to a younger child ... and you just wait and come back later and she'll take them then.
CNA Amonson stated S.P.'s mental condition had not really changed during the two years Amonson assisted her at Friendship Haven. S.P. has good days and bad days, and sometimes S.P. can brush her teeth by herself. Amonson cuts S.P.'s food for her. Amonson described her other...
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