State v. Bonner, 031820 IWCA, 18-1492
| Opinion Judge | DOYLE, JUDGE |
| Party Name | STATE OF IOWA, Plaintiff-Appellee, v. CHAD ALLEN BONNER, Defendant-Appellant. |
| Attorney | Aaron Hamrock of McCarthy & Hamrock, P.C., West Des Moines, for appellant. Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee. |
| Judge Panel | Heard by Vaitheswaran, P.J., and Doyle and May, JJ. |
| Case Date | March 18, 2020 |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Winnebago County, Gregg R. Rosenbladt, Judge.
Chad Bonner appeals from convictions on two counts of second-degree sexual abuse following a bench trial.
Aaron Hamrock of McCarthy & Hamrock, P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee.
Heard by Vaitheswaran, P.J., and Doyle and May, JJ.
DOYLE, JUDGE
Following a bench trial, Chad Bonner was found guilty of two counts of second-degree sexual abuse. He now appeals the convictions, asserting the court erred and abused its discretion in many respects. Bonner also contends his trial counsel rendered ineffective assistance. Upon our review, we determine Bonner's claims of ineffective assistance of counsel should be preserved for possible postconviction-relief proceedings. We affirm in all other respects.
I.
Background Facts and Proceedings.
These facts are essentially undisputed. Bonner and K.F. have two daughters-M.M., born in 1996, and J.F., born in 1999.1 Over the years, Bonner also had and on-again, off-again relationship with C.K. Bonner and C.K. have one daughter, M.K., born in 2001. C.K. has two other daughters, S.J., born in 1998, and A.G., born in 2004.
Bonner, C.K., S.J., M.K., and A.G. lived together for a time in the 2000s. During that time, Bonner had visitation with his daughters M.M. and J.F. every other weekend at his home with C.K. and the other children. M.M. often threw fits before her visits with Bonner, but K.F. made her go.
Bonner and C.K.'s relationship ended in 2008 after S.J. told C.K. Bonner had sexually abused her. Before that time, C.K. had no suspicions that abuse was occurring in the home. She had witnessed no abuse, nor was she made aware that anything improper or abusive had occurred in the home.
Bonner's daughters, M.M. and J.F., were each interviewed in 2008 by the Iowa Department of Human Services (DHS). Both girls denied Bonner had touched them in any sexual way. M.M. and J.F. ceased having visits with Bonner after S.J.'s report.
Though K.F.'s and C.K.'s children had grown up seeing each other fairly often, they did not stay in contact after 2008. In or around 2016, the children came in contact through social media, and J.F. discovered her half-sister M.K. was going to live with Bonner. J.F. told M.M.
M.M. was nervous about M.K. living with Bonner because she did not "want her to get hurt." M.M. told M.K. that Bonner had sexually abused her, as well as the things S.J. said Bonner did to S.J. M.K. seemed unconcerned and ultimately did move in with Bonner. M.M., who had told her mother about Bonner's abuse in 2014, talked to her mother about M.K. Both M.M. and her mother questioned whether M.K., a minor, could live with Bonner, and they made inquiries of the situation to county officials. Though M.M. did not report the abuse to law enforcement officials, an investigation began.
M.M. and J.F. were interviewed again. Each told officers that Bonner had sexually abused them in the past and they lied in 2008 when they stated otherwise.
In 2017, Bonner was charged by trial information with two counts of second-degree sexual abuse.2 The charges stemmed from reports that Bonner had committed a sex act on two children under twelve between January 2005 and September 2008. After a February 2018 bench trial, the district court entered its findings of fact, conclusions of law, and verdict finding Bonner guilty beyond a reasonable doubt on both counts.
Bonner moved for a new trial and in arrest of judgment challenging the sufficiency of the evidence to support the convictions, among other things. The State resisted. Bonner then filed an affidavit sworn by his daughter M.K. affirming: I spoke with [J.F.] within 2 or 3 days of her testifying . . . . She had called me on the phone and was talking about the trial. When she began talking about her testimony, I asked her "was it the truth?" and she said "not all of it". I then asked her what part wasn't true; she didn't answer me and hung up the phone. I have not seen her or talked to her since then.
A handwritten line follows: "I saw her yesterday and she treatend [sic] me to not say anything."
Following a hearing, the district court denied Bonner's motion. He was sentenced to life in prison. Bonner appeals.
II.
Discussion.
On appeal, Bonner asserts several claims: (1) there was insufficient evidence to support his convictions, (2) newly discovered evidence in M.K.'s post-verdict affidavit entitled him to a new trial or another hearing, 3 (3) a report by J.F. of a sexual nature should not have been excluded at trial, and (4) trial counsel was ineffective "in failing to present defense witnesses." We address Bonner's arguments in turn.
A.
Substantial Evidence.
We first turn to Bonner's assertion that the district court erred in finding the State presented sufficient evidence to support the convictions. "We review sufficiency-of-the-evidence challenges for correction of errors at law." State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). "In evaluating sufficiency-of-evidence claims, we will uphold a verdict if substantial evidence supports it." State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019). "Evidence is considered substantial if, when viewed in the light most favorable to the State, it can convince a rational jury that the defendant is guilty beyond a reasonable doubt." State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). In making this determination, we do not review just the inculpatory evidence. See State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016). Instead, all of the record evidence must be considered, "including any reasonable inferences that may be fairly drawn from the evidence." Id. at 705 (citation omitted). "'[E]vidence which merely raises suspicion, speculation, or conjecture is insufficient.'" State v. Hearn, 797 N.W.2d 577, 580 (Iowa 2011) (quoting State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992)). The finder of fact "is entitled to reject a party's evidence and credit the evidence against it." Trane, 934 N.W.2d at 455; accord State v. Neitzel, 801 N.W.2d 612, 624 (Iowa Ct. App. 2011) (noting "credibility of witnesses is for the factfinder to decide except those rare circumstances where the testimony is absurd, impossible, or self-contradictory").
A person who performs a sex act with a child under twelve commits second-degree sexual abuse. See Iowa Code § 709.3(1)(b) (2005). A "sex act" as defined by section 702.17(1) and (3) includes "any sexual contact between two or more persons by . . . [p]enetration of the penis into the vagina or anus" or by "[c]ontact between the finger or hand of one person and the genitalia or anus of another person."
Here, there is no direct physical evidence. Bonner's argument centers upon the credibility of M.M. and J.F. Because both M.M. and J.F. denied abuse in 2008, they are either lying now, or they were lying in 2008. Either way, as Bonner's argument goes, they are liars and thus lack credibility. But both M.M. and J.F. admitted under oath at trial that they had lied previously, and they gave reasonable explanations for their dishonesty. In 2008, they were 12 and 9 years old, respectively. M.M. testified she was afraid of her father and of what speaking out would do to her relationships with relatives on Bonner's side of the family. Indeed, both M.M. and J.F. testified Bonner's family has ceased contact with them after coming forward. J.F., who has an intellectual delay, explained she was telling the truth at trial because she now understood what had happened to her back then, that what happened was not right, and what happened was not her fault. And given the passage of time and their young ages at the time of the incidents, any inconsistencies in their trial testimony are minor.
The district court also had distinct advantages in assessing credibility, having observed the parties...
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