State v. Cromer

• Decision Date: 01 May 2009
• Docket Number: No. 05-1344.,05-1344.
• Parties: STATE of Iowa, Appellee, v. Kyle Michael CROMER, Appellant.
• Court: Iowa Supreme Court

765 N.W.2d 1

STATE of Iowa, Appellee, v. Kyle Michael CROMER, Appellant.

No. 05-1344.

Supreme Court of Iowa.

May 1, 2009.

Kent A. Simmons, Davenport, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Gary R. Allison, County Attorney, and Dana Christensen, Assistant County Attorney, for appellee.

CADY, Justice.

In this direct appeal from a judgment of conviction for sexual abuse in the third degree entered by the district court following remand from an earlier appeal after a jury trial, we must decide whether the defendant is entitled to a new trial based on several claims of error, including ineffective assistance of trial counsel. On our review, we reverse the judgment and sentence of the district court and remand the case for a new trial.

I. Background Facts and Proceedings.

The relevant facts and circumstances of this case began when Kyle Cromer went to the "Wooden Nickel" tavern in Wilton, Iowa, on a Saturday night in March 2003. He had been drinking alcoholic beverages earlier in the day. As the evening progressed, the tavern became densely populated with patrons, who had come to enjoy the live music of a band and the merriment of the occasion. A woman whom we identify as N.S.¹ was among the group of patrons that evening. She attended a wedding earlier in the day and had consumed numerous beers prior to arriving at the tavern. She was accompanied by several friends. Many of the patrons were friends or acquaintances, including Cromer and N.S. Cromer was with Donnie Schultheis, who was a distant relative of N.S.

Like many of the other patrons, Cromer, Schultheis, and N.S. consumed copious amounts of alcoholic beverages during the evening, including shots of liquor. They became extremely intoxicated. N.S. danced in a provocative manner with Cromer and Schultheis at various times during the evening, which included some touching and fondling below the waist.

Sometime after midnight, N.S. left the tavern with Cromer and Schultheis after telling a girlfriend the two men were going to give her a ride home. They left in Schultheis' car. At this point, N.S. lost the ability to recall the remaining events of the evening. However, she awoke the next morning in a room at the Muskie Motel in Muscatine. She was naked and lying on a bed between Cromer and Schultheis. She located most of her clothing in the bathroom of the motel room and discovered her underwear and shoes in Schultheis' car. After arriving home, numerous fingerprint-sized bruises could be observed on her arms and inner thighs. She had a lump on her forehead and a bruise on her jaw. She was upset and crying.

A week later, N.S. reported the incident to the police. At the suggestion of police, N.S. called Cromer on the telephone. She had not talked to him since the incident. The police prepared N.S. for the call by suggesting topics of conversation, and two detectives were present and coached her at times during the conversation. They also suggested many of the questions propounded by N.S. and prodded her to keep talking when the conversation ebbed. The entire fifty-minute conversation was recorded onto a police computer.

N.S. began the conversation by calmly telling Cromer she could not remember the events of the evening and asked Cromer to tell her what happened. Cromer mentioned he was extremely intoxicated and could not precisely remember the evening's events, but he did allude to sexual activity between them. As the conversation progressed, N.S. began to alternate between periods of composure and periods of intense anger and sadness. She repeatedly told Cromer he took "advantage of" her. N.S. also emotionally related that she was plagued by painful thoughts about the incident and felt "dirty." She lamented that she would be required to live with her feelings the remainder of her life. She also told Cromer she could not sleep at night and had nightmares of resisting an attack by two men. He searched for words of consolation, but was unsuccessful.

Eventually, N.S. told Cromer she would never have consented to engaging in sexual intercourse with two men at the same time and demanded to know exactly what happened at the motel. In response, Cromer described in more detail how he and N.S. engaged in oral sex and sexual intercourse at the motel. N.S. repeatedly expressed her belief that she must have been unconscious and unable to make any decision to engage in sexual intercourse that evening. Midway through the conversation she began to accuse Cromer of rape and date rape.

Cromer repeatedly replied to her accusations of rape and date rape by saying, "It wasn't like that." Thirty minutes into the conversation, N.S. emotionally demanded to know what Cromer would call the incident if it had happened to his sister. At first, Cromer refused to call such an incident date rape. A few minutes later, however, N.S. again demanded to know how Cromer would describe their sexual encounter. After Cromer admitted he "took advantage of a drunk girl," N.S. pressed for him to acknowledge he engaged in date rape. She pleaded with him to acknowledge his conduct for her benefit and well-being. Minutes later, approximately forty minutes into the conversation, Cromer agreed he would call the encounter "date rape" if it had happened to his sister. He also told N.S. he should not have taken advantage of her.

Throughout the conversation, N.S. told Cromer she trusted him and Schultheis because she had known them for many years. She also repeatedly told him any decent person would have taken her home. Near the end of the conversation, she began to cry and told Cromer that she "should have been safe with you guys." Overall, the conversation was emotionally charged, and N.S. doggedly pressured Cromer to acknowledge culpability.

Seven months later, Cromer was charged with the sexual abuse of N.S. The case proceeded to trial where various witnesses, including N.S. and Cromer, testified to the events of March 29. Numerous patrons at the tavern testified to the level of intoxication N.S. exhibited before she left the Wooden Nickel that evening. Some witnesses said she was having difficulty walking and, at times, even standing, while other witnesses said she was inebriated but coherent and generally under control. All witnesses agreed N.S. was engaged and enjoying herself. Yet, she testified she had no memory of the evening from the time she left the bar with Cromer and Schultheis until awakening the next morning. A certified substance abuse counselor testified about a condition commonly known as "blackout." The expert described blackout as a loss of memory caused by rapid intoxication where an intoxicated person is awake and functioning during the blackout period.

Cromer admitted he and Schultheis engaged in various sex acts with N.S., but denied she was unconscious, mentally incapacitated, or physically helpless. Cromer testified N.S. initiated the sex acts and was at all times a willing participant. He said the sex acts began in the car and continued after the three checked into the motel. He also said they took a group shower before retiring to bed. However, an acquaintance of Cromer's who was in the jail for a brief period of time with Cromer after his arrest testified Cromer admitted to him that N.S. was unconscious when Cromer and Schultheis performed sex acts on her at the motel. This acquaintance of Cromer's received a reduced sentence in a case involving unrelated criminal charges in exchange for his testimony.

The recording of the telephone conversation between Cromer and N.S. was admitted into evidence and played in its entirety to the jury. Trial counsel made no objection to the admission of the recorded conversation.

The district court submitted the case to the jury on three separate counts. Count I required the State to prove sexual abuse in the second degree, a class "B" felony under Iowa Code section 709.3(3) (2003).² Count II required the State to prove sexual abuse in the third degree, a class "C" felony under section 709.4. The only theories of sexual abuse submitted to the jury under this count were based on mental incapacitation or physical helplessness of the other person.³ Count III required the State to prove Cromer committed assault with the intent to commit sexual abuse and causing bodily injury, a class "D" felony under section 709.11.

The jury convicted Cromer of count II— sexual abuse in the third degree based on the mental incapacitation or physical helplessness of the other person—and acquitted him on counts I and III. Cromer then moved for a new trial. He contended, in part, the district court erred in failing to instruct the jury that he could not be convicted unless it was shown he knew N.S. was incapacitated due to intoxication. He also argued insufficient evidence to support the verdict.

The district court granted the motion for new trial on the ground that it had failed to properly instruct the jury. The district court did not address the sufficiency-of-the-evidence claim.

The State sought discretionary review from the district court decision to grant a new trial, and we transferred the case to the court of appeals. The court of appeals held Cromer did not need to have knowledge N.S. was incapacitated for the jury to convict him of sexual abuse under the mental-incapacitation and physical-helplessness alternatives. Consequently, it determined the district court did not err in instructing the jury. Additionally, the court of appeals found Cromer waived review of his claim of insufficient evidence by failing to request a ruling on the claim by the district court after it granted a new trial. The court of appeals remanded the case to the district court "for entry of judgment of conviction."

On remand, Cromer filed a new motion for new trial. He again asked the district court to grant a new trial based on insufficient evidence and sought additional review on other grounds. The district...