State v. Donahue

• Decision Date: 26 March 2021
• Docket Number: No. 18-2239,18-2239
• Citation: 957 N.W.2d 1
• Parties: STATE of Iowa, Appellee, v. John Charles DONAHUE, Appellant.
• Court: Iowa Supreme Court

957 N.W.2d 1

STATE of Iowa, Appellee,

v.John Charles DONAHUE, Appellant.

No. 18-2239

Supreme Court of Iowa.

Submitted January 20, 2021

Filed March 26, 2021

Nathan A. Olson (argued) and Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Richard Bennett (argued) and Douglas Hammerand, Assistant Attorneys General, and Sarah Jennings, County Attorney, for appellee.

Appel, J., delivered the opinion of the court, in which all participating justices joined. Christensen, C.J., took no part in the consideration or the decision of the case.

APPEL, Justice.

In this case, defendant John Donahue appeals his conviction of sexual abuse in the third degree in violation of Iowa Code sections 709.1(1), 709.4(1)(a ), and 702.17 (2014). On appeal, Donahue argues that the district court abused its discretion when it prohibited him from cross-examining the victim about a prior sexual incident between Donahue and the victim at a different time and place from the crime that gave rise to the charges. Donahue also challenges a jury instruction, which deviated from the model instructions and made reference to "sexual offenses" in a fashion that Donahue claims prejudiced him as he was only charged with one sexual offense. Finally, Donahue claims that the evidence offered by the victim was too vague and insufficient to amount to substantial evidence to support the jury's guilty verdict.

We transferred the case to the court of appeals. The court of appeals affirmed Donahue's conviction. We granted further review. For the following reasons, we affirm Donahue's conviction.

I. Background Facts and Proceedings.

A. Introduction. T.G. lived with her biological mother in Estherville, Iowa. T.G. moved to Audubon, Iowa, to live with her father and his wife after the Iowa Department of Human Services removed T.G. and her siblings from her biological mother's house due to what T.G. described as physical and mental abuse. T.G.’s grandfather, John Donahue, lived two blocks away from the home where T.G. resided in Audubon. T.G. and her other siblings would often visit Donahue in his home. T.G. claimed that Donahue sexually abused her in his home.

After amending its original charges, the State alleged that Donahue committed third-degree sexual abuse against T.G. According to the charge, Donahue "during the time period of July 31, 2014 through August 26, 2016, in Audubon County, Iowa, did commit sexual abuse by performing a sex act by force or against the will of a person."

B. Proceedings in District Court.

1. First trial proceedings. The first trial resulted in a mistrial as the jury could not reach a verdict. Prior to the first trial, Donahue filed a motion in limine. Paragraph 2 of the motion sought an order from the court "[t]hat the jury not be told at any time by the State or the State's witnesses about any alleged prior bad acts by the Defendant." The State resisted, asserting that under State v. Spaulding , prior acts with the victim are admissible "to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial." 313 N.W.2d 878, 880 (Iowa 1981) (en banc) (quoting McCormick's Handbook on the Law of Evidence § 190, at 449 (Edward W. Cleary ed., 2d ed. 1972) ).

At a May 14, 2018 hearing on the motions in limine, the defense counsel stated that "I think the State may be right as far as that the State's allowed to bring up allegations that include this certain victim and this certain Defendant." But the defense reiterated its objection to other prior act evidence involving the defendant. After hearing from counsel, the district court stated that the defense motion is "overruled as to the propensity of any acts between the alleged victim and the Defendant" and that "in all other aspects of bad acts will be sustained."

Just before the first trial on June 26, however, the State raised the question of whether the parties would explore "a prior incident ... alleged by the victim with the defendant in Carroll, Iowa." The State represented that although it could bring the issue up under Spaulding , it did not plan to do so. The State argued that the defendant could not bring up the incident consistent with Iowa's rape shield rule, noting that the defendant had not filed any affidavits in connection with the proposed evidence. When the district court asked the defendant if he "intend[ed] to get into [the] Carroll issue," the defense stated: "No, Your Honor. We did have some discussion about that, but we don't intend to." The district court entered an oral order granting paragraph 2 and other paragraphs of Donahue's motion in limine.

The first trial ended in a mistrial after the jury became deadlocked during deliberations.

2. Second trial proceedings. A second jury trial commenced on October 30. Before evidence was received, the district court asked the parties if anyone wanted to be heard on the motions in limine, noting that the court had previously ruled that paragraphs 1 through 7 of defendant's motion would be sustained. No party wanted to be heard and the court stated, "Then that's going to be the Court's order ...."

During the State's opening statement at the second trial, the State described a pattern of sexual abuse by Donahue of T.G.:

After years of turmoil and instability in this little girl's life, it finally looked like she had found a safe haven. But as the facts will show, the Donahue home was anything but safe for [T.G.]. Because this man, Papa, sexually abused her repeatedly during the time that she lived with her dad.

[T.G.] will tell you that once the abuse started, it happened virtually every single time that she was alone with him. It started with grooming behavior: Gifts, expensive gifts that he only bought for her; he would give her money, just her; he would spend extra time with her.

This happened so many times over such a long period of time that only a few occasions stand out in [T.G.]’s mind. But one of those occasions, she'll describe it to you.

The State called T.G. as a witness. T.G. provided detailed testimony of the alleged incident in Audubon for which Donahue was on trial. During the State's questioning of T.G. about the Audubon incident, the State asked T.G. during the time period when the alleged incident occurred whether Donahue showed her affection in any way. T.G. responded "Yes." The State asked specifically what kind of affection. T.G. replied, "Hugs us and kiss us." The State asked T.G. to specify where she was kissed, to which she replied, "On the lips." The State asked T.G. how that made her feel, and T.G. responded, "Uncomfortable."

The State continued by asking T.G. whether Donahue did anything else in the house which made T.G. feel uncomfortable and asked her to describe what occurred. T.G. replied yes, but before describing the event, the State said: "Let me back up. Did this happen -- when you're thinking of, did it happened more than one time?" To which T.G. replied yes. The State asked no further questions related to any instance aside from the Audubon incident. T.G. provided specific detailed testimony about the Audubon incident, saying that Donahue digitally penetrated her vaginal area.

In proceedings outside the presence of the jury, Donahue's lawyer told the court that the defense sought to cross-examine T.G. about a specific incident from "the deposition that [T.G.] had given November of 2017, [where] she spoke at length about an incident in Carroll, Iowa of the defendant inappropriately touching her there, and we were attempting to explore that here today, Your Honor." The State objected. According to counsel for the state:

[M]y recollection was from the last trial that we weren't going to get into the incident in Carroll, and I guess I made the assumption -- because no one said otherwise -- that that was going to be the same in this situation, so I did not ask her about the Carroll incident....

....

... [W]e just assumed everything was carrying over -- the same agreements, the same motions in limine that were carrying over.

The State further contended that while the State could use the incident at Carroll to show motive or fabrication, it could not be used by the defense as impeachment evidence since T.G. did not testify about it on direct examination.

In response, Donahue argued that the State had opened the door by suggesting that T.G. had been assaulted by Donahue multiple times. While the defense recognized that at the morning of the first trial, an agreement had been reached not to explore the Carroll incident, there was no such agreement at the second trial. When asked by the court if the defense wanted to explore the Carroll incident in detail, the defense replied "Yes."

The district court took the matter under advisement and adjourned for the day. Prior to trial the following day, the district court took up the matter again.

The State elaborated on its position at the reconvened hearing. The State asserted there were two reasons to decline Donahue's request. First, the State asserted that the district court's order on the motion in limine covered the matter and that the defense was bound by it. Second, the State contended that the evidence would be inadmissible under the rape shield rule.

Donahue did not contest the State's assertion that the Carroll incident was within the scope of the motion in limine but claimed that the event occurred after the alleged crime and therefore was not covered by it. The defense conceded that it did not comply with the ordinary notice requirements of the rape shield rule but declared without elaboration that "it's our position that the Rape Shield Law is not applicable." Finally, Donahue claimed that the State had opened the door through T.G.’s testimony.

After hearing from the parties, the district court ruled that it would not allow Donahue to cross-examine T.G. about the Carroll incident. The district court adopted both grounds advanced by the State: the ruling on...