State v. Jones, 91-1321

• Citation: 490 N.W.2d 787
• Decision Date: 22 July 1992
• Docket Number: No. 91-1321,91-1321
• Parties: STATE of Iowa, Appellee, v. Milton Sylvester JONES, Appellant.
• Court: United States State Supreme Court of Iowa

Page 787

490 N.W.2d 787

STATE of Iowa, Appellee, v. Milton Sylvester JONES, Appellant.

No. 91-1321.

Supreme Court of Iowa.

July 22, 1992.

Rehearing Denied Sept. 25, 1992.

Linda Del Gallo, State Appellate Defender, and Kevin Cmelik, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Roxann M. Ryan, Deputy Atty. Gen., William E. Davis, County Atty., and James Hoffman, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, SCHULTZ and ANDREASEN, JJ.

ANDREASEN, Justice.

The defendant in a child sexual abuse case appeals his conviction on the grounds that the court improperly excluded evidence. He challenges the jury venire on both constitutional and statutory grounds. Defendant also alleges that his trial counsel was ineffective. We affirm the judgment entered upon the conviction.

I. Background.

Milton Jones was charged and convicted of sexual abuse in the third degree. Iowa Code § 709.4 (1987). The charge and conviction resulted from his sexual contact with a child; a ten-year-old girl. Iowa Code §§ 702.5; 709.4(3).

Prior to trial, Jones challenged the makeup of the jury panel and requested that certain evidence be admitted as an exception to Iowa Rule of Evidence 412. Judge Margaret S. Briles denied the evidentiary motion and set the challenge to the jury panel for hearing. The hearing took place on the morning of the trial. Following the hearing, Judge Edward deSilva denied the challenge to the jury panel. The case was then tried to a jury. Judge deSilva entered a judgment of conviction upon the jury's verdict of guilty, and Jones was sentenced to a term of confinement not to exceed ten years. Jones appealed.

II. Scope of Review.

When reviewing a trial court's rulings on admissibility of evidence, we use an abuse-of-discretion standard. State v. Alvey, 458 N.W.2d 850, 852 (Iowa 1990). Our review of constitutional questions is de novo. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Statutory challenges are reviewed for errors of law. State v. Stoneking, 379 N.W.2d 352, 354 (Iowa 1985).

III. Exclusion of Evidence Under Iowa Rule of Evidence 412.

Jones filed a pretrial motion under Iowa Rule of Evidence 104 to secure a ruling that evidence of prior sexual abuse of the alleged victim by another person was admissible. He urged the "evidence is relevant to counteract the commonly held belief that children, such as the alleged victim herein, have no basis of knowledge of sexual activity unless they learned of such activity in the context of the abuse at issue." He further argued that a refusal to allow him to present such evidence would result in a denial of "due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and under Article I, Sections 9 & 10 of the Iowa Constitution." The court ruled the proposed evidence was prohibited by Iowa Rule of Evidence 412--the "rape shield" rule.

On appeal, Jones argues that the evidence is not subject to rule 412 and should have been admitted under a relevancy standard. In support of this argument, Jones claims the evidence he sought to admit was not in "reference to previous sexual behavior of the victim" because "previous incidents of abuse cannot be characterized as 'behavior.' "

Jones also now claims the evidence was not to be used to show that the victim gained knowledge of sexual activity, but rather that the victim was confusing the incidents of her previous sexual abuse with her alleged abuse by Jones because of the "close proximity in time" in which the other abuse occurred.

A. The Applicability of Rule 412.

Rule 412 in part provides:

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, evidence of a victim's past sexual behavior ... is also not admissible, unless such evidence ... is:

(1) admitted in accordance with subdivisions "c"(1) and "c"(2) and is constitutionally required to be admitted; or ...

(Emphasis added.)

Jones argues that sexual activity of a victim of sexual abuse is not sexual behavior. He urges that behavior is defined as conduct. He claims that conduct is an affirmative rather than a reactive or passive action taken by a person. Therefore, being the victim of sexual abuse is not an affirmative act. Thus, he concludes that evidence of prior sexual abuse is not "prior sexual behavior of the victim" and rule 412 has no application. We are not persuaded.

We think the term past sexual behavior as it is used in the rule clearly encompasses prior sexual abuse perpetrated upon the victim. Many other state and federal courts have found "rape shield" rules, identical or highly similar to Iowa Rule of Evidence 412, applicable to evidence of previous sexual abuse of a child victim. See, e.g., United States v. Nez, 661 F.2d 1203 (10th Cir.1981); State v. Oliver, 158 Ariz. 22, 760 P.2d 1071 (1988); State v. Jacques, 558 A.2d 706, 707 (Me.1989); People v. Arenda, 416 Mich. 1, 2-3, 330 N.W.2d 814, 815 (1982); State v. Padilla, 110 Wis.2d 414, 426-28, 329 N.W.2d 263, 270 (1982). See also Annotation, Admissibility of Evidence that Juvenile Prosecuting Witness in Sex Offense Case had Prior Sexual Experience for Purpose of Showing Alternative Source of Child's Ability to Describe Sex Acts, 83 A.L.R.4th 685 (1991) [Annotation]; Note, State v. Oliver: Children With a Past: The Admissibility of the Victim's Prior Sexual Experience in Child Molestation Cases, 31 Ariz.L.Rev. 677, 685 (1989) (noting the "general consensus is that rape shield statutes do apply to cases involving minor victims") [Note]. But see State v. Carver, 37 Wash.App. 122, 678 P.2d 842 (1984), in which the court stated: "The evidence proffered in this case does not fit within the concepts and the purposes of the rape shield statute. First, the evidence sought to be admitted here was prior sexual abuse, not misconduct of a victim." Id. at 123, 678 P.2d at 843. This case is cited as the sole exception to the general consensus. Note, at 685 n. 74. We find the majority reasoning more persuasive.

B. Relevancy Analysis.

After properly concluding that rule 412 was applicable to the evidence, the district court proceeded to conduct a relevancy analysis pursuant to rule 412(c)(3).

Subdivision 412(c)(3) is triggered when the past sexual behavior evidence is offered.

(A) ... upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or

(B) ... upon the issue of whether the alleged victim consented to the sexual behavior with respect to which sexual abuse is alleged.

Iowa R.Evid. 412(b)(2). The evidence sought to be admitted did not fit into either of these specific categories.

Rather, pursuant to the rule, the court should conduct the constitutional relevancy analysis required by rule 412(b)(1). See, e.g., State v. Clarke, 343 N.W.2d 158, 161-62 (Iowa 1984). We have reviewed the proffered evidence under rule 412(b)(1) and find that it is inadmissible. We therefore affirm the ruling of the court. See Newmire v. Maxwell, 161 N.W.2d 74, 80 (Iowa 1968) ("Where a learned judge's decision is right for a wrong reason it is nevertheless right.").

The initial determination in a constitutional analysis pertains to a defendant's right to present a defense.

The constitutional provisions most often implicated in cases of this type are the sixth amendment right of confrontation and the fourteenth amendment due process right to a fair trial. The Constitution, however, ordinarily requires only the introduction of otherwise relevant and admissible evidence. Evidence that is irrelevant is not constitutionally required to be admitted.

State v. Clarke, 343 N.W.2d 158, 161 (Iowa 1984). See also Oliver, 760 P.2d at 1079. The defendant's constitutional rights must be weighed against the recognized interest that the State has "to (1) protect the privacy of the victims; (2) encourage the reporting and prosecuting of sex offenses; and (3) to prevent time-consuming and distracting inquiry into collateral matters." State v. Gettier, 438 N.W.2d 1, 3 (Iowa 1989).

A trial court can properly exclude evidence of the victim's prior sexual histories if the evidence were either irrelevant or more prejudicial than probative. Clarke, 343 N.W.2d at 161; Oliver, 760 P.2d at 1079. Such an analysis, although different, is highly similar to the relevancy analysis the court actually conducted. We proceed to analyze the evidence under this constitutional format.

Jones claims the evidence should be admitted for the purpose of showing an alternative source of the child's ability to describe the sex act perpetrated on her. However, at the time of the trial in this matter the victim witness was thirteen years old. In the three years between the abuse and the trial, the victim had been through sexual counseling and sex education programs at school. The district court found that "we are talking about a person who has at the time of this act reached the age where she had knowledge of sexual activity from other sources than actual sexual contact." We agree.

Given the age of the victim at the time she testified, the education and counseling she had received in the interim between the abuse and the trial, and the rather unexplicit nature of the testimony; ¹ we find it unlikely that a jury would infer that the victim could only describe the act because Jones had, in fact, done it. See Oliver, 760 P.2d at 1080. The evidence of the victim's previous abuse is marginally relevant and is more prejudicial than probative. See Annotation §§ 4[b], [c], 14-15 (1991).

Jones also claims the evidence should be admitted to show that the child was actually confusing Jones' alleged sexual abuse with the previous abuse. We do not agree. First, the record reveals the alleged prior abuse occurred at least five years prior to the incident in question; the victim was then approximately five years old. There is no...