State v. Kostman, 97-781

• Citation: 585 N.W.2d 209
• Decision Date: 23 September 1998
• Docket Number: No. 97-781,97-781
• Parties: STATE of Iowa, Appellee, v. David Otto KOSTMAN, Appellant.
• Court: United States State Supreme Court of Iowa

Page 209

585 N.W.2d 209

STATE of Iowa, Appellee, v. David Otto KOSTMAN, Appellant.

No. 97-781.

Supreme Court of Iowa.

Sept. 23, 1998.

Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Denver D. Dillard, County Attorney, and Harold L. Denton, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and TERNUS, JJ.

PER CURIAM.

The defendant, David Kostman, appeals from his conviction for lascivious acts with a child, as a sexual predator and an habitual offender, in violation of Iowa Code sections 709.8, 901A.2, and 902.8 (1997). ¹ For the reasons that follow, we reject Kostman's claims that there was insufficient evidence to support the conviction and the sentencing court erred in applying both the sexual predator and habitual offender enhancements. See Iowa Code §§ 901A.2(3), 902.9(2).

I. Background Facts and Proceedings.

In October 1996, the State charged Kostman, then sixty-two years old, by trial information with lascivious acts with a child after he allegedly engaged in sexual acts with a thirteen-year-old boy in July or August 1996.

At trial in March 1997, the victim, then age fourteen, testified Kostman gave him money in exchange for sex acts. He also stated there were three sexual encounters in Kostman's home from July to August 1996. The victim further admitted he once recanted the allegations because he and Kostman "went camping together and always had fun and [he] didn't want to see nothing happen to him and it was just--- [he] was just kind of scared." Defense counsel conducted a lengthy cross-examination of the victim emphasizing details the victim could not remember and inconsistencies between his trial testimony and prior statements, including contradictions regarding Kostman's physical attributes and alleged threats, and the victim's motivation to fabricate the allegations.

The victim's father testified and confirmed his son recanted the allegations on one occasion. He admitted his son is not always truthful, but stated he explained to him the importance of telling the truth regarding the abuse. Detective Tina Debban testified she interviewed Kostman. Kostman confessed he gave the boy money and fishing poles in exchange for sex acts, and admitted the sexual acts occurred three times during July or August 1996. Detective Debban also testified she drafted the written confession and read it to Kostman, who then voluntarily signed it. The statement was admitted into evidence.

Kostman did not testify. His sister testified about his slow and easygoing nature. An investigator testified and provided evidence to contradict the victim's recollection of Kostman's physical characteristics.

The jury returned a guilty verdict and the court later adjudged Kostman an habitual offender based upon his six prior felony convictions for lascivious acts with a child. The court sentenced Kostman to an indeterminate prison term not to exceed thirty years, applying both the habitual offender and sexual predator enhancement provisions.

Kostman appeals. He argues the trial court should have granted his motion for judgment of acquittal based upon the insufficiency of the evidence. Kostman also contends the district court should have applied only the sexual predator enhancement statute for a maximum prison term of up to twenty-five years.

II. Sufficiency of the Evidence.

Kostman believes the trial court should have granted his motion for judgment of acquittal, focusing mainly on the inconsistencies in the victim's testimony. He claims the victim's testimony was so unbelievable it cannot be used to support the guilty verdict. See State v. Smith, 508 N.W.2d 101 (Iowa App.1993). Additionally, he blames signing the confession on his easygoing nature and his desire "to curry favor with an authority figure such as a police officer."

In reviewing challenges to the sufficiency of evidence, we view the evidence in the light most favorable to the State. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). We consider all the evidence, not just evidence supporting the verdict, and will uphold a jury's verdict if it is supported by substantial evidence. Id. at 339-40. Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Generally, the credibility of witnesses is left to the jury; however, there are limitations to this rule. State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997). A witness's testimony "may be so impossible, absurd, and self-contradictory that the court should deem it a nullity." Id.

We conclude the victim's testimony was not absurd or unbelievable. His version of the facts given at trial comported with the detailed written confession signed by Kostman. His trial testimony and prior statements were also sufficiently consistent regarding the time, place, and nature of the sexual acts. The jury heard the victim's version of the facts, as well as his reasons for recanting the allegations, and witnessed his demeanor at trial. A reasonable jury could have concluded he was a credible witness.

Additionally, there is absolutely no evidence Kostman did not voluntarily sign the confession. The trial court denied Kostman's motion to suppress the confession, and Kostman does not contest that ruling on appeal. We find Kostman's argument that he is so easygoing that he signed the statement just to curry favor with Detective Debban to be wholly unconvincing and without merit.

In viewing all of the evidence in the light most favorable to the State, a rational jury could have found the defendant committed the crime beyond a reasonable doubt. The trial court did not err in refusing to grant Kostman's motion for judgment of acquittal.

III. Application of Sentencing Enhancements.

Kostman claims the sentencing court improperly applied both the sexual predator enhancement statute and the habitual offender statute. Section 901A.2(3) provides:

A person convicted of a sexually predatory offense which is a felony, who has a prior conviction for a sexually predatory offense, shall be sentenced to and shall serve twice the maximum period of incarceration for the offense, or twenty-five years, whichever is greater, notwithstanding any other provision of the Code to the contrary. A person sentenced under this subsection shall not have the person's sentence reduced under chapter 903A or otherwise by more than fifteen percent.

Based upon Kostman's habitual offender status, the court applied the habitual offender statute to arrive at an indeterminate sentence of fifteen years, see Iowa Code § 902.9(2), and doubled it pursuant to section 901A.2(3), for a total indeterminate sentence of thirty years. Because this thirty-year term is greater than the minimum twenty-five year term provided in section 901A.2(3), the court imposed an indeterminate thirty-year sentence.

Kostman does not challenge that he is both a sexual predator and an habitual offender. He argues, however, the sentencing court can only apply chapter 901A enhancements because that chapter provides the exclusive means to impose sentence for sexual predators, focusing on the phrase "notwithstanding any other provision of the Code to the contrary." He believes the court should have doubled the five-year term for the crime, see Iowa Code § 902.9(4), to arrive at an indeterminate ten-year term. Because the minimum term provided...