State v. Kraai, No. 19-1878

CourtCourt of Appeals of Iowa
Writing for the CourtTABOR, Judge.
PartiesSTATE OF IOWA, Plaintiff-Appellee, v. KURT ALLEN KRAAI, Defendant-Appellant.
Decision Date14 April 2021
Docket NumberNo. 19-1878

STATE OF IOWA, Plaintiff-Appellee,
KURT ALLEN KRAAI, Defendant-Appellant.

No. 19-1878


April 14, 2021

Appeal from the Iowa District Court for Osceola County, Don E. Courtney, Judge.

Kurt Kraai appeals his conviction of second-degree sexual abuse arguing the district court erred in giving the jury a noncorroboration instruction. AFFIRMED.

Pamela Wingert, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

Heard by Doyle, P.J., and Tabor and Ahlers, JJ., but decided en banc.

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TABOR, Judge.

Kurt Kraai appeals his conviction of second-degree sexual abuse. He claims the district court erred in instructing the jury that "there is no requirement that the testimony of a complainant of sexual offenses be corroborated." We agree giving that noncorroboration instruction was error. But because the jury's guilty verdict was "surely unattributable" to the faulty instruction, we affirm.

I. Facts and Prior Proceedings

The State charged Kraai with engaging in a sex act with a child under twelve years old. See Iowa Code §§ 702.17(3), 709.1(3), 709.3(1)(b) (2017). At trial, the child testified that Kraai "would make [her] touch his private parts" with her hand. She said he abused her after "pull[ing] up some naughty things on the computer." Kraai testified in his own defense and denied showing the child pornography or committing the alleged sex acts. A jury found him guilty as charged.

II. Standard of Review

We review challenges to jury instructions for correction of errors at law. State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010).

III. Analysis

This case involves the propriety of instructing the jury that the testimony of a witness who alleges sexual assault needs no corroboration. Here's how the issue unfolded. During a discussion with the court about the proposed jury instructions, Kraai's counsel objected to giving a noncorroboration instruction. The preliminary version read: "There is no requirement that the testimony of a victim of sexual offenses be corroborated and her testimony standing alone, if believed beyond a reasonable doubt, is sufficient to sustain a verdict of guilty." The court

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verified that language was not from a "stock instruction." Relevant to the issue on appeal, defense counsel argued the instruction "unduly highlight[ed]" the child's testimony. Counsel reasoned "if [the jurors] believe my client's testimony standing alone, then they find him not guilty. So if we want to insert that, we can do that. I just think that this instruction is a problem. It highlights her testimony, and it's unfair."

Lobbying for the noncorroboration instruction, the prosecutor argued:

This is the law. And I don't think that we should be in a position of trying to keep the law from somebody just so defense can argue easier. Certainly, I'm sure that we will hear that there's no actual corroboration of her story. . . .
This [instruction] has been approved.1 It's been approved as written. And it's even been approved over the very objections that have been given by the defendant.

Siding with the State, the court decided to give the noncorroboration instruction. At Kraai's request, the court changed the word "victim" to "complainant."

When the court presented its final proposed instructions, Kraai's counsel again objected to including the noncorroboration instruction. He argued the proposed instruction differed from the noncorroboration instructions challenged in Altmayer and Barnhardt, insisting the appellate courts had not approved the instruction as written. Counsel argued: "I don't like it, but I think it would be sufficient just to say, 'There's no requirement that the testimony be corroborated.'"

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The prosecutor again defended giving the instruction:

We have certain cases that do require corroboration. This does not. And this comes about because defense attorneys make these arguments all the time that are contrary to law, and we don't have the law to show the jury. If they don't believe her, then they obviously believe the defendant.

Defense counsel scorned the notion that highlighting the weaknesses in the State's case would contradict the law:

I'm fully free to argue there's a lack of evidence. I don't even have the intent to use the word "corroborate" in my entire closing argument but I will argue lack of evidence. The reasonable doubt instruction says I can. It's not against the law. It's not illegal. It's not contrary to law for me to argue lack of evidence.

The court held to its decision to instruct the jurors on noncorroboration, asking defense counsel his preference for the wording. Counsel answered: "In a perfect world, I'd like it not to be there." But counsel compromised with the State on a scaled-down version of the instruction. As submitted to the jury, the instruction read: "There is no requirement that the testimony of a complainant of sexual offenses be corroborated."2

Kraai now contends the court should have sustained his objection to the noncorroboration instruction. Why was the instruction improper? His reasons are threefold: (1) the instruction is "a legal statement of the reviewing court's standard of review of such evidence and it is not relevant to the jury's function"; (2) the

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instruction bolsters the credibility of the child's statements over other testimony in the record, including his own; and (3) the instruction violates Iowa Code section 709.6, which states, "No instruction shall be given in a trial for sexual abuse cautioning the jury to use a different standard relating to a victim's testimony than that of any other witness to that offense or any other offense."

Before reaching the merits of Kraai's arguments, we take a detour to examine the origin of section 709.6 and the history of the corroboration requirement. Through much of the twentieth century, Iowa courts uniformly instructed juries that because "rape is easy to charge and difficult to disprove," the word of a "prosecutrix" was not enough, standing alone, to convict her assailant. See State v. Feddersen, 230 N.W.2d 510, 514 (Iowa 1975) (citing State v. Griffith, 45 N.W.2d 155 (Iowa 1950)). That pernicious and outdated caution is dubbed the Lord Hale instruction, named for England's Sir Matthew Hale, chief justice of the Court of the King's Bench from 1671 to 1676. See Mark v. State, 556 N.W.2d 152, 154 (Iowa 1996) (citing Feddersen, 230 N.W.2d at 514-15). In his writings, Hale recounted allegations of rape instigated by false accusations. See People v. Rincon-Pineda, 538 P.2d 247, 255 (Cal. 1975). Hale also heartily encouraged that rape "be punished with death." Feddersen, 230 N.W.2d at 514.

Under Iowa law, a defendant could not be convicted of rape "upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense." See Iowa Code § 782.4 (1973). But in 1974, the legislature removed the need for corroborative evidence in rape prosecutions. Feddersen, 230 N.W.2d at 514. Our

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supreme court followed suit, disapproving the Lord Hale instruction the next year. Id. Feddersen found "at least four vices" in the cautionary instruction:

First, it constitutes a comment on the evidence. Second, it applies a stricter test of credibility to the rape victim than to other witnesses in the trial. Third, it applies a stricter test of credibility to rape victims than to victims of other crimes. Fourth, trial courts have been accorded an indiscriminate right to give or refuse to give the instruction absent any guidelines for so doing.

Id. at 515.

After Feddersen, the legislature enacted section 709.6 to ensure that juries applied the same standard to the testimony of alleged victims of sexual abuse as other witnesses. It's likely the legislature intended that statute to be the final nail in the coffin of Lord Hale instructions. Considering that legislative intent, in Barnhardt, we reasoned that relying on section 709.6 to dispute the noncorroboration instruction "turn[ed] the statute on its head." Barnhardt, 2018 WL 2230938, at *4.

Yet a close reading of the statute reveals a broader purpose. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012) ("[T]he purpose [of a statute] must be derived from the text, not from extrinsic sources such as legislative history or an assumption about the legal drafter's desires."). Section 709.6 prohibits any instruction that cautions jurors to use a "different" standard for evaluating the testimony of an alleged sexual-abuse victim than for any other witness. In common parlance, "different" means "unlike in form, quality, amount or nature, dissimilar." Different, American Heritage Dictionary (2d Coll. ed. 1982). The State would have us read "different" as banning only the use of a more stringent or exacting standard for assessing the credibility

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of rape victims. But "different" can ratchet both ways. By its terms, section 709.6 also prohibits courts from instructing jurors to use a less rigorous or more relaxed standard for appraising the testimony of an alleged sexual-abuse victim than other witnesses.

The noncorroboration instruction here violated that prohibition. It singled out the testimony of the "complainant" as not requiring corroboration. Because it mentioned only the complaining witness, the jurors could have believed that the testimony of other witnesses, particularly the accused, did require corroborating evidence to be believed. Because of that asymmetry, we agree with Kraai that the challenged instruction defied section 709.6.

Setting the statute aside, the State insists the court had to give the noncorroboration instruction because it was a "true statement of law." Agreed, "Iowa law requires a court give a requested instruction as long as the instruction is a correct statement of law, is applicable to the case, and is not otherwise embodied elsewhere...

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