State v. Kramer

• Decision Date: 25 January 2018
• Docket Number: No. 16-2048,16-2048
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. JEROMIE ALAN KRAMER, Defendant-Appellant.
• Court: Iowa Court of Appeals

STATE OF IOWA, Plaintiff-Appellee, v. JEROMIE ALAN KRAMER, Defendant-Appellant.

No. 16-2048

COURT OF APPEALS OF IOWA

January 25, 2018

Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.

The defendant appeals from his convictions for sexual abuse in the third degree and lascivious acts with a child. AFFIRMED.

Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

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

Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

POTTERFIELD, Judge.

Jeromie Kramer appeals from his convictions for sexual abuse in the third degree and lascivious acts with a child following a bench trial. He raises a number of arguments on appeal, specifically: 1) an actual conflict of interest with the victim's guardian ad litem resulted in an unfair trial, (2) the State did not present sufficient evidence of either "touching" or any "sex act," (3) the trial court's written findings included an incorrect statement that the victim had no inconsistencies in her story and no motive to fabricate allegations, (4) the trial court's decision not to afford weight to pages from the victim's journal was clear error; (5) the trial court erred by granting the guardian ad litem's motion for a protective order preventing him from taking the victim's deposition again after the trial information was amended to add felony charges, and (6) the trial court erred by admitting parts of the victim's deposition into evidence as prior consistent statements.

I. Background Facts and Proceedings.

In December 2015, the State charged Kramer by trial information with indecent contact with a child. It was alleged the conduct occurred in December 2014, when P.W.—the complaining witness—was twelve years old and staying at Kramer's home.

The next day, the county attorney filed a motion to have a guardian ad litem (GAL) appointed. The motion requested the attorney by name, stating the attorney "has agreed to provide said representation." The district court granted the motion.

In April 2016, Kramer deposed P.W.

In May, the State amended the charges filed against Kramer to sexual abuse in the third degree¹ and lascivious acts with a child,² both class "C" felonies.

In June, the GAL filed a motion asking the court to "issue a protective order to bar the defendant from deposing the child victim again" because "[f]urther depositions of the child are unnecessary and abusive to the child" and "[a]ny amendments to the original trial information . . . stem from the same series of events that were the basis for the questions by counsel for defendant."

At a hearing on the motion, Kramer orally resisted the motion, claiming he was entitled to a second deposition because of the amended and substituted trial information. The court noted that the elements of the original charge and the later charges were different but that "all are based on the same conduct and incident, " and "it is not apparent, . . . after reading the deposition, what additional information defense counsel could learn about the incident by asking additional questions." The court granted the GAL's motion, which had been joined by the prosecutor, but further elaborated, "[T]his order is without prejudice to Defendant filing an application for a further deposition of the child victim specifying his intended area(s) of inquiry and why the current deposition is not sufficient in those regards." Kramer never filed the responsive application.

The criminal case was tried to the bench in September. At trial, P.W. testified about a specific instance when she was living in Kramer's home in December 2014, where she was sitting on the couch with Kramer and he was massaging her feet. At some point during the massage, she fell asleep. Sheawoke some time later to P.W. using her feet to rub his penis through his sweatpants. P.W. fell back asleep. Later, she woke up and sat up, removing her feet from Kramer's hands and placing them on the floor. She testified Kramer then began giving her a hand massage with his hands but ultimately moved her hand to his genitals and then proceeded to use her hand to massage his genitals in the same manner he used her feet and toes.

Kramer testified in his own defense. He testified it was not uncommon for him to give P.W. a hand or foot massage, but he denied ever purposefully using P.W.'s hand or feet to touch or massage his genitals. He testified there was at least one instance where he was giving her a hand massage and they both fell asleep, with her hand then falling into the area of his genitals. He testified similarly to giving her a foot massage and ultimately having "one or both of them fall asleep" with her foot then falling onto his stomach then "slid[ing] down if she's moving around."

Two police officers who conducted an interview with Kramer testified that he knew of the incident in question before they began interviewing him. He denied ever forcing her hand or foot to his genitals but agreed it was possible her hand or feet had touched his penis through his clothes. When he was asked if he had an erection, Kramer qualified that it was not a "full-blown erection" and compared it to "morning wood." At trial, Kramer denied ever telling the officers he had any erection of any sort.

On October 13, the court found Kramer guilty as charged. In reaching its determination, the court noted:

Although the 14 year old witness was interviewed by a forensic interview, deposed by defense counsel and gave testimony at trial, there is no evidence that she made inconsistent statements regarding any material issue. She also appeared to have nothing to gain or any other motivation to fabricate her testimony. Finally, her testimony was reasonable and consistent with surrounding circumstances.

In November, Kramer filed a motion for new trial, informing the court for the first time that the GAL for the minor child had previously represented Kramer in an adoption proceeding in 2014, the same year in which the child resided with Kramer and his wife. Kramer maintained the GAL's representation of P.W. "constituted a conflict." At the hearing on the motion, Kramer argued "that the Defendant has a right to an impartial trial and we almost have to assume that there was prejudice." The GAL testified, "The Defendant and his wife had been approved by [the Iowa Department of Human Services (DHS)] to adopt a child that was in their care. So I was contacted by DHS and the family to prepare the paperwork." She later elaborated:

In a DHS adoption, DHS has custody of the child so they—the DHS manager, supervisor will sign a release, a consent to the adoption. So it's not a matter of what I think of the adoption. Petitioners—the only option for that adoption is with the Petitioners who have been approved by DHS.

When asked directly if she had provided the victim with any privileged information she obtained from Kramer, the GAL said, "No." When asked if she "ever revealed any information to [the county attorney] about this adoption proceeding involving the defendant," the GAL testified:

Not that I can recall right offhand. Typically, if I am ever appointed guardian a[d] litem in a criminal case, there's not much contact between myself and the County Attorney's Office other than for things such as scheduling, you know, more routine procedural matters like that. There is rarely ever, if any, substantive information shared.

The county attorney asked again if the GAL could "think of any substantive information that you ever provided the County Attorney's Office," and she replied, "No, not—there wasn't any to provide and I don't—I didn't provide any."

She also testified that Kramer's trial counsel—Kramer had obtained different counsel after the verdict was entered—had been aware of her representation of Kramer in the earlier case. During the hearing, Kramer's counsel asked the GAL why she had not "reveal[ed] to the court early on that [she] had represented [Kramer]," and the GAL responded:

Those were substantially different matters and that DHS adoption, I have very little actual contact with the family who is adopting. My payment comes through DHS. All the information comes through DHS. The DHS adoptions are substantially different than a private adoption matter. So the actual relationship forming information gathering, that is typically done in adoptions simply does not need to be done in a DHS adoption because DHS has investigated the family and actually signed that this is the family that should adopt the child.

The court denied Kramer's motion, ruling from the bench:

According to the evidence provided by [the GAL], she provided no information learned in the adoption proceedings to either the victim or the County Attorney nor did she use any such information in these proceedings.

Secondly, as this Court has listened to what information is typically normally obtained in DHS adoptions and in consideration how that might materially advance the victim's position in these proceedings, this doesn't seem that it would. . . . And it would require, to my total speculation, to conclude that it did or could.

Kramer was sentenced to a ten-year term of incarceration for each charge, with the two terms running concurrently with each other. He was also sentenced to a special sentence for both convictions, pursuant to Iowa Code section 903B.1. He appeals.

II. Discussion.

A. Conflict of Interest.

In a posttrial motion, Kramer informed the court the GAL appointed for P.W. had previously represented him (and his wife) in an adoption proceeding involving DHS. He asked for a new trial pursuant to Iowa Rule of Criminal Procedure 2.24(2)(9), which allows the court to grant a new trial "[w]hen from any other cause the defendant has not received a fair and impartial trial." As we are reviewing the district court's denial of a motion for new trial,³ we review the decision for an abuse of discretion.⁴ See, e.g...