State v. Mitchell

• Citation: 568 N.W.2d 493
• Decision Date: 23 July 1997
• Docket Number: No. 96-51,96-51
• Parties: STATE of Iowa, Appellee, v. Russell Wendall MITCHELL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 493

568 N.W.2d 493

STATE of Iowa, Appellee, v. Russell Wendall MITCHELL, Appellant.

No. 96-51.

Supreme Court of Iowa.

July 23, 1997.

David A. Lemanski, Dubuque, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine O. Corken, Assistant County Attorney, for appellee.

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

LAVORATO, Justice.

The defendant, Russell Wendall Mitchell, appeals from his conviction and sentence of sexual abuse in the third degree. The jury convicted Mitchell of violating Iowa Code section 709.4(2)(c)(4) (1995). Under this provision a person commits sexual abuse in the third degree when (1) the person performs a sex act with another who is fourteen or fifteen years of age, (2) the person is five or more years older than the other participant, and (3) at the time the person and the other participant are not cohabiting as husband and wife.

Mitchell appeals on six grounds: (1) the district court abused its discretion when it prohibited him from eliciting testimony about the alleged victim's sexually transmitted diseases; (2) the district court violated Mitchell's Sixth Amendment rights in prohibiting him from eliciting testimony about the alleged victim's sexually transmitted diseases; (3) the district court improperly admitted hearsay evidence as to the age of the alleged victim; (4) the district court erred in interpreting the statute as to the age requirement; (5) the district court erred in refusing to give Mitchell's proposed jury instructions on credibility; and (6) there was insufficient evidence to support his conviction. We affirm.

I. Background Facts.

The alleged victim, R.C.S., was a runaway at the time of her alleged sexual abuse. She was living at a private home with drug users and other runaways. In March 1995 R.C.S. was fifteen. She had been (1) physically abused, (2) diagnosed with several psychological disorders, and (3) institutionalized repeatedly. This is when she first met Mitchell.

At trial R.C.S testified as follows. Around 2 a.m. on March 5, 1995, Mitchell began to make sexual advances toward R.C.S. He had done this before. R.C.S. then went to a back bedroom to nap. Mitchell followed her in shortly. Mitchell forced her to have sexual intercourse with him. Steve Yarnell and Jeremy Christensen, who were both present at all relevant times, testified that they were in a room next door and saw Mitchell enter the back bedroom where R.C.S. had gone and then leave with his pants down.

At various times thereafter, R.C.S. stated or wrote that up to eight men and one woman had sexually abused her during her stay at the private home. When R.C.S. eventually returned home, she told her mother what had allegedly happened to her, and the mother notified the police.

The State charged seven persons, including Mitchell, with sexually abusing R.C.S. Mitchell was charged with sexual abuse in the third degree pursuant to Iowa Code section 709.4(2)(c)(4).

Before trial, Mitchell filed a motion and offer of proof pursuant to Iowa Rule of Evidence 412 regarding R.C.S.'s sexually transmitted diseases. Following a hearing, the district court denied the motion.

During trial and over Mitchell's objections, the district court allowed testimony of R.C.S.'s age. Because R.C.S. had been adopted and no one who testified about her age had been at her birth, Mitchell argued that the challenged testimony was inadmissible hearsay.

The district court also denied Mitchell's motion for judgment of acquittal based on the insufficiency of evidence supporting the charge. Later, the court refused to give Mitchell's requested instructions on credibility of the witnesses.

The jury convicted Mitchell, and the district court sentenced him to an indeterminate sentence of ten years. See Iowa Code §§ 709.4, 902.3, 902.9(3).

II. Iowa Rule of Evidence 412.

In two motions filed pursuant to Iowa Rule of Evidence 412, Mitchell sought to introduce evidence that R.C.S. had one strain of gonorrhea and Mitchell had another. He also sought to introduce evidence that R.C.S. had trichomoniasis and a yeast infection and Mitchell did not. Medical testimony established that gonorrhea, trichomoniasis, and yeast infection are sexually transmitted diseases (STDs). Of the three, only the yeast infection may be contracted by means other than sexual contact. Mitchell contends here that the district court abused its discretion in denying the motions.

Rule 412, Iowa's rape shield law, prohibits in a sexual abuse case "reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse." Iowa R. Evid. 412(a). The rule also prohibits in a sexual abuse case "evidence of a victim's past sexual behavior other than reputation or opinion evidence" unless "such evidence other than reputation or opinion evidence" is evidence of "past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury." Iowa R. Evid. 412(b)(2)(A).

In addition, the rule prohibits evidence of the "victim's past sexual behavior other than reputation or opinion evidence" unless "such evidence other than reputation or opinion evidence is ... constitutionally required to be admitted." Iowa R. Evid. 412(b)(1).

A. Source of injury. Mitchell asserted in the district court, without objection from the State, that the STDs were "injuries" pursuant to rule 412(b)(2)(A). The court treated them as such for the purposes of its ruling. We likewise do so here. In substance, Mitchell argues that he should have been allowed to show he was not the source of R.C.S.'s "injuries"--the STDs.

On this issue Mitchell made the following offer of proof. On March 14--nine days after the alleged sexual abuse--R.C.S. tested positive for trichomoniasis and gonorrhea beta lactamase positive. She also had a yeast infection. On March 15, Charles Evans, one of R.C.S.'s alleged sexual abusers, was also tested for sexually transmitted diseases. Tests showed that Evans had the same strain of gonorrhea that R.C.S. had. The district court did not allow any of this evidence before the jury.

On March 19 Mitchell was also tested and had none of the diseases that R.C.S. had. Mitchell, however, did have gonorrhea beta lactamase negative, a different strain from the one R.C.S. and Evans had. Thus, if Mitchell and R.C.S had engaged in intercourse apparently neither gave the other any diseases.

Mitchell's medical expert, who has expertise in the area of infectious diseases, gave deposition testimony before trial. The expert testified that the possibility of Mitchell becoming infected with the strain of gonorrhea with which R.C.S was afflicted was approximately twenty to thirty percent. The jury never heard this evidence.

The expert also testified in his deposition that a male infected by gonorrhea will infect a woman between eighty and ninety percent of the time. The jury heard this evidence.

The expert further testified that the possibility of a yeast infection being transmitted from a female to a male is between five and ten percent. The chances of transmitting trichomoniasis is thirty to fifty percent. The jury never heard this evidence.

In sum, the jury knew that (1) a male infected by gonorrhea will infect a woman between eighty and ninety percent of the time and (2) R.C.S. did not have gonorrhea beta lactamase negative but Mitchell did. The jury was prohibited from knowing that R.C.S. and Evans had gonorrhea beta lactamase positive. The jury was also prohibited from knowing (1) that R.C.S. had trichomoniasis and a yeast infection and (2) the possibilities of a female transmitting the two diseases to a male.

Based on this information, Mitchell argues that the jury only heard one side of the equation--that it was virtually impossible for him not to give R.C.S. the strain he had; they did not hear that it was possible for R.C.S. to give Mitchell her strain. Thus, he concludes, the excluded scientific evidence about the STDs tended to show he had no sexual contact with R.C.S., and the district court denied him the opportunity to present that evidence to the jury.

Our review on the admissibility of rule 412 evidence on the source of injury is for abuse of discretion. State v. Gettier, 438 N.W.2d 1, 3 (Iowa 1989). We reverse only if the district court abuses that discretion. Id. We find an abuse of discretion only when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Knox, 536 N.W.2d 735, 738 (Iowa 1995).

We begin our analysis by noting that rape shield laws like Iowa's rule 412 were enacted to (1) protect the privacy of victims, (2) encourage reporting, and (3) prevent time-consuming and distracting inquiry into collateral matters. State v. Ogilvie, 310 N.W.2d 192, 195 (Iowa 1981). An accused may attempt to offer evidence of the victim's past sexual behavior either to confront real evidence--as Mitchell contends here--or to impugn the victim's character. Id. In either case, the victim's privacy is invaded and for that reason the rule applies. Id. In short, whether the evidence is admissible does not depend on the motive for the inquiry. Id.

As mentioned, the State and the district court proceeded on the basis that the STDs--although evidence of R.C.S.'s past sexual behavior--fit the injury exception of rule 412. The district court acknowledged the evidence had some relevancy but went on to rule that the evidence was inadmissible on the following alternative grounds:

Evidence of the defendant's freedom from an STD has some relevance on whether there was sexual contact but not much. It has low probative value because it can't be established with reasonable clarity that the victim had the STD at the time of the alleged...