State v. Ross

• Docket Number: 20-0914
• Decision Date: 24 February 2023
• Citation: 986 N.W.2d 581
• Parties: STATE of Iowa, Appellee, v. Alexander Shantee Thomas ROSS, Appellant.
• Court: Iowa Supreme Court

986 N.W.2d 581

STATE of Iowa, Appellee,

v.Alexander Shantee Thomas ROSS, Appellant.

No. 20-0914

Supreme Court of Iowa.

Submitted December 15, 2022

Filed February 24, 2023

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

Oxley, J., delivered the opinion of the court, in which McDonald, McDermott, and May, JJ., joined. Mansfield, J., filed a dissenting opinion, in which Christensen, C.J., and Waterman, J., joined.

OXLEY, Justice.

In State v. Kraai , 969 N.W.2d 487, 490–92 (Iowa 2022), and State v. Mathis , 971 N.W.2d 514, 516, 520 (Iowa 2022), we held that it is error in sexual abuse cases for a trial court to instruct jurors that "[t]here is no requirement that the [alleged victim's testimony] be corroborated." Although a correct statement of law, such an instruction, without more, unduly emphasizes the alleged victim's testimony. Kraai , 969 N.W.2d at 491–95. The district court in this case used a variation of the noncorroboration instruction that had been percolating through our court of appeals on a parallel course to the Kraai instruction:

You should evaluate the testimony of [the alleged victim] the same way you evaluate the testimony of any other witness. The law does not require that the testimony of [the alleged victims] be corroborated in order to prove that [they were] sexually abused. You may find the Defendant guilty of Sexual Abuse if [the alleged victim's] testimony convinces you of guilt beyond a reasonable doubt.

We must now decide whether the additions to the instruction cure the errors we found in the instruction at issue in Kraai and Mathis . On our careful review of the instructions provided in this case, we conclude they do not.

I. Factual and Procedural History.

Alexander Ross and Tykeshia McCuen began dating in 2011. Eventually, the two moved in together in Patterson, Iowa. Tykeshia and Ross have two children together. Tykeshia also has two daughters from a previous relationship—L.C. and K.C.—who were babies when Ross moved in with Tykeshia. From the time Ross and Tykeshia began dating until Tykeshia left in April 2019, Ross acted as the girls’ stepfather.

The couple had a tumultuous and physically abusive relationship. On April 11, they got into a heated argument, which left Tykeshia afraid for her safety. So, in the middle of the night, she left Ross and took the children to Westminster, Colorado to stay with her mother, Jackie. According to Tykeshia, it was at this point that L.C. and K.C. first accused Ross of having sexually abused them. Jackie and Tykeshia reported the allegations to Deputy Don Kinney of the Madison County, Iowa Sheriff's Office, who began an investigation.

Ross was charged with two counts of second-degree sexual abuse. See Iowa Code § 709.3(1)(b ) (2019). At trial in March 2020, the State's primary evidence against Ross was the testimony of L.C. and K.C.; no physical evidence was presented to corroborate the charges. Each testified that Ross put his private part in her private parts (both front and back) on multiple occasions when Tykeshia was working night shifts as a nurse. Each testified she told her mother, who did nothing. Each also testified to screaming, but Ross put his hand over her mouth. In addition, L.C., who was in fourth grade, testified that Ross said inappropriate things and described "white stuff" that came out of Ross's penis as "gooey" and "disgusting." K.C., who was in second grade and is diabetic, testified that Ross gave her suckers afterward. Neither girl testified about Ross's abuse of the other. The defense's only witnesses were: Tykeshia, who testified that the girls never made her aware of any sexual abuse prior to the April 2019 trip to Colorado and that she had never herself noticed signs of such abuse, and a friend of Ross's, who testified Ross was a good stepparent to L.C. and K.C.

At the close of trial and over Ross's objection,¹ the court gave jurors Instructions 16 and 17, which were identical other than identifying each girl separately:

You should evaluate the testimony of [L.C. or K.C.] the same way you evaluate the testimony of any other witness. The law does not require that the testimony of [L.C. or K.C.] be corroborated in order to prove that she was sexually abused. You may find the Defendant guilty of Sexual Abuse if [L.C.’s or K.C.’s] testimony convinces you of guilt beyond a reasonable doubt.

The jury deliberated for a little over ninety minutes and returned a guilty verdict on both counts.

Ross was sentenced to two indeterminate, consecutive twenty-five-year sentences (with a combined mandatory minimum sentence of thirty-five years), along with a lifetime special sentence under Iowa Code § 903B.1. Ross appealed, alleging three points of error: (1) insufficient evidence supported the verdict; (2) the district court considered an improper sentencing factor; and (3) the noncorroboration instructions were improper.

We transferred the case to the court of appeals. The court rejected Ross's sufficiency challenge but agreed, over a dissent, that the noncorroboration instructions were improper based on our recent decisions in Kraai and Mathis . In her dissent, Judge Greer noted that the noncorroboration instructions used here were virtually identical to the noncorroboration instruction approved by an earlier court of appeals panel in State v. Altmayer , No. 18-0314, 2019 WL 476488 (Iowa Ct. App. Feb. 6, 2019). In Kraai , we cited Altmayer in a manner that left Judge Greer uncertain whether the noncorroboration instruction at issue in Altmayer would stand up to post- Kraai scrutiny.²

We granted the State's application for further review to decide that issue. We elect to let the court of appeals’ opinion stand on the sufficiency of the evidence challenge. See Farnsworth v. State , 982 N.W.2d 128, 135 (Iowa 2022) ("When we grant further review, we may exercise our discretion to let the court of appeals decision stand as the final decision on particular issues." (quoting State v. Fogg , 936 N.W.2d 664, 667 n.1 (Iowa 2019) )). Because we affirm the court of appeals’ remand for a new trial, we also decline to consider Ross's sentencing challenge.

II. Noncorroboration Jury Instructions.

We review challenges to jury instructions for correction of errors at law.

State v. Rohm , 609 N.W.2d 504, 509 (Iowa 2000) (en banc). Jury instructions are considered "as a whole to determine their accuracy" and are "judged in context[,] ... not in isolation," meaning improper instructions "can be cured ‘if the other instructions properly advise the jury as to the legal principles involved.’ " Kraai , 969 N.W.2d at 490 (first quoting State v. Donahue , 957 N.W.2d 1, 10 (Iowa 2021) ; then quoting State v. Liggins , 557 N.W.2d 263, 267 (Iowa 1996) ; and then quoting Thavenet v. Davis , 589 N.W.2d 233, 237 (Iowa 1999) (en banc)). Where an instruction is incorrect as a matter of law and not cured by other instructions, we presume prejudice "unless the record affirmatively establishes there was no[ne]." Donahue , 957 N.W.2d at 6 (quoting State v. Hanes , 790 N.W.2d 545, 551 (Iowa 2010) ). In the absence of such record evidence, reversal is required. Id.

A. Propriety of the Noncorroboration Instructions. We repeat the challenged noncorroboration instructions as given by the district court:

You should evaluate the testimony of [L.C. or K.C.] the same way you evaluate the testimony of any other witness. The law does not require that the testimony of [L.C. or K.C.] be corroborated in order to prove that she was sexually abused. You may find the Defendant guilty of Sexual Abuse if [L.C.’s or K.C.’s] testimony convinces you of guilt beyond a reasonable doubt.

The court of appeals has previously approved of this same instruction. See Altmayer , 2019 WL 476488, at *5. The court of appeals had also approved of a similar but truncated noncorroboration instruction that included only the second sentence, State v. Barnhardt , No. 17-0496, 2018 WL 2230938, at *4 (Iowa Ct. App. May 16, 2018) (approving noncorroboration instruction providing that "[t]he law does not require that the testimony of the alleged victim be corroborated" (alteration in original)), but we abrogated that decision in Kraai , see 969 N.W.2d at 496 ("[W]e hold the district court erred in instructing the jury that ‘[t]here is no requirement that the testimony of a complainant of sexual offenses be corroborated.’ " (second alteration in original)).

Our "long-standing precedents" provide "that instructions regarding witness credibility should apply equally to witnesses for the state and the defense and that instructions should not draw attention to specific evidence." Kraai , 969 N.W.2d at 495. In Kraai and Mathis , we held that the truncated noncorroboration instruction failed on both points—it drew undue attention to the victims’ testimony and (or, indeed, because) it omitted discussion of the symmetrical principle that no witness's testimony needs corroboration to be believed.³ Id. at 492–93 ; see also Mathis , 971 N.W.2d at 519–20. Thus, there were two problems with the Kraai instruction: (1) it emphasized the victim's testimony, which could lead jurors to conclude that the victim's testimony deserved special consideration; and (2) it provided an incomplete discussion of the noncorroboration principle, which could confuse jurors and mislead them into believing that although victims’ testimony does not require corroboration, other witnesses’ testimony does. The noncorroboration principle applies equally to all witnesses, and any instruction on the issue should include this symmetry to avoid misleading the jury into believing it applies only to certain witnesses. See Kraai , 969 N.W.2d at 493 ("The omission of a symmetrical noncorroboration instruction may have permitted the jury to infer that Kraai's testimony required corroboration to be believed."); see also State v. Dever , 508 P.3d 158, 170 (...