State v. Scalco
| Decision Date | 18 August 2021 |
| Docket Number | No. 19-1439,19-1439 |
| Citation | 966 N.W.2d 138 (Table) |
| Parties | STATE of Iowa, Plaintiff-Appellee, v. Victor Henry SCALCO, Jr., Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
Victor Scalco Jr. appeals his convictions for domestic abuse assault causing bodily injury and false imprisonment. The district court did not abuse its discretion in ruling on evidentiary objections during the criminal trial. Also, the court did not abuse its discretion by denying defense counsel's objection during closing arguments. Scalco's claims of ineffective assistance of counsel cannot be raised in this direct appeal. We do not adopt the plain error doctrine. Accordingly, we affirm Scalco's convictions.
H.C. testified that she had a sexual relationship with Scalco. She stated that on May 2, 2019, Scalco hit her repeatedly on the head. H.C. told Scalco she wanted to leave, but he said, "No. You're not leaving." When H.C. tried to leave, Scalco picked her up and put her back in the house. Eventually, Scalco took H.C. to her home. H.C. went to the hospital, where she was diagnosed with a concussion and bruises. Scalco was charged with domestic abuse assault causing bodily injury, in violation of Iowa Code section 708.2A(2)(b) (2019), and false imprisonment, in violation of section 710.7.
Prior to trial, the State filed a motion requesting a hearing pursuant to Iowa Rule of Evidence 5.104(a) to determine whether H.C. could testify that she had been assaulted by Scalco on two prior occasions—once in December 2018 and once in March 2019. The State argued the evidence is relevant to show Scalco's motive and intent. A rule 5.104(a) hearing was held on July 9, 2019, immediately before the trial. H.C. testified about the two prior incidents. The court ruled the evidence is relevant to show intent and is admissible.
Scalco denied having a sexual relationship with H.C., striking her, or restraining her. He claimed H.C. invented the incident to get back at him because he did not want to be in a relationship with her. He had no explanation for her injuries. After Scalco's testimony, the State called H.C. as a rebuttal witness. The court overruled Scalco's objection to an audio recording of a discussion between H.C. and Scalco. The jury found Scalco guilty of domestic abuse assault causing bodily injury and false imprisonment.
Scalco filed a motion in arrest of judgment, claiming (1) the court erred by admitting evidence of prior bad acts; (2) the court erred in admitting only one page of H.C.’s medical record submitted by the State; (3) the audio recording was unfairly prejudicial; and (4) the court improperly told the jury not to consider their observations of Scalco during the trial. The State resisted the motion. The court denied the motion in arrest of judgment. Scalco was sentenced to serve one year in prison on each charge, to be served consecutively. He now appeals.
We review the district court's evidentiary rulings for an abuse of discretion. State v. Fontenot , 958 N.W.2d 549, 555 (Iowa 2021). We will reverse the court's ruling if it is "clearly untenable or clearly unreasonable." State v. Goodson , 958 N.W.2d 791, 798 (Iowa 2021). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Fortune v. State , 957 N.W.2d 696, 703 (Iowa 2021).
The court's hearsay rulings are reviewed for the correction of errors at law. State v. Dudley , 856 N.W.2d 668, 675 (Iowa 2014). The "admission of hearsay evidence is prejudicial to the nonoffering party unless the contrary is shown." State v. Elliott , 806 N.W.2d 660, 667 (Iowa 2011). If hearsay evidence is merely cumulative to other evidence in the record, it is not prejudicial. State v. Neitzel , 801 N.W.2d 612, 623 (Iowa Ct. App. 2011).
A. Scalco contends the district court abused its discretion by admitting evidence of prior bad acts. He claims the court should have denied the State's request to present H.C.’s testimony concerning the two previous incidents of domestic violence because the prejudicial nature of the evidence is outweighed by its probative value.
Rule 5.404(b) provides:
In order to be admissible under rule 5.404(b), evidence of prior bad acts "must be probative of ‘some fact or element in issue other than the defendant's criminal disposition.’ " State v. Taylor , 689 N.W.2d 116, 123 (Iowa 2004) (citation omitted). If the evidence is relevant, "the court must then decide if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant." Id. at 124. "Unfair prejudice arises when the evidence would cause the jury to base its decision on something other than the proven facts and applicable law, such as sympathy for one party or a desire to punish a party." Id.
The district court ruled the evidence is "probative of intent and motive and also probative of the nature of the relationship." Under rule 5.404(b)(2), evidence of prior bad acts, such as incidents of domestic violence, may be admissible to show motive and intent. "[E]vidence of prior bad acts is especially relevant and probative in domestic violence cases because of the cyclical nature of domestic violence." Id. at 128 n.6. On the issue of prejudice, we find the evidence is not of a type that would "prompt the fact finder to make a decision based on an emotional response to the defendant." Id. at 130. We conclude the district court did not abuse its discretion by ruling that the evidence is admissible.
B. During defense counsel's cross-examination of H.C., she was questioned about whether she told hospital personnel that Scalco was her boyfriend. H.C. testified she was not sure, and defense counsel presented her with the first page from her medical records. After looking over the page, H.C. stated the medical record showed she had described Scalco as her boyfriend.
During the testimony of Megan Warrick, a registered nurse, the State asked the court to admit Exhibit 7, the first page of H.C.’s medical record. Warrick testified she created the first page of H.C.’s medical record based on H.C.’s statements about the assault. Defense counsel raised a hearsay objection. The State pointed out that the jury already knew about the exhibit because defense counsel used it to cross-examine H.C. The court cited the "doctrine of fairness" and stated that "based on the questions that were asked of the complaining witness, after reviewing the medical record, which she had never seen, the court finds that the medical record can be admitted." Because the court found the exhibit is admissible under the doctrine of fairness, the court did not rule on Scalco's hearsay objection to the exhibit.
Defense counsel then asked for the admission of the entirety of H.C.’s medical record from her treatment related to the assault. The State resisted because the medical record contained evidence of H.C.’s drug use and mental health, which the court had already ruled is not admissible. The court ruled that only the first page of the medical record would be admitted.
On appeal, Scalco contends the district court abused its discretion by ruling the first page of H.C.’s medical record is admissible. He claims the court improperly applied the doctrine of fairness.1 The Iowa Supreme Court noted the doctrine of fairness while discussing a case concerning the waiver of attorney-client privilege where an employer intended to offer evidence to show its attorney conducted an investigation into complaints of sexual discrimination. Fenceroy v. Gelita USA, Inc. , 908 N.W.2d 235, 243–44 (Iowa 2018) (citing Harding v. Dana Transport, Inc. , 914 F. Supp. 1084, 1096 (D.N.J. 1996) ). The case states:
Consistent with the doctrine of fairness , the plaintiffs must be permitted to probe the substance of [the employer's] alleged investigation to determine its sufficiency. Without having evidence of the actual content of the investigation, neither the plaintiffs nor the fact-finder at trial can discern its adequacy.
Id. at 244 (emphasis added) (quoting Harding , 914 F. Supp. at 1096 ). The evidentiary rules are "designed to assure both fairness and reliability in the ascertainment of guilt and innocence." State v. Countryman , 573 N.W.2d 265, 266 (Iowa 1998).
Defense counsel used the first page of H.C.’s medical record while cross-examining her. The court did not abuse its discretion by ruling the page of the medical record already discussed in the record is admissible. The exhibit contained H.C.’s statements to Warrick, a nurse, while H.C. was seeking medical treatment for her injuries. See State v. Smith , 876 N.W.2d 180, 185–86 (Iowa 2016) (). The statements in the exhibit are cumulative to the evidence presented by H.C.’s testimony. Evidence that is merely cumulative is not prejudicial. State v. Plain , 898 N.W.2d 801, 813 (Iowa 2017). The admission of Exhibit 7 is not unfairly prejudicial to Scalco.
Scalco additionally contends the district court should have admitted the remainder of H.C.’s medical record related to the assault. He has not advanced an argument concerning the relevance of the remainder of the medical record. The medical record contained...
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