State v. Spargo

• Decision Date: 20 March 1985
• Docket Number: No. 83-702,83-702
• Citation: 364 N.W.2d 203
• Parties: STATE of Iowa, Appellee, v. John Robert SPARGO, Appellant.
• Court: Iowa Supreme Court

Page 203

364 N.W.2d 203

STATE of Iowa, Appellee, v. John Robert SPARGO, Appellant.

No. 83-702.

Supreme Court of Iowa.

March 20, 1985.

Rehearing Denied April 15, 1985.

Jon M. Kinnamon, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Sherie Barnett, Asst. Atty. Gen., and James L. Ottesen, Asst. Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.

McGIVERIN, Justice.

Defendant John Robert Spargo appeals from his conviction for assault with intent to commit sexual abuse in violation of 1981 Iowa Acts, chapter 204, section 6, which now appears as Iowa Code section 709.11 (1983). We affirm.

On appeal, defendant contends: (1) that his motion for change of venue should have been granted because of prejudicial pretrial publicity; (2) that testimony offered by the State regarding prior sex acts of defendant should have been ruled inadmissible; (3) that there was insufficient evidence to convict defendant of the crime of assault with intent to commit sexual abuse; and (4) defendant's two requested jury instructions on specific intent to commit a sex act and intent to offend should have been submitted to the jury. We find no merit in any of these contentions.

The record shows that in December 1982 Bettendorf police were advised that defendant had been frequenting the city's public library with three young boys. The police were concerned about the nature of defendant's relationship with the boys and contacted one of the boys (hereinafter referred to as John) and his parents in order to investigate defendant's activities.

John, who was age 14 at all material times, testified that he met defendant, age 34, while using the public library's computer and that since meeting him he had frequently gone to defendant's house on weekends to play pool and computer games. He said that on a day when he and After installing electronic surveillance equipment in John's home, the police asked him to invite defendant over to his house. In a phone conversation with defendant on January 7, 1983, John invited defendant to come over the next evening. Pursuant to the police officers' instructions, John told defendant that he would be alone and that he was interested in having defendant teach him about sex.

defendant were alone together, defendant had suggested that if he could give John sex lessons, he would also teach him about sailing, scuba diving, and water skiing.

When defendant arrived at John's home the next evening, several police officers were concealed on the premises to observe defendant and monitor the surveillance equipment. As instructed, John led defendant to a basement family room where the two of them sat down on a couch, and proceeded to read together from a book defendant had brought, titled Show Me, intended to help parents educate young children about sex. During the reading, defendant and John discussed a wide range of sexual topics. Afterwards, defendant suggested to John that they go upstairs to his bedroom, but John declined. Defendant then had John lie on his back on the couch and pull his shirt up to expose his chest. Bettendorf police officer Christopher Kauffman, who was concealed in a storage closet adjacent to the family room, testified that he saw defendant massage John's chest and stomach and twice pass his hand over the groin area of John's pants. During this time defendant also told John that he loved him. At that point the police intervened and arrested defendant.

Shortly before his trial, defendant filed a motion for change of venue under Iowa R.Crim.P. 10(10)(b), alleging that because of pretrial publicity regarding the case there was a substantial likelihood that he could not receive a fair trial in Scott County or anywhere else in the seventh judicial district. The motion was denied.

Among the State's witnesses at trial was Edward Flynn, who from 1975-1980 was a senior investigator with the Illinois Legislative Investigating Commission. He testified that in 1978 he met defendant while working undercover on a child pornography investigation. Over defendant's objection, Flynn testified that he had conversations in 1978-79 with defendant over a period of several months in which defendant related his sexual activities with adolescent boys. Flynn said that defendant told him that he used his job as a sailing instructor to meet boys, and that his method for initiating sexual contacts was to invite a boy to his apartment and engage him in a philosophical discussion about life and sex and then persuade the boy to let him (defendant) teach the boy about sex.

Also over defendant's objection, Flynn testified that defendant showed him an album containing photographs of nude boys between the ages of 7 and 16 years who, defendant said, had been his sexual partners. Flynn said also that defendant identified himself as the adult in one photograph depicting genital-to-genital contact between a man and a boy approximately 13 or 14 years old. Flynn went on to describe the album as containing index cards indicating the names and ages of the boys pictured, the frequency of the "sex lesson" he had with each one, and comments about each boy's sexual traits. ¹

At the close of the State's evidence, and again at the close of all the evidence, defendant moved for a judgment of acquittal on the ground that the evidence was insufficient to sustain a conviction. Defendant's motion was overruled on both occasions.

Defendant also submitted two requested jury instructions dealing with specific intent to commit a sex act and intent to offend. These requested instructions were not contained in the final instructions actually given to the jury.

The jury found defendant guilty of assault with intent to commit sexual abuse without causing injury to the victim, an aggravated misdemeanor. This appeal followed.

I. Defendant's motion for change of venue. Spargo contends the court erred in overruling his motion for change of venue based on pretrial publicity. He contends he was entitled to a change of venue to satisfy his due process right to a fair trial under the fourteenth amendment to the United States Constitution and the language of Iowa R.Crim.P. 10(10)(b). ² Our review on this issue is de novo, with reversal indicated only if the trial court abused its discretion in denying the motion. State v. Hickman, 337 N.W.2d 512, 514 (Iowa 1983).

As we noted recently in State v. Gavin, 360 N.W.2d 817, (Iowa 1985), a defendant who seeks reversal of a conviction on the basis of denial of his motion for change of venue must show either actual prejudice on the part of the jury or must show that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed. Defendant makes no argument regarding actual jury prejudice. Instead, he contends that the pretrial publicity in this case was such as to create a presumption of prejudice. We do not agree.

Defendant was arrested on January 8, 1983. The next day a brief news article to that effect appeared in the Quad-City Times newspaper. On the following day the Times and the Des Moines Register each ran articles detailing the circumstances of the arrest. The articles also discussed defendant's prior Illinois conviction for exhibition of child pornography and the investigation preceding that conviction. The Times' evening edition of its January 10 article was headlined "Cops kept eye on sex suspect," and read in part:

On Saturday night, officers overheard Spargo attempt to talk a 14-year-old boy into engaging in sex with him. One officer hid in a room and watched Spargo "fondle or touch the boy's breasts and genitals" according to court records.

On January 11 the Times reported in a short article that defendant had pleaded innocent to the charges for which he was arrested on January 8. On January 11 the Times also published an article, which it reprinted the next day, speculating on the existence of a child pornography ring in the Quad Cities. This article mentioned that defendant had previously been convicted of a child pornography offense, but also noted that the charges then pending against him did not involve pornography.

These six articles apparently constitute the total of newspaper stories that mentioned defendant. In addition, local television and radio news shows broadcast reports on January 9, 10, and 31 concerning defendant's case and his prior Illinois conviction.

We generally agree with the State that these articles and broadcasts cannot fairly be characterized as inflammatory. Although the January 10 Quad-City Times headline and paragraph quoted above is not a model of journalistic restraint, it is relevant that neither it nor any of the other articles or broadcasts indicated that defendant was guilty of the charges against him. See State v. Chadwick, 328 N.W.2d Although it was reported several times that defendant had previously been convicted of exhibiting child pornography, it is well established that community knowledge of a defendant's prior criminal record does not create a presumption of prejudice. See State v. Hickman, 337 N.W.2d at 515; State v. Johnson, 318 N.W.2d 417, 423-24 (Iowa), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982).

913, 916 (Iowa 1983). The media accounts are factual and informative in tone and as such do not support defendant's claim that they must be presumed to have created prejudice against him. See State v. Love, 302 N.W.2d 115, 122 (Iowa 1981); State v. Cuevas, 288 N.W.2d 525, 527-28 (Iowa 1980).

Finally, we note that the last articles and broadcasts mentioning defendant appeared between two and three months before the start of his trial. We have previously stated that a time lapse of similar length was sufficient to dissipate any prejudicial effect that may have been created initially by adverse publicity. See State v. Johnson, 318 N.W.2d at 423 (approximately three months); State v. Cornelius, 293 N.W.2d 267, 269 (Io...