State v. Spaulding

• Citation: 313 N.W.2d 878
• Decision Date: 23 December 1981
• Docket Number: No. 65439,65439
• Parties: The STATE of Iowa, Appellee, v. Robert Dean SPAULDING, Appellant.
• Court: Iowa Supreme Court

Page 878

313 N.W.2d 878

The STATE of Iowa, Appellee, v. Robert Dean SPAULDING, Appellant.

No. 65439.

Supreme Court of Iowa.

Dec. 23, 1981.

Kjas T. Long of Gottschalk, Shinkle & Long, Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., Michael Jordan, Asst. Atty. Gen., David H. Correll, Black Hawk County Attorney, James D. Coil, Asst. Black Hawk County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

Defendant assigns four errors in his appeal from judgment on conviction of third-degree sexual abuse. § 709.4, The Code 1979. We find no error and affirm the trial court.

During the time in question, defendant and his wife lived together with their two natural daughters, the fifteen-year-old victim and the victim's older sister, then seventeen. On September 20, 1979, and again on September 23, 1979, while his wife was out of town, defendant had intercourse with the victim. Each occurrence was in the victim's bed. Defendant had been having sexual relations with the victim for at least five years. On September 22, defendant entered the victim's sister's bedroom and held her down on her bed while he masturbated on her abdomen.

Upon return of the mother, the seventeen-year-old sister reported what had happened. The mother took both daughters to the police station where a report was made. While there, Mrs. Spaulding spoke with the defendant by phone while a police officer listened on an extension. The arrangement was with Mrs. Spaulding's consent. Defendant knew his wife was at the police station but did not know the conversation was being monitored.

This prosecution was based solely on the two mentioned incidents with the younger sister. The mother and both sisters stated candidly they were reluctant to testify and resisted doing so. Through their own attorney, the sisters filed a motion to quash their subpoenas, offering instead the transcript of their testimony from an earlier trial which resulted in a mistrial. That motion was overruled. When the mother was called to testify both she and defendant asserted the marital privilege as a bar to her testimony.

I. Defendant's first assignment challenges the trial court ruling which required Mrs. Spaulding to testify over her own and defendant's protest. We think the ruling was correct.

Section 622.7, The Code 1979, provides in part: "Neither the husband nor wife shall in any case be a witness against the other except: 1. In a criminal prosecution for a crime committed one against the other ...." A companion section, section 622.9, protects communications between husband and wife. In State v. Hubbs, 268 N.W.2d 188, 190 (Iowa 1978), we approved admitting testimony of the wife of a defendant in a statutory rape case. The victim in Hubbs was defendant's step-daughter. Hubbs' wife, the victim's mother, was allowed to testify.

Defendant here believes Hubbs does not apply because Mrs. Spaulding joined in her husband's protest whereas Hubbs' wife was apparently a willing witness. But section 622.7 calls for no such distinction. And we do not believe the legislature intended that the exception for criminal prosecutions under section 622.7(1) should apply only for spouses who are willing witnesses.

Another statute also supports the trial court ruling. Section 232.74 provides:

Sections 622.7, 622.9 (previously mentioned) and 622.10 (communications in professional confidence) and any other statute or rule of evidence which excludes or makes privileged the testimony of a husband or wife against the other ..., shall not apply to evidence regarding a child's injuries or the cause thereof in any judicial proceeding, civil or criminal, resulting from a report pursuant to this chapter or relating to the subject matter of such report.

Defendant seeks to avoid the effect of section 232.74 on two grounds. He first claims the section does not apply because this offense, he says, does not involve a "child's injuries" within the meaning of the section. This ground falls in the light of statutory definitions set out in the chapter in which it appears. Child abuse is defined as "harm or threatened harm occurring through ... (t)he commission of any sexual abuse with or to a child as defined by chapter 709 ...." § 232.68, The Code.

As a second ground for resisting the effect of section 232.74 defendant argues that the State did not lay an adequate foundation to show the challenged testimony was derived "from a report made pursuant to ... chapter (232) ...." We believe the record shows the contrary. Mrs. Spaulding, the victim's mother, made an oral report of the sexual abuse to the police. This was sufficient to support a finding that the report was made pursuant to chapter 232.

We hold the trial court correctly interpreted the legislative intent in admitting Mrs. Spaulding's testimony.

II. Defendant's second assignment challenges trial court rulings admitting the testimony of the victim, her sister, and Mrs. Spaulding which described acts of intercourse with the victim and the incident with the victim's sister. Defendant believes this testimony was inadmissible because it was of "other crimes," and fell outside any exceptions which might have allowed the testimony. State v. Johnson, 224 N.W.2d 617, 619 (Iowa 1974); State v. Wright, 191 N.W.2d 638, 640 (Iowa 1971). The objections to the testimony of the victim, and of the victim's sister, will be treated separately in the following subdivisions.

A. The prior acts with the victim were admissible under a generally recognized exception to the above "exclusionary rule" in order "to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial." McCormick's Handbook on the Law of Evidence, § 190 at 449 (2d Ed. E. Cleary 1972); State v. Maestas, 224 N.W.2d 248, 250 (Iowa 1974); State v. Rankin, 181 N.W.2d 169, 171 (Iowa 1970); State v. Kinkade, 241 Iowa 1259, 1261-62, 43 N.W.2d 736, 738 (1950); State v. Neubauer, 145 Iowa 337, 345-46, 124 N.W. 312, 315 (1910); Annot., 88 A.L.R.3d 12 (1978); Annot., 77 A.L.R.2d 841 (1961); Annot., 167 A.L.R. 565 (1947); Merry v. State, 166 Ind.App. 199, 335 N.E.2d 249, 262 (Ind.App.1975).

B. A separate question is presented on the testimony of the victim's sister. She described an act which occurred during the two-day period between the two incidents giving rise to this charge. We, and a number of courts, have held such testimony admissible as an exception to the exclusionary rule. Maestas, supra, 224 N.W.2d at 251-52; Merry v. State, 335 N.E.2d at 262; State v. Simerly, 463 S.W.2d 846, 848 (Mo.App.1971); State v. Kazee, 47 Cal.App.3d 593, 595, 121 Cal.Rptr. 221, 223 (1975); State v. Covert, 57 Cal.Rptr. 220, 225, 249 Cal.App.2d 81 (1967); State v. Jackson, 82 Ohio App. 318, 81 N.E.2d 546, 548-49 (Ohio App.1948); State v. Edwards, 224 N.C. 527, 528, 31 S.E.2d 516, 516 (1944); see McCormick, supra, § 190 footnote 41 at 450; Annot., 88 A.L.R.3d 12 (1978); Annot., 77 A.L.R.2d 841 (1961); Annot., 167 A.L.R. 565 (1947). Although, as has been pointed out, a number of cases admit the testimony "by forcing the evidence into the exceptions relating to design or intention," McCormick, supra, at 550, it is generally received in the belief "that certain unnatural sex crimes are in themselves so unusual and distinctive that any previous such acts by the accused with anyone are strongly probative of like acts upon the occasion involved in the charge ...." McCormick, at page 449.

There remain the separate questions of whether the evidence of each sister was more informative than it was prejudicial. Without question the level of prejudice inherent in this type of evidence is high. It is nevertheless admissible if its value in searching out the truth of the charges becomes or remains relatively higher. McCormick, supra, at 453-54.

The testimony of the victim was important in view of defendant's claim, based on a concession during the victim's cross-examination, that she may have dreamed the act. The victim's testimony was properly admitted.

The testimony of such acts with a person other than the immediate victim always presents a closer question. The trial court considered the matter carefully in exercising its discretion and explained:

The reasons for the court's ruling is that, taking all of the circumstances into consideration, it appeared that one or more of the bases set out in the Johnson case were present and that the probative value of this testimony outweighed its prejudicial effect. The court advised counsel that it would not permit testimony concerning any other acts or alleged acts between the witness and the defendant to come into evidence for the reason that such other offenses, if any, would not have been deemed to have been close enough in point of time to have sufficient probative value in this case. And the State then did not attempt to elicit testimony concerning any other acts with that witness and the defendant. The specific reasons for feeling that the evidence falls within the Johnson rule is that the common circumstances were present. Both the crime in question and this incident occurred in substantially the same manner; both involved daughters of the defendant; both involved the claim that the defendant came into their bedroom and woke them.... In both instances the mother was gone. And the incident in question occurred in between the two acts that the principal victim of the offense charged occurred. Also, as an additional reason, the court felt that (because of) victim's concession on cross-examination that it was possible ... she dreamed the events ... she had previously testified to (and (which) constitute the primary evidence of the offense charged), the evidence in question had an increased probative value.

The rule seems to be that the evidence of such acts are more easily admissible the closer they occurred in point of time to the act giving rise to the charge. 88 A.L.R.3d at 14. The victim's sister's testimony...