State v. Turecek

• Citation: 456 N.W.2d 219
• Decision Date: 23 May 1990
• Docket Number: No. 88-1556,88-1556
• Parties: STATE of Iowa, Appellee, v. Barbara Ann TURECEK, Appellant.
• Court: United States State Supreme Court of Iowa

Page 219

456 N.W.2d 219

STATE of Iowa, Appellee, v. Barbara Ann TURECEK, Appellant.

No. 88-1556.

Supreme Court of Iowa.

May 23, 1990.

As Corrected June 25, 1990.

Raymond E. Rogers, Appellate Defender, and Barbara M. Anderson and Shari Barron, Asst. Appellate Defenders, for appellant.

Thomas J. Miller, Atty. Gen., Amy M. Anderson, Asst. Atty. Gen., and Mike Zenor, County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and NEUMAN, JJ.

CARTER, Justice.

Defendant, Barbara Ann Turecek, appeals her conviction by jury trial of the offense of second-degree sexual abuse in violation of Iowa Code section 709.3 (1987). The basis for the criminal charge against defendant was an allegation by a thirteen-year-old female child, J.B., that defendant had aided and abetted Rodney Turecek (her then lover and now husband) in performing sex acts on her person by force and against her will.

In appealing the district court's judgment, defendant contends that the trial court erred in (1) failing to instruct the jury concerning a lesser-included offense; (2) admitting irrelevant and inflammatory evidence in the form of a sex manual, containing explicit photographs and written directions, and sexually explicit catalogs, calendars, and magazines found by sheriff's officers in the home which defendant shared with Rodney Turecek; (3) admitting hearsay testimony by a sheriff's deputy concerning statements made by defendant's five-year-old child; and (4) refusing to permit defendant to testify concerning a statement by the victim which was allegedly offered as an explanation for defendant's response to a question from the victim on a later occasion. Upon our review of the record and the arguments of the parties, we reverse the judgment of conviction and remand the case for retrial.

The evidence viewed most favorably to the State reveals that, in the late afternoon of July 24, 1987, J.B., a thirteen-year-old female child, was baby-sitting with defendant's two children at a home in Peterson, Iowa, which defendant shared with Rodney Turecek. Defendant and Rodney returned home around 4:15 p.m. Approximately one hour later, they called J.B. into a bedroom where the two of them disrobed her, handcuffed her and tied her on a bed where Rodney had sexual intercourse with J.B. Later that day, J.B. telephoned a friend in East Liverpool, Ohio, and relayed to her a sketchy version of what had occurred.

J.B. did not tell anyone else about the incident for several weeks. Sometime in early September, J.B. told her mother what had happened. Her mother reported the crime to the county attorney and the sheriff, and their subsequent investigation led to the filing of criminal charges. At the trial, J.B. testified to the events which we have described. The defendant and Rodney Turecek (who was then her husband and was also charged with the crime) also testified, and both claimed that there had been no sexual assault on J.B. They testified that in the late afternoon of July 24, 1987, J.B. entered their bedroom after drinking some vodka which she had found in the home. They indicated that J.B. laughed and exhibited odd behavior. They testified that although they urged J.B. to remain at their home until she had sobered up, she left the house at approximately 5:45 p.m. Other significant facts which bear upon our decision of this appeal are stated and considered in our discussion of the legal issues which are presented.

I. The Lesser-Included Offense Issue.

At the time the formal record was made in the trial court concerning objections and exceptions to the court's jury instructions, defendant, through counsel, requested that instructions and verdict forms be submitted concerning the offenses of third-degree sexual abuse and simple assault. Defendant claimed that these crimes were lesser-included offenses under the principal charge of second-degree sexual abuse. The trial court refused to so instruct the jury and did not include these offenses in the verdict forms.

In presenting her issues on appeal, defendant concentrates her lesser-included-offense argument on the crime of simple assault. She does not renew her claims concerning third-degree sexual abuse. In answering defendant's argument, the State does not deny that assault is in fact a lesser-included offense with respect to the principal charge of second-degree sexual abuse under the applicable statutes and as that crime was submitted to the jury in the trial court's marshaling instruction. It seeks to avoid reversal, however, by arguing that the factual test which was generally abandoned in State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988), should continue to be applied in cases, such as this, which were tried before the Jeffries decision was handed down.

We reject the State's retroactivity argument for the same reasons which caused us to reject a similar argument in State v. Royer, 436 N.W.2d 637, 640-41 (Iowa 1989). This court has consistently recognized that, where a litigant has preserved for appellate review an issue which, if prevailed upon, will cause a change in existing law, that litigant has the same right to prevail on the issue as the litigant who first obtains appellate review. See State v. McNabb, 241 N.W.2d 32, 33-34 (Iowa 1976) (defendant entitled to benefit of change in law if error has been preserved which incorporates that request); State v. Monroe, 236 N.W.2d 24, 39 (Iowa 1975) (same).

The State also urges that the refusal to submit assault as a lesser-included offense was harmless error. In attempting to apply a harmless error analysis to the principles which we espoused in Jeffries, we are met with the reality that, in all cases where persons convicted of crimes seek reversal for a failure to submit a lesser-included offense, the trier of fact has already found that the elements of the greater offense have been established by evidence beyond a reasonable doubt. As a result, it is always possible for the State to argue that, if the conviction of the greater offense is otherwise error free, the failure to submit a lesser-included offense is harmless error.

Logically this argument has much to recommend it. A severable error-free adverse verdict on a factual issue which would be required to vindicate an additional legal theory has been recognized in other situations as a predicate for harmless error. This has not been the case, however, with respect to issues involving lesser-included offenses in criminal cases. The distinction undoubtedly rests on the belief, seldom articulated, that if the jury had been given an alternative it might have reached a different result. While this approach involves a certain degree of supposition, it is a view that has been consistently applied.

We do not rule out the possibility that we may in the future be faced with a case where we are convinced that there is only one view of the evidence which compels a finding of guilt as to the greater offense. We do not conclude, however, that this is such a case. As the events of the crime were chronologically detailed in the testimony of the victim, J.B., there clearly was an assault committed prior to the alleged sexual abuse. If we continue to adhere to the rule that juries are free to accept part of a witness's testimony and reject other portions thereof, then there was an alternative scenario in the proof which would support a finding of guilt of the crime of assault. If, in addition, we continue to adhere to the principle that the law of lesser-included offense requires that the jury be given an alternative, we must reject the State's claim of harmless error.

Because this case must be retried, we caution the district court that it appears that there are other lesser-included offenses greater in degree than simple assault which may be applicable. A defendant who requests an instruction as to the lowest degree of multiple lesser-included offenses should also be compelled to accept the submission of all higher degrees of lesser-included offenses.

The paramount consideration in determining submissibility of lesser-included offenses remains whether the greater offense cannot be committed without also committing all elements of the lesser offense. State v. McNitt, 451 N.W.2d 824 (Iowa 1990). The comparison of the elements of the greater and lesser crimes, sometimes referred to as the "elements test," is only resorted to as an aid in applying the impossibility test and is fully subsumed therein.

When a case is tried to a jury, the determination of whether a particular lesser crime must be submitted as a lesser-included offense of the crime charged may logically begin with the court's marshaling instruction on the greater offense. The trial court must determine whether if the elements of the greater offense are established, in the manner in which the State has sought to prove those elements, then the elements of any lesser offense have also necessarily been established. It is not essential that the elements of the lesser offense be described in the statutes in the same manner as the elements of the greater offense. See State v. Waller, 450 N.W.2d 864, 866 (Iowa 1990) (equating elements statutorily described differently in greater and lesser offenses).

Applying these principles to the present case, we believe that third-degree sexual abuse under section 709.4; assault with intent to commit sexual abuse (aggravated misdemeanor) under section 709.11; ¹ and simple assault were all properly submissible lesser offenses.

II. Evidentiary Issues.

As a result of the reversal and attendant retrial, we also consider certain evidentiary issues which may arise again.

A. Admissibility of sex manual, containing explicit photographs and written directions, and sexually explicit catalogs, calendars, and magazines. Defendant moved to suppress and objected at trial to the admissibility into evidence of several sexually explicit materials which sheriff's officers obtained in...