State v. Umana, 11–0667.
| Decision Date | 03 October 2012 |
| Docket Number | No. 11–0667.,11–0667. |
| Citation | 822 N.W.2d 745 |
| Parties | STATE of Iowa, Plaintiff–Appellee, v. Efrain UMANA, Defendant–Appellant. |
| Court | Iowa Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Iowa District Court for Pottawattamie County, Richard H. Davidson, Judge.
The defendant appeals his convictions for second-degree sexual abuse, third-degree sexual abuse, and assault with intent to commit sexual abuse. AFFIRMED IN PART, VACATED AND REMANDED IN PART.
William F. McGinn of McGinn, McGinn, Springer & Noethe, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Daniel J. McGinn and Shelly Sedlak, Assistant County Attorneys, for appellee.
Heard by VOGEL, P.J., and DANILSON and MULLINS, JJ.
The defendant appeals his convictions for second-degree sexual abuse, third-degree sexual abuse, and assault with the intent to commit sexual abuse against three of his parishioners. The defendant contends the trial court abused its discretion in denying his motion to sever the charges, and the trial information and jury instructions on count I were fatally defective because they contain dates extending beyond the victim's twelfth birthday. The defendant further alleges evidence was insufficient to support guilty verdicts on count I and count IV. For the reasons contained herein, we affirm in part, and vacate and remand in part.
The charges against the defendant stem from his time as an unaccredited pastor at a primarily Hispanic church in Council Bluffs, Iowa. The four alleged victims were all members of his church. Their allegations are recounted below.
In 2003, M.Q., an eleven-year-old fifth grader, and her family were members of the church pastored by the defendant. M.Q. and the defendant's daughter were friends. One afternoon in 2003, the defendant and his daughter picked up M.Q. from her home to go to the church to help look for keys the defendant had misplaced. Upon arriving at the church, the defendant allowed his daughter to stay in the car while he and M.Q. searched inside.
Once inside the church, M.Q. and the defendant took separate routes to look for the keys. M.Q. headed to the sound room. The defendant arrived behind her and shut the sound room door. Then, the defendant told M.Q. to take off her clothes. M.Q. said, “No” repeatedly. The defendant put M.Q. on the floor and pulled down his pants. The defendant pulled up M.Q.'s skirt and removed her underwear. At that point, the defendant had vaginal intercourse with M.Q. and told her that was “what love was.”
The defendant finally got off of M.Q. after M.Q. said his daughter was going to come into the room. M.Q. pulled up her underwear and walked out. On the way home, she noticed her underwear was wet.
M.Q. did not say a word to her parents or to defendant's daughter. She testified that it would have been her word against his, so she did not tell anyone. She had trusted the defendant. He was her pastor, her spiritual leader.
M.Q. and her family moved out of the state the following year. She later told two of her close friends about what the defendant had done to her. During a prayer session approximately six years after the abuse, M.Q.'s new pastor in Texas challenged her to tell the truth about what had happened to her. M.Q.'s parents were present at the time. M.Q. began to cry and told her parents about the abuse.
Clinical psychologist Dr. Glenda Cotton assessed M.Q. Dr. Cotton stated M.Q. suffered from anxiety, depression, hypervigilance, anger, difficulty concentrating, exhibited an exaggerated startle response, displayed low self-confidence, and experienced intrusive memories of the incident. According to Dr. Cotton's assessment, M.Q. suffered from post-traumatic stress disorder and these symptoms were consistent with prior sexual abuse.
D.A. is married and has four children. Her family also attended the defendant's church in Council Bluffs. The defendant provided marital counseling to D.A. and her husband and would often visit their home.
One day in the summer of 2006, the defendant called D.A. as she was finishing her shift at work. Just as D.A. returned home, the defendant appeared behind her. The defendant's arrival surprised D.A. because she did not see his car parked outside. The defendant then entered her home and asked for a glass of water. D.A. gave the defendant a glass of water and informed him she needed to change her clothes and pick up her children from daycare.
The defendant waited in the living room while D.A. changed clothes. D.A. changed out of her jacket and coveralls but still had pants and a shirt on underneath. When she entered the living room, the defendant stood up and got close to her. He tried to hug her but she kept her distance.
Then, the defendant ordered D.A. to take off her clothes. She said, “No.” He told her to “obey” and said, “I like obedient people.” D.A. refused. The defendant then hugged D.A. from behind so she could not get away. He unbuttoned her pants and threw her to the floor. Once on the floor, he pulled D.A.'s pants down to her knees. He penetrated her and quickly ejaculated. When he finished, he got up, put on his clothes, and left D.A. crying on the floor.
D.A. did not collect any physical evidence of the incident. The defendant continued to provide D.A. and her husband marital counseling over the next several years. The defendant continued to serve as her pastor and she regularly attended church. When she attended church, the defendant would sometimes touch her lips with his finger and try to hold her hand. She eventually forgave the defendant for what he had done. Until church leaders approached her, she told no one about the incident.
S.A. was another member of the defendant's church. One day, S.A. stayed at church after the service had finished. She and another church member were cooking in the kitchen. After her cooking partner left the room, the defendant entered the kitchen. He gave S .A. a hug, pressed himself against her breasts, and kissed her neck without her consent.
The defendant served as M.C.'s pastor and marital counselor. He would call on M.C. to visit with her over coffee. During one trip to M.C.'s home, he pressed his finger against her lips and told her she had nice lips.
On September 2, 2008, the defendant called M.C. to meet him at the church. He offered to provide her family with free food donated from local businesses. When M.C. arrived, no one else was present. The defendant hugged M.C. and kissed her on the cheek. This did not strike M.C. as an unusual greeting. He then touched her perspiring forehead and asked her if she missed her husband, who was traveling abroad at the time. She said, “Not much because [its] only a few days until he gets home.” The defendant smiled and hugged her again.
The defendant carried food into the kitchen while M.C. waited by the door. The lights in the kitchen remained off. At some point, their paths crossed. She stated he looked at her “[l]ike a man when he's wanting to seduce a woman.” The defendant hugged M.C. again and this time kissed her on the mouth. M.C. pulled away, turned on the lights, and avoided the defendant until she was able to leave the church.
When her husband arrived home, she told him about what the defendant had done. The two approached leaders in the church and discussed the defendant's actions. The church leaders investigated. The investigation uncovered additional allegations of sexual transgressions relating to M.Q., D.A., and S.A.
On July 24, 2009, the State filed a trial information containing four counts. Count I charged the defendant with second degree sexual abuse of M.Q., Count II charged the defendant with third degree sexual abuse of D.A., and Counts III and IV charged the defendant with assault with intent to commit sexual abuse of S.A. and M.C., respectively. The trial, originally scheduled to begin October 13, 2009, was continued seven times.
On August 4, 2010, several weeks before the scheduled trial, the defendant filed a motion to sever. On September 16, 2010, the trial court held a hearing on the motion to sever. The trial court denied the motion in an order filed on September 28, 2010. The trial court found joinder permissible because the defendant's actions demonstrated a common scheme or plan. The trial court reasoned,
The defendant was the pastor of Iglesia Monte Horeb church in Council Bluffs, Iowa. All of the alleged victims attended that church when he served as pastor. All of the alleged victims describe instances where the defendant would get them alone in a room of the church when others were not present. All of the alleged victims describe the defendant kissing them in addition to other unwanted touching. Three of the four victims describe an incident that occur [red] in their home. Two of the four victims describe the defendant touching their lips with his finger.... The victims in Counts I and II describe brief sexual intercourse with both the defendant's clothing and their own partially removed. The crimes as alleged are more than similar crimes with similar victims. In all instances[,] the defendant is alleged to have used his position within the church as a pretext for being alone with the victims. Additionally, not only is sexual gratification the basis of each offense but also the separate allegations describe the defendant's behavior in similar terms.
A jury trial on all four counts commenced on January 25, 2011. At the conclusion of the trial, the trial court provided a limiting jury instruction. The instructions stated, The court also provided instructions for...
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