State of Iowa v. William Riley ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1142
Filed May 12, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIAM RILEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
William Riley appeals following his conviction for sexual abuse in the third
degree. AFFIRMED.
Seth Harrington of Harrington Law LC, Urbandale, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Mullins and May, JJ.
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MAY, Judge.
William Riley appeals his conviction for sexual abuse in the third degree in
violation of Iowa Code section 709.4(1)(a) (2017). On appeal, Riley argues:
(1) there was insufficient evidence to establish the elements of third-degree sexual
abuse; (2) his trial counsel was ineffective for failing to move for dismissal based
on lack of venue; and (3) the district court erred in allowing part of a witness’s
testimony. We affirm.
I. Background Facts and Proceedings1
On September 14, 2017, Riley moved into the apartment next to J.S.2 Riley
introduced himself to J.S. and asked if J.S. could help him set up his cable
television. Riley also asked J.S. if he knew “any stores around here.” Riley and
J.S. visited various retail stores in the area together. After dropping off Riley’s
purchases at Riley’s apartment, they ordered a pizza at a convenience store
nearby. Riley paid for the pizza and returned to his apartment. J.S. waited for the
pizza to bake. After the pizza was ready, J.S. went back to Riley’s apartment.
After J.S. returned to Riley’s apartment with the pizza, Riley sexually
abused him. Riley placed his fingers inside J.S.’s anus. Riley then placed his
penis inside J.S.’s anus. J.S. told Riley he was in pain and told Riley to stop. J.S.
also tried to leave Riley’s apartment once, but Riley stopped him. Riley grabbed
J.S, threw him back on the bed, and held J.S.’s hands behind his back. Riley
1 We review the evidence in the light most favorable to the verdict. See State v.
Warren, 955 N.W.2d 848, 856 (Iowa 2021).
2 J.S. is a thirty-three-year-old male diagnosed with bipolar disorder, attention
deficient hyperactivity disorder (ADHD), fetal alcohol syndrome, and cerebral
palsy.
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resumed anal intercourse as J.S. kept telling him to stop. Riley continued until he
ejaculated inside J.S.’s anus.
The next day, J.S. told a neighbor what happened. J.S. then contacted the
police. That same day, a police officer interviewed J.S. The officer told J.S. “to
think it over really hard if I can press charges.” The officer gave J.S. his card and
told him to call back in two days if he wanted to press charges.
On September 17, J.S. again called the police to report that Riley sexually
abused him three days before. After telling two other police officers what
happened, J.S. went to the hospital for a sexual-assault examination. Anal swabs
were taken from J.S. Sperm was detected on J.S.’s anal swab. A DNA profile was
produced from the sperm. It matched Riley’s DNA profile.
Police also made contact with Riley. Eventually, Riley agreed to an
interview at the Waterloo police station. Riley denied any kind of sexual relations
between himself and J.S. When police told Riley that J.S. was accusing him of
sexual assault, Riley specifically told the inquiring officer to “check the DNA in his
ass.”
The State charged Riley with sexual abuse in the third degree. After a
bench trial, the district court found him guilty as charged. Riley appeals.
II. Analysis
On appeal, Riley challenges: (1) the sufficiency of the evidence;
(2) effectiveness of his trial counsel; and (3) part of a witness’s testimony.
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A. Sufficiency of the Evidence
We begin with Riley’s challenge to the sufficiency of the evidence
supporting his conviction for sexual abuse in the third degree. Section 709.4(1)(a)
provides “[a] person commits sexual abuse in the third degree when the person
performs a sex act” that “is done by force or against the will of the other person.”
A “sex act” is defined to include “[p]enetration of the penis into the vagina or anus.”
Iowa Code § 702.17(1). Riley claims the evidence is insufficient to establish the
sex act was “[b]y force or against the will of J.S.”
Under Iowa law, we will “uphold a verdict if substantial evidence supports
it.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005); see State v. Kelso-Christy,
911 N.W.2d 663, 666 (Iowa 2018) (“We review the sufficiency of the evidence for
correction of errors at law.”). Evidence is “substantial if it would convince a rational
fact finder the defendant is guilty beyond a reasonable doubt.” State v. Meyers,
799 N.W.2d 132, 138 (Iowa 2011). “We view the evidence in the light most
favorable to the State, including all legitimate inferences and presumptions that
may fairly and reasonably be deduced from the record.” State v. Soboroff, 798
N.W.2d 1, 5 (Iowa 2011). We give weight to the district court’s fact findings,
especially with regard to witness credibility. See Paxton v. Paxton, 231 N.W.2d
581, 584 (Iowa 1975) (“Understandably[, the] trial court was in a better position
than are we to observe the conduct of all witnesses, including the parties hereto,
and determine the credibility of their testimony.”).
Riley points to multiple inconsistencies in J.S.’s deposition and trial
testimony. Specifically, Riley notes J.S. was inconsistent about: (1) when J.S.
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returned to J.S.’s apartment; (2) whether J.S. had his cell phone while in Riley’s
apartment; (3) who J.S. was speaking to on his cell phone in Riley’s apartment;
(4) whether J.S. ate any pizza or lost his appetite; and (5) when J.S. tried to leave
Riley’s apartment. Riley claims these inconsistencies mean that “[n]o reasonable
fact finder could consider J.S. a credible source of information.” And because “the
words of J.S.” are “[t]he only evidence” to show the sex act was by force or against
J.S.’s will, Riley claims there was insufficient evidence to prove this element.
The State acknowledges that J.S.’s “testimony contained several
inconsistencies on collateral matters.” But, as the State points out, “[t]he trial court,
as the factfinder, was aware of [J.S.]’s cognitive abilities and took that fact into
account when evaluating his credibility.” And in the end, the court found that J.S.
was consistent and credible on the details of Riley’s sexual abuse.
Giving appropriate weight to the district court’s findings on credibility, we
conclude substantial evidence supports these findings by the district court:
Given [J.S.]’s disabilities and the fact that he can be directed
easily by other, more assertive persons without similar intellectual
limitations—as demonstrated by his manner of responding to
questions—the court does not find that the inconsistencies in [J.S.]’s
accounts of the events from September 14 through September 17,
2017 or the way he responded to [Riley]’s actions renders [J.S.]’s
testimony completely unbelievable and unreliable. [J.S.] consistently
stated that after [Riley] put his penis in [J.S.]’s anus the first time,
[J.S.] told [Riley] it was starting to hurt, told [Riley], “Please, take it
out,” and told [Riley] to stop more than once. [Riley] did not stop.
[J.S.] then tried to go to the door of [Riley]’s apartment and leave.
[Riley] grabbed [J.S.], took him back to the bed, inserted his penis
into [J.S.]’s anus again, and did not stop until he ejaculated, even
though [J.S.] continued to tell [Riley] to please take it out. The court
is firmly convinced that on or about September 14, 2017, [Riley] used
his penis to penetrate [J.S.]’s anus twice and that [Riley] proceeded
with both of those sex acts against the will of [J.S.]. The court is
convinced that [J.S.] told [Riley] to stop, but [Riley] did not, and that
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[Riley] continued to perform the anal sex acts against [J.S.]’s wishes
and against his express direction.
Sufficient evidence supports Riley’s conviction.
B. Ineffective Assistance of Counsel
Next, Riley claims his trial counsel was ineffective for failing to move for
dismissal based on the State’s failure to establish venue. But in 2019, the Iowa
legislature amended section 814.7 (Supp. 2019) to preclude ineffective-assistance
claims on direct appeal. See 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code
§ 814.7). Our supreme court has held that these amendments apply to judgments
and sentences entered on or after July 1, 2019. See State v. Macke, 933 N.W.2d
226, 233 (Iowa 2019); see also State v. Damme, 944 N.W.2d 98, 109 (Iowa 2020)
(“Section 814.7 became effective on July 1, 2019, and the judgment and sentence
in Damme’s case was entered on that date. . . . The amendment applies and we
lack authority to consider her ineffective-assistance-of-counsel claims on direct
appeal.” (citation omitted)). The court entered judgment and sentence on July 1,
2019. So section 814.7 precludes our consideration of Riley’s ineffective-
assistance claim.
C. Witness Testimony
Lastly, Riley contends the district court erred in allowing certain testimony
by the emergency room nurse who examined J.S. We generally review evidentiary
rulings for an abuse of discretion. See State v. Wilson, 878 N.W.2d 203, 210 (Iowa
2016). “The standard of review for hearsay, however, is for errors at law.” State
v. Buelow, 951 N.W.2d 879, 884 (Iowa 2020).
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At trial, the nurse testified without objection that the process of examining a
patient for a sexual assault starts with “get[ting] a history of the allegations or what
has brought the patient in, more specifically, and then begin[ning] my [physical]
exam.” The nurse was then asked “why is it important for you to find out the
allegations or what brought that patient in for that exam?” Riley objected that
“[t]hese types of questions are beyond the scope of the minutes.” The district court
overruled Riley’s objection. The nurse then explained that it is important to “know
what parts of the body to examine; and if there [is] any type of injury or anything
like that, I would pass that on to the provider; and also so I know where to collect
evidence from, if any.” She also testified without objection:
Q. And so do you then rely on what the patient has told you in
order to conduct your examination? A. Yes.
Q. And do you tailor your exam based on what information
was provided to you? A. Yes.
Q. And so when you’re discussing with them the allegations,
is it important for you to know medically what body parts of theirs
were touched? A. Yes, so I know where to look.
Q. And is it important for you to know if ejaculation had
occurred? A. Yes, so I know both what kind of medications to give
for possible STD exposure and also for evidence collection.
Q. After you would receive that information, I believe you
stated you would then perform your physical exam? A. That’s
correct.
The nurse went on to explain, without objection, the physical process for
collecting evidence in a sexual assault case.
Then the nurse was asked if she met with J.S. and “ask[ed] him to provide”
his “history of what had occurred.” The nurse answered in the affirmative. The
nurse was then asked what information J.S. provided. Riley objected to this
question as “[h]earsay and cumulative.” The court overruled both objections. The
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nurse then read a portion of her report detailing J.S.’s history of the alleged assault.
She went on to testify about her physical examination of J.S.
On appeal, Riley claims portions of the nurse’s testimony (1) went beyond
the scope of the minutes, (2) were improper expert testimony, and (3) were
hearsay. We address each claim in turn.
1. Beyond the scope of the minutes
First, we address whether testimony should have been excluded as beyond
the scope of the minutes. Iowa Rule of Criminal Procedure 2.5(3) provides:
The prosecuting attorney shall, at the time of filing such
information, also file the minutes of evidence of the witnesses which
shall consist of a notice in writing stating the name and occupation
of each witness upon whose expected testimony the information is
based, and a full and fair statement of the witness’ expected
testimony.
The purpose of the rule is to eliminate claims of foul play and provide
meaningful minutes from which a defense can be prepared. See State v. Ristau,
340 N.W.2d 273, 274 (Iowa 1983). But “[t]he minutes need not list each detail to
which a witness will testify.” State v. Ellis, 350 N.W.2d 178, 181 (Iowa 1984).
“[T]here is no requirement that the minutes of testimony provide a complete
catalogue of witness testimony at trial, but only that the defense be placed on fair
notice and not subject to surprise testimony.” State v. Shorter, 893 N.W.2d 65, 81
(Iowa 2017). So “a defendant is not entitled to relief due to defective minutes under
rule 2.5(3) when the defense is not surprised by the subsequent testimony.” Id. at
83. “[W]hen the challenged minutes, though incomplete, put defendant ‘on notice
of the necessity of further investigation of the witness’[s] probable testimony,’
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reversal need not follow admission of matters they do not disclose.” State v.
Musso, 398 N.W.2d 866, 868 (Iowa 1987) (citation omitted).
Here, the minutes stated:
This witness will testify as to her education, training and
experience as a nurse dealing with the examination of sexual assault
victims. This witness will testify as to obtaining specimens for a
sexual assault evidence collection kit. This witness will testify as to
what specimens were collected. This witness will testify to the
manner, method and procedure in which said specimens were
collected as part of said sexual assault evidence collection kit. This
witness will testify identify and introduce into evidence said
specimens collected pursuant to sexual assault evidence collection
kit. This witness will testify, identify and introduce into evidence said
specimens obtained as part of the sexual assault evidence collection
kit. This witness will testify to the chain of custody of said items
collected pursuant to said sexual assault evidence collection kit.
(Emphasis added.)
As mentioned, Riley objected to the State’s question about “why is it
important” for the nurse “to find out” the alleged victim’s “allegations or what
brought that patient in for that exam.” Riley claimed such questions were “beyond
the scope of the minutes.” The district court overruled the objection. We think that
was the correct ruling.
The minutes plainly disclosed that the nurse would testify about the
“manner, method and procedure” through which specimens of sexual assault
evidence were collected from J.S. Consistent with these minutes, the nurse
testified about the general process for collecting sexual assault evidence and the
specific process she went through with J.S. As the nurse’s testimony made clear,
obtaining the patient’s history of the alleged sexual assault is an essential part of
the “manner, method and procedure” in which specimens are collected. By
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learning how the assault happened—including “what body parts . . . were touched”
and what injuries were sustained—the nurse can “know where to look” for evidence
of the assault. We doubt this would surprise most adults. In any event, we do not
think it came as a surprise to Riley or counsel. Although the minutes did not
specifically state that taking J.S.’s history of the sexual assault was part of the
“manner, method and procedure” for collecting evidence of the sexual assault, we
still believe “[t]he minutes adequately alerted [Riley] generally to the source and
nature of the evidence [the nurse] would give against him.” Ellis, 350 N.W.2d at
182; see also Ristau, 340 N.W.2d at 274–75 (complaining witness’s conversation
with defendant not mentioned in the minutes but was deemed consistent with
overall nature of witness’s testimony). The district court did not abuse its discretion
by overruling Riley’s scope-of-the-minutes objection.3
3 Riley suggests that because his counsel raised a scope-of-the-minutes objection
to one question, he effectively raised the same objection to all other related
questions. We disagree. Our opinion in State v. Huffman, No. 14-1143, 2015 WL
5278980, at *4 (Iowa Ct. App. Sept. 10, 2015), is on point or nearly so. Like Riley,
Huffman was convicted of sexual abuse. See Huffman, 2015 WL 5278980, at *1.
On appeal, Huffman sought to attack a whole series of questions and answers.
See id. at *4. At trial, though, Huffman’s counsel had only “objected to only one of
[those] questions.” Id. We concluded Huffman had only preserved error on the
question to which trial counsel objected. Id. Then-Chief Judge Danilson
explained:
“A timely and specific objection is required to alert the judge to the
issue raised and enable opposing counsel to take corrective action
to remedy the defect if possible.” Roberts v. Newville, 554 N.W.2d
298, 300 (Iowa Ct. App. 1996). “Generally, the proper timing of an
objection follows the question propounded, since the question
generally reveals whether inadmissible evidence is requested.” Id.Moreover, Huffman’s attorney did not request nor receive a standing
objection to the testimony. See Prestype Inc. v. Carr, 248 N.W.2d
111, 117 (Iowa 1976) (“Although a standing objection may save trial
time and be convenient for both court and counsel, it makes
appellate review infinitely more difficult and, for the litigants more
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2. Improper expert testimony
Next, Riley complains that the nurse “was allowed to testify to her
professional opinions on a number of subjects, including her belief that the
absence of injuries to J.S.’s anus was not probative” and “whether or not the sexual
act was consensual.” But Riley did not raise—and the district court did not rule
on—whether the nurse could testify as an expert witness. So Riley failed to
preserve error. See Bank of Am., N.A. v. Schulte, 843 N.W.2d 876, 883 (Iowa
2014) (“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.” (citation omitted)).
3. Hearsay
Lastly, in his reply brief, Riley reasserts his hearsay objection made at trial.
But we do not generally consider arguments made for the first time in a reply brief.
See Villa Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018). While there are
exceptions, Riley has not pointed to one. See id. (“Yet we have noted
exceptions.”). So we decline to consider his hearsay objection.
uncertain. The allowance of standing objections in trials at law is
ordinarily not to be recommended.”). We consider the one question
Huffman’s trial counsel objected to under the abuse-of-discretion
standard. Otherwise, because Huffman did not object to the
testimony he now claims is improper, error was not preserved. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide
them on appeal.”).
Id. Likewise, we conclude Riley only preserved error as to the question to which
he objected.
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III. Conclusion
We affirm Riley’s conviction for sexual abuse in the third degree.
AFFIRMED.