SEPTEMBER 4, 2003

IOWA SUPREME COURT

Sexually violent predator: Meaning of conduct that creates“a reasonable apprehension of [harm of a sexually violent nature]”

In re Detention of Swanson, 668 N.W.2d 570 (Iowa 9/4/2003). Sexually violent predator “recent overt act requirement”: meaning of conduct that creates “a reasonable apprehension of [harm of a sexually violent nature.]” When seeking a declaration that defendant is a sexually violent predator, the State has the burden to show that defendant’s mental abnormality made defendant likely to engage in predatory acts of sexual violence, requiring the demonstration that defendant committed a “recent overt act”. That “recent overt act” is defined as “any act that has caused harm of a sexually violent nature or creates a reasonable apprehension of such harm”. The last part, “reasonable apprehension” does not depend solely upon the subjective belief of the would-be victim. Instead, it is deemed to “target[] an objective assessment based on all the surrounding circumstances.” It existed under all the circumstances with this defendant, whose history included sexually assaulting ten women, with a pattern of targeting specific women, when he called the subject woman (at her home) whom he met through a job-hunting situation, then called her the next night to tell her that he was taking steps to move into her apartment building, then sending her a letter expressing a desire to “be friends” and move in together.

Justification defense - not available under “reasonable person” analysis

State v. Bedard, 668 N.W.2d 598 (Iowa 9/4/2003) [1] Justification defense - not available under “reasonable person” analysis. Defendant who attempted to strike police officer investigating complaint of fighting by someone matching defendant’s description, after officer grabbed defendant’s arm when defendant refused to remove his hands from his pockets, was NOT justified in attempting to strike the officer. A reasonable person in similar circumstances would not deem that the attempted attack was “necessary to prevent an injury or loss” as required by the justification statute, 704.3. (reversing Court of Appeals opinion) [2] Assault - intent element (after addition of statutory "general intent" language). Even though the assault statute was changed to specifically declare (generic) assault a general intent crime, there has been no change in the requirement that State must prove the (relevant) intent element for assault; here, that the act was intended to place the other person in fear of immediate physical contact which would be painful, injurious, insulting or offensive. As defendants will ordinarily be viewed as intending the natural and probable consequences that ordinarily follow from their voluntary acts, this defendant’s attempt to strike an officer was indicative of the requisite intent.

Implied or indirect assertions as hearsay statements

State v. Dullard, 668  N.W.2d 585 (Iowa 9/4/2003) [1] Hearsay - implied or indirect assertions as hearsay statements. Out-of-court written declaration by unknown person to “B” (first letter of defendant’s first name) indicating that “black-and-whites” were across the street looking in “[their] direction”, found in the same area of garage where meth precursors were found, constituted an implied assertion of defendant’s knowledge and possession of drug lab materials. This implied assertion in turn constituted a statement under the hearsay rule. The indirect or unintentional assertion is not deemed reliable enough to avoid the hearsay rule, for which it must be evaluated in the context of the purpose for which it is offered. Here, the statement did not fall within an exception from the hearsay rule (insufficient evidence to support a co-conspirator exception; declarant's’s state of mind irrelevant; insufficient evidence that it was an excited utterance). [2] Evidentiary error - whether retrial permitted. When conviction is reversed on the basis of erroneously-admitted evidence, sufficiency of evidence to support remand for retrial (as opposed to remand for entry of acquittal order) should include consideration of erroneously-admitted evidence.

Improper to question witness regarding another witness's veracity

State v. Graves, 668 N.W.2d 860 (Iowa 9/4/2003) Prosecutorial conduct: improper to require witness to comment on another witness’s veracity. It is improper “under any circumstance” to ask a witness to comment on the veracity of another witness, and defense counsel who fails to object to the process breaches an essential duty. It is also prosecutorial misconduct to “call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments” during closing argument. It is not improper “to craft an argument that includes reasonable inferences based on the evidence and . . . when a case turns on which of two conflicting stories is true, [to argue that] certain testimony is not believable.” Further, the misconduct was deemed so prejudicial as to require reversal because the subject matter (credibility of officer vs. credibility of defendant) was “extremely significant to the central issues”, the State’s case without the references was so weak, and the theme occurred during both during cross-examination and closing argument.

Rebuttal using prior bad act evidence permissible

State v. Mitchell, 670 N.W.2d 416 (Iowa 9/4/2003). Evidence offered by State to rebut defendant’s theory of defense but constituting prior bad act evidence admissible. Otherwise inadmissible propensity evidence regarding two other children allegedly abused by the defendant was properly referenced upon retrial when defendant’s theory of the case opened the door. When defendant alleged and attempted to prove that the child’s mother had met with authorities to conspire a false case against him, the State was properly allowed to elicit the mother’s testimony that she met with the authorities to explore knowledge that she might have had about the other victims, not the victim at issue (her daughter). This was deemed proper rebuttal.

No drug tax stamp where not affixed on incomplete drugs

State v. Rhiner, 670 N.W.2d 425 (Iowa 9/4/2003) Drug tax stamp - no crime where product is unfinished. Where the manufacturing process necessary to make a drug a “usable product” has not been completed at the time of seizure, the statute defining the offense does not require a drug tax stamp.

Kidnapping: purely mental “torture” can be elevating element

State v. White, 668 N.W.2d 850 (Iowa 9/4/2003) [1] Evidence -- Prior bad acts. Evidence that defendant assaulted and threatened the victim (his estranged wife) one month before the subject kidnapping was admissible to show his intent. That evidence made it more probable that defendant intended to cause the victim serious injury and tended to negate defendant’s claim of diminished responsibility. In addition, the prior act evidence was also held to be more probative than unfairly prejudicial. [2] Kidnapping: purely mental “torture” as the elevating element. Infliction of mental anguish alone is sufficient to constitute the “torture” element of first-degree kidnapping. “’Torture’” is either physical and/or mental anguish.” Here, the element was proven by the following acts: over a three-hour period after defendant snuck into his estranged wife’s home, he pointed a shotgun at her, threatened to shoot her, interrogated her about her alleged infidelities, forced her into another room at gunpoint, made her watch a videotape he had made in which he threatened to kill her, and repeatedly cocked and uncocked his gun as she watched the video.