Opinion
No. 3-227 / 02-1271.
Filed May 29, 2003.
Appeal from the Iowa District Court for Wapello County, KIRK A. DAILY, District Associate Judge.
Defendant appeals from his conviction of indecent contact with a child. AFFIRMED.
Patrick O'Bryan, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Mark Tremmel, County Attorney, and Elizabeth Van Arsdale, Assistant County Attorney, for appellee.
Heard by ZIMMER, P.J., and HECHT and EISENHAUER, JJ.
Defendant appeals from his conviction of indecent contact with a child. We affirm.
I. Background Facts and Proceedings. Kim Shepard moved in with his then-girlfriend and now wife, Brenda, and her three children in December of 1998. At the time, Brenda's daughter, B.P., was thirteen years old. Soon B.P., her mother, and Shepard were caught in a cycle of disobedience and punishment, culminating in B.P.'s theft of the family car and her parents' threats to send her to boot camp. In November 2001, B.P. informed her boyfriend that Shepard had sexually abused her. Her boyfriend notified the school counselor who in turn informed law enforcement officers.
Based on B.P.'s allegations, Shepard was charged with three counts of third-degree sexual abuse, indecent contact with a child, lascivious conduct with a minor, and supplying alcohol to a minor. Upon the recommendation of B.P.'s counselor, the State later dismissed without prejudice the three counts of sexual abuse. The remaining charges were tried to the district court. The district court found Shepard guilty of indecent contact with a child, and not guilty of lascivious conduct with a minor and supplying alcohol to a minor. Shepard appeals, alleging the district court erred when it (1) denied his motion for mistrial after an ex parte communication by the State's witness and (2) refused to allow him to cross-examine B.P. regarding alleged acts of abuse occurring in September, 2001. Shepard further alleges his conviction is not supported by substantial evidence.
II. Denial of Motion for Mistrial. Shepard contends the district court erred in its denial of his motion for mistrial after the court communicated ex parte with one of the State's witnesses. The granting of a mistrial motion is ordinarily in the discretion of the trial court and its ruling will not be set aside unless a clear abuse of discretion is shown. State v. Staker, 220 N.W.2d 613, 617 (Iowa 1974).
Chad Farrington, an Ottumwa police department detective, testified for the State. During a recess after his testimony was given, Farrington engaged the district court judge in an ex parte conversation. The details of this conversation are not clear, but the record created indicates the conversation dealt with alleged threats of violence by Shepard if he were convicted. When court reconvened, the district court judge promptly brought this communication to the attention of Shepard and his attorney. After a brief record was made on the subject, Shepard moved for a mistrial. The district court denied Shepard's motion, determining it could disregard this information and render a fair verdict based only on the evidence presented in the trial.
We begin by noting that a defendant claiming error has the burden of providing the court with a record that discloses the error claimed. State v. Mark, 286 N.W.2d 396, 402 (Iowa 1979); State v. Ruiz, 496 N.W.2d 789, 791 (Iowa Ct.App. 1992). The record before us on this claimed error provides few specifics about the conversation between Farrington and the court. Because of Shepard's obligation to provide a record for this court to review his claim of error, he gains no advantage from the vague record. The court told the attorneys that Farrington "was aware of an allegation of some threats by the defendant, if he went down somebody was going to pay and some allegations about a firearm. . . ." It is unclear at whom the threat was directed or to whom it was voiced. The trial court, when it denied Shepard's motion for mistrial, assured the parties that he would not consider the extrajudicial information in his determination of facts and rendering of the verdict.
A trial court should "neither initiate nor consider ex parte communications concerning a pending or impending proceeding." State v. Lemburg, 257 N.W.2d 39, 46 (Iowa 1977) (citing Iowa Code of Judicial Conduct, Canon 3 A(4)). In this case, there is no indication that the trial court did either. The fact that the ex parte communication took place does not, in and of itself, necessitate a new trial. Id. Because the trial court assured the parties of its ability to disregard the extrajudicial information and because there is no evidence in the record that the court improperly considered this communication, id., we find no abuse of discretion by the district court when it denied Shepard's motion for mistrial.
III. Refusal to Allow Cross-Examination. Shepard contends the district court erred by not allowing him to cross-examine B.P. regarding incidents of abuse by Shepard she claimed occurred in September of 2001. The district court determined that testimony of alleged criminal conduct occurring after B.P. was fourteen years old was not relevant because Shepard was only being tried for alleged crimes occurring before B.P.'s fourteenth birthday. Therefore the district court disallowed the cross-examination. Shepard then made an offer of proof by questioning B.P. about the contents of a calendar B.P. kept during the fall of 2001. On this calendar, B.P. claimed to have marked the days she was abused by Shepard. One of the claimed instances of abuse noted by B.P. on the calendar allegedly occurred on Labor Day, September 3, 2001. Shepard also produced testimony from his brother, as part of his offer of proof, indicating that Shepard was at his brother's house all day on Labor Day.
We will disturb a ruling disallowing cross-examination only if the district court abused its discretion. State v. Groscost, 355 N.W.2d 32, 38 (Iowa 1984). In this instance, the district court determined that all evidence regarding alleged crimes occurring after May 22, 1999, (B.P.'s fourteenth birthday) were not relevant to the proceedings. We do not find this ruling to be an abuse of the district court's discretion and therefore affirm on this issue.
IV. Substantial Evidence Supporting the Conviction. Shepard contends his conviction for indecent contact with a child is not supported by substantial evidence. In determining whether substantial evidence exists to support the verdict, we will consider all the trial evidence, not merely the evidence supporting the guilty verdict. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). We view the evidence in the light most favorable to the State. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).
Shepard argues that B.P.'s testimony is so inconsistent and self-contradictory that it lacks the probative value necessary to support a guilty verdict and must be disregarded. See State v. Smith, 508 N.W.2d 101, 104 (Iowa Ct.App. 1993). He contends that, without B.P.'s testimony, the remaining evidence provided by the State does not support a guilty verdict. Normally it is for the fact finder to assess the credibility of witnesses unless the testimony is "`so impossible and absurd and self-contradictory that it should be deemed a nullity by the court.'" Id. at 102-103 (quoting Graham v. Chicago Northwestern Ry. Co., 143 Iowa 604, 615, 119 N.W.2d 708, 711 (Iowa 1909)). After our review of B.P.'s testimony, we are not convinced that her testimony rises to the level of absurdity or lacks experiential detail, as did the victims' testimony in Smith. Thus, we conclude the applicable standard of review does not allow us to disregard her testimony as a matter of law, and we therefore will not disturb the district court's credibility determination. We determine that Shepard's conviction was supported by substantial evidence and accordingly affirm.