Opinion
No. 1-829 / 00-1777.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, MATTHEW McENIRY, District Associate Judge.
Defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of simple assault and indecent exposure. REVERSED AND REMANDED.
Christine E. Branstad and Marci B.H. Tooman of Hopkins Huebner, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and John Judisch, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
Julius Imafidon appeals from the judgment and sentence entered upon jury verdicts finding him guilty of simple assault in violation of Iowa Code section 708.1(2) (1999) and indecent exposure in violation of section 709.9. He contends (1) there was not sufficient evidence to convict him of the crimes charged, (2) the trial court abused its discretion when it excluded testimony about a second incident of indecent exposure occurring on the same campus, and (3) the trial court abused its discretion in excluding testimony about a second suspect. He also argues that his trial counsel was ineffective in failing to (1) make a sufficient record about witnesses who may have excluded Imafidon as the perpetrator of a related incident, (2) make a sufficient record about a second suspect who was the subject of police investigation, (3) object to hearsay, (4) object to prosecutorial misconduct and to request a mistrial, and (5) move to suppress based on impermissibly suggestive photo identification procedures. We reverse and remand for a new trial.
I. BACKGROUND FACTS.
The charges in this case stem from an incident which occurred at Des Moines Area Community College (DMACC). On October 25, 1999, Amanda Carter, a student at the college, entered a building on campus. There were two sets of doors at the entrance to the building. As Carter entered the first set of doors, she saw someone seated in a cubicle just inside the second set of doors. As she passed through the inner set of doors, the man Carter had observed stood up and walked toward her. Carter noticed the man's shorts were down and he had exposed his penis. As the man approached Carter, he asked her if she "had ever seen a big black dick like this." The man did not speak with an accent. He spoke in English, and what he said was clear to Carter. Carter screamed and the man left the scene. According to Carter, her assailant was black, had poofy hair, and was wearing a t-shirt and shorts.
Immediately after the incident, a DMACC employee assisted Carter. A security officer was called and a search of the campus was undertaken. A little later, Carter and several others went outside the building where the incident had occurred. Carter observed Julius Imafidon outside the building in the parking lot, and she thought he might be the perpetrator. She was unable to make a positive identification at that time. When Carter saw Imafidon, he was wearing overalls, a hat, and a t-shirt, and he had a backpack. Several days later, she picked Imafidon out of a photo line-up as the perpetrator.
A second incident of indecent exposure occurred at another location on the DMACC campus on October 25, 1999. The record suggests this incident occurred either a few minutes before or a few minutes after the incident involving Amanda Carter. The second incident involved an assailant with a description similar to the description provided by Carter.
Eventually, Imafidon was arrested and charged by trial information with committing two separate acts of indecent exposure at the DMACC campus on October 25, 1999. Count I involved the incident with Amanda Carter. Count II involved the second incident. The State also charged Imafidon with simple assault based on the incident with Carter.
Imafidon is a registered nurse and part-time student at DMACC. He is originally from Nigeria and speaks with an accent. He denied involvement in either incident of indecent exposure.
Imafidon's first jury trial ended in a mistrial after the jury was unable to reach a unanimous verdict on any of the charges against him. The State elected not to retry Imafidon on the second count of indecent exposure; however, he was retried on the incident involving Amanda Carter. Upon his retrial on Count I, the jury convicted Imafidon of indecent exposure. He was also convicted of simple assault. The court sentenced him to 365 days in jail for indecent exposure and thirty days in jail for simple assault, to be served concurrently. Both sentences were suspended. Imafidon appeals.
II. EXCLUSION OF SECOND ACT OF INDECENT EXPOSURE.
We first address defendant's claim that the trial court should have allowed the jury to hear evidence at his second trial that a similar act of indecent exposure was committed on the DMACC campus near the time that Amanda Carter was accosted.
At Imafidon's first trial, witnesses gave testimony regarding the circumstances of both acts of indecent exposure. The acts of exposure were similar in nature and the description of the assailant in the second incident matched the description provided by Carter. At the commencement of the defendant's retrial, Imafidon's trial counsel advised the court that he intended to present evidence regarding the second incident of indecent exposure even though the State had decided not to pursue its charges regarding that incident at Imafidon's retrial. The State objected alleging that any evidence regarding the second incident would not be relevant. The trial court ruled Imafidon could not mention the other incident of exposure during his retrial.
A. Standard of review. We generally review evidentiary rulings for abuse of discretion. Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997).
B. Merits. We believe the trial court abused its discretion in determining the evidence of the other incident of indecent exposure was not relevant to Imafidon's case. A defendant may offer evidence tending to incriminate another, so long as it is confined to substantive facts and creates more than mere suspicion that the other person committed the offense. State v. Farmer, 492 N.W.2d 239, 242 (Iowa Ct.App. 1992). The circumstances surrounding the second incident were very similar to the incident involving Carter. In each case the assailant was a black man wearing shorts. The assailant made similar comments during each of the incidents. The State obviously believed the perpetrator of both incidents was the same person. When Carter and others observed Imafidon in a parking lot at DMACC after Carter was accosted, he was wearing jeans or overalls, rather than shorts, and a hat. Information regarding the clothing worn by the assailant in the incident that did not involve Carter arguably supports Imafidon's defense that he was misidentified. This evidence would create more than a mere suspicion that someone other than Imafidon was the assailant in the first incident. We conclude this evidence was relevant and should have been admitted for the jury's consideration. In view of this conclusion, we need not address Imafidon's other contentions on appeal. We reverse and remand for a new trial.
REVERSED AND REMANDED.