Opinion
No. 3-941 / 03-0209.
Filed December 24, 2003.
Appeal from the Iowa District Court for Black HawkCounty, George L. Stigler, Judge.
Hasim Kostic appeals from his conviction for sexual abuse in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Defendant, Hasim Kostic appeals from his conviction for sexual abuse in the third degree. He claims the district court erred by permitting a police officer to give inadmissible opinion testimony concerning an item of physical evidence. We affirm.
I. Background Facts Proceedings
On July 23, 2001, Miranda Zilk went to the defendant's home at the request of his daughter and sons to attend a birthday party. After drinking some wine, Zilk had consensual sex with defendant's son, Camil. While Zilk was getting dressed, Kostic walked into the room naked. Zilk did not want to have sex with Kostic. She told him "no" and tried to push him away. Zilk testified that Kostic pushed her onto the floor, lifted up her dress, pulled off her underwear, bit her breast, penetrated her vagina with his penis, and ejaculated. After Camil took Zilk home, she changed into different clothing and called the police.
At the time of their sexual encounter, Zilk was twenty-three and Camil was a minor.
Zilk placed the clothing she had been wearing during the assault in a bag and hid it under her bed so no one would tamper with it. Later, she provided the clothing to the police.
DNA profiles created from the physical evidence recovered from Zilk's underwear, vagina, and right breast matched Kostic's DNA profile. An expert witness testified that there was less than a one in 100 billion chance of the DNA being from someone other than Kostic. Nevertheless, Kostic claimed he had no physical contact with Zilk that night. He maintained that he was outside of the house drinking beer with a friend at the time Zilk claims he sexually assaulted her.
On October 1, 2001, the State charged Kostic with sexual abuse in the third degree, a class "C" felony, in violation of Iowa Code section 709.4 (2001). The case proceeded to a jury trial, which commenced on December 17, 2002. Following trial, the jury found Kostic guilty as charged. On January 17, 2003, the defendant was sentenced to a ten-year prison term. This appeal followed.
II. Scope of Review
Challenges to evidentiary rulings are reviewed for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). Reversal is warranted only when the court abused its discretion and there was prejudice to the defendant. State v. Brown, 470 N.W.2d 30, 32 (Iowa 1991).
III. The Merits
Kostic contends the district court erred when it allowed Waterloo Police Officer Carrie Devine to testify, over objection, that the evidentiary value of the underwear worn by the victim during and immediately following the sexual assault was greater than the evidentiary value of the underwear she later changed into and wore to the hospital.
Iowa Rule of Evidence 5.702 supplies the following standard for the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
We follow a liberal view of the admission of opinion evidence under this rule. State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994). The question is whether the proffered evidence will assist the jury in resolving an issue. State v. Nelson, 480 N.W.2d 900, 903 (Iowa 1991). The district court has considerable discretion in determining whether a witness has sufficient personal experience to render an expert opinion. State v. Taylor, 336 N.W.2d 721, 726 (Iowa 1986).
Kostic argues that Devine's testimony was "questionable" because no foundation was laid to show the officer had the technical or practical knowledge necessary to weigh the value of physical evidence (clothing) in a sexual abuse case. We find no merit in defendant's contention. Devine was certified as a police officer in 1995. She testified that she has worked for the Waterloo Police Department for seven years. She has been an investigator for two years, and has previously investigated sexual abuse cases. We conclude Devine was qualified to give her opinion on the disputed matter. Accordingly, the district court did not abuse its broad discretion in admitting officer Devine's opinion testimony.
We agree with the State's contention on appeal that the disputed testimony did not require a high degree of expertise.