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In Whited, the jury consulted both dictionary and medical dictionary definitions of "trichomonas," which the complaining witness had been diagnosed with. 2002 WL 180362, at *2.
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No. 1-629 / 00-1333.
Filed February 6, 2002.
Appeal from the Iowa District Court for Page County, G. C. ABEL, Judge.
James Whited appeals from his convictions and sentences for three counts of lascivious acts with a child and two counts of third-degree sexual abuse in violation of Iowa Code sections 709.8 and 709.4(2) (1997). REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, Martha J. Lucey, Assistant State Appellate Defender, and James Whited, Anamosa, pro se, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Verd R. Bailey, County Attorney, and Richard H. Davidson, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
James Whited appeals from his convictions and sentences for three counts of lascivious acts with a child and two counts of third-degree sexual abuse in violation of Iowa Code sections 709.8 and 709.4(2) (1997). He contends (1) his trial counsel provided ineffective assistance of counsel in a number of respects, (2) the trial court abused its discretion in failing to grant his motion for new trial due to jury misconduct, and (3) the trial court abused its discretion in failing to state reasons for the imposition of consecutive sentences. James Whited, by way of pro se supplemental brief, alleges (1) his counsel was ineffective in a number of other respects, (2) he was denied a fair trial due to prosecutorial misconduct, (3) the evidence was insufficient to support his convictions, and (4) various other complaints regarding the trial process. Because we find defendant should have been granted his motion for new trial based on jury misconduct, we reverse and remand.
I. Background Facts and Proceedings . James Whited lived with T.R. and her mother, L.O., during 1997 and 1998. In January 1998, while L.O. was hospitalized for approximately ten days, Whited took care of T.R. T.R. testified that during this time Whited began sexually abusing her. In April of 1999, T.R. was diagnosed with trichomonas, a virus that may be transmitted through sexual contact. Whited was charged by trial information with four counts of lascivious acts with a child and four counts of third-degree sexual abuse in violation of Iowa Code sections 709.8 and 709.4(2).
T.R. turned thirteen years old in January 1998.
During deliberations, one juror looked up "trichomonas" in a dictionary and read the definition to the other jurors. Later, another juror looked up the term in a medical dictionary and related her findings to the other jurors. Whited was convicted of three counts of lascivious acts and two counts of third-degree sexual abuse. He was given indeterminate five-year terms of incarceration on each lascivious acts count to be served concurrently with one another and was given concurrent indeterminate ten-year sentences on each sexual abuse count. The sentences for lascivious acts and sexual abuse were to run consecutively. Whited appeals.
II. Jury Misconduct . We first examine Whited's claim that the trial court erred in refusing to grant his motion for new trial based on juror misconduct. We review the district court's rulings on juror misconduct claims for an abuse of discretion. State v. Wells, 629 N.W.2d 346, 352 (Iowa 2001). An abuse of discretion is not found unless the decision was clearly unreasonable. State v. Tinius, 527 N.W.2d 414, 417 (Iowa Ct. App. 1994).
During trial, T.R.'s physician was called to testify by the State. The doctor testified that she treated T.R. in November of 1998, approximately one month after the defendant left the home. T.R. reported having a foul vaginal odor and discharge. The doctor diagnosed T.R. with group B strep, a bacterial infection. In April of 1999, T.R. was returned to the doctor for examination after her mother reported sexual abuse. No physical evidence of abuse was discovered during the internal exam. However, T.R. was diagnosed with trichomonas. The doctor testified that trichomonas is contracted sexually. She also offered her opinion that T.R. had trichomonas in November of 1998. Most notably, the doctor testified, "Trichomonas is a sexually transmitted disease, and, therefore, if there's a positive, that means there has been some sexual contact."
On cross-examination, defense counsel elicited the following testimony from the doctor:
Q. Trichomonas. You said it's an STD, sexually transmitted disease?
A. Yes, it is.
Q. That's not totally true. It's labeled as an STD, isn't it?
A. It is labeled as a sexually transmitted disease.
Q. And you told the jury it only come[s] from sexual transmission. That's not true, is it?
A. Sexual contact.
Q. That's not true is it, Doctor?
A. The organism can live for three hours on an inanimate object.
Q. Thank you very much. It can also be present from birth, not as likely in a 13 year old, but can be present. These are from your own atlas, right?
A. That's right. It would be transmitted — it would be transmitted through the vaginal canal of the mother in neonates. It would be unlikely that it would have been transmitted from birth.
Q. Absolutely. No question about that, Doctor, but it can. So when you said doesn't, that was wrong?
A. I will expand my statement to say that the organism can live for three hours, it can be transmitted through the vaginal canal in a mother, and it's very unlikely that it would live for 13 years without some sign prior to that.
. . .
Q. And it can be transmitted from inanimate objects, and we're talking toilet seats, because it lives for three hours outside the human body, right?
A. That is correct.
On cross-examination, the doctor also testified that she did not know when T.R. would have contracted trichomonas, and that the error rate in diagnosing trichomonas could be as high as fifty percent.
In the course of jury deliberations, the jurors requested and received a dictionary from the court attendant. The dictionary was provided without the knowledge of the judge or the parties. The jurors used the dictionary to look up the definition of trichomonas. This definition, describing trichomonas as "a sexually transmitted disease," was then read aloud to the jury. While on overnight recess, another juror went to a pharmacy and looked up trichomonas in a medical dictionary. The medical dictionary described trichomonas as a sexually transmitted disease that is generally treated by antibiotics. The juror related these findings to the rest of the jury. After two days of deliberation, the jury returned verdicts of not guilty on three counts of the trial information and guilty on the remaining counts. Upon discovering the jurors' conduct in post-trial interviews, the defendant filed a motion for a new trial. After hearing testimony from the jurors, the trial court denied defendant's motion.
In determining whether a jury verdict must be impeached due to misconduct, a three-part test is utilized. State v. Smith, 573 N.W.2d 14, 18 (Iowa 1997).
First, the evidence from the jurors must consist only of objective facts as to what actually occurred in or out of the jury room bearing on misconduct. Second, the acts or statements complained of must exceed tolerable bounds of jury deliberation. Third, and finally, it must appear the misconduct was calculated to, and with reasonable probability did, influence the verdict.
Id. (citation omitted). Here, the trial court found juror misconduct occurred. See Tinius, 527 N.W.2d at 417 ("The use of a dictionary or other similar nonlegal materials by the jury during their deliberations constitutes jury misconduct."). The only question presented for our consideration then is whether this misconduct influenced the verdict.
In it's ruling, the trial court found the use of the dictionaries did not influence the jury's verdict. In making this determination, the trial court referred to the case of State v. Tinius, where jurors read the definition of "reasonable" from a dictionary. Tinius, 527 N.W.2d at 415. In Tinius, this court held the district court did not abuse its discretion in denying the defendant's request for a new trial because the dictionary definition of "reasonable" did not conflict with the legal definition of "reasonable doubt," as explained in the jury instructions, and did not contradict any other aspect of the jury's instructions. Id. at 417. In the case at bar, the trial court found the definitions of trichomonas were consistent with the other information available and provided during the course of the trial. On this basis, the court concluded the jury's misconduct amounted to harmless error.
We first note this case is distinguishable from Tinius and cases from this and other jurisdictions involving juror misconduct resulting from the use of a dictionary. Tinius and the vast majority of dictionary cases involve the use of a dictionary to define legal terms or other terms used in the jury instructions. As the Eight Circuit has stated:
See e.g., State v. Arnold, 543 N.W.2d 600, 604-05 (Iowa 1996) (jurors looking up "risk" in dictionary held not to influence the verdict); In re Estate of Hughbanks, 506 N.W.2d 451, 455 (Iowa Ct. App. 1993) (finding the use of a dictionary to look up the terms "family" and "management" did not influence verdict where there was no indication that the jury utilized any of the definitions in reaching their verdict); Iowa-Illinois Gas Elec. Co. v. Black Veatch, 497 N.W.2d 821, 829 (Iowa 1993) (finding no influence where jurors looked up terms "sole," "proximate," "highest," "standard," "engineering" and "profession"); and In re Cory's Estate, 169 N.W.2d 837, 846 (Iowa 1969) (procurement of dictionary definitions of `undue' and `undue influence' did not influence verdict where terms were within jurors common knowledge).
Definitions of words like "callous" and "wanton" are not presented through witnesses at trial, nor are they factual assertions subject to cross-examination. This distinction between evidence of fact and definition of law reflects the distinct functions of jury and judge in criminal trials.
United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988).
Here, the definition of trichomonas clearly qualifies as evidence of fact. While the definition provided in both dictionaries was consistent with the doctor's testimony to a degree, it did not present a full description of the information elicited at trial. The State argues the definitions of trichomonas did not contradict the doctor's testimony. However, we find it did serve as evidence, outside the record, which reinforced the doctor's opinion that T.R. had contracted trichomonas through sexual contact. Apart from the doctor's testimony, the only evidence of Whited's guilt is the testimony of T.R. Because T.R.'s testimony was inconsistent, we find the jury's misconduct probably influenced their verdict. As a result, we find the trial court's denial of defendant's motion for new trial to be an abuse of discretion. Accordingly, we reverse and remand this case for a new trial. We need not consider defendant's other issues on appeal.
REVERSED AND REMANDED.