STATE OF IOWA, Plaintiff-Appellee, vs. TIMOTHY JOHN PAULSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-1057 / 06-0141
Filed February 14, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMOTHY JOHN PAULSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Kossuth County, Don E. Courtney,
Judge.
Defendant appeals his conviction and sentence for sexual abuse in the
second degree, lascivious acts with a child, and dissemination and exhibition of
obscene material to a minor. AFFIRMED.
Patricia Reynolds, Acting State Appellate Defender, and Greta Truman,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Todd Holmes, County Attorney, and Ann M. Gales, Assistant County
Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Baker, JJ.
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BAKER, J.
Timothy Paulson appeals his conviction and sentence for sexual abuse in
the second degree, three counts of lascivious acts with a child, and
dissemination and exhibition of obscene material to a minor, in violation of Iowa
Code sections 709.3(2), 709.8(1) and 728.2. He argues the trial court erred in
admitting evidence concerning his prior conviction of lascivious acts with a child.
He also claims the trial court erred in permitting witnesses to testify in violation of
his Sixth Amendment right to confrontation.
I.
Background Facts and Proceedings
Between January 1, 2000 and November 8, 2001, C.O., and her friend
C.S., spent time with the defendant Timothy Paulson in his apartment. Paulson
pleaded guilty in December 2002, and was convicted in March 2003, to
lascivious acts with a child – the victim was C.S. While those charges were
being investigated, C.O., who was eight years old at the time, denied any abuse
by defendant.
In response to child protection authorities’ request, C.O. was
examined for signs of sexual abuse. The examination was inconclusive: it did
not reveal whether C.O. had or had not been sexually abused.
In August 2004, C.O. told her mother that the defendant had sexually
touched her. When asked why she did not tell her mother about the abuse
previously, C.O. revealed that she was afraid to tell because the defendant had
threatened to kill her parents if she told. At trial, C.O. testified that the defendant
twice made her watch “sexual movies” and that on numerous occasions he had
touched her vagina under her clothes and made her take off her clothes while
they played board games.
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The defendant was charged with three counts of sexual abuse in the
second degree, three counts of lascivious acts with a child, dissemination and
exhibition of obscene material to a minor, and one count of lascivious conduct
with a minor, in violation of Iowa Code sections 709.3(2), 709.8(1), 709.14, and
728.2.
The defendant filed a motion in limine, requesting that evidence of his
2003 conviction for lascivious acts with a child be limited to evidence of the
conviction only. The trial court overruled defendant’s motion and allowed the
State to go into more detail than just the record of the conviction. The trial court
permitted the admission of evidence including the nature of the charge, the
underlying facts, the investigation, and the defendant’s guilty plea.
Prior to trial, the State filed an application for protection of child victim and
witness. The defendant resisted the application. The trial court conducted a
pretrial hearing to determine whether the use of the closed-circuit television
procedure was necessary. At the pretrial hearing, Dr. Natalie Alsop, a clinical
child psychologist, testified that C.O. was very fearful of the defendant and that
C.O. would be traumatized by testifying in the physical presence of the defendant
to the extent it would significantly impair her ability to communicate. The trial
court granted the State’s application, specifically finding that C.O “would suffer
trauma if required to testify in the physical presence of the Defendant and that it
would impair C.O.’s ability to communicate.”
Additionally, William Pischke, a Department of Human Services child
abuse investigator, testified that C.S. would be traumatized by testifying in the
presence of the defendant and that it would impair her ability to communicate.
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The trial court found that closed-circuit measures were also necessary to protect
C.S. from being in the presence of the defendant, because the trauma caused by
her testifying would impair her ability to communicate. C.S.’s examination took
place in the jury deliberation room, with the defendant in the courtroom.
The jury found the defendant guilty on three counts of sexual abuse in the
second degree, three counts of lascivious acts with a child, one count of
dissemination and exhibition of obscene material to a minor and not guilty of
lascivious conduct with a minor. Defendant was sentenced to three concurrent
terms of incarceration not to exceed twenty-five years on the sexual abuse in the
second degree convictions; three concurrent five-year terms of incarceration on
the lascivious acts convictions, consecutive to the term of incarceration on the
sexual abuse convictions; and a concurrent one-year sentence for dissemination
and exhibition of obscene material. The defendant appeals.
II.
Standard of Review
We review the rulings on the admission of evidence of prior bad acts for
abuse of discretion. State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004). The trial
court has leeway to determine the evidence’s probative value against the
dangers of unfair prejudice. Id. We will disturb the trial court’s determinations
only if the grounds on which they rely are clearly unreasonable or untenable.
State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). We review constitutional
challenges de novo. State v. Gregg, 464 N.W.2d 431, 432 (Iowa 1990).
III.
Preservation of Error
The defendant made a pretrial motion, requesting that the prior bad acts
concerning his conviction for lascivious acts with a child be precluded from
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evidence, and objected to such testimony at trial.
The State asserts that,
because the defendant objected based on Iowa Code section 701.11 (2005), not
on the basis of Iowa Rule of Evidence 5.404(b), error is not preserved.
Issues must be raised and passed upon by the district court before they
can be decided on appeal.
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002). The underlying rationale for error-preservation rules include “that the trial
court’s ruling on an issue may either dispose of the case or affect its future
course” and that it is important to give “opposing counsel notice and an
opportunity to be heard on the issue and a chance to take proper corrective
measures or pursue alternatives in the event of an adverse ruling.” State v.
Tobin, 333 N.W.2d 842, 844 (Iowa 1983). The purpose of the error-preservation
rules were met by the defendant’s timely objections to the admission of details
concerning his prior conviction. Error was preserved.
IV.
Admissibility of Prior Bad Acts
The defendant asserts that the trial court erred in admitting prior bad acts
when it admitted evidence of the details concerning his 2003 conviction for
lascivious acts with a child. Iowa Rule of Evidence 5.404(b) states, “[E]vidence
of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity therewith.”
The trial court ruled that evidence of the details of the 2003 conviction was
admissible under Iowa Code section 701.11, which states in pertinent part:
In a criminal prosecution in which a defendant has been charged
with sexual abuse, evidence of the defendant’s commission of
another sexual abuse is admissible and may be considered for its
bearing on any matter for which the evidence is relevant. This
evidence, though relevant, may be excluded if the probative value
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of the evidence is substantially outweighed by the danger of unfair
prejudice.
There is no question that the defendant’s prior conviction was admissible
under section 701.11. The issue is whether the details of the conviction were
relevant and whether, if relevant, the probative value was substantially
outweighed by prejudicial effect.
Iowa Code section 701.11 is patterned after Federal Rules of Evidence
413 and 414, which establish exceptions to the general prohibition against
character evidence in cases of sexual assault and child molestation. Evidence of
prior sexual assaults of children is admissible for any purpose for which it is
relevant in the prosecution of other sexual assault cases. Fed. R. Evid. 414(a).
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Iowa R. Evid. 5.401. “The test
is ‘whether a reasonable [person] might believe the probability of the truth of the
consequential fact to be different if he knew of the proffered evidence.’” State v.
Larsen, 512 N.W.2d 803, 807 (Iowa Ct. App.1993) (citation omitted).
The details of the 2003 conviction were relevant to legitimate issues in
dispute. The defendant completely denied touching C.O.’s genitals and physical
contact with C.O.
The victims reported similar abuse, during the same time
frame, from the defendant. Therefore, whether or not the defendant engaged in
the acts is made more or less probable by the details of the 2003 conviction.
We conclude the evidence is relevant. We also conclude the trial court did
not abuse its discretion in admitting the evidence because its probative value
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outweighed its prejudicial effect. See Larsen, 512 N.W.2d at 807 (the trial court
determines whether the danger of unfair prejudice created by the admission of
relevant evidence “substantially outweighs its probative value”).
Under Iowa Code section 701.11, “evidence, though relevant, may be
excluded if the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice.” Unfair prejudice is an “an undue tendency to suggest
decisions on an improper basis, commonly though not necessarily, an emotional
one.” State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988) (citations omitted).
Defendant was charged with three counts of lascivious acts with a child in
connection with his acts with C.O. and pleaded guilty on March 24, 2003 to
lascivious acts with a child in connection with his acts with C.S. The similarity of
C.S.’s and C.O.’s experiences with the defendant makes the probative value of
the details of the 2003 conviction high. See U.S. v. Julian, 427 F.3d 471, 487
(7th Cir. 2005) (“Congress enacted Rule 413 because sexual assault cases,
especially cases involving victims who are juveniles, often raise unique questions
regarding the credibility of the victims which render a defendant’s prior conduct
especially probative.”), cert. denied, ___ U.S. __ , 126 S. Ct. 1444, 164 L. Ed.2d
143 (2006); State v. Mitchell, 633 N.W.2d 295, 301 (Iowa 2001) (Neuman &
Ternus, JJ., dissenting) (“Federal Rule of Evidence 414 . . . recognizes the
special nature of crimes of sexual abuse against children, and the fact that
evidence of prior, similar actions is highly probative and relevant.”).
Additionally, the defendant completely denied any sexual abuse of C.O.,
which directly contradicted C.O.’s description.
Therefore, the need for other
evidence was substantial. See State v. Rodriquez, 636 N.W.2d 234, 242 (Iowa
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2001) (“In light of the ‘he said/she said’ nature of this disagreement, the need for
other evidence . . . was substantial.”).
The trial court was also required to consider the degree of prejudice that
would result from the admission of evidence concerning the prior acts.
Rodriquez, 636 N.W.2d at 243. The defendant contends that the probative value
of the evidence was outweighed by unfair prejudice, claiming the evidence is the
type of prior bad acts that would arouse a jury’s horror and provoke its instinct to
punish, and the jury would likely base its decision on the prior bad acts rather
than on the facts. It may be true that evidence of the prior conviction would
prejudice the jury against the defendant. However, in a case such as this, “most
of the evidence, by its nature, will be shocking and at least somewhat prejudicial.
Exclusion is required only when evidence is unfairly prejudicial and substantially
outweighs its probative value.” Mitchell, 633 N.W.2d at 301 (Neuman & Ternus,
JJ., dissenting).
“[T]his is not a case where the prior acts evidence would rouse the jury to
‘overmastering hostility.’” Rodriquez, 636 N.W.2d at 243 (citing Larsen, 512
N.W.2d at 808 (holding potential prejudicial effect of evidence concerning
subsequent acts was “neutralized by equally reprehensible nature of the charged
crime”)). The details of the 2003 conviction “did not involve conduct any more
sensational or disturbing” than the acts for which the defendant was on trial.
Larson, 512 N.W. 2d at 808 (citation omitted). Therefore, the exclusion of the
evidence is not warranted due to unfair prejudice. Because the evidence was not
unfairly prejudicial so as to substantially outweigh its probative value, it was
admissible.
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V.
Witness Testimony by Closed Circuit Television
Defendant asserts his Sixth Amendment right to confrontation was
violated because the trial court allowed C.S. and C.O. to testify via closed-circuit
television. “The central concern of the Confrontation Clause is to ensure the
reliability of the evidence against a criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding before the trier of fact.”
Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666,
678 (1990). While face-to-face confrontation is preferred, it is not required in
every instance where testimony is admitted against a defendant. Id. at 847-48,
110 S. Ct. at 3164, 111 L. Ed. 2d at 680.
In order to protect a minor “from trauma caused by testifying in the
physical presence of the defendant where it would impair the minor’s ability to
communicate,” a minor’s testimony may be taken outside the courtroom and
televised by closed-circuit in the courtroom.
Iowa Code § 915.38(a) (2005).
“However, such an order shall be entered only upon a specific finding by the
court that such measures are necessary to protect the minor from trauma.” Id.
The Supreme Court has held that, pursuant to the Confrontation Clause of
the United States Constitution, testimonial statements of witnesses absent from
trial are inadmissible unless the witness is unavailable and the defendant has
had a “prior opportunity to cross-examine” the witness. Crawford v. Washington,
541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004). Crawford
does not prohibit the procedure outlined in the Iowa statute.
Because the State’s “interest in ‘the protection of minor victims of sex
crimes from further trauma and embarrassment’ is a ‘compelling’ one,” the
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confrontation clause is not violated where the state’s interest in the physical and
psychological well-being of child abuse victims outweighs the defendant’s right to
face his accuser in court. Craig, 497 U.S. at 852, 110 S. Ct. at 3167, 111 L. Ed.
2d at 682 (citations omitted). The use of closed-circuit television testimony does
not violate the Confrontation Clause if it is necessary to protect a child witness
from significant emotional trauma. Id. at 855, 110 S. Ct. at 3169, 111 L. Ed. 2d at
685.
The “critical inquiry” is whether the “procedure is necessary” to further the
important state interest of protecting the child witness. Id. at 852, 110 S. Ct. at
3167, 111 L. Ed. 2d at 682. The trauma must be more than “mere nervousness
or excitement or some reluctance to testify.” Id. at 856, 110 S. Ct. at 3169, 111
L. Ed. 2d at 685 (citations omitted).
The trial court must find that the child
witness would be traumatized by the presence of the defendant, not by the
courtroom generally. Id. 1
The first issue here is whether Iowa’s statute comports with Maryland v.
Craig. We find Iowa Code section 915.38 satisfies Craig’s requirements because
the statute requires the trial court make a specific finding that the measures are
necessary.
Additionally, the statute provides for closed-circuit testimony to
protect the minor “from trauma caused by testifying in the physical presence of
1
The U.S. Supreme Court has articulated a three-part case-specific test to determine
necessity: (1) The trial court must hear evidence and determine whether use of the
closed-circuit television procedure is “necessary to protect the welfare of the particular
child witness,” (2) the trial court must find that “the child witness would be traumatized,
not by the courtroom generally, but by the presence of the defendant,” and (3) “the trial
court must find that the emotional distress suffered by the child witness in the presence
of the defendant is more than de minimis, i.e., more than ‘mere nervousness or
excitement or some reluctance to testify.’” Craig, 497 U.S. at 856, 110 S. Ct. at 3169,
111 L. Ed. 2d at 685.
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the defendant where it would impair the minor’s ability to communicate.” Iowa
Code § 915.38. Finally, the trial court must find the minor would be traumatized
by the presence of the defendant, not just the courtroom generally. See Craig,
497 U.S. at 856, 110 S. Ct. at 3169, 111 L. Ed. 2d at 685. Additionally, the use
of the word “trauma” in the statute implies emotional distress which is more than
de minimis. See id.
Defendant asserts there was insufficient evidence to make an adequate
showing of necessity that would justify depriving the defendant of his right to
face-to-face confrontation of C.O. and C.S.
We conclude that there was
sufficient evidence to make an adequate showing of necessity.
The trial court conducted a pretrial hearing to determine whether the use
of the closed-circuit television procedure was necessary to protect C.O. The
context of the questioning did not preclude the trial court from determining that
testifying in front of the defendant would impair C.O.’s ability to communicate.
When asked, “do you believe [C.O.] would be traumatized by testifying in front of
the Defendant to the extent it would be [sic] significantly impair her ability to
communicate?” the child psychologist replied, “Yes, I think it’s very likely.”
Moreover, the testimony of the child psychologist, who at the time of her pretrial
testimony had conducted nine sessions with C.O., was sufficient to show that
C.O. would be traumatized by the presence of the defendant and that the
emotional distress she might suffer would be more than mere nervousness or
excitement or reluctance. Finally, we do not believe the psychologist’s testimony
that C.O. might have a difficult time answering questions, and might shut down
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even if she were to testify via closed-circuit, sufficient to preclude finding that the
defendant’s presence, rather than the courtroom, would traumatize C.O.
Defendant further asserts that the testimony of William Pischke, an Iowa
Department of Human Services child abuse investigator, was insufficient to
support a showing of necessity because of lack of evidence in the record that
Pischke has any mental health training or experience. Pischke testified that C.S.
would be traumatized by testifying in the presence of the defendant and that it
would impair her ability to communicate.
We conclude that Pischke’s testimony was sufficient to show that C.S.
would be traumatized by the presence of the defendant and that the emotional
distress she might suffer in the presence of the defendant is more than mere
nervousness, excitement or reluctance to testify. See Craig, 497 U.S. at 856,
110 S. Ct. at 3169, 111 L. Ed. 2d at 685. Iowa Code section 915.38 does not
require that a witness have any specified training, experience, or education in
order to testify regarding whether the child witness’s ability to communicate
would be impaired if required to testify in the presence of a defendant. Moreover,
the record indicates Mr. Pischke has been involved in child abuse investigations
involving C.S. since 2001, has been involved with child abuse investigations for
nineteen years, and has received “hundreds and hundreds of hours of classroom
training.” The defendant’s assertion that Pischke’s testimony was insufficient to
support a showing of necessity is without merit.
VI.
Summary
First, we conclude the evidence of the details of the defendant’s 2003
conviction for lascivious acts with a child is relevant. Because its probative value
13
outweighed its prejudicial effect, the trial court did not abuse its discretion in
admitting the evidence. Second, we conclude the defendant’s Sixth Amendment
right to confrontation was not violated when the trial court allowed C.S. and C.O.
to testify at trial via closed-circuit television.
AFFIRMED.
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