STATE OF IOWA, Plaintiff-Appellee, vs. JUSTIN ADAM DEMOSS, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-363 / 06-1337
Filed July 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN ADAM DEMOSS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monroe County, Annette
Scieszinski, Judge.
Justin Adam DeMoss appeals his judgment and sentence for seconddegree sexual abuse and indecent contact with a child.
CONVICTION
AFFIRMED; NO-CONTACT ORDER VACATED AND REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, Steve Goodlow, County Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
MAHAN, P.J.
Justin Adam DeMoss appeals his judgment and sentence for eleven
counts of second-degree sexual abuse, class B felonies in violation of Iowa Code
section 709.3(2) (2003), and twelve counts of indecent contact with a child,
aggravated misdemeanors in violation of section 709.12. He argues the district
court erred in (1) denying his motion for judgment of acquittal; (2) denying his
motions for mistrial and new trial; and (3) determining the length of the no-contact
order. We affirm the conviction and vacate and remand the no-contact order for
resentencing.
I. Background Facts and Proceedings
Sometime around May 20, 2005, eleven-year-old C.G. reported “bad
touching” by DeMoss. C.G. was interviewed and examined on May 31, 2005.
The medical examination revealed no physical evidence of sexual assault. The
physician who performed the exam, Dr. Mark Easter, nonetheless concluded
based on C.G.’s behavior and statements he had been assaulted no more than
twenty times, but at least “four to eight times or so.”
The same day, Sheriff Daniel Johnson located DeMoss. He told DeMoss
he wanted to talk to him at the Law Center. DeMoss agreed to go with Johnson
and rode in the front seat of the patrol car. DeMoss asked Johnson why they
were going to the Law Center, and Johnson told him they would talk when they
got there.
Sergeant Todd Stewart joined Johnson and DeMoss when they
arrived. DeMoss signed a statement waiving his Miranda rights. When asked if
he knew why he was there, DeMoss answered he had heard rumors involving
himself and C.G. The officers told him they knew about the situation and advised
3
DeMoss to tell the truth. According to both officers, DeMoss answered their
questions and admitted to fondling C.G. at least twelve times and performing
anal sex with him ten or eleven times. He then wrote out and signed a threepage statement describing how he had gone from baby-sitting C.G. in November
2004, to being his friend, and to being a sexual partner in April and May 2005.
DeMoss was friends with some of C.G.’s older siblings and had helped
baby-sit for the younger children, including C.G., while their mother worked late.
In November C.G.’s mother asked if C.G. could move in with DeMoss due to
C.G.’s behavioral problems and other difficulties. C.G. moved in with DeMoss on
November 20, 2004. The arrangement was only supposed to last one month, but
C.G. continued living with DeMoss for six months. During some of that time,
DeMoss shared an apartment with two other individuals. According to DeMoss’s
statement, in February 2005, C.G. allegedly began both asking DeMoss, who is
homosexual, about DeMoss’s sexual orientation and questioning his own
orientation. It was at that time, DeMoss wrote, that the two “began to see each
other.”
DeMoss claimed he told C.G. they could not engage in a sexual
relationship due to their age difference. DeMoss and C.G. moved into a twobedroom house on April 20, 2005. According to DeMoss’s statement, it was at
this time he and C.G. began engaging in sexual activities. The statement goes
on to describe in detail the progression of those activities. It states the two had
sexual intercourse eleven times and oral sex three times. The statement also
mentions hand-to-genital contact, but does not state a specific number of
occasions.
4
At trial DeMoss testified he never had sexual contact with C.G. He stated
the written statement only recounted the rumors he heard about himself and C.G.
He also stated officers gave him suggestions for details and dates. C.G. testified
via closed circuit television. He stated DeMoss took off their clothes and touched
C.G.’s anus with his penis and inserted his penis into C.G.’s anus. He testified
this happened “several times” but could not state exactly how many times. On
cross-examination, defense counsel elicited affirmative answers to whether the
abuse occurred once, twice, and three times. When asked if it happened four
times, C.G. stated he did not know.
He testified he did not remember “the
particulars about all the contacts.”
On the second day of trial, DeMoss moved for mistrial. The trial judge had
asked the court reporter, outside the presence of the jury, whether any witness
had yet spoken to the issue of identity. The court reporter acknowledged no one
had pointed to the defendant. The judge told the court reporter to advise both
attorneys the judge had asked whether identity was in the record. Both attorneys
agreed there had been no evidence as to identity. The court heard arguments
concerning the motion outside the presence of the jury, then denied it. The State
recalled Sergeant Stewart to identify DeMoss.
The jury found DeMoss guilty of eleven counts of second-degree sexual
abuse and twelve counts of indecent contact with a child.
The district court
sentenced him to indeterminate terms of imprisonment not exceeding twenty-five
years on each count of second-degree sexual abuse and indeterminate terms of
imprisonment not exceeding two years and a $500 fine on each count of indecent
5
contact. The court ordered the sentences to run concurrently. It also issued a
twenty-six-year no-contact order for the child and his family. DeMoss appeals.
II. Standard of Review
We review a challenge to the sufficiency of the evidence for errors at law.
State v. Nitcher, 720 N.W.2d 121, 134 (Iowa 2006). Our review of the district
court’s denial of DeMoss’s motions for mistrial and new trial on the basis of
judicial impartiality is abuse of discretion. See State v. Choudry, 569 N.W.2d
618, 620 (Iowa Ct. App. 1997); State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994).
To the extent DeMoss alleges constitutional error, we review de novo. State v.
Bowers, 725 N.W.2d 435, 441 (Iowa 2006).
We review the district court’s
sentence for errors at law. Id.
III. Merits
A. Sufficiency
DeMoss concedes there is sufficient evidence to convict him of one count
of second-degree sexual abuse and two counts of indecent contact. He argues,
however, there is insufficient evidence to convict him of all eleven counts of
second-degree sexual abuse and twelve counts of indecent contact.
Generally, an out-of-court confession alone does not warrant conviction
unless there is independent corroborating evidence confirming the confession.
State v. Polly, 657 N.W.2d 462, 466 (Iowa 2003). The State must show sufficient
evidence to corroborate DeMoss’s written statement in order for that statement to
constitute the basis of his conviction.
See id. at 467.
There need not be
corroborating evidence for every element of the crime charged.
Id. at 467.
Further, “[c]orroboration need not be strong nor need it go to the whole case so
6
long as it confirms some material fact connecting the defendant with the crime.”
Liggins, 524 N.W.2d 181, 187 (Iowa 1994). Individual items of circumstantial
evidence, though not enough individually to provide sufficient corroboration, may
be taken as a whole to corroborate the confession.
Id.
The existence of
corroborating evidence is a legal question for the court; the sufficiency of that
evidence is a fact question for the jury. State v. Liggins, 524 N.W.2d 181, 187
(Iowa 1994).
In reviewing sufficiency-of-the-evidence claims, we look to whether the
verdict is supported by substantial evidence. State v. Bower, 725 N.W.2d 435,
441 (Iowa 2006). Evidence is substantial if a rational jury would be convinced of
the defendant’s guilt beyond a reasonable doubt. State v. Nitcher, 720 N.W.2d
547, 556 (Iowa 2006). We consider all the evidence in the record, but view it in a
light most favorable to the verdict. State v. Hutchison, 721 N.W.2d 776, 780
(Iowa 2006).
In this case, first, C.G. told Dr. Easter sexual contact with DeMoss
“happened lots of times,” in both the daytime and nighttime. He testified on direct
examination it happened several times. Second, Dr. Easter himself concluded
sexual contact occurred four to eight times or so, but less than twenty times.
Third, C.G. spent several nights with DeMoss when DeMoss was baby-sitting
him. DeMoss also had unlimited access to the child when the two were living
together for six months.
Fourth, Dr. Easter found no evidence of physical
trauma, but noted it had been two weeks since the last alleged sexual encounter
and opined there would be little trauma if lubrication was used and the contact
was not rough. DeMoss’s statement indicated he “eased” C.G. into anal sex.
7
Fifth, DeMoss also wrote what appears to be a love letter to C.G., though
DeMoss never gave the child the letter.
In the letter, DeMoss asks C.G.’s
forgiveness for the “one thing” that happened one night.
He states his
“conscience is full of guilt.” He also references C.G. getting out of bed and going
upstairs when someone came to the door. At that point, the letter states, “reality
began to sink in for me.” Sixth, DeMoss testified most of his written confession
was true, including the child’s purported interest in sexual orientation and sex
and the child’s perception that the house was their “first place together.” The
only parts he denies are those having to do with sexual contact. Finally, DeMoss
concedes there is evidence sufficient to convict him of one count of seconddegree sexual abuse and two counts of indecent contact.
We conclude there is sufficient evidence to support the jury’s verdict.
B. Judicial Impartiality
DeMoss claims he was denied a fair trial when the trial judge asked
whether identification evidence had been entered into the record. He argues the
judge’s interference caused him prejudice.
According to the Iowa Judicial Code, a judge must recuse himself or
herself when his or her impartiality might reasonably be questioned. See Canon
3C(1). The test is based on the judgment of a reasonable person. State v.
Biddle, 652 N.W.2d 191, 198. No recusal is necessary unless prejudice occurs.
Id. “[A] trial judge has the duty to control and conduct its court in an orderly and
proper manner.” State v. Cuevas, 288 N.W.2d 525, 531 (Iowa 1980). Further,
“[a] judge is allowed to manage the trial, including the order of proof.” Biddle,
652 N.W.2d at 199.
8
In this case, the judge explained to both parties she was keeping track of
the evidence that had been entered and wanted to check her recollection. The
inquiry was made outside the presence of the jury and was not ex parte. Further,
the judge did not offer advice to either party. See State v. Glanton, 231 N.W.2d
31, 34-35 (Iowa 1975). We therefore conclude the judge was simply fulfilling her
role of managing the trial.
Even if we were concerned about the judge’s question, we would have to
conclude DeMoss was not prejudiced. Identity was not at issue during the trial.
According to the court’s rulings, witnesses gestured toward DeMoss during their
testimony about him. Though the State must prove identity beyond a reasonable
doubt, identity may be inferred or inherent in the record. State v. Jenson, 216
N.W.2d 369, 374-75 (Iowa 1974).
C. Sentencing
The State concedes and we agree that DeMoss was improperly
sentenced as to the no-contact order. DeMoss was sentenced on August 14,
2006. He was therefore subject to new Iowa Code section 664A.5 (2007). The
portion of his sentence concerning the no-contact order is vacated.
We affirm DeMoss’s conviction, vacate the no-contact order, and remand
for resentencing on the no-contact order.
CONVICTION AFFIRMED; NO-CONTACT ORDER VACATED AND
REMANDED FOR RESENTENCING.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
