IN THE COURT OF APPEALS OF IOWA
No. 13-1935 Filed February 11, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
BRUCE ROLFE SPAHR, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Joel D. Yates,
Judge.
A defendant appeals from his conviction, judgment, and sentence for
sexual abuse in the second degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Laura Roan, County Attorney, and John McCormally, Assistant County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., Potterfield, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODHUE, S.J.
Bruce Rolfe Spahr appeals from his conviction, judgment, and sentence
for sexual abuse in the second degree. On January 25, 2012, Spahr was
charged with two counts of sexual abuse in the second degree as committed
against A.L. between 2003 and 2006, and two counts of sexual abuse in the
second degree committed against R.L. between 2003 and 2010. A.L. and R.L.
were both under twelve years of age at the time of the alleged sexual abuse.
Spahr was tried to a jury, and on August 30, 2013, the jury returned a verdict of
not guilty on three counts but returned a verdict of guilty on count I, which
involved only A.L. Spahr was sentenced accordingly, and the court entered a
five-year no-contact order as to A.L.
I. Background Facts and Procedures.
Spahr began a relationship with R.L. and A.L.’s mother, Christine, and
eventually they married. The four began living together in August 2003 when
A.L. was nine years old. Shortly thereafter, A.L. and R.L. were occupying an
upstairs bedroom, and Spahr and Christine were occupying a downstairs
bedroom. A.L. testified that while he was drunk, Spahr entered the girls’ upstairs
bedroom, removed her blanket and clothing, and put his hand on her “boob,”
touched her legs, and put his mouth on her genital area. A.L. further testified that
she tried to kick Spahr away but he pushed her down and held her ankles. R.L.
was in the same bedroom in a separate bed, but she did not wake up. A.L.
testified that after the incident, Spahr went downstairs to the bedroom he shared
with Christine. 3
A.L. began crying and went downstairs to the kitchen. Christine came out
to the kitchen and asked why A.L. was crying. A.L. told her mother that Spahr
had touched her “boob.” Christine asked if she was sure and that she would give
A.L. three days to tell Christine whether her report was true. A.L. testified that
afterwards Spahr told her that if she told what happened she would be taken
away from her mother and sister. She further testified that she became fearful
and did not want to lose her mother. A few days later A.L. told her mother that
what she had said about the sexual abuse had only been a nightmare.
A.L. testified that the sexual abuse by Spahr continued when he was
intoxicated and her mother was not home. She further testified that it happened
as often as one night a week for two years, and then became less frequent and
ended at the beginning of her tenth year of school.
When a senior in high school, A.L. was taking a high school course that
involved a lab co-taught by a teacher and Don DeKock, a Mahaska County
Deputy Sheriff. Deputy DeKock is experienced and trained in the area of child
sexual abuse investigation and is assigned to those duties in his capacity as a
deputy sheriff. He is also a member of the Mahaska County child protection
team. On December 8, 2011, A.L. stayed after school and reported to DeKock
and her teacher that she had been sexually abused by Spahr. Deputy DeKock
testified that he was not caught entirely off guard by A.L.’s revelation. He
testified that
you know you can sometimes—with victims of whatever—you can see something is not right here. Something is going on with this student. It could be how they react, maybe their response, etc., and at the time that doesn’t mean that they are a victim of sexual 4
abuse, it may be something else, it could be suicidal. Those types of things.
Deputy DeKock reported A.L.’s allegations to the Iowa Department of Human
Services (DHS) and a physical examination of both children was arranged. Both
girls were physically examined and no physical evidence of abuse was presented
at trial. Both girls were interviewed by a representative of the DHS, and a
videotaped copy of the interview was submitted at trial by Spahr. Deputy
DeKock observed the interview through a one-way mirror. Christine was
interviewed, and it was apparent that she did not believe the allegations of her
daughters. The depositions of A.L. and R.L. were taken and their statements in
the interview, deposition, and at trial were often inconsistent.
Deputy DeKock questioned the support Christine was providing to the girls
and felt a concern for their safety. He testified that the girls were immediately
removed from the residence and were placed in foster care.
Spahr testified on his own behalf and denied any sexual touching of the
girls. He stated that he had a difficult relationship with them. There was
evidence that A.L. did not like Spahr independently of the sexual abuse claim.
Christine testified that prior to her response to A.L.’s crying in the kitchen
on the night of the alleged first incident, she had been in her bedroom and she
knew that A.L.’s report was false because Spahr had been in the bedroom with
her during the time A.L. claimed the incident took place. She further testified that
the girls never made any other allegation of sexual abuse by Spahr to her.
Christine testified her former husband—the father of the girls—had told
her that he liked little girls. In A.L.’s interview by the DHS, she stated she had 5
told her mom that Spahr had “touched her how her real dad touched her.” In
fact, Christine had removed the girls from the home she was occupying with their
natural father when she had become concerned that he had sexually abused A.L.
and R.L., and thereafter, she filed for dissolution of their marriage. The State
filed a motion in limine excluding any reference to sexual abuse of the girls that
pre-dated the alleged abuse by Spahr. Defense counsel made an offer of proof
that limited the alleged prior abuse to statements the natural father had made
and the appropriate actions Christine had taken. Counsel’s intent was to
establish that if Christine had really felt Spahr was sexually abusing the girls, she
would have removed the children from Spahr’s presence.
The trial court deferred the ruling on the motion in limine before trial and
stated that the proffered testimony would be reassessed in light of the evidence
presented by the State. The issue was brought up after the close of the State’s
evidence and Spahr’s counsel contended that the State had opened the door by
painting Christine as a bad mother. The trial court ruled that the testimony
contained in the offer of proof was not admissible.
Spahr has appealed, claiming the district court erred by not admitting the
proffered testimony and he was denied effective assistance of counsel when
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IN THE COURT OF APPEALS OF IOWA
No. 13-1935 Filed February 11, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
BRUCE ROLFE SPAHR, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Joel D. Yates,
Judge.
A defendant appeals from his conviction, judgment, and sentence for
sexual abuse in the second degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Laura Roan, County Attorney, and John McCormally, Assistant County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., Potterfield, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODHUE, S.J.
Bruce Rolfe Spahr appeals from his conviction, judgment, and sentence
for sexual abuse in the second degree. On January 25, 2012, Spahr was
charged with two counts of sexual abuse in the second degree as committed
against A.L. between 2003 and 2006, and two counts of sexual abuse in the
second degree committed against R.L. between 2003 and 2010. A.L. and R.L.
were both under twelve years of age at the time of the alleged sexual abuse.
Spahr was tried to a jury, and on August 30, 2013, the jury returned a verdict of
not guilty on three counts but returned a verdict of guilty on count I, which
involved only A.L. Spahr was sentenced accordingly, and the court entered a
five-year no-contact order as to A.L.
I. Background Facts and Procedures.
Spahr began a relationship with R.L. and A.L.’s mother, Christine, and
eventually they married. The four began living together in August 2003 when
A.L. was nine years old. Shortly thereafter, A.L. and R.L. were occupying an
upstairs bedroom, and Spahr and Christine were occupying a downstairs
bedroom. A.L. testified that while he was drunk, Spahr entered the girls’ upstairs
bedroom, removed her blanket and clothing, and put his hand on her “boob,”
touched her legs, and put his mouth on her genital area. A.L. further testified that
she tried to kick Spahr away but he pushed her down and held her ankles. R.L.
was in the same bedroom in a separate bed, but she did not wake up. A.L.
testified that after the incident, Spahr went downstairs to the bedroom he shared
with Christine. 3
A.L. began crying and went downstairs to the kitchen. Christine came out
to the kitchen and asked why A.L. was crying. A.L. told her mother that Spahr
had touched her “boob.” Christine asked if she was sure and that she would give
A.L. three days to tell Christine whether her report was true. A.L. testified that
afterwards Spahr told her that if she told what happened she would be taken
away from her mother and sister. She further testified that she became fearful
and did not want to lose her mother. A few days later A.L. told her mother that
what she had said about the sexual abuse had only been a nightmare.
A.L. testified that the sexual abuse by Spahr continued when he was
intoxicated and her mother was not home. She further testified that it happened
as often as one night a week for two years, and then became less frequent and
ended at the beginning of her tenth year of school.
When a senior in high school, A.L. was taking a high school course that
involved a lab co-taught by a teacher and Don DeKock, a Mahaska County
Deputy Sheriff. Deputy DeKock is experienced and trained in the area of child
sexual abuse investigation and is assigned to those duties in his capacity as a
deputy sheriff. He is also a member of the Mahaska County child protection
team. On December 8, 2011, A.L. stayed after school and reported to DeKock
and her teacher that she had been sexually abused by Spahr. Deputy DeKock
testified that he was not caught entirely off guard by A.L.’s revelation. He
testified that
you know you can sometimes—with victims of whatever—you can see something is not right here. Something is going on with this student. It could be how they react, maybe their response, etc., and at the time that doesn’t mean that they are a victim of sexual 4
abuse, it may be something else, it could be suicidal. Those types of things.
Deputy DeKock reported A.L.’s allegations to the Iowa Department of Human
Services (DHS) and a physical examination of both children was arranged. Both
girls were physically examined and no physical evidence of abuse was presented
at trial. Both girls were interviewed by a representative of the DHS, and a
videotaped copy of the interview was submitted at trial by Spahr. Deputy
DeKock observed the interview through a one-way mirror. Christine was
interviewed, and it was apparent that she did not believe the allegations of her
daughters. The depositions of A.L. and R.L. were taken and their statements in
the interview, deposition, and at trial were often inconsistent.
Deputy DeKock questioned the support Christine was providing to the girls
and felt a concern for their safety. He testified that the girls were immediately
removed from the residence and were placed in foster care.
Spahr testified on his own behalf and denied any sexual touching of the
girls. He stated that he had a difficult relationship with them. There was
evidence that A.L. did not like Spahr independently of the sexual abuse claim.
Christine testified that prior to her response to A.L.’s crying in the kitchen
on the night of the alleged first incident, she had been in her bedroom and she
knew that A.L.’s report was false because Spahr had been in the bedroom with
her during the time A.L. claimed the incident took place. She further testified that
the girls never made any other allegation of sexual abuse by Spahr to her.
Christine testified her former husband—the father of the girls—had told
her that he liked little girls. In A.L.’s interview by the DHS, she stated she had 5
told her mom that Spahr had “touched her how her real dad touched her.” In
fact, Christine had removed the girls from the home she was occupying with their
natural father when she had become concerned that he had sexually abused A.L.
and R.L., and thereafter, she filed for dissolution of their marriage. The State
filed a motion in limine excluding any reference to sexual abuse of the girls that
pre-dated the alleged abuse by Spahr. Defense counsel made an offer of proof
that limited the alleged prior abuse to statements the natural father had made
and the appropriate actions Christine had taken. Counsel’s intent was to
establish that if Christine had really felt Spahr was sexually abusing the girls, she
would have removed the children from Spahr’s presence.
The trial court deferred the ruling on the motion in limine before trial and
stated that the proffered testimony would be reassessed in light of the evidence
presented by the State. The issue was brought up after the close of the State’s
evidence and Spahr’s counsel contended that the State had opened the door by
painting Christine as a bad mother. The trial court ruled that the testimony
contained in the offer of proof was not admissible.
Spahr has appealed, claiming the district court erred by not admitting the
proffered testimony and he was denied effective assistance of counsel when
counsel did not object to Deputy DeKock’s testifying in a manner that commented
on the credibility of the testimony of Christine and both girls.
II. Standard of Review.
Evidentiary rulings issued by a trial court are reviewed for abuse of
discretion. State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013). Ineffective-
assistance-of-counsel claims are reviewed de novo. State v. Rodriguez, 804 6
N.W.2d 844, 848 (Iowa 2011). Ordinarily, claims of ineffective assistance of
counsel are reserved for postconviction relief but can be considered on direct
appeal when the available record is adequate. Id.
III. Error Preservation.
As to the evidentiary issue, the State does not contest error preservation.
The issue was raised before the trial court, and it was ruled on. See LaMasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012). The issue of ineffective assistance
of counsel is an exception to the normal rule of error preservation. Rodriguez,
804 N.W.2d at 848.
IV. Discussion.
A. Offer of Proof.
Evidence of a person’s character or a trait of a person’s character is not
admissible for the purpose of proving the person acted in conformity therewith on
a particular occasion. Iowa R. Evid. 5.404(a). An exception exists within the
discretion of the court if the evidence is probative of truthfulness or
untruthfulness. Iowa R. Evid 5.608(b). Spahr’s effort was not directed to
truthfulness or the lack thereof but to specific conduct on a prior occasion.
Additionally, application of the exception appears to be limited to cross-
examination. Id.
An appellate court will disturb a trial court’s ruling on evidence only if it
amounts to an abuse of discretion. State v. Martin, 385 N.W.2d 549, 552 (Iowa
1986). An abuse of discretion exists only when the trial court’s ruling is on
grounds clearly untenable or to an extent clearly unreasonable. Id. The trial 7
court’s ruling cannot be said to be clearly untenable or unreasonable given the
contents of the offer of proof and the applicable rules of evidence.
B. Ineffective Assistance of Counsel.
Spahr’s counsel did not object to State witness Deputy DeKock’s
statement that he was not completely caught off guard by A.L.’s statement that
Spahr had sexually abused her and intimating that he could see something was
not right with A.L. Further, counsel did not object when DeKock testified that
after interviewing Christine and observing the interview of the children, he was
concerned with their safety and the children were immediately removed from the
home and placed in foster care.
In child abuse cases, experts are allowed to express an opinion on
matters that explain mental and psychological symptoms present in children that
have been sexually abused. See State v. Meyers, 382 N.W.2d 91, 97 (Iowa
1986). However, they are not permitted to directly or indirectly render an opinion
on the credibility of a witness. Id.
In a recent case where an expert witness testified that she had
recommended therapy for the victim and recommended she stay away from the
alleged perpetrator, our supreme court held that the testimony crossed the line
and was indirectly vouching for her credibility. State v. Dudley, 856 N.W.2d 668,
678 (Iowa 2014). Deputy DeKock’s testimony as set out above—that he
considered Christine’s reaction not to be supportive of the girls and that out of
concern for the children they were immediately removed from the home and
placed in foster care—is substantially similar to the testimony that was ruled
inadmissible in Dudley. See id. DeKock’s testimony and action taken clearly 8
imply he did not believe Christine and did believe the girls. Trial counsel did not
object to DeKock’s testimony but whether trial counsel had a reason for not doing
so cannot be determined.
The record is inadequate to address Spahr’s claim of ineffective
assistance of counsel. Only in rare cases is the record adequate to resolve
issues of ineffective assistance of counsel on direct appeal. State v. Tate, 710
N.W.2d 237, 240 (Iowa 2006). Spahr’s trial counsel should be allowed to
respond to the claim of ineffective assistance of counsel. See State v. Brubaker,
805 N.W.2d 164, 170 (Iowa 2013) (noting “[a] primary reason for [considering
ineffective assistance claims in postconviction proceedings] is to ensure
development of an adequate record to allow the attorney charged to respond to
the defendant’s claims”).
The trial court is affirmed, but the claim of ineffective assistance of counsel
is preserved for postconviction relief.
AFFIRMED.