State v. Elston

735 N.W.2d 196, 2007 Iowa Sup. LEXIS 88, 2007 WL 2012414
CourtSupreme Court of Iowa
DecidedJuly 13, 2007
Docket05-1980
StatusPublished
Cited by32 cases

This text of 735 N.W.2d 196 (State v. Elston) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Elston, 735 N.W.2d 196, 2007 Iowa Sup. LEXIS 88, 2007 WL 2012414 (iowa 2007).

Opinion

HECHT, Justice.

This case is before us on further review of a court of appeals decision concluding the district court did not abuse its discretion in denying defendant Mark Elston’s motion to sever a charge of indecent contact from charges of sexual exploitation and in preserving Elston’s claims of ineffective assistance of counsel for possible postconviction proceedings. We affirm.

I. Factual and Procedural Background.

Mark Elston was a friend of Brenda Neff and her husband, Dale Neff. Brenda is the mother, and Dale the stepfather, of two female children, A.E. and her sister. Elston came to the Neffs’ house almost every day to socialize with the Neffs and occasionally babysat the children. Elston and the Neffs generally spent time together in the Neffs’ bedroom, with the door shut and locked.

Debra Krebs, who socialized with Elston and the Neffs and babysat A.E. and her sister on a regular basis, became suspicious that the children were being sexually abused. On February 10, 2005, she contacted the children’s school counselor, who then met with the children. A.E. reported her stepfather had touched her inappropriately, and both children indicated they had seen “nasty pictures” on their parents’ computer.

After meeting with the children, the school counselor called the Department of Human Services (DHS) and reported suspected sexual abuse. When they were interviewed the next day by a DHS social worker and a police detective, the children essentially repeated the allegations made previously to the school counselor, and A.E. also divulged that her stepfather had photographed her in the nude. After that interview but prior to the execution of a search warrant on the Neffs’ house, the children told investigators that Elston had touched them inappropriately.

The State charged Elston with eighteen counts of sexual exploitation of a minor, in violation of Iowa Code sections 728.12(1), 728.12(3), and 728.1(7)fe) (2005), and one count of indecent contact with a child, in violation of section 709.12(2). The sexual exploitation counts charged Elston with accessing child pornography through the Neffs’ computer and participating with Mr. Neff in taking illicit photographs of A.E. from approximately July 1, 2003 through February 11, 2005. The indecent contact count alleged Elston inappropriately touched A.E. within the same timespan.

Elston filed a motion to sever the trial of the sexual exploitation of a minor counts from the trial of the indecent contact count. He contended separate trials would ensure the jury’s eompartmentalization of the evidence relevant to each charge. The district court overruled the motion.

A.E. testified at the jury trial that El-ston, on at least two occasions, put his arm *198 around her and then touched her between her clothed legs while they watched movies in the Neffs’ home. During cross-examination, A.E. conceded that Elston may have touched her accidentally. A.E. also testified that her stepfather, Dale Neff, took nude photographs of her in the Neffs’ bedroom and that Elston was sometimes present when this occurred. A.E. and her sister testified that they had observed El-ston in that same bedroom using the Neffs’ computer to observe nude pictures of young girls.'

After A.E. testified, a detective who participated in the Elston investigation.testified for the State. Through the detective, the State introduced seventeen photographs of young, naked females found on the hard drive of the computer in the Neffs’ bedroom. In addition, the State introduced numerous . photographs of young, naked females found on the Neffs’ screensaver. Although a forensics investigation of the Neffs’ computer revealed no evidence he had ever downloaded or viewed any of the particular photographs introduced by the State, Elston admitted to investigators he' had used the Neffs’ computer to view sites featuring “females not completely developed.”

None of the photographs retrieved from the Neffs’ computer depicted A.E. in the nude. There was some evidence, however, that such photographs were on the Neffs’ computer before the State seized it. Krebs testified she had seen a picture of A.E. naked on the Neffs’ computer and expressed her concern to Elston, who told her he would “check into it.” According to the detective who testified for the State, Elston conceded during an interview that he “thought” he had seen “one of the girls [A.E. or her sister] on the computer.”

The district court granted Elston’s motion for judgment of acquittal on all counts except the count of indecent contact with a child. The jury returned a guilty verdict on that count.

Elston filed a notice of appeal contending the district court abused its discretion in denying the motion to sever and asserting his trial counsel was ineffective. The court of appeals affirmed Elston’s conviction and preserved his ineffective counsel claim for possible postconviction relief proceedings. We granted further review.

II. Standards of Review.

We review refusal to sever multiple charges against a single defendant for abuse of discretion. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992) (citing State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985)). We review ineffective assistance of counsel claims de novo. State v. Martin, 704 N.W.2d 665, 668 (Iowa 2005).

III. Discussion.

A. Motion to Sever.

Our analysis of whether the district court abused its discretion in denying El-ston’s motion to sever begins with Iowa Rule of Criminal Procedure 2.6(1). This rule provides:

Two or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise.

We have held that transactions or occurrences are part of a “common scheme or plan” under Iowa Rule of Criminal Procedure 2.6(1) when they are the “products of a single' or continuing motive.” See State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000) *199 (citing State v. Lam, 391 N.W.2d 245, 250 (Iowa 1986)). In ascertaining whether a “common scheme or plan” exists, “we have found it helpful to consider factors such as intent, modus operandi, and the temporal and geographic proximity of the crimes.” Id. (citing Lam, 391 N.W.2d at 249-50).

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Bluebook (online)
735 N.W.2d 196, 2007 Iowa Sup. LEXIS 88, 2007 WL 2012414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elston-iowa-2007.