State v. Neitzel

801 N.W.2d 612, 2011 Iowa App. LEXIS 399, 2011 WL 2419881
CourtCourt of Appeals of Iowa
DecidedJune 15, 2011
DocketNo. 10-0885
StatusPublished
Cited by72 cases

This text of 801 N.W.2d 612 (State v. Neitzel) is published on Counsel Stack Legal Research, covering Court of Appeals 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. Neitzel, 801 N.W.2d 612, 2011 Iowa App. LEXIS 399, 2011 WL 2419881 (iowactapp 2011).

Opinion

VOGEL, P.J.

Following a jury trial, Jesse Neitzel was convicted of second-degree sexual abuse. He appeals and asserts (1) the case should have been transferred to juvenile court; (2) he was not competent to stand trial; (3) inadmissible hearsay evidence was admitted during trial; (4) sufficient evidence does not support his conviction; and (5) his trial counsel was ineffective. We affirm.

I. Background Facts and Proceedings.

In August 2007, Neitzel was sixteen years old when he sexually abused a seven-year-old child, T.K. In December 2007, Neitzel was charged by trial information with second-degree sexual abuse in violation of Iowa Code section 709.3 (2007).

In January 2008, after pleading not guilty, Neitzel filed a motion to transfer jurisdiction to the juvenile court. The following month, a hearing was held. The State introduced an investigative report completed by a juvenile court officer dated February 7, 2008, along with his testimony recommending Neitzel be prosecuted as an adult. On February 11, 2008, the district court denied Neitzel’s motion.

In February 2008, Neitzel filed a notice of the defense of diminished capacity and a motion requesting a competency examination at State expense. On March 5, 2008, the court ordered a competency exam be completed by the doctor recommended by the State, Dr. Sriramamurthy Ravipati. After Dr. Ravipati completed his exam, Neitzel requested a second competency examination at State expense. On December 10, 2008, the district court ordered a second exam be completed at the Iowa Medical and Classification Center at Oakdale. However, the Center was unable to timely complete the exam and on January 12, 2010, the district court ordered the second competency exam be completed by a doctor of Neitzel’s choosing. An exam then performed by Dr. Dan L. Rogers, whose report dated March 3, 2010, was made part of the court file. On March 8, 2010, Neit-zel moved to suspend criminal proceedings asserting that he was not competent to stand trial. On March 18, 2010, the district court, after examining both of the reports, denied Neitzel’s motion.

A jury trial was held in April 2010. The evidence at trial demonstrated that on a mid-August day in 2007, T.K. was at her father’s house when Neitzel was babysitting her and her siblings. Neitzel had babysat for the family many times prior to this day, and had been doing other work around the house in order to purchase a pick-up truck from T.K.’s father. T.K.’s father reported that when he and his wife returned home on this particular day, Neitzel was “acting funny” and T.K. was “being extremely quiet,” and T.K. would not talk to him that evening.

T.K’s mother testified that when T.K. returned to her house and was taking a shower, the mother noticed that T.K. was “red ... in her genital area.” T.K. told her that Neitzel “had touched her genital area ... with his fingers and [ ] had laid on top of her and stuck his private part ... into hers.” She took T.K. to the local hospital where a physical exam was inconclusive for sexual abuse. An Iowa Department of Human Services (DHS) worker recommended that T.K. be examined further, and T.K.’s mother then took T.K. to Mercy Medical Center in Sioux City for further evaluation.

In her testimony, T.K.’s mother described the ongoing treatment she sought [617]*617for T.K., who reported the same abuse to three medical treatment or evaluation providers. She also testified that in September 2007, T.K. began displaying behavioral problems and although she was receiving counseling, T.K. was later admitted to the Beloit Treatment Center for nine to ten months.

When the criminal trial was held in April 2010, nearly three years had elapsed since the alleged sexual abuse occurred. T.K., who was then ten years of age, testified at Neitzel’s trial. She answered several general questions and stated that she remembered having Neitzel as a babysitter when she stayed at her dad’s house. When she was asked if she could tell what happened the last time she saw Neitzel, she paused and then stated, “I don’t remember.”

Karin Ward is a registered nurse certified as a pediatric sexual assault nurse examiner and employed by Mercy Medical Center. She testified to the type of exam that she performs for diagnosis and treatment purposes when there has been an allegation of inappropriate sexual contact. She testified that she conducted this type of examination on T.K. on August 22, 2007. She described what happened during the examination:

The next part of every exam that I do is do you know why you’re here today? She said no. And then I asked her if she had any ouchies? She stated yes and she pointed to her vaginal area. I then with every kid I ask them if they have a name for that part and she called it her potty....
[[Image here]]
... So then I asked her what happened to her potty and she told me that there’s this boy, Jesse, he took me upstairs, he put me in my bed, he undressed me, he got me on the bed and he laid on me, so then I go into body parts, what body part are you talking about, I asked her what part of his body he used to touch her and she told me his pee pee. I asked her what room that happened in, she stated my room. I asked her what house that happened in, she told me it was her dad’s house. I asked her where dad was, and she stated he was at work. I asked her who Jesse was, and she told me that he was babysitting.
... I asked her how that felt and she told me that it hurt and I asked her if Jesse said anything to her and she told me he said not to tell anyone.

Ward stated that T.K’s physical exam was normal, “which is actually more common with sexual abuse.”

Amy Scarmon, an interviewer at Mercy Child Advocacy Center, testified that she interviewed T.K. in August 2007. She did not testify to anything T.K. said during the interview, but rather the videotape of her interview was played to the jury. During the videotape interview, T.K. stated that Neitzel took her upstairs to her room, undressed her, laid on her, and touched his “pee pee” on her “private,” as well as saying that Neitzel was undressed and his “pee pee” moved up and down inside her “private.”

For his defense, Neitzel’s mother testified that Neitzel was no longer working for T.K’s father in August 2007.

The jury found Neitzel guilty as charged. Neitzel then moved for a new trial, asserting that Ward and Scarmon’s testimony as well as Scarmon’s videotaped interview of T.K. were inadmissible hearsay.1 On May 19, 2010, the district court [618]*618found that the complained of evidence was admissible under Iowa Rules of Evidence 5.803(4) and 5.807, and denied his motion for a new trial. Neitzel appeals.

II. Analysis.

A. Transfer to Juvenile Court.

Neitzel first asserts that his case should have been transferred to the juvenile court. Our review is for an abuse of discretion. See Iowa Code § 803.6(3) (providing that some of the same factors are considered whether the transfer is from district court to juvenile court or from juvenile court to district court); In re J.J.A., 580 N.W.2d 731

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Cite This Page — Counsel Stack

Bluebook (online)
801 N.W.2d 612, 2011 Iowa App. LEXIS 399, 2011 WL 2419881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neitzel-iowactapp-2011.