State of Iowa v. Kurt Allen Kraai ( 2022 )

IN THE SUPREME COURT OF IOWA
No.19–1878
Submitted December 15, 2021—Filed January 28, 2022
STATE OF IOWA,
Appellee,
vs.
KURT ALLEN KRAAI,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Osceola County, Don E. Courtney,
Judge.
The defendant appeals his conviction for sexual abuse in the second
degree, claiming the district court erred in instructing the jury the testimony of
the complainant witness need not be corroborated to be accepted as true.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT AFFIRMED.
McDonald, J., delivered the opinion of the court, in which all justices
joined.
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Pamela Wingert (argued) of Wingert Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven (argued), and Susan
R. Krisko, Assistant Attorneys General, for appellee.
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McDONALD, Justice.
Kurt Kraai was convicted of sexual abuse in the second degree arising out
of the sexual abuse of his daughter, N.F. The primary witnesses at trial were
N.F., who testified to the acts of sexual abuse, and Kraai, who denied the
allegations of sexual abuse. In this direct appeal, Kraai contends the district
court erred in instructing the jury that “[t]here is no requirement that the
testimony of a complainant of sexual offenses be corroborated.” Kraai contends
the instruction violated Iowa Code section 709.6 (2017), which provides that “[n]o
instruction shall be given in a trial for sexual abuse cautioning the jury to use a
different standard relating to a victim’s testimony than that of any other witness
to that offense or any other offense.” Kraai also contends the instruction, given
without any other instruction regarding other witness testimony, unduly
emphasized the testimony of N.F. The court of appeals concluded the instruction
was erroneous but the error was not prejudicial under the circumstances
presented. Both the State and Kraai applied for further review, and we granted
the applications.
I.
We first address the question of whether the district court erred in
instructing the jury that there is no requirement that the testimony of a
complainant of sexual offenses be corroborated. Our review is for the correction
of legal error. See State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000) (en banc). In
conducting our review, we review the instructions “as a whole to determine their
accuracy.” State v. Donahue, 957 N.W.2d 1, 10 (Iowa 2021). A challenged
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instruction is “judged in context with other instructions relating to the criminal
charge, not in isolation.” State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). An
incorrect or improper instruction can be cured “if the other instructions properly
advise the jury as to the legal principles involved.” Thavenet v. Davis, 589 N.W.2d
233, 237 (Iowa 1999) (en banc).
A.
Iowa Code section 709.6 provides that “[n]o instruction shall be given in a
trial for sexual abuse cautioning the jury to use a different standard relating to
a victim’s testimony than that of any other witness to that offense or any other
offense.” The court of appeals, sitting en banc, provided a comprehensive history
of the law relating to the enactment section 709.6. Having little to add to the
court of appeals’ historical discussion, we quote it at length here:
Through much of the twentieth century, Iowa courts uniformly
instructed juries that because “rape is easy to charge and difficult
to disprove,” the word of a “prosecutrix” was not enough, standing
alone, to convict her assailant. See State v. Feddersen, 230 N.W.2d
510, 514 (Iowa 1975) [(en banc)] (citing State v. Griffith, 45 N.W.2d
155 (Iowa 1950)). That pernicious and outdated caution is dubbed
the Lord Hale instruction, named for England’s Sir Matthew Hale,
chief justice of the Court of the King’s Bench from 1671 to 1676. See
Mark v. State, 556 N.W.2d 152, 154 (Iowa 1996) (citing Feddersen,
230 N.W.2d at 514–15). In his writings, Hale recounted allegations
of rape instigated by false accusations. See People v. Rincon-Pineda,
538 P.2d 247, 255 (Cal. 1975). Hale also heartily encouraged that
rape “be punished with death.” Feddersen, 230 N.W.2d at 514.
Under Iowa law, a defendant could not be convicted of rape “upon
the testimony of the person injured, unless she be corroborated by
other evidence tending to connect the defendant with the
commission of the offense.” See Iowa Code § 782.4 (1973). But in
1974, the legislature removed the need for corroborative evidence in
rape prosecutions. Feddersen, 230 N.W.2d at 514. Our supreme
court followed suit, disapproving the Lord Hale instruction the next
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year. Id. Feddersen found “at least four vices” in the cautionary
instruction:
First, it constitutes a comment on the evidence. Second, it
applies a stricter test of credibility to the rape victim than to
other witnesses in the trial. Third, it applies a stricter test of
credibility to rape victims than to victims of other crimes.
Fourth, trial courts have been accorded an indiscriminate
right to give or refuse to give the instruction absent any
guidelines for so doing.
Id. at 515.
After Feddersen, the legislature enacted section 709.6 to
ensure that juries applied the same standard to the testimony of
alleged victims of sexual abuse as other witnesses.
State v. Kraai, No. 19–1878, 2021 WL 1400366, at *2–3 (Iowa Ct. App. Apr. 14,
2021) (en banc).
Given that background, we cannot conclude the noncorroboration
instruction given in this case violated section 709.6. The statute only prohibits
the district court from “cautioning the jury to use a different standard relating
to a victim’s testimony than that of any other witness to that offense or any other
offense.” Iowa Code § 709.6. The challenged instruction, on its face, did not
caution the jury to use a different standard relating to the victim’s testimony
than that of any other witness. Instead, the noncorroboration instruction told
the jury that the complainant witness’s testimony need not be corroborated. This
was a correct statement of law. See Iowa R. Crim. P. 2.21(3) (“Corroboration of
the testimony of victims shall not be required.”); State v. Hildreth, 582 N.W.2d
167, 170 (Iowa 1998) (stating that “the alleged victim’s testimony is by itself
sufficient to constitute substantial evidence of defendant’s guilt,” and observing
that “[t]his court has held that a rape victim’s accusation need not be
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corroborated by physical evidence”); State v. Knox, 536 N.W.2d 735, 742 (Iowa
1995) (en banc) (“The law has abandoned any notion that a rape victim’s
accusation must be corroborated.”). The noncorroboration instruction was also
consistent with the purpose of section 709.6, which was passed to abolish the
anachronistic Lord Hale rule requiring corroboration of a complainant’s
testimony to sustain a conviction for sexual abuse.
B.
Although the noncorroboration instruction was not in violation of section
709.6 and was a correct statement of the law, the instruction was nonetheless
improper because it unduly emphasized the complainant witness’s testimony.
“Iowa law requires a court give a requested instruction as long as the instruction
is a correct statement of law, is applicable to the case, and is not otherwise
embodied elsewhere in the instructions.” Eisenhauer ex rel. T.D. v. Henry Cnty.
Health Ctr., 935 N.W.2d 1, 10 (Iowa 2019). However, the district court may not
“give instructions that provide undue emphasis to any particular aspect of the
case.” Id. (citing Burkhalter v. Burkhalter, 841 N.W.2d 93, 106 (Iowa 2013)). Nor
should the district court give instructions that “draw attention to specific
evidence” in a case. State v. Marsh, 392 N.W.2d 132, 133 (Iowa 1986).
This court has long held that instructions that set apart, highlight, or
accentuate the testimony of a particular witness or a particular piece of evidence
are improper. In State v. Bester, this court considered an instruction that stated
the defendant’s testimony need not be received “as true” but could be given “full
and careful consideration” in order to determine “whether it or any part of it [was]
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true or false, and whether such testimony [was] given by the defendant in good
faith or for the purpose of avoiding conviction.” 167 N.W.2d 705, 706 (Iowa 1969).
The instruction further stated that the jury could “take into consideration [the
defendant’s] interest in the outcome of [the] case as a person charged with a
crime,” giving it “such weight as [deemed] it entitled to in view of all the facts and
circumstances.” Id. The district court also gave a general instruction on how the
jury should assess the credibility of all witnesses, including the interests of the
witnesses in the outcome of the trial, their motives, candor, fairness, bias, and
reasonableness of the testimony. Id. at 706–07. We held that it was reversible
error to “single[] out and comment[] upon the testimony of a defendant” because
it was “of prime importance to [the] defendant that the case not be weakened by
special judicial comment on [his] interest in the case and the weight to be given
his testimony as distinguished from the testimony of other witnesses.” Id. at 710.
This court revisited Bester in State v. Nepple, 211 N.W.2d 330, 332 (Iowa
1973). In that case, the jury was given two instructions regarding witness
credibility. Id. The first was a “general instruction on credibility, applicable to all
witnesses,” but the second was an instruction that the “defendant’s testimony
should not be discredited because he was charged with a crime; his testimony
was to be treated like that of any other witness.” Id. This court stated that the
instruction was not “as offensive” as the instruction in Bester but was
nonetheless erroneous “because it violate[d] the rationale of Bester that
instructions relating to the credibility of a witness should be general and apply
equally to all of the witnesses for the State and defendant alike.” Id. This was
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true even though the instruction in Nepple was given to bolster the defendant’s
testimony.
In State v. Milliken, the defendant was convicted of operating a motor
vehicle while under the influence of alcohol. 204 N.W.2d 594, 595 (Iowa 1973).
The defendant objected to two jury instructions relating to specific evidence. Id.The first instruction told the jury that the presence of the odor of liquor on the
defendant’s breath was not in itself proof he was under the influence of an
alcoholic beverage. Id. The second instruction told the jury it was not necessary
for the State to prove or show how many drinks the defendant had consumed.
Id. We held the instructions were improper, stating “an instruction which gives
undue prominence to evidentiary facts to be determined by the jury is erroneous,
as it thereby unduly magnifies the importance of the particular testimony thus
selected for specific mention.” Id. at 596 (quoting State v. Proost, 281 N.W. 167,
170 (Iowa 1938)).
As in Bester, Nepple, and Milliken, the district court’s noncorroboration
instruction in this case focused the jury on the testimony of a single witness,
N.F. See Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003) (stating an asymmetrical
noncorroboration instruction “unfairly focuses the jury’s attention on and
highlights a single witness’s testimony”). The instruction’s focus was improper
in two respects. First, the instruction set apart N.F.’s testimony as not requiring
corroboration in the absence of a symmetrical instruction regarding the
noncorroboration of Kraai’s testimony. The omission of a symmetrical
noncorroboration instruction may have permitted the jury to infer that Kraai’s
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testimony required corroboration to be believed. See State v. Davis, 951 N.W.2d
8, 19 n.1 (Iowa 2020) (“When the marshaling instructions for the other nine
offenses cross-referenced the insanity defense but not the instruction for first-
degree murder, the jurors would reasonably conclude that omission was
intentional and the defense was unavailable.”). The asymmetrical
noncorroboration instruction thus risked giving N.F.’s testimony “special status”
and “an extra element of weight” when compared to Kraai’s testimony.
Gutierrez v. State, 177 So. 3d 226, 232 (Fla. 2015).
Second, the instruction particularized N.F.’s testimony as not requiring
corroboration in the absence of a universal instruction regarding the
noncorroboration of all other witness testimony. Compare the instruction at
issue in this case with that at issue in State v. Ludwig, 305 N.W.2d 511, 512
(Iowa 1981). In that case, this court distinguished Bester and held that an
instruction that provided guidance in evaluating witness testimony was not
improper because the instruction applied to all witnesses. Id. at 512–13. The
district court in Ludwig instructed the jury to consider, among other factors,
“whether [witness] testimony is corroborated or contradicted by other witnesses.”
Id. at 512. Because the challenged instruction “by its terms [applied] to all
witnesses who testif[ied] at trial,” it “did not carry with it the danger of
distinguishing defendant’s testimony from that of other witnesses.” Id. The
district court’s instruction was thus an acceptable instruction regarding witness
credibility that applied “equally to all of the witnesses for the State and the
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defendant alike.” Id. (quoting Bester, 167 N.W.2d at 708); see Nepple, 211 N.W.2d
at 332.
In Gutierrez v. State, the Supreme Court of Florida reached the same
conclusion we reach today: an asymmetrical and particularized
noncorroboration instruction given in a sexual abuse case is improper.
177 So. 3d at 229–30. At issue in Gutierrez was a “special instruction advising
the jury that the testimony of the victim need not be corroborated.” Id. at 228.
The instruction accurately reflected the law, but the defendant argued on appeal
that the instruction “improperly emphasize[d] the victim’s testimony and
suggest[ed] it is deserving of special treatment.” Id.; see Fla. Stat. § 794.022(1)
(stating the testimony of a victim need not be corroborated in prosecutions for
sexual offenses). The court agreed, writing that the noncorroboration instruction
was
[I]mproper because it constitutes a comment on the testimony
presented by the alleged victim and presents an impermissible risk
that the jury will conclude it need not subject the victim’s testimony
to the same tests for credibility and weight applicable to other
witnesses.
Gutierrez, 177 So. 3d at 229–30. While the instruction was a correct statement
of Florida law, its potential to mislead made it “simply improper” regardless of
whether corroboration of the victim-witness’s testimony was at issue. Id. at 232.
Other courts have reached the same conclusion. See, e.g., Burke v. State,
624 P.2d 1240, 1257 (Alaska 1980) (“In our view, to instruct that a victim’s
testimony need not be corroborated by other evidence unduly emphasizes the
lack of a need for corroboration without similarly indicating that other witnesses’
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testimony need not be corroborated.”); Ludy, 784 N.E.2d at 461 (concluding
noncorroboration instruction should not have been given because “it unfairly
focuses the jury’s attention on and highlights a single witness’s testimony”);
State v. Williams, 363 N.W.2d 911, 914 (Minn. Ct. App. 1985) (concluding
noncorroboration instruction “was erroneous and diminished the State’s burden
of proof”); State v. Stukes, 787 S.E.2d 480, 482–83 (S.C. 2016) (holding
noncorroboration instruction was erroneous because “[s]pecifying this
qualification applies to one witness creates the inference the same is not true for
the others”); Veteto v. State, 8 S.W.3d 805, 816 (Tex. App. 2000) (“Although an
accurate statement of the law, we agree with Veteto that the charge still had the
force and effect of an instruction that a conviction could be had only on A.L.’s
testimony; it singled out her testimony. . . . [E]ven though the legislature
provides for convictions based on uncorroborated evidence, a charge based on
that evidence is an improper comment on the weight of the evidence.”), abrogated
on other grounds by State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008); Garza
v. State, 231 P.3d 884, 890–91 (Wyo. 2010) (holding noncorroboration
instruction was a correct statement of law but was improper because “an
instruction highlighting or denigrating a victim’s testimony has the potential to
mislead the jury”).
Not all courts are in agreement on this issue. Several have approved of the
asymmetrical and particularized noncorroboration instruction. See, e.g., People
v. Welch, Crim. No. 90–00008A, 1990 WL 320365, at *2 (D. Guam. App. Div.
Oct. 30, 1990) (holding noncorroboration instruction was not improper because
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when “reviewed in context, it does not appear that the instruction implied to the
jury that they should give special consideration to the victim’s testimony”), aff’d,
958 F.2d 377 (9th Cir. 1992); People v. Gammage, 828 P.2d 682, 687 (Cal. 1992)
(“[T]here remains a continuing vitality in instructing juries that there is no legal
requirement of corroboration.”); Mency v. State, 492 S.E.2d 692, 700
(Ga. Ct. App. 1997) (holding asymmetrical noncorroboration instruction “was an
appropriate statement of relevant law” when coupled with instructions regarding
the burden of proof); People v. Smith, 385 N.W.2d 654, 657 (Mich. Ct. App. 1986)
(per curiam) (approving noncorroboration instruction because it was an accurate
statement of the law and because defendant made the lack of corroboration an
issue in closing arguments); Pitts v. State, 291 So. 3d 751, 758 (Miss. 2020)
(en banc) (holding noncorroboration instruction was “an accurate statement of
the law” that “did not constitute an improper comment on the weight of the
evidence”); Gaxiola v. State, 119 P.3d 1225, 1232 (Nev. 2005) (“A ‘no
corroboration’ instruction does not tell the jury to give a victim’s testimony
greater weight, it simply informs the jury that corroboration is not required by
law.”); State v. Marti, 732 A.2d 414, 420–21 (N.H. 1999) (holding
noncorroboration instruction was “merely a correct statement of law”); State v.
Clayton, 202 P.2d 922, 923 (Wash. 1949) (holding noncorroboration instruction
in child sexual abuse trial was a correct statement of the law that “expressed no
opinion as to the truth or falsity of the testimony of the prosecutrix, or as to the
weight which the court attached to her testimony”).
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Having given careful attention to these contrary authorities, we do not find
their reasoning persuasive. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa
1974) (en banc) (“Although cases from other states may be persuasive authority,
they have no greater cogency than the reasoning by which they were decided.”).
In particular, the rationale in these contrary authorities is in conflict with our
long-standing precedents—as expressed in Bester, Nepple, and Milliken—that
instructions regarding witness credibility should apply equally to witnesses for
the state and the defense and that instructions should not draw attention to
specific evidence. See, e.g., Olson v. Prosoco, Inc., 522 N.W.2d 284, 287 (Iowa
1994) (en banc) (“[E]ven instructions correctly stating the law should not give
undue emphasis to any particular theory, defense, stipulation, burden of proof,
or piece of evidence.”); State v. Massick, 511 N.W.2d 384, 386 (Iowa 1994) (stating
the instructions should not give “undue prominence” to certain evidence in the
case); Nepple, 211 N.W.2d at 332; Milliken, 204 N.W.2d at 596; Bester,
167 N.W.2d at 710; State v. Engle, 590 N.W.2d 549, 552 (Iowa Ct. App. 1998)
(“In fashioning jury instructions, a trial judge should avoid drawing attention to
specific evidence.”).
The State appears to acknowledge that the challenged instruction
potentially shined light on N.F.’s testimony and left the remaining witnesses’
testimony in comparative darkness. The State contends the noncorroboration
instruction was nonetheless both necessary and proper to dispel
“misconceptions about the insufficiency of uncorroborated testimony” that “still
follow jurors into the courtroom.” The State relies on social science research and
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caselaw stating that jurors may be reluctant to convict defendants of sex crimes
based on uncorroborated victim testimony. See, e.g., State v. Barnhardt,
No. 17–0496, 2018 WL 2230938, at *4 (Iowa Ct. App. May 16, 2018); Gaxiola,
119 P.3d at 1233. The State also argues that some jurors in this case expressed
during voir dire a desire for corroborative evidence of the alleged victim’s
testimony and that this proves the social science research regarding the
misconceptions about the insufficiency of uncorroborated evidence.
We recognize the State’s interest in prosecuting sexual offenses and the
difficult problems of proof inherent in many sex offense cases. However, it is not
the function of the courts to assist the government in the prosecution of criminal
cases by emphasizing the complainant’s testimony over all other testimony,
including the defendant’s. That is contrary to long-established law in this state.
To the extent the State has an interest in dispelling the misconceptions regarding
the insufficiency of uncorroborated testimony of an alleged victim, those
interests can be advanced by a nonparticularized instruction applicable to all
witness testimony. An instruction that stated no witness’s testimony needs to be
corroborated (with some exceptions not applicable here) would correctly state the
law and help dispel any misconceptions regarding uncorroborated witness
testimony. Cf. State v. Altmayer, No. 18–0314, 2019 WL 476488, at *5
(Iowa Ct. App. Feb. 6, 2019) (approving noncorroboration instruction that
provided the jury “should evaluate the testimony of [the alleged victim] the same
way [it] evaluate[d] the testimony of any other witness”).
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C.
Our conclusion that the challenged noncorroboration instruction unduly
emphasized N.F.’s testimony, and was thus improper, does not end the inquiry.
“Jury instructions are not considered separately; they should be considered as
a whole.” Davis, 951 N.W.2d at 17 (quoting State v. Fintel, 689 N.W.2d 95, 104
(Iowa 2004)). If a particular instruction “was given improperly, the error is cured
if the other instructions properly advise the jury as to the legal principles
involved.” Thavenet, 589 N.W.2d at 237.
In this case, the State contends that other instructions, taken together,
did properly advise the jury on the applicable legal principles and cured any
error. These other instructions include instruction 5, which directed the jury to
“consider all of the instructions together” and stated that “[n]o one instruction
includes all of the applicable law.” Instruction 7 stated that nothing the judge
had “said or done during the trial was intended to given any opinion as to the
facts, proof, or what [the] verdict should be.” Instruction 9 directed jurors to
“[g]ive all the evidence the weight and value you think it is entitled to receive.”
Instruction 10 was a general weighing instruction. It directed jurors to consider
all evidence and attempt to reconcile any evidentiary conflicts. It also stated that
jurors could believe “all, part or none of any witness’s testimony” and provided
jurors with a nonexclusive list of factors to consider in weighing the evidence.
Instruction 11 defined reasonable doubt and said that the State bore the burden
of proving Kraai guilty beyond a reasonable doubt.
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We cannot conclude these additional general instructions rectified the
error in giving the asymmetrical and particularized noncorroboration
instruction. The improper instruction highlighted the testimony of N.F. and
instructed the jury that her testimony did not require corroboration to be
believed. None of the other general instructions discussed this legal principle, let
alone cured the improper instructional taint. If anything, the instructional error
necessarily was channeled into the general instructions. For example,
instruction 10 told the jury they could believe “all, part or none of any witness’s
testimony,” but, in determining which witnesses to believe, the jury evaluated
N.F.’s testimony in light of the noncorroboration instruction that uniquely
accentuated her testimony over all others. The same concern arises with respect
to the reasonable doubt instruction. While the jury was correctly instructed that
the State bore the burden of proving Kraai guilty beyond a reasonable doubt, the
jury was determining whether the State satisfied its burden in light of the
noncorroboration instruction that uniquely accentuated N.F.’s testimony over all
others. In short, none of the general instructions cured the specific instructional
error at issue.
D.
In sum, we hold the district court erred in instructing the jury that “[t]here
is no requirement that the testimony of a complainant of sexual offenses be
corroborated.” In the absence of any other instruction regarding the
uncorroborated testimony of other witnesses, the instruction unduly emphasized
the complainant witness’s testimony.
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II.
We next address whether the error in this case requires reversal and
remand for new trial. “Error in giving or refusing to give a jury instruction does
not warrant reversal unless it results in prejudice to the complaining party.”
State v. Plain, 898 N.W.2d 801, 817 (Iowa 2017) (quoting State v. Hoyman,
863 N.W.2d 1, 7 (Iowa 2015)). When a court erroneously gives or refuses a jury
instruction, “we presume prejudice and reverse unless the record affirmatively
establishes there was no prejudice.” State v. Hanes, 790 N.W.2d 545, 551 (Iowa
2010). “When the error is not of constitutional magnitude, the test of prejudice
is whether it sufficiently appears that the rights of the complaining party have
been injuriously affected or that the party has suffered a miscarriage of justice.”
State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010) (quoting State v. Gansz,
376 N.W.2d 887, 891 (Iowa 1985)), overruled on other grounds by Alcala v.
Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). The presumption of prejudice is
overcome when the jury received “strong evidence” of a defendant’s guilt. See
Plain, 898 N.W.2d at 817.
Here, there was strong evidence of Kraai’s guilt, including substantial
corroboration of N.F.’s testimony. N.F. testified to multiple instances of sexual
abuse. The first instances of sexual abuse occurred when N.F. was
approximately nine years old. At that time, N.F. lived with her mother and visited
Kraai every other weekend. Kraai lived with his mother (N.F.’s grandmother) and
his two brothers at his mother’s house near Rembrandt, Iowa. N.F. testified that
on multiple occasions Kraai “pull[ed] up some naughty things on the computer”
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that involved peoples’ “private parts touching.” While watching the pornography
on the computer, Kraai made N.F. “touch his private parts” with her hand. N.F.
testified that she did not like touching Kraai’s penis and that it was “[s]limy and
disgusting.” The touching occurred on a couch in a bedroom that was formerly
occupied by one of Kraai’s brothers. In addition, N.F testified that during these
visits she would sometimes “wake up with no clothes on.” N.F. said she never
told her grandmother about the abuse because she was “scared” and because
Kraai told her that “something would happen.” Kraai himself testified he often
hit N.F. and her half-brother.
Later, Kraai moved out of his mother’s house to an area near Harris, Iowa,
where he took a job on a hog farm. N.F. testified Kraai sexually abused her at
this location as well. She testified pornographic DVDs and magazines were
openly scattered around the house. She testified Kraai showed her pornographic
and sexual material on the television in the living room and showed her
magazines containing pornographic and sexual material. N.F. testified the sexual
abuse occurred on the couch in the living room. She testified about a particular
incident that occurred in January or February of 2017, although N.F. could not
pinpoint the exact date. She testified Kraai wore a pair of pants with “holes in
the private parts.” She testified that while they were seated on the couch, Kraai
exposed his penis through the hole in his pants and made her touch his penis.
N.F. testified that Kraai had a silver ring “on the tip” of his penis.
Approximately one to two months after this particular incident, N.F.
attended a school program on child sexual abuse. She learned that a child
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touching an adult’s genitalia is inappropriate. Prior to attending this program,
N.F. testified, she thought that “every other girl’s dad was doing it.” N.F. told a
friend about Kraai’s abuse. The friend informed school officials. The school
officials escalated the report appropriately, and N.F. was interviewed at a child
advocacy center about the abuse. Police watched a recording of N.F.’s interview
and used it as the basis to obtain a search warrant.
The police executed the warrant at Kraai’s residence, and they obtained
physical evidence substantially corroborating N.F.’s testimony. The police found
a number of pornographic DVDs and magazines scattered throughout the house,
including in the living room and under the couch cushions. Kraai admitted to
owning pornography and admitted he sometimes watched pornography and
masturbated while others were in the house (both when he lived with his mother
and when he moved to the farm). However, he denied having ever shown
pornography to N.F. He admitted that he sometimes left his pornography out so
it was visible to others but that he “usually” stored the pornography “[i]n between
the wall and [his] couch.”
The police seized a pair of blue flannel pajama pants with a hole in the
crotch just as N.F. described. To explain the hole in the crotch of his blue flannel
pants, Kraai testified that “[t]hey wear out over time.” Providing further
explanation, he continued: “A lot of the pajama pants I wore under my jeans
when it was cold. And they can get caught in barbed wire sometimes; or just
going over a fence, they would tear out.” He testified that he had “probably ten
more pairs of pants that have holes in them.” The jury was shown photographs
20
of the blue flannel pants. The hole in the crotch does not appear to be a rip or
tear made accidentally as there is serge stitching on the left and right edges of
the hole. Instead, it appears the hole in the pants was intentionally made to allow
the penis to be exposed.
As authorized by the search warrant, police photographed Kraai’s penis
during the search of his house. These photographs were admitted into evidence.
The photographs show a silver ring near the tip of Kraai’s penis as N.F. described.
N.F. testified that the photographs matched the ring she saw on Kraai’s penis.
Regarding the reason N.F. might have seen his penis (including the silver ring),
Kraai testified that his children “have both gone into the bathroom fighting
before, lots of times” when Kraai was in the shower or using the toilet. He testified
that this happened both at the hog farm and at his mother’s house. N.F. testified
she never accidentally walked in on her father while his penis was exposed.
N.F.’s knowledge of Kraai’s piercing is strongly corroborative of her
testimony and strong evidence of Kraai’s guilt because it is unlikely N.F. would
know of this intimate detail in the absence of sexual abuse. See, e.g., State v.
Retterath, No. 16–1710, 2017 WL 6516729, at *5 (Iowa Ct. App. Dec. 20, 2017)
(“C.L.’s credibility was bolstered by his accurate drawing of the sword tattoo on
Retterath’s penis, something he would not have been able to remember if
Retterath was truthful in his total denial . . . .”); see also People v. Creasy, Appeal
No. 3–19–0630, 2021 WL 5827791, at *7 (Ill. App. Ct. Dec. 8, 2021) (“[Victim]
was also able to testify to the fact that defendant had a piercing and a silver ring
on his penis. . . . It is unlikely [she] would have known this if defendant had not
21
forced her to repeatedly perform sexual acts.”); Wallace v. State, No. 2511, Sept.
Term, 2018, 2020 WL 2731228, at *2, 4, 11 (Md. Ct. Spec. App. May 26, 2020)
(uncorroborated testimony of minor victim held sufficient to uphold defendant’s
rape convictions where evidence included the victim’s description of defendant’s
penis piercing despite defendant’s contention that the victim may have seen the
piercing accidentally), cert. denied, 235 A.3d 39 (Md. 2020); Delbrey v. State,
No. 05–18–00790–CR, No. 05–18–00791-CR, 2019 WL 3773851, at *1, 3
(Tex. App. Aug. 12, 2019) (mother of child sexual abuse victim testified that when
the victim informed the mother about the abuse, the victim described
defendant’s penis piercing; evidence was sufficient to sustain defendant’s
conviction despite defendant’s argument that victim saw the piercing only in
photographs).
Considered in totality, we hold that Kraai’s rights have not been
“injuriously affected” and he has not suffered a “miscarriage of justice” despite
the erroneous noncorroboration instruction. Marin, 788 N.W.2d at 836. To
“corroborate” means to “strengthen or confirm; to make more certain.”
Corroborate, Black’s Law Dictionary (11th ed. 2019) [hereinafter Black’s Law
Dictionary]; see Veterans Tech., LLC v. United States, 138 Fed. Cl. 121, 137 n.7
(Fed. Cl. 2018) (applying Black’s Law Dictionary definition of “corroborate”). A
witness’s testimony is corroborated when it is “[c]onfirm[ed] or support[ed] by
additional evidence or authority.” Corroboration, Black’s Law Dictionary; see also
State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997) (stating in the context of
corroboration of accomplice testimony that “[c]orroborative evidence may be
22
direct or circumstantial” and “need not be strong and need not be entirely
inconsistent with innocence” so long as it “support[s] some material part” of the
testimony in question and “tend[s] to connect the accused to the commission of
the crime” (second quoting State v. Dickerson, 313 N.W.2d 526, 529 (Iowa
1981))). Here, N.F.’s testimony was corroborated by the physical evidence
obtained from Kraai’s residence, including the pornography found throughout
the home, the flannel pants with a hole cut out of the crotch to expose the penis,
and the silver ring near the tip of Kraai’s penis. “Since there was some
corroboration of the victim’s testimony, the challenged instruction, in essence,
pertained to a moot point.” Garza, 231 P.3d at 891. Under the circumstances of
this case, we find the error nonprejudicial and harmless. See Plain, 898 N.W.2d
at 817; see also Ludy, 784 N.E.2d at 463 (“Clearly the testimony of the victim
was not uncorroborated. . . . The instruction error did not affect the defendant’s
substantial rights.”).
III.
For the foregoing reasons, we affirm Kraai’s conviction.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDMENT AFFIRMED.