State of Iowa v. Korey Allen Jurgena ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0803
Filed July 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KOREY ALLEN JURGENA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Karen
Kaufman Salic, District Associate Judge.
Korey Allen Jurgena appeals his conviction for two counts of indecent
exposure. AFFIRMED.
Patrick W. O’Bryan, of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, Carlyle D. Dalen, County Attorney, and Steven D. Tynan, Assistant
County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.
Korey Allen Jurgena appeals his convictions for two counts of indecent
exposure. Jurgena claims the district court erred by refusing to allow him to ask
the victim certain questions at trial, by refusing to allow introduction of a video of
his interview with police, and by denying his motion for new trial. He also claims
the jury verdict is not supported by substantial evidence. We conclude Jurgena
has waived his first claim regarding his inability to question the victim and also
conclude the district court did not abuse its discretion in excluding the video
evidence. Further, this is not the rare and exceptional case in which the district
court abused its discretion in denying Jurgena’s motion for new trial. Finally, we
conclude the State produced sufficient evidence to support the jury verdict. We
therefore affirm the district court.
I. Background Facts and Proceedings
Korey Jurgena was charged with two counts of indecent exposure after
twice exposing himself to a teenage girl at a mall. At noon on Saturday, June 2,
2012, Jurgena was in the parking lot of a shopping mall. At the same time, the
victim was at the same mall with her grandmother. Upon returning to her vehicle
to retrieve a cell phone, the victim observed Jurgena as he walked past her car.
As he did so, he lowered his pants, exposing himself through sheer underwear.
The victim returned to the mall, and her grandmother asked her to go back to the
car to retrieve a wallet. The victim asked to stay in the mall because there was a
“weird person” outside. Eventually the victim headed back to her car, and upon
exiting the mall, the victim observed Jurgena for a second time. Once again,
Jurgena lowered his pants, exposing himself through his sheer underwear. Upon
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returning to the mall, the victim informed her grandmother of what had occurred.
The grandmother insisted they attempt to identify Jurgena and report the incident
to police. As they exited the mall, the victim saw Jurgena again, this time
clothed, and pointed him out to her grandmother. They followed Jurgena in their
car, recording his license plate number and proceeding to the police station.
The police contacted Jurgena who appeared at the police station for
questioning. While he was there, the victim positively identified Jurgena by the
clothes he was wearing. Jurgena told the police and jury he had recently lost a
significant amount of weight, was wearing oversized pants, and normally wore a
belt. However, as the belt pinched him while driving, he had removed the belt to
drive to the mall and did not put the belt back on when he exited his vehicle.
Before trial, the State filed a motion in limine, seeking to prevent Jurgena
from asking the victim whether she thought Jurgena pulled his pants down
intentionally or accidentally. The district court granted the motion, finding the
victim’s opinion on the matter was irrelevant and inadmissible as it was
speculative and not based upon the victim’s personal knowledge or observation.
Jurgena also asked to introduce a video of his questioning by police, during
which he claimed his pants fell down accidentally. The district court declined to
allow the video to be played as it was a prior consistent statement with no
allegation of recent fabrication against Jurgena.
Jurgena was found guilty of both counts. On count one he was sentenced
to one year in the county jail with all but thirty days suspended. A no-contact
order was also entered, and Jurgena was placed on two years of supervised
probation. Jurgena was ordered to participate in a sex offender treatment
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program and register as a sex offender for ten years. Jurgena was also placed
on parole supervision for a period of ten years. The sentence on count two, of
one year in the county jail, was fully suspended and ordered to be served
consecutively to count one.
II. Standard of Review
The district court’s evidentiary rulings are reviewed for an abuse of
discretion. State v. Richards, 809 N.W.2d 80, 89 (Iowa 2012). We will reverse
the district court only when the evidentiary rulings are based upon untenable or
clearly unreasonable grounds. Id.
A district court may grant a new trial when the verdict is contrary to the
weight of the evidence. State v. Adney, 639 N.W.2d 246, 252 (Iowa Ct. App.
2001). This standard requires the district court to determine whether “a greater
amount of credible evidence supports one side of an issue or cause than the
other.” Id. (quoting State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998)). On appeal,
our review “is limited to a review of the exercise of discretion by the trial court,
not the underlying question of whether the verdict is against the weight of the
evidence.” State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). Accordingly, we
review Jergena’s claim for an abuse of trial court discretion.
Jurgena’s sufficiency of the evidence challenge is reviewed for correction
of errors at law. State v. Sanford, 814 N.W.2d 611, 614–15 (Iowa 2012). We
view the evidence in the light most favorable to the verdict. Id. at 615.
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III. Discussion
A. Motion in Limine
Jurgena claims the district court erred by prohibiting him from asking the
victim her opinion of whether his pants fell down accidentally. The victim’s
statements on this issue were allegedly inconsistent, and on at least one
occasion, she stated, out-of-court, she believed the incident was accidental.1
The district court determined the proposed evidence was irrelevant, and the
victim had no personal knowledge or opinion of Jurgena’s intent. See Iowa R.
Evid. 5.602, 5.701.
Lay witnesses may give opinion testimony when the opinions or
inferences are: “(a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness’s testimony or the determination of
a fact in issue.” Iowa R. Evid. 5.701.
Indecent exposure requires a specific intent to arouse or gratify the sexual
desire of any person, and this intent can be inferred from an accused’s conduct,
remarks, and all surrounding circumstances. State v. Jorgensen, 758 N.W.2d
830, 837 (Iowa 2008) (citing State v. Isaac, 756 N.W.2d 817, 820 (Iowa 2008)
(noting “our statute requires [a sexual motivation] at the time of exposure to the
viewer”)). In cases involving specific intent crimes, a fine line exists between
opinions that improperly express guilt or innocence and those that properly
compare or characterize the defendant’s conduct based on the facts of the case
1
The victim is friends with Jurgena’s daughter. After the incident, Jurgena’s daughter
contacted the victim and spoke with her about the event. The victim, who did not want to
go to the police in the first place, apologized both to Jurgena’s daughter and, appearing
at his workplace at a later time, to Jurgena himself. At times, she expressed the opinion
she believed Jurgena’s act was not intentional.
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so as to assist the jury in understanding the evidence or to determine a fact in
issue. State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct. App. 1996) (citing State
v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982)). The manner in which the opinion is
expressed will often determine on which side of the fine line the opinion
testimony falls. Id. at 342. Pursuant to Iowa Rule of Evidence 5.704, testimony
in the form of an opinion or inference otherwise admissible is not simply
objectionable because it embraces an ultimate issue to be decided by the trier of
fact.
If the witness confines her opinion to a rational inference from her
observations, the opinion is admissible on the issue of specific intent, one
element of the charged offense. See State v. Smith, 522 N.W.2d 591, 594 (Iowa
1994) (allowing opinion testimony on one element of the crime); State v. Ely, 690
N.W.2d 698 (Iowa Ct. App. 2004) (allowing opinion testimony defendant was
pictured in ATM photographs at time thefts occurred); compare State v. Murphy,
451 N.W.2d 154, 156 (Iowa 1990) (allowing opinion testimony that OWI
defendant was intoxicated) with State v. Maurer, 409 N.W.2d 196, 198 (Iowa Ct.
App. 1987) (finding testimony that beyond all reasonable doubt defendant
operated a motor vehicle on a public highway while intoxicated was
inadmissible). Because the witness observed Jurgena’s conduct, remarks, and
the circumstances surrounding his exposure, she could potentially give an
opinion based upon observed facts if it is helpful to the jury in determining intent.
Although the witness’s opinion is not excludable simply because it
embraces an ultimate issue in the case, such opinion may still be excluded under
the other rules of evidence. In re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa
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2005). First, the witness cannot express an opinion on Jurgena’s guilt or
innocence. State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986). Second, “[her]
opinion must be helpful to the trier of fact under rules 5.701 and 5.702. Thus,
[she] cannot opine on a legal conclusion or whether the facts of the case meet a
given legal standard.” Palmer, 691 N.W.2d at 419 (citing Iowa Rule of Evidence
5.704 advisory committee comment). The primary reason witnesses’ opinions
couched in terms of legal standards and conclusions are inadmissible is because
legal terminology generally has a different meaning to laypersons than lawyers.
Id. If the terms used by the witness are readily understandable and have a
common meaning, then her testimony is more likely to assist the jury than
confuse or mislead. Id. at 420 (citing James A. Adams & Joseph P. Weeg, Iowa
Practice: Evidence § 5.704.2, at 580 (2004)); see State v. Moses, 320 N.W.2d
581, 588 (Iowa 1982) (finding State experts may testify on issue of an accused’s
insanity and diminished responsibility because insanity is a defense to murder,
which is distinguishable from cases prohibiting testimony directed towards
establishing an element of the crime charged).
Jurgena claims the victim, if asked, would have testified she believed the
exposure was accidental. Indecent exposure, as statutorily expressed, is devoid
of the term “accident”; there is no separate, distinct, or specialized meaning of
“accident” to which the witness could be referring. The term “accident” in
Jurgena’s proposed line of questioning is a readily understandable term with a
common meaning and is more likely to assist the trier of fact in understanding her
testimony. See Palmer, 691 N.W.2d at 420. For these reasons, the witness’s
desired testimony, if confined to a rational inference from her observations, may
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be kept within the fine line distinguishing opinion testimony assisting the jury from
opinion testimony conveying a conclusion of guilt or innocence. Thus, Jurgena
eliciting the lay opinion that the witness perceived the events as an accident is
not necessarily improper.
In addition, the testimony may have been admissible as a prior
inconsistent statement if the statement was inconsistent with her trial testimony.
Brooks v. Holtz, 661 N.W.2d 526, 530–31 (Iowa 2003) (finding a prior
inconsistent out-of-court statement offered for impeachment purposes falls
outside of the definition of hearsay); State v. Bales, 102 N.W.2d 162, 165 (Iowa
1960) (holding it is not competent to prove what a prosecuting witness has said
subsequent to the alleged offense except for the purpose of impeaching him).
However, we cannot conclude the proposed testimony fits within any of
these rules due to the record we currently have on appeal. The record does not
contain the deposition testimony of the witness nor an offer of proof of any other
out-of-court statement. On the record before us, we cannot determine whether
the opinions of the witness were rationally based on her perception or whether
they would be helpful to the jury. We likewise have no ability to determine
whether or when the statements were inconsistent. See State v. Mudra, 532
N.W.2d 765, 767 (Iowa 1995) (“It is a defendant’s obligation to provide this court
with a record affirmatively disclosing the error relied upon. We conclude that, by
voluntarily failing to provide such a record, [defendant] has waived error on his
claim.”).
As in Mudra, Jurgena has failed to provide a sufficient record on appeal to
allow us to determine the merits of his claim. See Whitley v. C.R. Pharmacy
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Serv., Inc., 816 N.W.2d 378, 390 (Iowa 2012) (“To properly admit a lay witness’s
testimony, a sufficient factual foundation must be established showing the
witness’s opinion is based on firsthand knowledge and personal knowledge of
facts to which the observed facts are being compared.”); compare State v.
Cromer, 765 N.W.2d 1, 10–11 (Iowa 2009) (citing Iowa Rule of Evidence 5.701
and finding a tape recording of a telephone conversation between the accused
and the witness contained improper lay opinions because the witness had no
memory of the events that took place at the motel where the alleged assault
occurred, so her declaration that a rape had occurred was not based on her
personal knowledge and thus should not have been admitted), with State v.
Heinz, 275 N.W. 10, 17 (Iowa 1937) (finding it permissible for a police chief
testifying in a murder trial to state his conclusion that the defendant signed the
written confession voluntarily after relating circumstances leading up to the
signature). We conclude Jurgena, by failing to provide a record of the
statements, “has waived error on his claim.” Mudra, 532 N.W.2d at 767.
B. Video Recording of Jurgena’s Interview
Jurgena also sought to introduce a video recording of his own questioning
by police. During the interview, Jurgena explained his pants had accidently fallen
down on two separate occasions. The offer of the video was an attempt to
bolster his testimony through a prior consistent statement. Jurgena does not cite
to a rule of evidence that would allow for admission of the video recording and
simply relies upon State v. Madsen, 813 N.W.2d 714, 721–22 (Iowa 2012), to
support the proposition that we generally favor introduction of recorded
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interrogations. Madsen does not suggest a general policy of allowing video
recorded interviews that are otherwise inadmissible.
The video recording was offered by Jurgena himself and is not, as
claimed, an admission by a party opponent. Iowa R. Evid. 5.801(d)(2). Nor is
the recording admissible as a prior consistent statement under rule
5.801(d)(1)(B) as it was not offered to rebut a charge of recent fabrication,
improper influence, or motive. Absent those allegations, there are no grounds for
Jurgena to use the video recording to bolster his in-court testimony. Accordingly,
the district court did not abuse its discretion in excluding this evidence.
C. Motion for New Trial
Jurgena’s motion for new trial claimed the “greater weight of credible
evidence merely shows [he] did not have a belt on and had to continually hold up
his pants.” To be guilty of the crime of indecent exposure, the defendant must
have exposed his pubes or genitals to someone who was not his spouse for the
purpose of arousing or satisfying the sexual desires of either party, and the
defendant must know or reasonably should know the act is offensive to the
viewer. Iowa Code § 709.9 (2011). First, Jurgena claims the State failed to
produce the greater weight of the evidence that the act was done to arouse the
sexual desires of either party.
Trial courts have wide discretion in resolving motions for new trial. State
v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). The district court exercises this
discretion sparingly and with caution and grants a new trial “only in exceptional
cases in which the evidence preponderates heavily against the verdict.” Id.
(recognizing a court’s failure to exercise discretion sparingly “would lessen the
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role of the jury as the principal trier of the facts and would enable the trial court to
disregard at will the jury's verdict”). In ruling on a motion for new trial, a district
court weighs the evidence and considers the credibility of the witnesses. Id. at
658. “If the court reaches the conclusion that the verdict is contrary to the weight
of the evidence and that a miscarriage of justice may have resulted, the verdict
may be set aside and a new trial granted.” Id. at 658-59.
The district court, using the weight-of-the-evidence standard, rejected
Jurgena’s claims the two exposures were accidental and were not done with the
intent to arouse his sexual desires. The court carefully evaluated the evidence,
stating: The victim did not observe Jurgena’s
pants fall down, followed by him pulling his pants back up. She
saw his hands on his pants pulling his pants down to expose his
penis and then pulling them back up . . . . [S]he was very clear and
consistent about what occurred, particularly the motion she
observed before, during, and after the exposure of [Jurgena’s]
penis to her.
Also, this happened twice to the same victim within a short
period of time, evidencing that this was not an accident, but rather
an intentional, purposeful exposure to a young, pretty girl . . . .
[O]nce [the victim and her grandmother] were in their vehicle
following him, [Jurgena] was evasive in his driving and tried to
conceal himself when they pulled beside his vehicle.
And further, there is little reason for a forty-year-old man to
wear see-through underwear and loose fitting shorts to a mall, other
than in preparation for an opportunity to arouse one’s sexual
desires through indecent exposure. If he in fact does always
remove his belt when he drives, one would imagine that his practice
would be to put his belt back on when he exits his vehicle, which
apparently is what he did on his second trip to the mall and to the
police station.
The district court concluded “the weight of the evidence shows that [Jurgena’s]
intention at the time of these exposures was to arouse his sexual desires.” We
find no abuse of discretion in the court’s reasoning.
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Second, a new trial is not warranted based on Jurgena’s claim he could
not have known the exposure would be offensive because he “was not even
aware that anyone had seen his shorts fall down until after he was called to the
police station.” In Jorgensen, 758 N.W.2d at 836, our supreme court noted
nothing in section 709.9 requires “the actor be aware or have knowledge of the
specific individual to whom he is exposing himself.” Id. Under Jorgensen,
Jurgena should have known any viewer would be offended.
In conclusion, this is not the rare and exceptional case in which the district
court abused its discretion in denying Jurgena’s motion for new trial.
D. Sufficiency of the Evidence
Jurgena claims that even when the evidence is considered in the light
most favorable to the State, the evidence is insufficient to prove sexual
motivation or intent and insufficient to prove he “knows or reasonably should
know that the act is offensive to the viewer.” See Iowa Code § 709.9.
The jury’s verdict is binding upon a reviewing court unless there is an
absence of substantial evidence in the record to sustain it. Fenske v. State, 592
N.W.2d 333, 343 (Iowa 1999). The jury is “free to reject certain evidence and
credit other evidence.” State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).
“Substantial evidence is evidence upon which a rational finder of fact could find a
defendant guilty beyond a reasonable doubt.” State v. Rohm, 609 N.W.2d 504,
509 (Iowa 2000).
Jurgena testified he was wearing ill-fitting pants and sheer underwear. A
reasonable juror could conclude that such a person would have understood the
danger of his pants falling down and exposing himself and also “reasonably
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should know that the act is offensive to the viewer.” A reasonable juror could
also conclude Jurgena’s two separate acts were done intentionally for the
purpose of sexual gratification or arousal, especially when the victim testified
Jurgena had his hands through the loops of his pants at all times, which is
inconsistent with two separate accidental exposures. The jury was charged with
reaching conclusions as to Jurgena’s mental state, for which there could be no
direct evidence. We note the credibility of witnesses is for the factfinder to
decide except for those rare circumstances where the testimony is absurd,
impossible, or self-contradictory. State v. Kostman, 585 N.W.2d 209, 211 (Iowa
1989). Because substantial evidence supports the jury’s determination, we affirm
the verdict. Finding no error in the rulings of the district court, we affirm.
AFFIRMED.