State of Iowa v. Zachary James Lindauer ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0524
Filed May 24, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ZACHARY JAMES LINDAUER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
Zachary Lindauer appeals his conviction, which he believes was the result
of an unfavorable evidentiary ruling. AFFIRMED.
Ronald W. Kepford of Kepford Law Firm, Winterset, for appellant.
Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
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GREER, Judge.
During Zachary Lindauer’s trial over charges for third-degree sexual abuse,
a witness who allegedly saw Lindauer dancing with the woman it was claimed he
sexually assaulted did not show up to testify. Believing the testimony was critical
to his case, Lindauer requested that the district court allow the admission of the
witness’s discovery deposition testimony. The district court denied the request,
finding Lindauer did not show the witness was unavailable and, thus, the
deposition testimony was hearsay under Iowa Rule of Evidence 5.804(a). The jury
found Lindauer guilty of the charged offense. After that conviction, Lindauer
moved in arrest of judgment and for a new trial. The district court denied both
motions on the grounds argued and then sentenced Lindauer to prison.1 Lindauer
appeals.
Factual Background.
As students attending the University of Northern Iowa converged upon
campus in August of 2018, some of the students decided to go out to socialize at
the local bars. K.O., one of those students, went to an establishment with her new
roommate and the roommate’s friend. Before they did, however, the roommate
brought vodka to her car, where the trio drank “shots” of straight vodka. Not an
experienced drinker of alcohol, K.O. began to feel the effects of the hits. Next,
they drank at an “18 and up bar,” and K.O. decided to dance on the dance floor.
She and Lindauer started to dance together, and everyone at trial characterized
some of the dancing as “grinding.” Lindauer also described K.O. as being amorous
1Lindauer was sentenced to a term of incarceration not to exceed ten years, plus
a fine, surcharge, victim restitution fee, and sex offender civil penalty.
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with him, testifying that they engaged in kissing and she gave him a “hickey” on
his neck. Several persons at the bar saw the two dancing, including K.O.’s new
roommate. Without any reference to a specific date, another woman, Danasha—
the “missing witness”—also observed a woman and Lindauer dancing
provocatively and provided the details in a discovery deposition taken before trial.
From there, Lindauer asked if they should go back to K.O.’s dorm room and
she agreed. Footage taken from campus cameras show the two walking the few
blocks back to the dorm; K.O. appeared to have balance issues and was aided by
a more-steady Lindauer. At first, K.O. took Lindauer to the wrong building, but
eventually video footage shows the two of them entering the elevator to go to
K.O.’s dorm room. That elevator footage confirms Lindauer was at the dorm for
approximately fifteen minutes.
From there, the versions diverge. K.O. testified that because of her
intoxication, she could not remember giving Lindauer permission to have sexual
intercourse with her and that she could not push him away from her. Lindauer
asserts she did give him permission after he had laid “her down on the futon on
her back” while “making out with her.” He also maintains she did not resist his
efforts to move her underwear aside and penetrate her vagina with his penis after
he had asked to do so. After the sexual act, Lindauer testified he asked if she
needed anything, K.O. said no, and he said good night then left.
The next morning, after telling a high school friend at the dorm what had
happened and getting advice about what to do from that friend’s mother, K.O. went
to the hospital for an evaluation and made a report to law enforcement, including
the campus police and the Cedar Falls Police. After the police successfully
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identified and located Lindauer, he was brought into an interview. Following an
investigation, Lindauer was arrested and charged with sexual abuse in the third
degree.
Standard of Review and Preservation of Error.
Rulings addressing the admissibility of hearsay are reviewed for correction
of errors at law. State v. Plain, 898 N.W.2d 801, 810 (Iowa 2017). The State does
not contest error preservation.
Discussion.
For a brief period, Danasha and Lindauer interacted as friends through a
social media app called “Snapchat.” On an evening she could not pin down, at the
same bar where Lindauer met K.O., Danasha observed Lindauer with a “brown”
woman2 she did not know “making out . . . on the dance floor in front of everybody.”
She described both the woman and Lindauer as being “pretty sloppy” and “grossly
kissing each other and, like, drunk and sweaty, because it’s the dance floor.”
Danasha submitted to a discovery deposition and described these details. As trial
approached, Lindauer subpoenaed Danasha to testify at trial about her
observations of Lindauer and the woman. But, on the date Danasha appeared to
testify, the trial had to be continued because a juror fell ill. Because there had
been difficulties getting Danasha to appear to testify, Lindauer asked the district
court to address the subpoena with Danasha. On the record, the district court
spoke with Danasha and said, “Let the record reflect [Danasha] is receiving a copy
of the subpoena for Friday, January 7th, 2022, at 10 a.m. [Danasha], do you
2 K.O. is African American.
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understand you’ll need to reappear Friday at that time?” Danasha responded,
“Yep.”
On the date Danasha was to appear again to testify, Lindauer learned that
she had been in a car accident in Minnesota. Danasha called to say she would
not be able to testify. The district court offered Lindauer the opportunity to present
Danasha’s testimony by live video, but Danasha declined the suggestion. Her
excuse was that she did not have the technology to make a video presentation
successful. Because Lindauer could not compel her testimony, he requested he
be allowed to read the discovery deposition that was taken earlier in the case and
argued Danasha now qualified as an “unavailable” witness under Iowa Rule of
Evidence 5.804(a), so the hearsay deposition testimony should be allowed. That
rule provides:
A declarant is unavailable as a witness if the declarant:
(1) Is exempted from testifying about the subject matter of the
declarant’s statement because the court rules that a privilege
applies;
(2) Refuses to testify about the subject matter despite a court
order to do so;
(3) Testifies to not remembering the subject matter;
(4) Cannot be present or testify at the trial because of death
or a then-existing infirmity, physical illness, or mental illness; or
(5) Is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other reasonable means,
to procure the declarant’s attendance.
Iowa R. Evid. 5.804(a). “[I]f a declarant is unavailable as a witness,” that witness’s
former testimony, including deposition testimony, is “not excluded by the rule
against hearsay.” Iowa R. Evid. 5.804(b). Lindauer appealed the district court’s
ruling over this issue, which stated:
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The Court has reviewed both rule 5.804 and the cases
referred to by the parties and having reviewed both the rule and the
case law, I am going to find that the witness, [Danasha], is not
unavailable for the purpose of the rule and I’m not going to allow the
deposition to be read and would make some distinction.
First of all, I’m concerned that this is not videotaped. The jury
will have no opportunity to judge the demeanor of the witness as she
would be testifying. Further, the purpose for which the deposition
was taken was not for the purpose of evidence or—and it was not
former testimony. For instance, in State v. Music, [No. 08-0993,
2009 WL 1676898, at *3 (Iowa Ct. App. June 17, 2009)] cited by the
defense, I believe the offer in that case was of testimony from a
probation revocation hearing which was actually, again, a contested
proceeding in which the motivations of the parties in that case in
questioning the witness were different than what they would have
been in the present situation where the witness was merely being
interrogated concerning the questions that were actually asked,
which I have reviewed Court Exhibit 1, the deposition transcript.
For those reasons, again, I will not treat the witness as
unavailable pursuant to the hearsay rule and the request to read the
deposition in lieu of her presence is denied.
Here, the district court did not address the factors found in rule 5.804(a) but instead
discussed the purpose and presentation format of the deposition testimony. So
we look to the 5.804 factors as the parties did in their appellate briefing. Most
pertinent is factor (5) because Danasha was absent from the trial and Lindauer
was not able “by process or other reasonable means to procure [Danasha’s]
attendance.” See Iowa R. Evid. 5.804(a)(5). To rely on this rule, Lindauer had the
burden to prove Danasha’s unavailability and that he used diligence in trying to
compel her attendance. See Music, 2009 WL 1676898, at *1. And as we said in
Music, “[t]he ultimate question is whether the witness is unavailable despite good-
faith efforts undertaken prior to trial to locate and present that witness.” Id. at *2;
accord id. at *1–2 (finding two failed attempts to subpoena, use of an investigator
to make contact, and research into the witness’s passport status were reasonable
efforts to compel the trial presence of the witness, so the deposition could be read
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at trial). The State maintains that Lindauer did not meet the burden to show
Danasha was unavailable. But it would be difficult to know what else Lindauer
could have done to have compelled Danasha to appear and testify when she
claimed she was stuck in Minnesota following a motor vehicle accident and knew
she was subpoenaed to attend trial. Counsel for Lindauer detailed the dilemma
and the effort made previously to compel attendance:
My office received a message on 1-6-22 at 4:33 p.m. from the
defense witness Danasha . . . . I didn’t receive it until this morning.
I didn’t check my message until this morning. She indicated on the
message that she was in Minnesota and her car was broken down
and she said, I know I’m supposed to be in court tomorrow at 10 a.m.
I called the courthouse and they told me to call you. And so then I
called her this morning and she didn’t answer, but then they called
me back around 7. She said she was in a car accident on Tuesday
and they are stranded in Minnesota and they’re taking a bus back to
Cedar Rapids and I asked her about what time. She said they
weren’t coming back or their bus ticket wasn’t until 7 p.m. tonight and
that she wouldn’t be back here until tomorrow.
As the Court is aware, this is a witness that I have struggled
to serve a subpoena, such that when she arrived here for testimony
when she was located—well, I guess let me start with a history.
We had hired a process server in early December to have her
served and they were unable to locate her. They did file a return of
service saying incorrect address. That was the address she gave to
us. My office had called her around the time mid-December when
she couldn’t be located and when she realized it was my office, she
hung up and would refuse to take calls from us.
We did hire a private investigator, Gratias Investigations has
helped us with this case. So they hired, I think, Brian Shock to
subcontract for them and he was able to get her served on New
Year’s Eve basically, through extenuating efforts to locate
[Danasha]. And when we arrived at court on Friday, that was when—
or excuse me, Monday, that was when the issue with the juror being
ill and court was going to be continued, so I requested that the Court
allow me to serve [Danasha] with a different subpoena, anticipating
that I was going to have a similar issue having her served, and as
the Court is aware, she was served in open court and the Court did
tell her to be here at 10 a.m.
So I spoke to her about her ability to be here. She says she
will not be in Iowa now. I asked her about her electronic capability.
She said all she has is an iPhone and they’re staying with friends. I
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asked her about her ability to appear by video, her appearance, that
type of thing because it sounds like they’re not in a good position and
she basically indicated to me that she would not like to participate by
video.
But here, we need not decide whether Lindauer proved Danasha was
unavailable; even if she was, the court could still properly deny the admission of
her deposition testimony because it lacked relevance. See State v. Tech, 240
N.W.2d 658, 661 (Iowa 1976) (“It is ordinarily within the trial judge’s discretion to
decide whether to exclude evidence on grounds of relevancy.”); see also State v.
Veverka, 938 N.W.2d 197, 202 (Iowa 2020) (“[A] district court has no discretion to
deny the admission of hearsay if the statement falls within an enumerated
exception, subject, of course, to the rule of relevance under rule 5.403.” (alteration
in original) (citation omitted)). At trial, the State argued:
There was no indication, based on the State’s side of the
investigation, that this witness had any relevant testimony to this
case, so the deposition in this case was much more of a fact-finding
investigation where the prosecutor . . . asked this witness basically
why she was here, if she even knew why she was there, but it was
not intended to be a supplement for trial testimony.
The trial court seemed persuaded by this argument. And relevancy of the
testimony as presented in the deposition is problematic. The State correctly
described what the testimony lacked by way of detail, arguing:
If you read . . . the deposition transcript, you’ll see that this witness
was not able to say what day, was not able to identify the person the
defendant was dancing with and for all we know, this could have
been a different night that the defendant was in Cedar Falls with a
different female.
With the lack of detail over the date Danasha saw the dancing between Lindauer
and a woman, and with the inability to identify the woman as K.O., the
trustworthiness and probative value of the deposition testimony is not sufficient to
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allow its admission. See State v. Liggins, 978 N.W.2d 406, 432 (Iowa 2022) (“A
vague statement that does not establish a clear fact may be less trustworthy.”).
Finally, in its appellate briefing, the State, recognizing that the actions to
compel the witness might constitute good faith efforts to secure her attendance,
then advocated for a harmless error finding. The State asserts that hearsay
evidence from the deposition testimony would not have affected the jury’s finding
of guilt because the statements offered would have been cumulative to other
evidence that was admitted at trial. See Hamilton v. O’Donnell, 367
N.W.2d 293, 295 (Iowa Ct. App. 1985) (noting that, where other testimony was
offered that filled in the gaps of the excluded evidence, “the exclusion [of evidence]
constitute[s] harmless error”); see also Iowa R. Evid. 5.103 (“A party may claim
error in a ruling to admit or exclude evidence only if the error affects a substantial
right of the party . . . .”). There was other testimony at trial about the dance floor
antics. K.O. remembered that she was “dancing on [Lindauer].” Her roommate
testified that she observed K.O. dancing, describing the moves as grinding
because “she was kind of moving her bottom half on the male’s bottom half.” And
her roommate commented that K.O. “just wasn’t really acting like a drunk person,
I guess.” Finally, Lindauer testified that he and K.O. were dancing and kissing
while on the dance floor and that K.O. gave him a “hickey.” Thus, even if the district
court should have allowed the deposition testimony to be read, there was already
evidence specific to the interaction on the dance floor between Lindauer and K.O.3
3All the same, Lindauer confirmed at the end of the trial, after the evidence was
presented, that he agreed to forego the effort to get Danasha’s testimony. As we
know, the district court suggested that Danasha might testify by video-
conferencing. In a formal record, Lindauer’s counsel summarized her discussion
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Conclusion.
For all of the reasons discussed above, we affirm Lindauer’s conviction.
AFFIRMED.
with Lindauer over “our ability to call [Danasha] via video conference and given the
technical difficulty I think we would have struggled with to make that happen,
Mr. Lindauer and I decided not to call her and so I just wanted the Court to make
sure that Mr. Lindauer was okay with that.” He responded in the affirmative when
asked by the court. Thus, no one attempted to try the option suggested by the
district court, and we do not know if that would have solved the problem.