No. 04-0594.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for ScottCounty, Mary E. Howes, District Associate Judge.
Clarence Stotlar II appeals from his conviction for indecent contact with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, William E. Davis, County Attorney, and Rex Ridenour and Julie Walton, Assistant County Attorneys.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
HECHT, J.
The State charged Clarence Stotlar II with two counts of indecent contact with a child based on allegations that he had touched a nine-year-old girl’s breast while rubbing cream on a rash (Count I) and that he had touched her breast under her clothing while she was asleep in her bed (Count II). Prior to trial, the State filed a motion in limine to exclude evidence about the child’s previous involvement with the Iowa Department of Human Services (DHS). Stotlar’s counsel informed the court he wished to question both the girl and the girl’s social worker, Cheryl Kress, regarding the girl’s previous involvement with DHS. In particular, Stotlar’s counsel wished to examine both witnesses regarding Stotlar’s report to DHS that the child’s mother had slapped the child. The court informed counsel that the child could not be questioned about her prior involvement with DHS, but deferred a ruling as to the scope of permitted questions to be posed to the social worker. Following a trial, the jury acquitted Stotlar on Count I but found him guilty of Count II. The court sentenced him to a prison term not to exceed two years. Stotlar appeals.
Stotlar claims the court’s ruling precluded him from disclosing the child’s familiarity with DHS complaint procedures. Stotlar wished to establish her familiarity, maintaining it would have supported an inference that, because the child failed to immediately file the complaint against Stotlar, her charges were made in retribution for his earlier complaint against the child’s mother.
On appeal, Stotlar maintains the district court abused its discretion in denying his request to present evidence on the girl’s previous involvement with DHS. The State counters that Stotlar failed to preserve error “by not making an offer of proof concerning the expected testimony of either witness and by not securing a final ruling concerning Ms. Kress.” Iowa Rule of Evidence 5.103(a) provides:
Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
An offer of proof serves to give the trial court an adequate basis for its evidentiary ruling and to make a record for appellate review. See State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995). Such a record is necessary so the reviewing court does not have to “base error on speculation as to the answers that would have been given to questions” had the questions been asked. Id.
Here, without such an offer, we have nothing to review but speculation because the evidence Stotlar wished to present was not sufficiently apparent from the context.[1] We therefore affirm Stotlar’s convictions.
AFFIRMED.
Zimmer, J., concurs; Sackett, C.J., dissents.
SACKETT, C.J. (dissents)
I respectfully dissent. I disagree with the majority’s conclusion that error was not preserved.
The majority correctly cites Iowa Rule of Evidence 5.103(a) as controlling on whether error was properly preserved in this case. Our supreme court has provided further explanation for such a rule:
The true rule, we think, is that, when it is apparent on the face of the question asked the witness what the evidence sought to be introduced is, and that it is material, this is sufficient [to preserve error]. The cases which hold that the party seeking to introduce the evidence is required to state what he expects to prove, and thus make its materiality appear, are not inconsistent with this rule. This rule announces the proposition that where, upon the whole record, it is apparent that the evidence sought to be elicited is competent, relevant, and material to the issue, and is offered under such circumstances that the court can plainly see that the admission of it would be helpful to the cause of the party offering it, it is not necessary that it be stated in the record what it is expected that the answer should be. . . .
American Express Co. v. Des Moines Nat. Bank, 177 Iowa 478, 494, 152 N.W. 625, 630 (1915) (citations and quotation marks omitted). This exception to the error preservation rule has continued to be recognized by more recent case law. State v.Lange, 531 N.W.2d 108 (Iowa 1995); In re Estate of Herm,284 N.W.2d 191, 197 (Iowa 1979).
The majority concludes that the evidence defendant sought to present was not sufficiently apparent from the context. I disagree. Based upon defense counsel’s statements to the district court in a hearing to determine the admissibility of the evidence at issue, I believe it is readily apparent that counsel sought to prove that (1) I.D. had prior contact with the Department of Human Services before reporting the alleged incidents of sexual abuse against defendant, (2) I.D. had interacted with Department of Human Services’ investigators before reporting the alleged incidents of sexual abuse against defendant, (3) I.D. knew how to talk to a Department of Human Services’ investigator before reporting the alleged incidents of sexual abuse against Stotlar, and (4) I.D. knew how to report instances of abuse to the Department of Human Services. Defendant sought to prove these facts through cross examination of I.D. and direct examination of child abuse investigator Cheryl Kress.
Because I believe it is apparent from the record what defendant sought to prove, I would determine that error was preserved despite defendant’s failure to make an offer of proof and I would reach the merits of this case.