No. 4-494 / 03-1368.Court of Appeals of Iowa.
Filed August 11, 2004
Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.
Lloyd Daniel Wynia appeals his conviction following a bench trial for two counts of indecent contact with a child.AFFIRMED.
Michael Jacobsma of Klay, Veldhuizen, Bindner, De Jong
Jacobsma, P.L.C., Orange City, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Thomas Mullin, County Attorney, and Coleman Mcallister, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel, and Zimmer, JJ.
ZIMMER, J.
Defendant Lloyd Daniel Wynia appeals his conviction following a bench trial for two counts of indecent contact with a child, in violation of Iowa Code section 709.12 (2001). He claims the trial court erred in admitting into evidence a videotape of the victim recounting her abuse. He also claims the court erred in finding there was sufficient evidence to convict him. We affirm the district court.
I. Background Facts Proceedings
In December 2001, Wynia was living with his fiancée Mary Vander Plas and her two children, both from a previous marriage. Mary’s daughter, S.H., was eleven-years-old at the time. It was around this time that Wynia began visiting S.H. in her bedroom early in the morning before he left for his job as a trucker. According to S.H., Wynia “would look at me and rub my arm and talk to me” during his visits. Wynia would tell S.H. “that he was going to miss us and that he loved us.” Wynia would also kiss S.H. on her cheek. S.H. believed approximately five to ten of these visits took place before Wynia began to touch her inappropriately.
S.H. testified Wynia touched her breasts for the first time in early April of 2002. According to S.H., Wynia “touched my breasts and rubbed my arm, kissed me, talked to me.” He used his whole hand to touch her breasts lightly over the top of her pajamas. She said it felt “uncomfortable.” S.H. did not tell Wynia to stop because she was scared and did not know how Wynia would react if she confronted him. Instead, she lay on her back and pretended to be asleep. At some point she rolled over onto her side and guarded her breasts with her arms. When Wynia tried to move an arm to expose her breasts, S.H. rolled over again. Wynia was in her room for ten to twenty minutes before he finally left. S.H. did not tell her mother what happened because she didn’t know how her mother would react. She worried that her mother, who was planning to marry Wynia in a few months, would be angry with her.
A week or two later Wynia visited S.H.’s bedroom again. During this visit, Wynia touched S.H.’s breasts a second time. On both occasions when she was touched inappropriately, S.H. did not believe anyone else in the house was awake. She did not smell alcohol on Wynia during either visit. After the last visit, S.H. told her mother that Wynia was coming into her room before he left for work because she “wanted it to stop.” However, she did not tell her mother that Wynia actually touched her breasts or that he had entered her bedroom on more than one occasion, because she was still worried that her mother would get upset with her.
S.H. also described an occasion when Wynia came into her bedroom and got into bed with her. She told him to get out of her bed and he left. The next morning, S.H. told her mother what Wynia had done. When her mother confronted Wynia about the incident, Wynia told his fiancée that “he was sorry and he didn’t remember doing it and that he was probably drunk.” Eventually, S.H. told her aunt about Wynia’s behavior. Her aunt shared the information with S.H.’s father and the police were notified.
A few days later, a deputy sheriff interviewed Wynia. Wynia admitted that he had entered S.H.’s bedroom on numerous occasions, but denied ever touching S.H. inappropriately. He also admitted that he crawled into bed with S.H. on one occasion about a month prior to the interview, but claimed that he was intoxicated at the time. He indicated he “just really wasn’t sure what had taken place.” After authorities completed their investigation, the State charged Wynia with two counts of indecent contact with a child.
On January 31, 2003, a bench trial was held on the matter. At trial, the State attempted to introduce into evidence the videotape of an interview of S.H. at the Child Advocacy Center. Wynia’s counsel objected to the admission of the videotape and the court took the matter under advisement. The court subsequently found Wynia guilty on both counts, but never specifically ruled on Wynia’s objection. On March 26, 2003, Wynia filed a Motion in Arrest of Judgment, asking the court to clarify its judgment and specifically rule on his objection. In his motion, he also claimed that sentence should not be pronounced because there was insufficient evidence to convict him. The court denied Wynia’s motion and sentenced him to prison for a term not to exceed two years. Wynia appeals.
II. S.H.’s Videotaped Interview
Wynia claims the district court erred by receiving the videotaped interview of S.H. into evidence. He argues the videotape is hearsay and that the videotape contains evidence which is not relevant. In addition, he asserts that the court erred in not specifically ruling on his objection to the videotape.
We first address Wynia’s complaint that the trial court erred by failing to specifically rule on his objections to the admission of the videotape of S.H. The record reveals the district court acknowledged receiving the videotape as evidence in its judgment. We conclude Wynia’s objections to the videotape were overruled by implication. Accordingly, this complaint cannot form the basis for any error on appeal.
Wynia contends the videotape was inadmissible on hearsay grounds. We review the admission of hearsay evidence for errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000). The hearsay rule does not require the reversal of a judgment if the defendant does not suffer prejudice or harm from the admission of inadmissible testimony. State v. Brown, 656 N.W.2d 355, 361
(Iowa 2003). “Where substantially the same evidence is in the record, erroneously admitted evidence will not be considered prejudicial.” Id. (citations omitted).
Even if we assume the videotaped interview of S.H. was inadmissible, we do not believe Wynia suffered prejudice as a result of its admission. The trial judge heard S.H. personally testify that Wynia touched her breast over her clothing on two occasions. The videotaped interview of S.H. is substantially the same as the testimony she presented in open court at trial. Accordingly, S.H.’s videotaped statements were cumulative of other evidence in the record. Even if the videotape was erroneously admitted, under the circumstances of this case, admission of this evidence does not present a ground for reversal of the trial court’s judgment and sentence.
Wynia also contends that the videotape contains information that is both prejudicial and irrelevant.[1] The district court’s judgment reveals no reliance upon either of the two statements in the videotape, which were challenged by Wynia as irrelevant. Consequently, Wynia cannot show that he suffered any prejudice from the admission of the videotape.
III. Sufficiency of the Evidence
Wynia contends the evidence was insufficient to support his conviction. We review a trial court’s findings in a bench trial as we would a jury verdict. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). If the verdict is supported by substantial evidence, we will affirm. Id. Substantial evidence exits to support a verdict when the record reveals evidence which would convince a rational trier of fact that the defendant committed the crimes charged beyond a reasonable doubt. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
Wynia claims the victim’s testimony, which he characterizes as inconsistent and vague, does not provide sufficient evidence to convict him beyond a reasonable doubt. S.H. testified the defendant came into her bedroom and touched her breast on two occasions. Her testimony reveals no inconsistency with regard to the crucial element of the crimes charged. The district court found the victim’s testimony “generally very credible, and especially so as to the specific touches at issue in these proceedings.” Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate it. State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). Giving due deference to the trial court’s assessment of credibility, we conclude the verdict was supported by substantial evidence. Accordingly, we affirm the judgment of the district court.
AFFIRMED.