State of Iowa v. Daniel Richard Definbaugh

IN THE COURT OF APPEALS OF IOWA

No. 21-1383
Filed November 17, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DANIEL RICHARD DEFINBAUGH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County,

Kellyann M. Lekar, Judge.

A defendant appeals his convictions, alleging the district court should have

suppressed statements he made to police and also claims insufficient evidence

corroborates his admissions. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.

Daniel Definbaugh appeals his convictions for two counts of sexual abuse

in the second degree. He contends there is insufficient evidence to corroborate

confessions he made to police at his home and at the police station. He also claims

those statements were involuntary because they were made prior to him receiving

Miranda warnings, were made again following Definbaugh invoking his right to

counsel, and in both instances, were made due to a promise of leniency. We find

sufficient evidence corroborates Definbaugh’s confessions. We also find that the

court properly denied Definbaugh’s motion to suppress his confessions to police

based on alleged promises of leniency. While we find the court should have

suppressed Definbaugh’s statements at the police station, any error was harmless.

We affirm.

I. Background Facts & Proceedings

Definbaugh met J.J. in 2015 after she and her family moved into the same

trailer park where Definbaugh resided with his girlfriend, Darlene. J.J. would assist

Definbaugh with rides to the local food pantry. Definbaugh babysat S.J., J.J.’s

daughter, between December 2018 and December 2020. S.J. was two years old

in 2018. The exact number of times Definbaugh babysat the child is in dispute. It

is undisputed that Definbaugh would babysit the child at his trailer. Darlene would

sometimes be present, but at other times Definbaugh would be alone with S.J. J.J.

eventually stopped allowing Definbaugh to babysit S.J. after she became

concerned about how frequently he asked to babysit the young girl.

Definbaugh began a romantic relationship with Alyssa Johnson in the spring

of 2020. Johnson, who was married, met Definbaugh at the food pantry. Johnson
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would give Definbaugh rides and bought him various items, some of which were

gifts. Definbaugh and Johnson communicated frequently, usually over Facebook

Messenger.

Sometime in April or May 2020, Definbaugh told Johnson that he had

sexually abused S.J. multiple times. Such abuse centered on the times he babysat

S.J., particularly around times when he changed her diapers. The abuse included

Definbaugh rubbing S.J.’s vagina with his finger and the tip of his penis. Johnson

claimed that Definbaugh told her he used a sex-toy on the child’s vagina and also

made S.J. perform oral sex on him. Johnson testified that Definbaugh was

obsessed with S.J. and wanted Johnson to help him gain access to the child.

Johnson informed no one at that time about Definbaugh’s admissions.

Johnson’s husband learned of his wife’s relationship with Definbaugh on

July 3, 2020, and demanded Definbaugh return some of the property Johnson had

given him. Johnson informed Definbaugh of the demands. Definbaugh first

resisted. Upon his reticence, Johnson told him that she would “call [the] cops about

[S.J.] if you wanna play dirty.” Definbaugh sent multiple messages back, generally

pleading with Johnson to not bring up his past and offering to return the property.

Johnson then informed J.J. of Definbaugh’s admissions the same day.

Police were contacted, and Johnson and J.J. spoke with police. The police

extracted Johnson’s phone data, which included the Facebook Messages with

Definbaugh from July 3. The extraction did not obtain any of the purported

messages that Definbaugh sent describing the abuse.

Police eventually contacted Definbaugh at his home on August 18. Two

officers spoke with Definbaugh in his yard. After initially denying any abuse
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occurred, Definbaugh eventually admitted to sexually abusing the child. He was

detained and taken to the police station, where he made further incriminating

statements.

The State charged Definbaugh with two counts of sexual abuse in the

second degree. Definbaugh moved to suppress, arguing his statements at both

his house and the police station were obtained after promises of leniency. He also

argued that the police questioned him after he invoked his right to counsel at the

police station. Following a hearing, the court denied the motion. A bench trial was

held on April 26, 2021. The court found Definbaugh guilty as charged on July 30.

He was sentenced to two consecutive fifty-year terms in prison. Definbaugh

appeals.

II. Suppression of Definbaugh’s Confessions

Definbaugh alleges the statements he made to police at his home should

be suppressed because they were made prior to receiving Miranda warnings. He

also claims he invoked his right to counsel at the police station, which the police

ignored. Thus, he asserts statements made at the police station should also be

suppressed. Finally, he claims both instances of questioning included promises of

leniency.

A. Statements at Definbaugh’s Home

Definbaugh claims he was in custody when an officer was talking to him in

front of Definbaugh’s home and, therefore, the statements he made should be

suppressed because he had not yet received any Miranda warnings. The merits

of Definbaugh’s claim are not preserved for our review. “It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and decided
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by the district court before we will decide them on appeal.” Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002). Here, neither step was met.

Definbaugh never raised this issue at the district court. His motion to

suppress identified that police “detained, arrested and questioned the defendant

on two separate occasions—one occurring at the Defendant’s residence and the

second at the Cedar Falls Police Department.” This would appear to have raised

his claim to the district court. However, the motion continues, “the Defendant’s

request for an attorney was ignored and said questioning contained ‘implied

promises of leniency’ thereby making the Defendant’s statements involuntary and

coerced.” The motion concluded by claiming that “said questioning”—the

questioning after Definbaugh invoked his right to counsel and after the promises

of leniency—violated Definbaugh’s rights and should be suppressed. Definbaugh

never raised to the district court that his rights were violated by utilizing

incriminating statements made prior to receiving his Miranda warnings. Thus, his

claim is unpreserved.

Furthermore, the district court never ruled on a claim involving Definbaugh’s

Miranda rights at his home. The only reference to that issue comes in the “factual

background” section, which notes, “Definbaugh voluntarily engaged in answering

the questions at that time and there is no indication his involvement was not

voluntary or that he was in custody.” The court’s “discussion” section analyzes

Definbaugh’s claims involving the invocation of his right to counsel and potential

promises of leniency. Definbaugh’s claim is unpreserved.

But even if we were to address Definbaugh’s claim that he was restrained

at his residence in a way that amounts to a custodial interrogation, we reject this
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assertion. The record established that officers knocked on Definbaugh’s door and

asked if he would “mind stepping out and chatting real quick.” The manner of the

questions were investigative, not threatening. Definbaugh was asked if he knew

why the officers were there. Definbaugh launched into details of a property dispute

and relationships he had with S.J.’s mother and another individual, a previous

conviction for sexual abuse, a prison sentence, the requirement to be on the sexual

registry, and his own sexual abuse by his father. While he initially denied sexually

abusing S.J., he later admitted to the same. And while Definbaugh argues he was

detained, he was not handcuffed or physically restrained. Although an officer

walked with him to his residence to retrieve a pair of shoes, Definbaugh walked

back outside while the officers visited with Definbaugh’s girlfriend.

It is well settled that Iowa courts apply an objective test, that is, a person is

in custody, for Miranda purposes, when a reasonable person in that position would

understand himself to be in custody. State v. Countryman, 572 N.W.2d 553, 557

(Iowa 1997). Iowa precedent on custody for purposes of Miranda identifies four

factors to consider:

(1) the language used to summon the individual;
(2) the purpose, place, and manner of interrogation;
(3) the extent to which the defendant is confronted with
evidence of [their] guilt; and
(4) whether the defendant is free to leave the place of
questioning.

State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003) (quoting Countryman, 572

N.W.2d at 558). Iowa courts will consider the totality of the circumstances, but

“[t]he general rule is that in-home interrogations are not custodial for purposes of

Miranda.” See id. at 759–60 (quoting State v. Evans, 495 N.W.2d 760, 762
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(Iowa 1993)). The same has been held to be true for conversations outside of a

residence. See, e.g., State v. Schwartz, 467 N.W.2d 240, 245 (Iowa 1991); State

v. Decanini-Hernandez, No. 19–2120, 2021 WL 610103, at *7 (Iowa Ct. App.

Feb. 17, 2021) (citing Schwartz, 467 N.W.2d at 245). Considering these factors,

we determine that Definbaugh was not in custody at his residence at the time he

made statements concerning sexual abuse of the child.

B. Statements at the Police Station

Definbaugh argues the district court should have suppressed the

statements he made at the police station because they were made after he invoked

his right to counsel. We review the denial of a motion to suppress statements

made in violation of constitutional guarantees de novo. State v. Tyler, 867

N.W.2d 136, 152 (Iowa 2015). “‘[W]e make an independent evaluation of the

totality of the circumstances as shown by the entire record, considering both the

evidence introduced at the suppression hearing as well as the evidence introduced

at trial.” Id. (internal quotation marks and citation omitted).

Once a defendant invokes their right to have counsel present, they cannot

be subject “to further interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication,

exchanges, or conversations with police.” Edwards v. Arizona, 451

U.S. 477, 484 (1981). However, in order to exercise such right, the invocation

“requires, at minimum, some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney.” Davis v. United

States, 512 U.S. 452, 548 (1994). The statement must not be “ambiguous or

equivocal in that a reasonable officer in light of the circumstances would have
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understood only that the suspect might be invoking the right to counsel.” Id. at 459;

accord State v. Harris, 741 N.W.2d 1, 6 (Iowa 2007) (“Officers have no obligation

to stop questioning an individual who makes an ambiguous or equivocal request

for an attorney”).

The following exchange occurred at the police station:

Definbaugh: Can I have a lawyer?
Officer Mercado: What’s that?
D: Can I have a lawyer?
M: You can, if you would like to.
D: I don’t have one.
M: Ok.
D: I just don’t want to go to jail anymore.
M: Ok.
D: I want to set my path right where I belong.
M: Right.
D: And live my life with Darlene and her daughter. . .
M: Right, I understand. No one wants to go to jail and I’m not
saying that’s where you are going right now but I do need to cover a
few more questions with you, so are you willing to do that with me
today?
D: Yeah, I’ll try the best I can.

The district court found that Definbaugh’s initial questions about a lawyer

did not invoke his right to an attorney.

[W]ithout even really listening to or responding to the officer’s
statement that he ‘can’ have a lawyer, Definbaugh continued
speaking . . . and then immediately returned to a stream of prior
conversation with the officer about not wanting to go to jail again and
wanting to set his path right. Definbaugh flowed back into the
conversation with the officer without any prompting by the officer and
never returned to the topic of an attorney. . . . The Court finds that
Definbaugh made a reference to a lawyer but his statements and
actions immediately following establish a waiver of his right to
counsel.

We determine that Definbaugh invoked his right to counsel and did not

reinitiate questioning. Contrary to the district court’s assessment, Definbaugh

unambiguously invoked his right to counsel. His request for counsel was not
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conditional, inquisitory, or otherwise tentative. Compare Davis, 512 U.S. at 462

(concluding “Maybe I should talk to a lawyer” was insufficient), Harris, 741 N.W.2d

at 6 (finding the statement “If I need a lawyer, tell me now,” was not invoking a right

to counsel), and State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997) (holding the

statement “I think I need a attorney,” insufficient to invoke the right to counsel),

with Harris, 741 N.W.2d at 7 (finding “I don’t want to talk about it. We’re going to

do it with a lawyer” was an invocation). Other jurisdictions have held that

Definbaugh’s exact phrasing was an unequivocal invocation. See, e.g., United

States v. Lee, 413 F.3d 622, 626 (7th Cir. 2005); State v. Dumas, 750 A.3d 420,

425 (R.I. 2000); Daniel v. State, 238 So. 3d 1283, 1287 (Fla. Dist. Ct. App. 2018);

People v. Howerton, 782 N.E.2d 942, 945 (Ill. App. Ct. 2003). His further

statements involving getting his life back on track did not “evince[ ] a willingness

and a desire for a generalized discussion about the investigation.” See Harris, 741

N.W.2d at 6. Indeed, they demonstrate the exact opposite—Definbaugh wanted

an attorney present so he could, in his mind, avoid jail. Definbaugh was not

ignoring Officer Mercado’s responses; he was asserting his right to counsel.

Finally, the officer kept Definbaugh talking by informing him that there were

remaining questions that the officer “need[ed] to cover with [Definbaugh.]” This

suggested that Definbaugh could not leave until he answered the questions. The

officer’s insistence that Definbaugh answer a few more questions was “reasonably

likely to elicit an incriminating response.” See id. at 7 (citation omitted). As a result,

the questioning violated Definbaugh’s constitutional rights.

Despite that, we determine this violation does not warrant reversal. “When

the alleged error concerns the erroneous admission of evidence in violation of a
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defendant’s constitutional rights, such error is typically subject to harmless-error

analysis.” Tyler, 867 N.W.2d at 153. Definbaugh’s admissions in the interview at

his home were substantially the same as those at the police station. He admitted

to babysitting S.J. two or three times, including at least one instance in which he

changed her diaper. He admitted to telling Johnson that he molested S.J.,

including touching her vagina with his finger and penis. He admitted this happened

at least twice. There were some details that only came out during the police station

interview, such as Definbaugh’s assertation that S.J. never performed oral sex on

him, but the admissions at his residence alone provide the evidentiary basis for the

convictions of two counts of sexual abuse. Subsequent admissions at the police

station were cumulative, making the error harmless. See State v. Parker, 747

N.W.2d 196, 210 (Iowa 2008).

C. Promises of Leniency

Definbaugh alleges his statements to the police should be suppressed

because they were made after improper promises of leniency. In particular, after

Definbaugh told Officer Mercado that “I just don’t want to be in trouble,” the officer

responded, “I understand that. But you know what, honesty gets you a long ways

and you’re starting with it. We just need to keep going down that path of honesty.”1

Definbaugh claims the officer’s statement that honesty “gets you a long ways” was

an improper promise of an advantage for confessing.

Claims involving promises of leniency are reviewed under the common law

evidentiary test for correction of errors at law. State v. Hillery, 956

1He also alleges there were instances of promises of leniency at the police station.
We conclude the statements he cites were not promises of leniency.
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N.W.2d 492, 498 (Iowa 2021). “[A] ‘confession can never be received in evidence

where the prisoner has been influenced by any threat or promise.’” Id. at 499

(citation omitted).

An officer can tell a suspect that it is better to tell the truth without
crossing the line between admissible and inadmissible statements
from the defendant. State v. Hodges, 326 N.W.2d 345, 349
(Iowa 2005). However, the line is crossed “if the officer also tells the
suspect what advantage is to be gained or is likely from making a
confession.” Id.

State v. McCoy, 692 N.W.2d 6, 28 (Iowa 2005).

Here, the officer’s statements were limited to encouraging Definbaugh to be

honest. He never told Definbaugh, either expressly or implied, what, if any,

advantage would be gained from being honest. While the officer did say that

honesty would “go a long ways,” we find such statements similar to others that

have been held to be proper. See State v. Whitsel, 339 N.W.2d 149, 153

(Iowa 1983) (finding that an offer to recommend psychiatric help to the county

attorney was not improper); State v. Bunker, 13-0600, 2014 WL 957432, at *1–2

(Iowa Ct. App. Mar. 12, 2014) (holding detective’s statement, “I can only help you

if you’re honest with yourself” did not amount to promissory leniency); State v. Foy,

No. 10-1549, 2011 WL 2695308, at *2–3 (Iowa Ct. App. July 13, 2011) (concluding

investigator’s statements “[w]e’re not going to be any bit of any help to you,” if the

defendant “did not tell the truth” and “[w]e’re just here simply for your benefit” did

not amount to promises of leniency). Definbaugh’s statements were not made

after a promise of leniency.
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III. Sufficiency of Corroborative Evidence

Definbaugh claims there was insufficient evidence to convict him because

his confessions to both the police and Johnson lacked corroborating evidence. We

review sufficiency of the evidence claims for correction of errors at law. State v.

Sanford, 814 N.W.2d 611, 615 (Iowa 2012). The court will “consider all of the

record evidence viewed ‘in the light most favorable to the State, including all

reasonable inferences that may be fairly drawn from the evidence.’” Id. (citation

omitted). We will uphold the verdict if substantial evidence supports it—that is, if

there is enough evidence to “convince a rational jury that the defendant is guilty

beyond a reasonable doubt.” Id.

“The confession of the defendant, unless made in open court, will not

warrant a conviction, unless accompanied with other proof that the defendant

committed the offense.” Iowa R. Crim P. 2.21(4). Evidence corroborates

confessions when it tends to “confirm[ ] some material fact connecting the

defendant to the crime.” State v. Meyer, 799 N.W.2d 132, 139 (Iowa 2011).

“Corroboration need not be strong nor need it go to the whole case so long as it

confirms some material fact connecting the defendant with the crime.” State v.

Polly, 657 N.W.2d 462, 467 (Iowa 2003) (quoting State v. Liggins, 524 N.W.2d

181, 187 (Iowa 1994)); accord Meyer, 799 N.W.2d at 139 (“It is sufficient as long

as it supports the content of the confession and if, together with the confession,

proves the elements of the charge against the defendant beyond a reasonable

doubt”).

The State must offer evidence to show the crime has been committed
and which as a whole proves Polly is guilty beyond a reasonable
doubt. However, the “other proof” itself does not have to prove the
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offense beyond a reasonable doubt or even by a preponderance.
Other independent evidence “merely fortifies the truth of the
confession, without independently establishing the crime charged.”

Polly, 657 N.W.2d at 467 (internal citations omitted). Admissions, which “amount

to an acknowledgement of the guilt of the offense charged” but fall short of

confessions, must similarly be corroborated. Meyers, 799 N.W.2d at 139.

Sufficient evidence corroborates Definbaugh’s statements. First, J.J.’s

testimony corroborated Definbaugh’s statements about the time frame and

frequency of Definbaugh’s babysitting. Her testimony further corroborates the

statements Definbaugh made to Johnson, particularly his obsession with S.J.

According to J.J., she stopped allowing Definbaugh to babysit because he was

constantly asking to see S.J. Similarly, Johnson testified that Definbaugh was

fixated on S.J.

Definbaugh’s messages to Johnson further corroborate his admissions.

After Johnson threatened to “call cops about [S.J.],” Definbaugh responded

“please don’t,” then immediately offered to give the property back. Three minutes

later, he messaged her again, “don’t say nothing please I’m crying.” The next

minute he messaged her again, “don’t say nothing please.” A couple of minutes

later, “please don’t say nothing about past.” About fifteen minutes later, he

messaged her yet again, “please don’t bring my past up at all please.” When he

resisted returning some property, Johnson told him, “[c]ops will be called and I’ll

tell [S.J.’s father] what u did.” Definbaugh promptly responded, “it’s headed back,”

“nothing about past.” Definbaugh’s statements, as the district court aptly noted,

were “immediate, emotional and pleading.” He never questioned what Johnson

meant when she threatened to call the police about S.J. His pleading indicates his
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own knowledge of wrongdoing. Definbaugh’s messages corroborate his

inappropriate contact with S.J.

We recognize, as Definbaugh points out, that there was no physical

evidence in this case. Nor was there any testimony by S.J. However, the nurse

practitioner who examined S.J. testified that both of those omissions are expected

in a case such as this one, where the victim was only two years old at the time of

the offense and there was delayed reporting. Furthermore, our review on appeal

is limited, and we view the evidence in the light most favorable to the State. See

Sanford, 814 N.W.2d at 615. J.J.’s testimony and Definbaugh’s messages to

Johnson “fortif[y] the truth of [Definbaugh’s] confession[s].” See Polly, 657 N.W.2d

at 467.

AFFIRMED.