State of Iowa v. Jason LLoyd Noggle

IN THE COURT OF APPEALS OF IOWA

No. 21-1969
Filed December 21, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JASON LLOYD NOGGLE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Bradley McCall,

Judge.

A defendant appeals his conviction for sexual abuse in the third degree.

AFFIRMED.

Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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SCHUMACHER, Judge.

Jason Noggle appeals his conviction for sexual abuse in the third degree.

We find the district court did not err by overruling Noggle’s objection to the victim’s

journal on hearsay grounds and finding the journal was admissible. Even if the

court erred, however, the admission of the journal was not prejudicial as the

evidence was cumulative to other evidence in the record. We also conclude there

was sufficient evidence in the record to support the verdict. We affirm Noggle’s

conviction.

I. Background Facts & Proceedings

Noggle was charged with sexual abuse in the third degree, in violation of

Iowa Code section 709.4(1)(b)(2) (2019). He waived his right to a jury trial. The

case was tried to the bench on October 13, 2021.

During the trial, the following evidence was presented. C.S. testified she

met Noggle through Snapchat. She stated that on September 2, 2019, when she

was fourteen years old, she arranged to meet Noggle, who was then nineteen, in

a rural area near her home. That evening, before the meeting, she took “a couple”

of her brother’s anxiety pills. C.S. snuck out of her house and walked to meet

Noggle. She got into Noggle’s car and they smoked a cigarette and marijuana.

C.S. testified, “I was just completely out of it. I couldn’t talk. I couldn’t move or

anything.”

Noggle got out of the driver’s seat and came over to the passenger seat,

which C.S. had in a reclining position. C.S. stated Noggle left bruises on her neck

from kissing her. He took off her shirt and pants and engaged in vaginal
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intercourse. He then turned her over and engaged in sexual intercourse a second

time, pulling her hair and choking her. Eventually, C.S. walked back to her house.

The next day, C.S.’s sister, S.S., observed that C.S. had hickeys. C.S. told

S.S. that they were from Noggle. A few days later, C.S. provided S.S. further

details about her sexual encounter with Noggle.

In March 2020, C.S.’s parents found out about C.S.’s sexual encounter with

Noggle. C.S.’s mother took her to the sheriff’s department, where C.S. relayed the

incident to Sheriff Joseph Carico. Following C.S.’s report, Sheriff Carico met

Noggle outside his home and Noggle admitted he met C.S. in September 2019.

When asked if he had sexual intercourse with C.S., Noggle replied, “We might

have.”

Noggle stated he believed C.S. was seventeen years old and that he quit

having contact with her when he learned she was fourteen years old. Noggle

testified:

Q. Mr. Noggle, have you ever wavered in your statement that
you did not have sex with that woman? A. Yes.
Q. When? A. At the last part of the interview with Sheriff
Carico.
Q. Why did you waver? A. I was very stressed out. When
[C.S.’s sister, M.S.] messaged me, she had threatened me. She was
threatening my life. Everyone was accusing me of this crime, and I
was very stressed out. So, I mean, it was just a very hard time for
me.

Noggle further stated, “I do remember saying that at that time, but right now, I can

say 100 percent without a doubt I did not have intercourse with her.”

C.S. testified that in September 2019 she kept a journal. The State offered

Exhibit 4, which was a photograph of two pages from her journal. C.S. had
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destroyed the rest of the journal. Noggle objected on the ground of completeness,

undue prejudice, and hearsay. The court stated:

Well, I think it is hearsay, [Prosecutor]. It’s an out-of-court
statement being offered to prove the truth of the matter asserted.
The question in my mind is whether or not it is an exception,
specifically a recorded recollection of this witness.
The witness has testified that she doesn’t have a clear
recollection of the events. I don’t know that you have at this point
met the foundational requirements for admission as a recorded
recollection, however. If you want to ask further questions to achieve
that?

C.S. testified she made the journal entry on September 11, 2019, nine days

after the incident with Noggle. She stated the journal contained her recollections.

She stated the journal helped her remember the events, which occurred about two

years before Noggle’s criminal charges were brought to trial. The State again

offered Exhibit 4. Noggle objected on the grounds asserted previously, adding that

the evidence was needlessly duplicative. The court determined the journal was

admissible under the recorded recollection exception to the hearsay rule. C.S.

testified about the contents of the journal and stated it was a truthful account of

what happened to her.

The court determined Noggle was guilty of third-degree sexual abuse. The

court found C.S. was a credible witness, while Noggle’s testimony lacked

credibility. Noggle was sentenced to a term of imprisonment not to exceed ten

years. He appeals his conviction.

II. Hearsay

Noggle claims the district court erred by admitting Exhibit 4, the excerpt from

C.S.’s journal. He states the exhibit was hearsay and was not admissible under a

hearsay exception. He also asserts that the evidence was prejudicial.
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In general, hearsay is not admissible. Iowa R. Evid. 5.802. The Iowa Rules

of Evidence list several exceptions to the hearsay rule. See Iowa Rs. Evid. 5.803,

.804, .807. The district court’s decision on a hearsay objection is reviewed for the

correction of errors at law. State v. Dessinger, 958 N.W.2d 590, 597 (Iowa 2021).

“The correction for errors at law standard is applicable in determining whether

evidence that would generally be prohibited as hearsay comes in under a hearsay

exception.” Id.

The parties do not dispute the court’s ruling that Exhibit 4 was hearsay. The

district court ruled the exhibit was admissible under the recorded recollection

exception. This exception provides:

Recorded recollection. A record that:
(A) Is on a matter the witness once knew about but now
cannot recall well enough to testify fully and accurately;
(B) Was made or adopted by the witness when the matter was
fresh in the witness’s memory; and
(C) Accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence, but it may
be received as an exhibit only if offered by an adverse party.

Iowa R. Civ. P. 5.803(5).

While not raised by either party, we note that under rule 5.803(5), a

recorded recollection “may be received as an exhibit only if offered by an adverse

party.” The issue of whether Exhibit 4 could be received as an exhibit because it

was offered by the State rather than Noggle, as the adverse party, has not been

preserved for our review as it was not raised at the district court level. See State

v. Wilson, 968 N.W.2d 903, 918 (Iowa 2022) (finding an issue that had not been

presented to or decided by the district court was not preserved). Additionally, the

issue has not been raised on appeal and we conclude it has been waived. See
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State v. Davis, 971 N.W.2d 546, 554 (Iowa 2022) (citing Iowa R. App.

P. 6.903(2)(g)(3)).

In discussing the recorded recollection exception, the Iowa Supreme Court

stated:

The rule seeks to assure that there has been an accurate recordation
of a past recollection, reasonably contemporaneous with the event,
to use as a substitute for the nonexistent present recollection of the
event. It does this by requiring a satisfactory showing of (1) the
“freshness” of the witness’s recollection of the event at the time the
recording process takes place, and (2) the accuracy of the process
utilized to record that recollection.

State v. Thompson, 397 N.W.2d 679, 683 (Iowa 1986). A deposition taken thirty-

one days after an event has satisfied the “freshness” requirement. Id. The second

element is fulfilled if the recorded recollection was made or adopted by the witness.

Id.

C.S. testified she wrote the journal entry that constituted Exhibit 4 about

nine days after her contact with Noggle. The journal entry contained her

recollection of the incident. She stated the exhibit helped her recall some things

about the event that she had forgotten. C.S. stated she tried to be accurate in her

journal.

The district court found Exhibit 4 was admissible under the recorded

recollection exception to the hearsay rule. We find no error in the district court’s

ruling on this issue. The recorded recollection met the freshness requirement, as

it was written nine days after the event, when it was still fresh in C.S.’s memory.

See id. Also, C.S. testified she tried to be accurate in her journal, fulfilling the

requirement of “the accuracy of the process utilized to record that recollection.”

See id. The recorded recollection was made by the witness, C.S. See id.
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On appeal, Noggle claims Exhibit 4 was not admissible under the residual

hearsay exception found in rule 5.807. The residual exception was not addressed

at Noggle’s criminal trial and the district court did not rule on the applicability of the

residual exception. We conclude this issue has not been preserved for our review.

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and decided

by the district court before we will decide them on appeal.”).

Furthermore, even if we found Exhibit 4 was admitted in error, the admission

of the exhibit was not prejudicial. The Iowa Supreme Court has stated:

“[A]dmission of hearsay evidence over a proper objection is
presumed to be prejudicial error unless the contrary is affirmatively
established.” State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984). The
contrary is affirmatively established if the record shows the hearsay
evidence did not affect the jury’s finding of guilt. Id. One way to show
the tainted evidence did not have an impact on the jury’s verdict is to
show the tainted evidence was merely cumulative. State v. Hildreth,
582 N.W.2d 167, 170 (Iowa 1998).

State v. Elliott, 806 N.W.2d 660, 669 (Iowa 2011) (footnote omitted); see also State

v. Thomas, 766 N.W.2d 263, 272 (Iowa Ct. App. 2009) (“[W]e will not find prejudice

if the admitted hearsay is merely cumulative.”).

Noggle’s appellate brief asserts Exhibit 4 was cumulative, stating, “Prior to

the diary being admitted, C.A.S. testified as to the alleged assault in sufficient

details that, if believed by the fact finder, would meet the elements of sex abuse.

The diary entry was merely cumulative.” The brief also asserts, “[T]he information

contained in the diary was nearly identical to the testimony of the witness prior to

its entry.” We determine Noggle was not prejudiced by the admission of Exhibit 4

because it was cumulative to C.S.’s testimony. See State v. Plain, 898 N.W.2d
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801, 813 (Iowa 2017) (“Tainted evidence that is merely cumulative does not affect

the [fact finder’s] finding of guilt.”); State v. Neitzel, 801 N.W.2d 612, 623 (Iowa Ct.

App. 2011) (finding the admission of hearsay testimony that was “merely

cumulative” was not prejudicial).

III. Sufficiency of the Evidence

Noggle claims there is insufficient evidence in the record to support his

conviction for third-degree sexual abuse. In regard to claims challenging the

sufficiency of the evidence, the Iowa Supreme Court has stated:

Sufficiency of the evidence claims are reviewed for
corrections of errors at law. In making determinations regarding the
sufficiency of the evidence, we “view the evidence in the light most
favorable to the state, regardless of whether it is contradicted, and
every reasonable inference that may be deduced therefrom must be
considered to supplement that evidence.” If the record contains
substantial evidence to support the defendant’s conviction, we will
uphold a trial court’s denial of a motion of acquittal. “Evidence is
substantial if it would convince a rational trier of fact the defendant is
guilty beyond a reasonable doubt.” Evidence can be either
circumstantial or direct, or both. Evidence is substantial if a
reasonable trier of fact would be convinced that the defendant is
guilty beyond a reasonable doubt.

State v. Lilly, 930 N.W.2d 293, 298 (Iowa 2019) (internal citations omitted). “The

evidence must at least raise a fair inference of guilt and do more than raise mere

suspicion, speculation, or conjecture.” State v. Soboroff, 798 N.W.2d 1, 6 (Iowa

2011).

Section 709.4(1) provides, “A person commits sexual abuse in the third

degree when the person performs a sex act under any of the following

circumstances”:

b. The act is between persons who are not at the time cohabiting as
husband and wife and if any of the following are true:
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(1) The other person is suffering from a mental defect or
incapacity which precludes giving consent.
(2) The other person is fourteen or fifteen years of age and
any of the following are true:
(a) The person is a member of the same household as
the other person.
(b) The person is related to the other person by blood
or affinity to the fourth degree.
(c) The person is in a position of authority over the
other person and uses that authority to coerce the other person to
submit.
(d) The person is four or more years older than the
other person.

Although Noggle claims that he believed C.S. was seventeen years old, he

does not dispute that she was fourteen at the time of the incident. He also does

not dispute that he was nineteen years old, making him more than four years older

than C.S.

Noggle contends the State did not present sufficient evidence to show he

engaged in a sex act with C.S. He points out there is no physical evidence of a

sex act. He also claims C.S.’s testimony was unreliable because she had taken

prescription pills that had not been prescribed to her and smoked marijuana. For

the same reasons, he claims C.S.’s journal entry was unreliable.

“In a criminal case tried to the court, as in a civil case tried to the court at

law, the court’s verdict is like a jury verdict.” State v. Price, 365 N.W.2d 632, 633

(Iowa Ct. App. 1985). The court’s verdict will be upheld if it is supported by

substantial evidence. See State v. Chapman, 944 N.W.2d 864, 871 (Iowa 2020).

The court determined Noggle was not a credible witness. Noggle initially denied

to Sheriff Carico that he had intercourse with C.S. but later in the interview twice

stated he “might have had intercourse” with C.S. The court, as the fact finder, can
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“reject certain evidence, and credit other evidence.” State v. Sanford, 814 N.W.2d

611, 615 (Iowa 2012).

And the district court determined C.S. was a credible witness. The court

noted, “Despite the subject matter she was able to succinctly describe the events

of the night.” C.S. testified that during her encounter with Noggle she received

hickeys, which were observed the next day by her sister, S.S. Additionally, C.S.’s

journal entry, written nine days after the incident, supports her recollection of the

event. We determine Noggle’s conviction for third-degree sexual abuse is

supported by substantial evidence. See Price, 365 N.W.2d at 633 (“In review of

any case tried to the court at law, findings of the trial court are to be broadly and

liberally construed, rather than narrowly or technically, and in case of ambiguity,

they will be construed to uphold, rather than defeat, the judgment.”).

We affirm Noggle’s conviction.

AFFIRMED.

Chicchelly, J., concurs; Tabor, P.J., specially concurs.
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TABOR, Judge. (specially concurring)

Like the majority, I would affirm Noggle’s conviction. I write separately

because I respectfully disagree that the district court properly admitted C.S.’s

journal entry under the hearsay exception for recorded recollections. As the

majority notes, Iowa Rule of Evidence 5.803(5) allows such a record to be received

as an exhibit only if offered by an adverse party. That element is not satisfied here.

Unlike the majority, I believe Noggle preserved error on this claim. He objected on

hearsay grounds at trial and renews that argument on appeal. Nothing more is

required. See State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003) (“The

preservation of error doctrine is grounded in the idea that a specific objection to

the admission of evidence be made known, and the trial court be given an

opportunity to pass upon the objection and correct any error.”). The district court

had an opportunity to rule on the hearsay objection, but mistakenly allowed the

State to offer the journal entry as an exhibit. Noggle is correct that the court

improperly admitted the journal entry under the hearsay exception for recorded

recollections.

But like the majority, I believe admission of the hearsay was not prejudicial.