State of Iowa v. Steven Lawrence Elliott Jr.

IN THE COURT OF APPEALS OF IOWA

No. 22-1592
Filed August 7, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

STEVEN LAWRENCE ELLIOTT JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Deborah Farmer

Minot, Judge.

A defendant appeals his convictions for assault causing bodily injury and

assault with intent to commit sexual abuse. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Badding and Buller, JJ.
2

TABOR, Presiding Judge.

“[D]runk people are affable, and I just thought we would hug, and he would

leave, and that would be the end of it.” That’s how the State’s witness, Jackie,1

explained her acquiescence to Steven Elliott’s alcohol-fueled request for a hug at

the Iowa City Old Capitol Mall bus stop. But the hug wasn’t the end of it. Jackie

told the jury that Elliott put his arm around her, tried to reach up her skirt, rubbed

his crotch against her buttocks, bit her neck, and grabbed her buttocks over her

clothing while making graphic sexual remarks.

The jury found Elliott guilty of assault causing bodily injury and assault with

intent to commit sexual abuse. Appealing those convictions, he alleges the district

court committed four errors: (1) denying his motions to strike two potential jurors

for cause; (2) admitting Jackie’s 911 call into evidence; (3) permitting a police

officer to testify about the effect of traumatic events on witness memories; and

(4) allowing the jury to hear a reference to Elliott getting out of jail. Finding no

error, abuse of discretion, nor prejudice in the district court’s rulings, we affirm.

I. Facts and Prior Proceedings

Jackie was waiting for a bus outside Old Capitol Mall in October 2021 when

a stranger approached her. He “smelled heavily of alcohol” and told her that “he

had just gotten out of jail.” He asked for a hug, and she agreed. But his actions

went far beyond that gesture. Jackie recalled that Elliott gripped her tight with both

arms and would not let go when she signaled that she was “done” hugging. 2 He

1 Jackie is not the victim’s legal name but it is what people call her. We use it
instead of her legal name or initials.
2 At trial, Jackie narrated a surveillance video that had captured Elliott’s actions at

the bus stop.
3

made sexual remarks and “was just biting repeatedly on the side of the neck”

causing her pain and leaving a red mark. Meanwhile he kept “lowering his hands”

while she braced herself to keep some distance between them. Nearly twenty

minutes after their initial encounter, Elliott “went from holding [her] with his right

arm” to “shoving [her] in front of him.” He put his hands in front of her stomach,

“really close to [her] crotch.” It was then that he rocked her “back and forth against

his crotch,” burying his face in her hair. Only when her bus came did he let go.

After she got off the bus at her workplace, Jackie called 911 to report the

assault. Officer Alex Stricker responded to the call and took her statement.

Through her report, the officer managed to identify Elliott as a suspect. Officer

Ashley Jay found Elliott on the pedestrian mall in downtown Iowa City. He admitted

to Officer Jay that he talked to a woman near the bus stop. He also acknowledged

putting his arm around her, “kissing her on the cheek,” and “biting her on the neck,

though he described it more as a hickey than biting.” Meanwhile, Officer Stricker

tracked down a surveillance video of the assaults.

The State charged Elliott with assault causing bodily injury, a serious

misdemeanor, in violation of Iowa Code sections 708.1(2) and 708.2(2) (2021) and

assault with the intent to commit sexual abuse, an aggravated misdemeanor, in

violation of section 709.11. The jury found him guilty as charged. Elliott now

appeals those convictions.
4

II. Analysis

A. Did the district court abuse its discretion in denying Elliott’s
motions to strike two jurors for cause?

Elliott first contests the court’s refusal to strike for cause two prospective

jurors who revealed their personal experiences with sexual abuse.3 Strikes for

cause fall under Iowa Rule of Criminal Procedure 2.18(5). Paragraph (k) allows a

party to object if a would-be juror has “formed or expressed such an opinion as to

the guilt or innocence of the defendant as would prevent the juror from rendering

a true verdict upon the evidence submitted on the trial.” Strikes for cause have

merit if the prospective jurors hold such fixed opinions on the merits of the case

such that they cannot be impartial in deciding whether the defendant is guilty or

not guilty. See State v. Linderman, 958 N.W.2d 211, 218 (Iowa Ct. App. 2021).

During jury selection, Jurors 14 and 18 each shared decades-old

occurrences of sexual abuse in their families. Separated from the rest of the panel,

Juror 18 recounted two incidents of sexual abuse suffered by her then-teenaged

daughter thirty years earlier. One incident involved impropriety by a teacher and

the other, advances by a stranger in an apartment complex game room. Juror

18—a retired high school secretary—said that she had encountered allegations of

sexual misconduct in her work. In those school cases, she recalled: “I was fine at

being impartial with that and trying to see both sides.” But she said it was different

when the abuse was “too close to home” and involved her daughter. As for Elliott’s

3 The defense preserved error on this claim by both (1) moving to strike these

prospective jurors and (2) identifying two other jurors he would have removed if
given extra peremptory strikes. See State v. Jonas, 904 N.W.2d 566, 583–84
(Iowa 2017).
5

trial, she “would sure try” to be fair and wanted to do “the right thing.” But she

cautioned that she might “get emotional.” Still, she affirmed that Elliott was

presumed innocent because “that’s the whole basis of our system.” The district

court denied the defense motion to strike Juror 18, finding that her answers did not

indicate that she would be unable to be fair and impartial.

In the same vein, Juror 14—age thirty-one—disclosed during individual voir

dire that she had been sexually abused by a family member when she was six or

seven years old. She said: “I think I could be fair and impartial, but it’s just kind of

a sensitive subject to me.” Juror 14—a pediatric nurse—told the judge that she

had “extreme anxiety” when it came to sexual abuse and might have trouble

listening to the facts of the case. She predicted that she would be “fidgeting a lot”

if the testimony brought up “memories of what happened” to her. But at the end of

her questioning, she confirmed that she could be an unbiased juror. The district

court then denied the defense motion: “I’m not convinced that anxiety over subject

matter is a sufficient reason to strike a juror for cause.”

We review these two rulings for an abuse of discretion. State v. Williams,

285 N.W.2d 248, 267 (Iowa 1979) (“[T]rial court is vested with broad, but not

unlimited, discretion in ruling upon a challenge for cause.”). But Elliott insists that

our deference only goes so far, quoting this passage:

Although a ruling may be technically right, if it must be so doubtful as
to raise a fair question as to its correctness, it is far better to give the
accused the benefit of the doubt, to the end that he and all other men
may be satisfied that his rights have not been invaded.

Jonas, 904 N.W.2d at 575 (quoting State v. Teale, 135 N.W. 408, 410 (Iowa 1912)).
6

The court’s rulings here are not “so doubtful as to raise a fair question” about

their correctness. Neither prospective juror had experiences that mirrored those

alleged by the prosecution. Compare State v. Hatter, 381 N.W.2d 370, 372 (Iowa

Ct. App. 1985) (holding district court should have sustained challenge for cause to

prospective juror whose ordeal as a rape victim was strikingly similar to that of

complaining witness), with State v. Doorenbos, No. 19-1257, 2020 WL 3264408,

at *7 (Iowa Ct. App. June 17, 2020) (“Familiarity with the trial topic is different from

a bias against the defendant or a preconceived view of his guilt.”). Survivors of

sex abuse are not automatically barred from jury service in sex abuse

prosecutions. Cf. State v. Mann, 512 N.W.2d 528, 533 (Iowa 1994) (comparing

disqualification of judge to disqualification of jurors who were sexual abuse

victims). True, both Juror 14 and Juror 18 acknowledged emotion or anxiety

triggered by the allegations of sexual abuse. But both offered assurances of

objectivity; they understood that Elliott was presumed innocent; and they

recognized that he had no role in their prior experiences. See id. And because at

least twenty years had elapsed between the incidents in the jurors’ lives and the

trial, it was less likely that their impartiality could be reasonably questioned. See

id. On this record, the district court did not abuse its discretion in denying the

defense motions to strike these prospective jurors.

B. Did the district court wrongly admit hearsay into evidence?

“He bit me. It hurt.” That assertion was part of Jackie’s call to the

911 operator reporting that she had been “sexually assaulted.” She also described

him “groping” her at the bus stop. She placed the call between thirty and forty-five
7

minutes after her encounter with Elliott.4 Before trial, the State asked the court to

find that the five-minute recording was admissible. The defense objected on

hearsay and confrontation grounds. After confirming that the State planned to call

Jackie to testify, the court agreed to admit the recording under the hearsay

exception for excited utterances. Elliott challenges that ruling here.

We review his hearsay challenge to correct errors at law. State v. Skahill,

966 N.W.2d 1, 8 (Iowa 2021). Hearsay is an out-of-court statement offered to

prove the truth of the matter asserted. See Iowa R. Evid. 5.801(c). An exception

to the hearsay rule exists for excited utterances, which are statements “relating to

a startling event or condition, made while the declarant was under the stress of

excitement that it caused.” Iowa R. Evid. 5.803(2). Elliott disputes that Jackie was

still under the stress of the alleged sexual assault when she called 911.

The State defends admission of the 911 call under the hearsay exceptions

for excited utterances, present-sense impressions, and then-existing physical

conditions. See Iowa R. Evid. 5.803(1), (2), (3). Beyond arguing those exceptions,

the State contends any error in admission of the recording was harmless. See

State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008). We take that final option.

Jackie’s statements in the 911 recording were just a preview of her trial

testimony. See Skahill, 966 N.W.2d at 16 (noting State may overcome

presumption of harm by showing that wrongly admitted evidence was cumulative).

For instance, she testified that the bite to her neck was “really painful.” What’s

4 Jackie estimated that the bus ride to her workplace took twenty to twenty-five

minutes, and then she was “bawling” in the hallway for another ten to twenty
minutes before she called 911.
8

more, Elliott admitted to Officer Jay that he gave Jackie a “hickey.” Even if wrongly

admitted, we will not consider hearsay prejudicial if substantially the same

evidence is properly in the record. See State v. Juste, 939 N.W.2d 664, 675 (Iowa

Ct. App. 2019). Plus, the State’s evidence establishing Elliott’s guilt was

overwhelming. The jury watched the assaults captured on surveillance footage.

As the State argues: “Under these circumstances, the 911 call had no effect on

Elliott’s fate.” See State v. Caples, 857 N.W.2d 641, 648 (Iowa Ct. App. 2014)

(concluding there was “overwhelming evidence of guilt and any evidentiary error

was harmless”).

C. Did the district court abuse its discretion in allowing a police
officer to testify how traumatic events can affect a witness’s
memory?

Elliott next argues that the court should have sustained his objection to a

police officer’s testimony about the effect of trauma on a person’s “recollection of

events.” The challenged testimony came from Officer Jay, who arrested Elliott.

After Jay shared the details of her interview with Elliott, the prosecutor switched

gears. He asked—based on Jay’s experience and training—whether all people

react the same to traumatic events. Over a defense objection, Jay was allowed to

answer: “No.” The prosecutor next asked what effect trauma may have on a

witness. The defense again objected on grounds of improper expert testimony,

vouching, and as outside the scope of the minutes of testimony. The court

sustained that objection. Undaunted, the prosecution asked: “In general, if

someone experiences trauma, does that affect their ability to recall?” The court

again sustained a defense objection. Taking a different tack, the prosecutor

questioned Officer Jay about her experience and extensive training on the effects
9

of trauma—seeking to qualify her as an expert. Defense counsel complained that

they had no notice of this line of expert testimony. The court agreed with the lack-

of-notice argument.

Yet the prosecutor, over a defense objection,5 persisted in asking about the

effects of trauma:

Q. In your thousands of calls for people who have experienced
trauma, does that traumatic incident affect their ability to recall
certain things that happened during the incident? A. Yes. In my
training and experience over the twelve years of my career I have
learned and then subsequently seen regularly that their recollection
of events can be different than the events. As in they’ll forget things.
They may get things out of order. I mentioned our peer support
training. When my officers are involved in critical incidents, we don’t
talk about the incident for about forty-eight hours unless they need
to talk about a specific thing because we try to give them a couple
sleeps to get their brain calmed down so they can recall information
a little more clearly. And generally I found that it seems like they
recall more details and information maybe more in a correct order.

On appeal, Elliott renews his objection, contending the officer’s answer was

“outside the scope of the minutes of testimony, it bolstered the credibility of

[Jackie], and it was improper opinion testimony.” The State contests the claims of

vouching and improper opinion but concedes that the testimony was beyond the

scope of the minutes. See Iowa R. Crim. P. 2.5(3) (requiring State to provide the

accused with “a full and fair statement” of the expected testimony of each witness).

But the State maintains that any error in admitting Officer Jay’s brief

testimony on trauma was harmless. We agree. Like the hearsay challenge, the

State is able to overcome any claim of error through the strength of its evidence

against Elliott. See State v. Thoren, 970 N.W.2d 611, 636–37 (Iowa 2022)

5 The court overruled the defense objection to this question, finding that it was “a

fact question” rather than calling for an expert opinion.
10

(“Overwhelming evidence of the defendant’s guilt can make the error harmless.”).

Besides Jackie’s testimony, the State presented video evidence of Elliott’s actions

to the jury. By contrast, Officer Jay’s generic discussion of memory and trauma

was isolated, and the officer did not tie her opinion to anything that Jackie reported

or left out of her report to police. In fact, Officer Jay used her colleagues, rather

than crime victims, as a point of reference. Moreover, the defense vigorously

cross-examined Jackie about discrepancies between her trial testimony and her

statements to Officer Stricker. On this record, the admission of Officer Jay’s

opinion on trauma did not “injuriously affect” Elliott’s rights. Id. (quoting Parker,

747 N.W.2d at 209).

D. Did the district court abuse its discretion in allowing the victim
to testify that Elliott told her he was just released from jail?

Elliott’s fourth claim concerns the statement he made to Jackie when he first

approached her at the bus stop. Over his objection, she testified that Elliott told

her “early on” that he had “just gotten out of jail.” Hearing that information made

her feel “pretty scared.” The district court denied defense counsel’s motion to

exclude that testimony, reasoning that “the critical element that the State has to

prove is your client’s intent and the effect of his actions and statements to a victim.”

We review that ruling for an abuse of discretion. State v. Richards, 879 N.W.2d

140, 153 (Iowa 2016).

On appeal, Elliott argues that his jail statement should have been excluded

under Iowa Rule of Evidence 5.404(b) (2022). That rule provided:

Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the
person acted in accordance with the character. . . . This evidence
may be admissible for another purpose such as proving motive,
11

opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.

Iowa R. Evid. 5.404(b)(1), (2).

But not all evidence of other crimes falls within the scope of rule 5.404(b).

State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010). An example of evidence

outside the rule’s scope are facts “inextricably intertwined with the crime charged.”

Id. If the other-crime evidence is inseparable from the present-crime evidence,

then the court need not consider its reflection on the character of the accused. Id.

at 420. “Instead, the inextricably intertwined evidence is subject to the same

general admissibility requirements as other evidence that is used to provide the

fact finder with a complete picture of the charged crime.” Id.

The State argues that Elliott’s jail statement is the kind of evidence

inseparable from the assaults that he was being prosecuted for. We agree.

Elliott’s request for a hug from a stranger at the bus stop was followed closely by

his revelation that he was just released from jail. As the State notes: “Without the

jail comment, the victim’s muted reaction would make little sense. She testified

that she was afraid he would become violent when she heard the statement.” If

the district court had severed Elliott’s jail comment from the narrative of the

charged assaults, that narrative would have been confusing and misleading. See

id. at 423. The inextricably intertwined theory applies here. Elliott’s jail comment

gave the jury a complete picture of the charged assaults. The district court did not

abuse its discretion in allowing Jackie to testify about his comment.

AFFIRMED.