State of Iowa v. Robbie John Hess

IN THE COURT OF APPEALS OF IOWA

No. 22-0520
Filed April 26, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBBIE JOHN HESS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County,

Monica Zrinyi Ackley, Judge.

Robbie Hess appeals his conviction for first-degree kidnapping.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau (until

withdrawal) and Rachel C. Regenold, Assistant Appellate Defenders, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Heard by Greer, P.J., and Badding and Chicchelly, JJ.
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CHICCHELLY, Judge.

Robbie Hess appeals his conviction for first-degree kidnapping. He

challenges both the weight and the sufficiency of the evidence showing his guilt.

He also challenges the trial court’s jury instruction on incapacitation. Because the

sufficiency and weight of the evidence supports the jury’s verdict and Hess failed

to preserve error on his claim that the trial court erred in instructing the jury, we

affirm.

I. Background Facts and Proceedings.

A jury found Hess guilty of the first-degree kidnapping of fifteen-year-old

B.M. in July 2020. Hess met B.M. while she was staying at a “trap house” 1 after

leaving a residential treatment facility in Dubuque. B.M. used various drugs while

at the house, including methamphetamine and heroin. As a result, by July 7, she

had not slept in at least five days.

On that date, someone at the house got a text message saying the police

were coming soon. B.M. became afraid she would be found and returned to the

residential treatment facility. So, when Hess offered to let B.M. stay in his home,

B.M. agreed and they left the house together.

Rather than taking her to his home, Hess walked B.M. downtown to where

his boat was docked on the Mississippi River. They boarded the boat, and Hess

took B.M. to a small island on the Wisconsin side of the river.

According to B.M., Hess first brought up sex while they were on the island.

B.M. told Hess no, but he “just kept asking.” When she didn’t comply with what he

1 B.M. testified that a trap house is “a place where people go to do drugs.”
3

wanted, Hess threw her to the ground and removed her clothes. B.M. did not try

to fight Hess off. She recalls Hess placing a knife next to her on the ground, and

she was afraid he would hurt her if she fought. B.M. did not scream because there

was no one else on the island. Although she “blanked out” for periods, B.M.

remembered Hess touching her breasts, touching her “all over,” making her touch

his penis, and inserting his penis into her vagina.

Hess returned B.M. back to Dubuque and left her on the shore. He said he

forgot his wallet on the island and needed to return to get it. Hess piloted his boat

away. B.M. waited for Hess, but he did not return.

Steve Cassel saw B.M. walking up the shoreline and talking to herself. He

recognized B.M. from a post he saw about a missing girl. Even before interacting

with her, Cassel thought B.M. had been drinking or was “on something” based on

how she walked and talked. After bringing B.M. to his houseboat, he called the

police.

After responding to Cassel’s call, police officers brought B.M. to a hospital

for medical assistance. A vaginal swab was collected during a physical exam of

B.M. Male DNA found on the swab was later matched to Hess.

The police eventually identified and located Hess. When officers first

questioned Hess, he did not mention any sexual contact with B.M. Hess claims

he did not disclose it because his girlfriend was present for his questioning and he

did not want his girlfriend to know. He later conceded the sexual contact but

contradicted B.M.’s claims. According to Hess, B.M. wanted to go with him when

he went fishing on the island. While B.M. sat in a chair, Hess fished and “wasn’t

paying a whole lot of attention to her.” Around midday, he laid down on the ground
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and napped. Hess claims that when he awoke from the nap, B.M. made sexual

advances and got on top of him while he was still lying on the ground. She

removed her shorts and pulled down his swim trunks, which is when they had

genital-to-genital contact. He denies that penetration occurred. Hess claimed he

was taken aback and did not want to be rude, but he was nervous because they

were not sheltered and boats were near the island. He sat up, which pushed B.M.

off him. Hess then packed up his fishing gear and returned B.M. to Dubuque

before leaving in his boat.

II. Sufficiency of the Evidence.

Hess challenges the sufficiency of the evidence supporting his conviction.

We review this claim for correction of errors at law. State v. Jones, 967 N.W.2d

336, 339 (Iowa 2021). We are bound by the verdict if substantial evidence

supports it. Id. “Substantial evidence is evidence sufficient to convince a rational

trier of fact the defendant is guilty beyond a reasonable doubt.” Id.

In reviewing the sufficiency of the evidence, we view all the evidence and

any inferences drawn from it in the light most favorable to the State. Id. Whether

the evidence can support a different verdict is irrelevant. Id. The question is

whether the evidence can support the verdict rendered by the jury. Id.

A. Removal.

The court instructed the jury that to find Hess guilty of first-degree

kidnapping, the State had to prove:

1. On or about the 7th day of July, 2020, [Hess] removed
[B.M.] from an area on land in the City of Dubuque.
2. [Hess] did so with the specific intent to subject [B.M.] to
sexual abuse.
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3. [Hess] knew he did not have the consent of [B.M.] or other
authority to do so.
4. As a result of the removal [B.M.] was sexually abused.

Hess first challenges the proof that he removed B.M. from the City of

Dubuque. On removal, the court instructed the jury that “removal requires more

than what is included in the commission of the crime of sexual assault.” The court

further instructed the jury:

No minimum distance of removal is required. It must be more
than slight. The removal must have significance apart from the
sexual abuse.
In determining whether removal exists, you may consider
whether:
1. The risk of harm to [B.M] was substantially increased.
2. The risk of detection was significantly reduced.
3. Escape was made significantly easier.

Hess argues that removing D.M. to the island was merely incidental

because it did not substantially increase her risk of harm, lessen the risk of

detection, or make his escape significantly easier. He notes the island is visible

from multiple vantage points. He also argues the State failed to show he had the

specific intent to subject B.M. to sexual abuse when he removed her.

There is substantial evidence supporting the finding that Hess removed

B.M. to the island. B.M. testified that she left the trap house with Hess because

he offered to let her live at his house. But rather than taking B.M. to his house,

Hess isolated her on an unpopulated island. B.M.’s testimony supports a finding

that doing so made it easier to commit a sexual assault and significantly reduced

the risk of detection. When Hess ignored her statement that she did not want to

engage in sexual activity, B.M. testified that she did not fight back because “there
6

was no point” as no one else was one the island and she was afraid Hess would

hurt her.

B.M. also testified that the sexual abuse occurred while she was lying on a

sleeping bag that covered the sand on the ground. From her testimony that Hess

brought the sleeping bag to the island, the jury could reasonably infer Hess’s intent

to commit sexual abuse. See State v. Bell, 223 N.W.2d 181, 184 (Iowa 1974)

(noting that because intent “is seldom capable of direct proof,” we must infer it from

“all the circumstances attending the assault, together with all relevant facts and

circumstances disclosed by the evidence”).

Substantial evidence supports the jury’s finding that Hess removed B.M.

B. Territorial Jurisdiction.

Hess next challenges the evidence showing Iowa has jurisdiction over any

crime that occurred. He notes that the island to which he took B.M. is part of the

State of Wisconsin and so any sexual activity occurred in Wisconsin.

The trial court instructed the jury on jurisdiction:

A person is subject to prosecution in Iowa for an offense which
the person commits within or outside Iowa, by the person’s own
conduct, if the offense is committed either wholly or partly within this
state.
If the defendant does a preparatory act in Iowa that
contributes more than slightly toward the eventual completion of the
offense, Iowa has jurisdiction over the acts of the defendant.
If you find that [B.M.] was removed pursuant to Instruction
Nos. 15, 16, & 17 you may presume that the removal took place in
Iowa.

Because the jury found that Hess removed B.M. from an area on land in the

City of Dubuque, the jury could presume the removal took place in Iowa. The crime
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was therefore committed, at least partly, within Iowa. Thus, substantial evidence

supports the jury’s finding that Iowa has territorial jurisdiction.

III. Motion for New Trial.

Hess also challenges the district court’s denial of his motion for new trial.

He again challenges the evidence, arguing the weight of it does not support his

conviction. He also contends the trial court improperly instructed the jury on B.M.’s

mental incapacitation.

A. Weight of the Evidence.

The district court may grant a motion for a new trial “[w]hen the verdict is

contrary to law or evidence.” Iowa R. Crim. P. 2.24(2)(b)(6). “A verdict is contrary

to the weight of the evidence only when ‘a greater amount of credible evidence

supports one side of an issue or cause than the other.’” State v. Ary, 877 N.W.2d

686, 706 (Iowa 2016) (citation omitted).

Unlike the sufficiency-of-the-evidence standard, the weight-of-the-evidence

standard permits the court to consider the credibility of witnesses. Id. But rather

than deciding whether sufficient credible evidence supports the jury’s verdict, the

court may “grant a motion for new trial only if more evidence supports the

alternative verdict as opposed to the verdict rendered.” Id. Because “a motion for

new trial brought under the weight-of-the-evidence standard essentially concedes

the evidence adequately supports the jury verdict,” the court may grant a new trial

based on the weight of the evidence “only in the extraordinary case in which the

evidence preponderates heavily against the verdict rendered.” Id.
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In challenging the weight of the evidence supporting his conviction, Hess

again disputes the evidence of removal and jurisdiction. He also challenges the

weight of the evidence showing B.M.’s incapacity.

1. Removal.

Hess revisits his earlier argument on removal, claiming that his act of taking

B.M. to the island was merely incidental to the sexual assault and the evidence

does not show he had intent to commit sexual abuse before leaving Iowa. But just

as we rejected Hess’s argument under the sufficiency-of-the-evidence standard,

we find the weight of the evidence supports the jury’s finding that he removed B.M.

from Dubuque. The credible evidence shows that Hess removed B.M. to the island

because it significantly reduced the risk of his detection. B.M. had no way to leave

the island, and no one else was on it. By taking B.M. to the island, Hess essentially

trapped her in a place where no one could intervene in his plan. Hess’s “bait and

switch” of offering to allow B.M. to stay at his home and instead taking her to the

island is evidence of his intent to sexually abuse B.M. The evidence showing Hess

brought a sleeping bag with him further supports the jury’s finding.

Because the jury’s finding that Hess removed B.M. is not against the weight

of the evidence, the district court acted within its discretion in denying his motion

for new trial.

2. Jurisdiction.

Likewise, we reject Hess’s claim that the weight of the evidence

preponderates against a finding that he committed any part of the crime while in

Iowa for the same reason we rejected his claim under the sufficiency-of-the-

evidence standard. The finding that Hess removed B.M. allows the presumption
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that the removal, and thus part of the crime, occurred in Iowa. The district court

properly denied Hess’s motion for new trial on this basis.

3. Incapacitation.

Hess contends the jury’s finding that he intended to commit sexual abuse

based on B.M.’s mental incapacitation is against the weight of the evidence. He

concedes that B.M. testified she was coming off drugs while on the island, but he

claims there is no evidence showing she was incapacitated as a result of her drug

use.

In denying Hess a new trial, the district court found ample evidence that

B.M. was incapacitated because of her intoxication or mental health:

[T]he court took into consideration the victim’s testimony and the
observations of her on the officers’ body cam video, all of which the
jury was able to watch. She was placed at Hillcrest Family Services
for mental health and rehabilitation programming. She was being
treated for auditory and visual hallucinations along with suicidal
tendencies. On the date in question, she reported having used
methamphetamine and marijuana, possibly cocaine but she was not
sure. She felt different. She had consumed alcohol. She had not
slept in five (5) days. She indicated she was “freaking out” while with
the defendant. She also stated she was blacking out during the
events and was “fuzzy.” Furthermore, she indicated she was trying
to “get control of herself” for about an hour. When Steve Cassel
found her wandering around on the boat docks, she was talking to
herself and screaming. Watching the video of her after the events, it
was reasonable for the jury to conclude she was still under the
influence of some substance or suffering from her mental health
issues.

Having reviewed the evidence, we concur with the court’s assessment.

Cassel and the police officers who spoke with B.M. that night after the sexual

abuse occurred recognized that B.M. was under the influence of alcohol or drugs.

Her behavior, as shown on video exhibits from the police officers’ body cameras,

shows that B.M. had trouble walking and made strange statements. Because the
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weight of the evidence supports the finding that B.M. was incapacitated, the district

court acted within its discretion in denying Hess’s motion for new trial.

B. Jury Instruction.

Finally, Hess challenges the denial of his motion for new trial based on an

erroneous jury instruction. He argues the trial court erred by instructing on the

“mentally incapacitated” alternative of third-degree sexual abuse under Iowa Code

section 709.4(1)(d) (2020). The instruction at issue states, “‘Mentally

incapacitated’ means that a person is temporarily incapable of controlling the

person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating

substance.” Hess argues the court should have instead instructed the jury on the

“under the influence of a controlled substance” alternative under

section 709.4(1)(c). That instruction would require proof that (1) a controlled

substance prevented B.M. from consenting to a sexual act and (2) Hess knew or

reasonably should have known B.M. was under the influence of a controlled

substance.

We review his challenge to the jury instruction for correction of errors at law

and reverse only if an erroneous instruction prejudice him. See State v. Buman,

955 N.W.2d 215, 219 (Iowa 2021). We presume an erroneous instruction is

prejudicial “unless the record affirmatively establishes there was no prejudice.” Id.

(citation omitted).

The State argues Hess did not preserve error because he did not raise his

claim until his motion for new trial. See State v. Davis, 951 N.W.2d 8, 16 (Iowa

2020) (noting that challenges to jury instructions must be specific and timely to
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preserve error for appellate review). Our rules of procedure require that parties

object to the final jury instructions before final arguments:

Before jury arguments, the court shall give to each counsel a copy of
its instructions in their final form, noting this fact of record and
granting reasonable time for counsel to make objections, which shall
be made and ruled on before arguments to the jury. Within such
time, all objections to giving or failing to give any instruction must be
made in writing or dictated into the record, out of the jury’s presence,
specifying the matter objected to and on what grounds. No other
grounds or objections shall be asserted thereafter, or considered on
appeal.

Iowa R. Civ. P. 1.924 (emphasis added); see also Iowa R. Crim. P. 2.19(5)(f)

(applying the rules relating to instruction of civil juries to trial of criminal cases);

State v. Fountain, 786 N.W.2d 260, 262 (Iowa 2010) (“Normally, objections to

giving or failing to give jury instructions are waived on direct appeal if not raised

before counsel’s closing arguments, and the instructions submitted to the jury

become the law of the case.”).2 By failing to challenge the instruction before the

2 Hess cites State v. Youngbear, 202 N.W.2d 70, 72 (Iowa 1972), and State v.
Brown, 172 N.W.2d 152, 159 (Iowa 1969), for the proposition that a criminal
defendant may challenge a jury instruction for the first time in a motion for new
trial. Our supreme court “reconcile[d] the divergent views on the subject under our
prior cases” in State v. Rouse, 290 N.W.2d 911, 914–15 (Iowa 1980), superseded
by statute on other grounds as recognized by Ryan v. Arneson, 422 N.W.2d 491,
494 (Iowa 1988). After reviewing the cases and statutory evolution that led to the
divergence, the court “expressly disapproved” of the view taken in cases like
Youngbear and Brown. Rouse, 290 N.W.2d at 915.
Nothing in our new-trial rule suggests that, merely because
misdirection of the jury and refusal to grant requested instructions
are grounds for a new trial, these issues need not be preserved at
the appropriate time during the trial. In fact, this view of the effect of
the new-trial rule is not reasonable. For example, another ground
. . . is that the court erred in the decision of any question of law during
the course of the trial. If enumeration as a ground for new trial
obviates the need for timely objection at trial, then virtually every
objection to the court’s rulings throughout the trial could be saved for
the new trial motion because they would be decisions of questions
of law during the course of the trial. We do not believe that such
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trial court submitted the case to the jury, Hess did not preserve his challenge to

the jury instruction for appellate review. But even disregarding error-preservation

concerns, we cannot find the prejudice required to merit reversal based on the

evidence of B.M’s incapacitation cited above.

IV. Conclusion.

Because the sufficiency and weight of the evidence supports the jury’s

verdict and Hess failed to preserve error on his challenge to the jury instruction,

we affirm.

AFFIRMED.

results were intended in the drafting of our present rules or their
predecessors.
Id. (cleaned up).