State of Iowa v. Lee Vandyke Carter

IN THE COURT OF APPEALS OF IOWA

No. 22-1990
Filed June 19, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

LEE VANDYKE CARTER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Winnebago County, James M. Drew,

Judge.

Lee Carter appeals from his convictions, sentence, and judgment for false

imprisonment and sexual abuse. CONVICTIONS AFFIRMED; SENTENCES

REVERSED AND REMANDED.

Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

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

General, for appellee.

Considered by Tabor, P.J., Badding, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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CARR, Senior Judge.

Lee Carter appeals his convictions, sentence, and judgment for false

imprisonment, a serious misdemeanor in violation of Iowa Code section 710.7

(2022), and sexual abuse in the third degree, a class “C” felony in violation of

sections 709.1 and 709.4(1)(a), entered following a jury trial. Carter argues the

charge of false imprisonment should not have been submitted as a lesser-included

offense of the original charge of kidnapping in the first degree, the trial court erred

in failing to grant a mistrial due to the admission of prior bad acts evidence, and

the trial court inappropriately imposed a mixed sentence of both prison and jail.

We affirm Carter’s convictions; we reverse his sentences and remand for

resentencing.

I. Background Facts and Proceedings

On July 4, 2022, two weeks after leaving her husband, Lee Carter, T.C.

returned home from work. As she was preparing for a night at home, Carter called

her indicating his phone and watch were not working. He then told her he was

coming over so she could fix it.

Upon arrival, T.C. met Carter outside where he then instructed her to get

into his car. Once she had complied, Carter proceeded to drive back to his home

in Thompson, Iowa. While at the house, T.C. was subjected to multiple acts of

sexual and physical abuse. T.C. remained there until the next day. While there,

she did not take advantage of several opportunities to secure help, including from

law enforcement officers who came to the house concerning fireworks being

discharged, or to otherwise leave the premises. The next day, Carter left for an

appointment and T.C. left the house. She was approached by a passerby and was
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persuaded to contact law enforcement. Carter was charged with first-degree

kidnapping and second-degree sexual abuse.

After a jury trial, Carter was convicted of false imprisonment by confinement,

a serious misdemeanor, which the court submitted as a lesser-included offense

under the kidnapping charge. Carter was also convicted of third-degree sexual

abuse, a lesser included offense of second-degree sexual abuse. Additional facts

will be set forth below as relevant to their claims on appeal.

II. Instruction on Lesser Included Offenses

This court reviews lesser-included-offense complaints for correction of

errors at law. See State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018). Under

Iowa Rule of Criminal Procedure 2.19(4)(h), trial courts are required to instruct on

lesser-included offenses. State v. Spates, 779 N.W.2d 770, 773 (Iowa 2010)

(citing Iowa R. Crim. P. 2.6(3), now r. 2.19(4)(h), as modified). If the defendant

expressly waives a lesser-included instruction and the State agrees to the waiver,

then a trial court is relieved of its obligation. Id. at 774.

After the conclusion of the evidentiary portion of the trial, counsel, the

defendant, and the court convened to discuss any remaining motions outside the

presence of the jury. Following its rulings the court moved on to discuss the jury

instructions. The parties and judge specifically discussed the submission of false

imprisonment as a lesser-included offense of first-degree kidnapping. The State

indicated it was willing to waive the submission of false imprisonment. Defense

counsel then requested time to confer with Carter to arrive at a final decision. After

conferring, defense counsel stated, “So, Your Honor, at this point now then we

would request all the lesser included offenses on both charges, so assault with
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intent to commit sex abuse and simple assault.” Shortly after, counsel asked for a

phrase in the false imprisonment instruction to be reworded, thinking it read “a little

bit weird.” The court ultimately declined a change of wording.

Now on appeal, Carter is arguing the trial court improperly submitted the

offense of false imprisonment. However, at the time of the discussion on lesser

offenses neither counsel nor Carter objected to its submission. Nor did counsel or

Carter indicate to the court it misunderstood and Carter did not intend to include

false imprisonment as a lesser-included offense. Carter cannot now complain the

trial court improperly submitted the instruction when he, in fact, requested it and

the State was prepared to waive its submission. As such, error was not preserved.

III. Motions for Mistrial: Prior Bad Acts

The court reviews evidentiary rulings and mistrial claims for an abuse of

discretion. State v. Hunt, 801 N.W.2d 366, 372 (Iowa Ct. App. 2011). An abuse

of discretion occurs when the court’s decision is clearly untenable or unreasonable.

State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014).

Prior to trial, Carter filed two motions in limine to exclude prior bad acts of

the defendant. Both motions generically sought to exclude prior bad acts

evidence. With the exception of one prior event not material here, the motions did

not identify any objectionable acts or events. In recorded proceedings before the

commencement of evidence, the trial court sustained the first motion unless a

proper record was made in advance. The second motion was sustained without

further elaboration.

The State also filed a pretrial motion in limine, seeking, among other things,

to exclude proof that while the Carters were living in Kansas City in 2014, T.C had
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called police to report Carter was throwing things and yelling at the children and

her. At the trial on this report, T.C. recanted her claims under oath. She was later

charged with and pled guilty to making a false police report about the incident.

Carter resisted excluding this evidence, advancing that T.C.’s prior false report

was relevant to prove her bias against him, and her lack of credibility as a witness.

The trial court ruled with Carter, denying the State’s motion and leaving him free

to examine her about the matter.

During trial, Carter argues four instances of T.C.’s testimony amounted to

inadmissible prior bad acts testimony. The first occurred when she was explaining

why she and Carter had moved to Iowa, stating, “He wanted to be closer to his

mom and then he had gotten in trouble.” Defense counsel objected. A non-record

bench conference was held. No ruling on the objection was made. Thereafter,

direct examination of T.C. continued.

T.C. was later asked why she had moved out of the family home. She

replied, “Because I could no longer continue to live with the things that I was going

through.” As with the first exchange, a non-record bench conference was held,

again without a ruling on the record.

Third, while being examined about events leading to her accompanying

Carter to his house in Thompson on the night of the incident, T.C. was asked about

her verbal interaction with him in the car. After relating his crude insults, and a

threat to kill her, T.C. continued, saying, “He started telling me about how—just

saying he had been to jail before.” Defense counsel objected. The jury was

excused. Defense counsel moved for a mistrial, citing the two earlier portions of

her testimony and the pending answer that Carter told her he had been to jail
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before. The trial court denied a mistrial. We view the statement by Carter, made

after his threat to kill T.C., as explaining her later failure to seek the assistance of

the police and others during her time with Carter at the Thompson house. The trial

court so concluded in denying a mistrial. We see no error in the ruling.

The fourth issue on this topic concerns the incident in Kansas City, which

was the subject of the State’s unsuccessful motion in limine. To get ahead of the

charge, the State offered this evidence in anticipation of T.C. being cross-

examined on the topic. After an objection by defense counsel, the State was

allowed to discuss the event. Carter’s second motion for mistrial was overruled.

“Trial courts have considerable discretion in ruling upon motions for mistrial,

since they are present throughout the trial and are in a better position than the

reviewing court to gauge the effect of the matter in question on the jury.” State v.

Jirak, 491 N.W.2d 794, 796 (Iowa Ct. App. 1992). The trial court’s ruling on such

a motion “will not be set aside except upon a clear showing of abuse of discretion.”

State v. Staker, 220 N.W.2d 613, 617 (Iowa 1974). “Ordinarily, abuse of discretion

is found” upon the denial of a mistrial “only where there is no support in the record

for the trial court’s determination.” State v. Lewis, 391 N.W.2d 726, 730 (Iowa Ct.

App. 1986).

Having carefully reviewed the transcript of evidence and, in particular, the

direct examination of T.C., we hold the first two of the alleged evidentiary errors

asserted by Carter were not properly preserved for appellate review. Failure to

obtain a ruling on an evidentiary objection generally constitutes a waiver of error.

State v. Trane, 984 N.W.2d 429, 435 (Iowa 2023). The first mistrial motion, by

defense counsel, came after the three statements T.C. made on direct
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examination. The first two of these were not ruled on by the trial court. The third

item of evidence, that in course of threatening T.C., Carter stated he had been to

jail before, led to the first mistrial motion. As we explained above, we think the

questioned evidence was relevant to explain why T.C. remained at the Thompson

home despite apparent chances to get away. The trial court’s denial of a mistrial

was not an abuse of its considerable discretion.

Regarding the fourth issue—the prior police report by T.C. and her later plea

of guilty to making a false police report—the trial court was well within its discretion

to overrule the objections and deny a mistrial. Carter was understandably intent

on proving that T.C. had before made a false report against Carter. The content

of her report was coming into evidence either on the State’s direct examination of

her, on Carter’s cross examination, or both. The trial court determined to permit

the State to introduce the topic by first proving the content of the report then proving

her plea of guilty to its falsity. Carter had a full opportunity to cross examine her

about the incident. We perceive no error in this approach.

IV. Sentencing.

Review of an illegal sentence claim is for the correction of errors at law.

State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015). Carter claims the sentence he

received was illegal because he was sentenced to periods of confinement in both

the county jail and the Iowa Department of Corrections (IDOC).

Under Iowa Rule of Criminal Procedure 2.24(5)(a), a sentence is illegal if it

is not authorized by the statute. Iowa R. Crim. P. 2.24(5)(a). Iowa Code section

901.7 provides:
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In imposing a sentence of confinement for more than one year, the
court shall commit the defendant to the custody of the director of the
Iowa department of corrections. Upon entry of judgment and
sentence, the clerk of the district court immediately shall notify the
director of the commitment.

Iowa Code § 901.7.

Carter received a ten-year prison sentence for sexual abuse in the third

degree and a one-year term of incarceration in the county jail for false

imprisonment. He contends the confinement of a year in county jail is illegal

because “the entire term of imprisonment must be served in a place designated by

the director of the Department of Corrections.”

The State agrees this type of sentence would ordinarily be improper and

Carter is correct in arguing the entire sentence should be served in prison. The

State advances, however, this will occur even without intervention by this court.

The State claims because the terms are concurrent and Carter was committed to

the IDOC, thus serving his prison sentence first, the issue is moot. The State cites

and provides a link to the IDOC website to show Carter’s tentative discharge date

from his prison sentence to be April 2029, and his “jail sentence” tentative

discharge date to be March 27, 2025. Therefore, according to the State, Carter

will discharge his one-year jail sentence four years before he discharges his prison

sentence.

We recognize that a claim of mootness can by supported by facts

technically outside the record. Iowa Mutual Ins. Co. v. McCarthy, 572 N.W.2d 537,

539 n.1 (Iowa 1997). However, a recent visit to the linked website only indicates

the discharge date of Carter’s prison term. Furthermore, Carter does not have a

mandatory minimum sentence, and could be paroled at any time. Therefore, we
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cannot conclude with certainty that he will have discharged his misdemeanor

sentence by then. As a result, we do not find the issue is moot as merely academic

or without practical legal effect. See Christenson v. Iowa District Court, 578

N.W.2d 675, 679 (Iowa 1998). We reverse the sentence and remand for a

corrected sentence, with direction for both sentences to be served with the IDOC.

CONVICTIONS AFFIRMED; SENTENCES REVERSED AND

REMANDED.