State of Iowa v. David John Lehmann

IN THE COURT OF APPEALS OF IOWA

No. 23-0408
Filed October 16, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DAVID JOHN LEHMANN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica Ackley,

Judge.

A defendant appeals his conviction and sentence for lascivious acts with a

child. REVERSED AND REMANDED.

Raphael M. Scheetz, Cedar Rapids, for appellant.

Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., and Chicchelly and Sandy, JJ.
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CHICCHELLY, Judge.

David John Lehmann appeals both his conviction and sentence for

lascivious acts with a child. He contends that (1) the trial court abused its

discretion in its evidentiary rulings, (2) the trial court should have granted a new

trial based on alleged prosecutorial misconduct, (3) his constitutional right to be

present during the proceedings was violated, (4) the trial court should have granted

his motion for judgment of acquittal based on an inconsistent jury verdict, and

(5) the trial court abused its discretion when sentencing him. Because the court

abused its discretion in admitting prior-bad-acts evidence and Lehmann’s right to

be present during proceedings was violated, we reverse and remand.

I. Background Facts and Proceedings.

Elisha has five children: Isaac and I.G., twins born in 2001; A.G., born

in 2003; O.G., born in 2005; and E.G., born in 2008. After her divorce, Elisha and

her children lived together in a rental house in Dyersville, Iowa. She started dating

David Lehmann, who was also going through his own divorce, and he spent “a lot

of the time” with them at the rental.

After approximately two years renting, Elisha purchased a house and

moved there with her children. Lehmann moved in sometime after. He offered to

buy Elisha’s house from her and have her pay him rent because she “was

struggling with making the bills and stuff happen.” Elisha accepted this offer, and

the transaction went through in August 2017.

On Memorial Day 2020, O.G. approached Elisha when she returned home

from work. O.G. told Elisha “that [Lehmann] had been touching her

inappropriately.” During their conversation, A.G. walked into the room and “could
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tell something was going on.” After some coaxing, Elisha and O.G. explained to

A.G. what they were talking about and “that’s when [A.G.] disclosed that it had

been happening to her, too.” Elisha called for E.G. and asked her about her

experience with Lehmann, “and [E.G.] disclosed as well that he had been touching

her inappropriately.” When Elisha asked I.G. the same question, I.G. confirmed

that “he’d been doing it to her,” too.

Elisha directed her children to go to their maternal grandmother’s house

while she confronted Lehmann. She reported that he became upset and told her

that “he had big hands, and he was very concerned about what other people were

going to think and say.” Elisha left to join her children at her mother’s house shortly

after.

In August 2020, Elisha reported the abuse to local law enforcement, who

investigated and eventually arrested Lehmann. The State charged Lehmann with

eight separate counts: Count I, second-degree sexual abuse; Count II,

third-degree sexual abuse; Counts III, V, and VII, lascivious acts with a child; and

Counts IV, VI, and VIII, indecent contact with a child. Counts I through IV related

to O.G, counts V and VI related to A.G., and counts VII and VIII related to E.G.

The case originally proceeded to trial in August 2022 but ended in a mistrial.

The parties jointly moved for the mistrial after a potential juror contaminated the

jury pool by making disparaging comments about Lehmann to other jurors. The

juror claimed he has known Lehmann for “[thirty] years” and stated it was “no

wonder this happened” because Lehmann worked as a custodian at a school. The

court granted the joint motion.
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Trial was then held in December 2021. All four daughters testified to similar

acts by Lehmann, ranging from him walking around the home displaying an

erection to audibly masturbating to molestation. A.G., in particular, testified that

Lehmann began touching her in the Dyersville rental home, before he moved in

with the family. On some mornings, the family would “pile in [Elisha’s] bed” and

after everyone had left, Lehmann would touch her. A.G. recalled that on one

occasion, Lehmann slid his hand inside of her shorts and touched her vagina.

During the trial, Lehmann called a number of character witnesses to testify

in his defense. He also attempted to offer an exhibit, a Facebook post purporting

to show Elisha’s bias. Though most witnesses were allowed to testify, the court

excluded both the exhibit and the testimony of Lehmann’s ex-wife. Using his

ex-wife’s testimony, Lehmann sought to prove his “lack of sexual interest in young

girls.” He also wanted to use her testimony to rebut I.G.’s claim that Lehmann

would “finger and then play with [her] dirty underwear” by asking his ex-wife

whether he had exhibited similar behaviors during their marriage. The State

objected for relevance, and the court sustained the objection, finding her testimony

“doesn’t necessarily meet the definition” of permissible character evidence.

After a four-day trial, the case was delivered to the jury at 11:50 a.m. on

Friday morning.1 Because it was so close to the noon hour, the jurors were

provided lunch and allowed to take a recess to eat. While they waited for the lunch

1 Once the case was submitted, Lehmann did move for a mistrial based on the

State’s rebuttal closing statement. In it, the State summarized the film Good Will
Hunting, in which Matt Damon works as a janitor at a college campus. The State
contrasted this with Lehmann, who “could be a janitor anywhere” but “chose to be
a janitor at a high school,” presumably to groom young girls. The court denied
Lehmann’s motion for being untimely.
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order to arrive, the jury began deliberations. But by 1:52 p.m., the jury sent a

written question to the court, asking if they should continue deliberation because

there were “two jurors that are in disagreement” and “are not going to change [their]

minds.” The court responded, “Please continue to discuss the facts and laws.” At

3:15 p.m., the jury sent another communication: “We are at a definite impasse [sic].

We have exhausted the facts” and “nothing is changing.” The court responded

again, offering “two options: keep deliberating or take a recess and return Monday

when you are more fresh.” The jury chose to continue deliberations. On Monday,

at 9:46 a.m., the jury asked a third, substantive question which is not at issue on

appeal. The court then notified the parties about all three of the jurors’ written

communications. After a discussion on the record, the parties stipulated to a

response to the third question and urged the jury to keep deliberating on all counts.

As for the previous two questions, Lehmann’s counsel raised concerns about the

court’s interactions with the jury outside of Lehmann’s presence but did not make

a definitive motion at that time.

Twenty minutes after the court delivered the instruction, the jury came back

with its verdict. In it, the jury acquitted Lehmann of all charges except count V,

lascivious acts with a child, which involved A.G. as the victim. Lehmann moved in

arrest of judgment and for a new trial, but the court denied both. He also completed

a presentence investigation report, which recommended a suspended sentence.

Instead, the court followed the State’s recommendation and sentenced Lehmann

to an indeterminate term of incarceration not to exceed ten years, the maximum

allowed by statute. See Iowa Code §§ 709.8(2)(a) (2016) (designating lascivious
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acts with a child as a class “C” felony); 902.9(1)(d) (permitting incarceration “for no

more than ten years” for a class “C” felony).

Lehmann appeals, challenging the court’s evidentiary and posttrial rulings.

He further contends the trial court abused its discretion when sentencing and that

his constitutional right to be present was violated.2

II. Admission of Prior Bad Acts Evidence.

Lehmann moved in limine to exclude I.G.’s testimony. In response, the

State argued her testimony would be used “to corroborate details of the statements

of other witnesses” and because I.G. is “the most sexually mature child,” she is

therefore in the best position “to demonstrate intent, motive, and lack of mistake

by [Lehmann].” The court allowed I.G. “to testify regarding the same or similar

actions perpetrated on her as to” the alleged victims. On appeal, Lehmann

contends the court abused its discretion by admitting I.G.’s testimony, claiming its

only purpose was to show propensity because she was not one of the alleged

victims. Iowa courts are generally not permitted to admit evidence “to prove that

on a particular occasion the person acted in accordance with” a specified character

trait. Iowa R. Evid. 5.404(b)(1). But prior bad acts are admissible if offered for a

non-propensity purpose, such as motive, intent, or lack of mistake or accident.

State v. Cox, 781 N.W.2d 757, 760–61 (Iowa 2010) (finding that prior-bad-acts

evidence is admissible if “relevant and material to a legitimate issue in the case

other than a general propensity”); Iowa R. Evid. 5.404(b)(2).

2 Because we find reason to reverse on other grounds, we do not reach the merits

of his multiple evidentiary, prosecutorial-misconduct, inconsistent-verdict, or
sentencing challenges.
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To prevail, the State was required to demonstrate sexual intent. See Iowa

Code § 709.8(1)(a), 709.12(1)(a) (requiring a defendant to act “for the purpose of

arousing or satisfying the sexual desires of either [the defender or victim]”). The

court found I.G.’s testimony admissible because Lehmann’s “pattern of conduct”

indicated such intent. See Cox, 781 N.W.2d at 771 (noting that evidence “may be

relevant to demonstrate motive or intent when a defendant claims touching was

accidental” and “admitted evidence of the defendant’s previous sexual activities

with adolescents to support a charge of assault with intent to commit sexual

abuse”). But upon our own review, we disagree. “[T]he elements of a charged

offense do not automatically become legitimate, disputed factual issues in a case.”

State v. Thoren, 970 N.W.2d 611, 629 (Iowa 2022). Intent here was not actually

at issue because Lehmann’s defense at trial was not accident or lack of intent.

Instead, Lehmann “flat-out denied ever [inappropriately touching]” the girls. Id.

at 631. Therefore, I.G.’s testimony could not be used to refute Lehmann’s defense.

Similarly, her testimony does little to establish motive or identity, neither of

which were in dispute. While the State loosely claimed I.G.’s testimony would

demonstrate “motive,” it provided no additional basis. “The motive for [sexual

crimes] is obviously and inherently sexual,” so evidence of prior inappropriate

behavior cannot be used as a “generalized motive.” Id. at 628 (cleaned up)

(citation omitted). Further, while the court admitted the testimony based on a

“pattern of conduct,” evidence of modus operandi is generally only used to

establish identity. See Cox, 781 N.W.2d at 770; Thoren, 970 N.W.2d at 631.

Lehmann did not argue mistaken identity or that the crime was committed by
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another. Again, he denied the allegations. We therefore cannot find that the

testimony was admissible for any purpose other than propensity.

Even if all or a portion of I.G.’s testimony was improperly admitted, we must

also consider the potential prejudice to Lehmann by its admission. See Cox,

781 N.W.2d at 771 (considering “whether the error was harmless” as part of

prior-bad-acts-evidence analysis). In considering the impact to the defendant,

“[w]e presume prejudice and reverse unless the record affirmatively establishes

otherwise.” Thoren, 970 N.W.2d at 637 (cleaned up) (citation omitted). Upon our

review, we find no such affirmative showing of nonprejudice. In fact, the record

supports the opposite: Lehmann was likely prejudiced by the admission of the

prior-bad-acts evidence. At trial, I.G. testified that on a weekly basis, Lehmann

would make her feel “uncomfortable” and “disgusted.” He would “brush past [her]”

“with an erection on [her] back side.” She also described the way he would “finger

and then play with [her] dirty underwear” or “make comments about seeing [her]

naked.” Her testimony referred to multiple instances and types of prior bad acts in

stark detail. See Cox, 971 N.W.2d at 771 (considering the “large number and

variety” of prior bad acts as finding in favor of prejudice). Further, while the State

argues that evidence of Lehmann’s guilt was overwhelming enough to justify any

alleged error, see State v. Sullivan, 679 N.W.2d 19, 31 (Iowa 2004) (considering

whether the evidence was “so overwhelming that the State would have prevailed”

despite the evidence’s exclusion), we disagree. Lehmann was acquitted on seven

out of eight charges with a nearly-stalled jury. Accordingly, we must reverse

Lehmann’s conviction and remand for a new trial.
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III. Alleged Violation of Right to Be Present.

Lehmann then contends that his constitutional right to be present was

violated. See State v. Wise, 472 N.W.2d 278, 279 (Iowa 1991) (recognizing “a

constitutional . . . right to be personally present at every stage of trial”).3 “Barring

exceptional circumstances, a criminal defendant should be personally present at

every stage of trial, including any conversation held by the judge and the attorneys

with one or more of the jurors.” Id. (emphasis added); see also State v. Shorter,

893 N.W.2d 65, 83 (Iowa 2017) (“Under our caselaw, there is no discretion

regarding the presence of defendant and counsel.”), but see State v. Blackwell,

238 N.W.2d 131, 137 (Iowa 1976) (allowing prejudice presumption to be rebutted).

While the court’s instructions to the jury “to continue” deliberations may seem

innocent, we have previously found error for “the most innocuous” of responses.

State v. Lockheart, 410 N.W.2d 688, 697 (Iowa 1987); see also State v. Griffin,

323 N.W.2d 198, 201 (Iowa 1982) (granting a defendant’s motion for new trial after

court directed jury to reread its instructions). Violation of this right requires reversal

“unless the error is harmless.” State v. McKee, 312 N.W.2d 907, 915 (Iowa 1981).

The State did not meet its burden in establishing that Lehmann was not prejudiced

by the communications; in fact, it made no argument at all. See State v. Peterson,

3 Lehmann also argues that the court applied an incorrect legal standard when

ruling on his motion for a new trial. In its ruling, the court relied on Atwood in
denying his motion because Lehmann failed to establish he was prejudiced by the
judge-jury communications. See State v. Atwood, 602 N.W.2d 775, 778
(Iowa 1999) (“[T]he party seeking to overturn the verdict must show that the
misconduct was calculated to, and with reasonable probability did, influence the
verdict.” (cleaned up) (citation omitted)). But the ruling in Atwood is in the context
of the jury having access to “extraneous material” “outside of the record,” not
judge-jury communications outside the presence of the defendant. Id.
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663 N.W.2d 417, 431 (Iowa 2003) (placing the burden of establishing prejudice on

the State); State v. Snyder, 223 N.W.2d 217, 222 (Iowa 1974) (requiring “the State

to show defendant had not been prejudiced”). We therefore reverse Lehmann’s

conviction and remand. Snyder, 223 N.W.2d at 222 (finding “failure of trial court

to afford defendant the opportunity to be present . . . was error and necessitates

reversal”).

IV. Disposition.

Because the court abused its discretion by admitting prior-bad-acts

evidence and Lehmann’s constitutional right to be present was violated, we

reverse and remand consistent with this opinion.

REVERSED AND REMANDED.