State of Iowa v. Kurt Alan Olson

IN THE COURT OF APPEALS OF IOWA

No. 17-1872
Filed April 3, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KURT ALAN OLSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly,

Judge.

Kurt Alan Olson appeals from his convictions for two counts of indecent

contact with a child and three counts of assault with intent to commit sexual abuse.

AFFIRMED.

Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC,

Cedar Falls, for appellant.

Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., Bower, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2

BLANE, Senior Judge.

Kurt Alan Olson appeals from his convictions for two counts of indecent

contact with a child and three counts of assault with intent to commit sexual abuse.

He contends the jury’s verdicts are not supported by sufficient evidence and the

district court erred in not granting him a new trial based on his weight-of-the-

evidence and evidentiary claims. Finally, he contends his trial counsel was

ineffective. We affirm.

I. BACKGROUND FACTS AND PRIOR PROCEEDINGS

Olson began dating Lindsay in 2010. Lindsay has two children, E.R. and a

younger son. When Lindsay and Olson first began dating, E.R. was eight years

old. Lindsay, E.R., and E.R.’s younger brother would spend weekends at Olson’s

home. At trial, E.R. testified that when she was eight years old, Olson began

touching her in a sexual manner.

In October 2016, E.R. confided in her grandmother that Olson had been

touching her in a sexual manner for several years. E.R.’s grandmother

encouraged her to tell a school counselor. E.R. spoke with her school counselor,

Carrie Elsinger, a mandatory reporter, who contacted the Iowa Department of

Human Services (DHS). Law enforcement investigated and charged Olson with

two counts of indecent contact with a child and three counts of assault with intent

to commit sexual abuse.

E.R. testified at trial and described the following incidents: When she was

eight years old, she was sitting on a couch in Olson’s home, and Olson sat down

next to her. He started “grazing his hand against [her] leg, and he got close to

[her] private area,” at which point E.R. moved away. Olson did it again, and E.R.
3

got up; Olson told E.R. “it was okay” and she “needed to just sit back down.” E.R.

testified she was scared and went to the bathroom and cried. She told her mother

about the incident the next day, but her mother said Olson was “just trying to help”

her.

On another occasion, when E.R. was ten years old, Olson was in his garage

grilling with Lindsay and E.R. He asked Lindsay to go inside the house and get

something for the grill. He then “told [E.R.] to come closer to him.” E.R. testified,

“I was scared and I didn’t really want to. And then he made me give him my hand.”

He told E.R. to close her eyes and he then “put my hand by his private area and

he made me touch him that way.” He also told E.R. he was not wearing underwear.

E.R. testified she told her mother about this incident but Lindsay did not do

anything.

When E.R. was twelve, she and her brother were sleeping on the couch

bed at Olson’s home. E.R. had “tucked [a blanket] underneath” her foot “so he

wouldn’t touch me,” but she felt Olson “digging.” She testified she “moved really

close and . . . put my body kind of into a ball and . . . tucked my blanket underneath

more,” but Olson got closer. She testified she said, “No, stop, this isn’t okay.”

Olson got up and responded, “Okay, fine, goodnight drama queen.”

E.R. also testified to repeated incidents of “wrestling”—Olson would wrestle

with E.R. and touch her inappropriately. She testified,

[H]e would like attack me and he would try to get on top of me and
then he would like try like thrash around . . . . [T]hen he would stick
his hand through my shirt sleeve and then into my bra and then he
would touch my chest that way.
4

On cross-examination, E.R. testified her mom was often present during the

wrestling but Olson kept the touching from her view or E.R. “figured that she knew

so she would have said something, but she didn’t.” E.R. also testified Lindsay was

sleeping in a blue chair by the couch while the incidents on the couch happened.

E.R. clarified after cross-examination that Olson only touched her genitals, which

she called “private parts,” over clothing but touched the skin of her breasts.

Sheriff’s deputy Detective Bruce Rhoads testified about his interview with

Lindsay. Lindsay admitted to him she “knew something was wrong” and that E.R.

had told her she was being touched inappropriately. Detective Rhoads testified

Lindsay was charged with child endangerment. Lindsay testified she was getting

a “deal” in exchange for her testimony in Olson’s case. Lindsay admitted that E.R.

told her about the incident in the garage but she continued to bring her children

over to Olson’s house and did not report any incidents to the police.

Kamille Martin, a child and dependent adult abuse protection worker with

the DHS testified. She attended an interview of E.R. at the child protection center

(CPC) after the allegations came to light. Kristen Kasner, a nurse at CPC, also

testified and said that E.R. showed no physical signs of sexual abuse upon

examination.

The defense put on evidence from one witness, Ken Hart, a counselor at

E.R.’s school. E.R. testified she told Hart about the abuse when she was eight.

Hart testified E.R. never reported to him she had been sexually abused; they had

only discussed some family issues.

The jury found Olson guilty on all five counts as charged. Olson filed a

motion for new trial, which the court denied. Olson appeals.
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II. ANALYSIS

A. Sufficiency of the Evidence

Olson challenges the sufficiency of the evidence to support the jury’s

verdicts. “We review challenges to the sufficiency of evidence for correction of

errors at law.” State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). A verdict of

guilty will be upheld if supported by substantial evidence. Id. “To preserve error

on a claim of insufficient evidence for appellate review in a criminal case, the

defendant must make a motion for judgment of acquittal at trial that identifies the

specific grounds raised on appeal.” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa

2004); see also State v. Schories, 827 N.W.2d 659, 664 (Iowa 2013) (finding

counsel preserved error in identifying the element of the crime for which the State

had insufficient evidence by mentioning the elements of the affirmative defense to

that element); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding when the

motion for judgment of acquittal does not reference the specific elements of the

crime challenged, the motion did not preserve the argument for appeal); State v.

Geier, 484 N.W.2d 167, 170 (Iowa 1992) (error was not preserved when motion

for judgment of acquittal did not mention argument that a stun gun was not a

“dangerous weapon”). The State contends Olson failed to do this.1

1
The jury was instructed that in order to prove indecent contact with a child, the State had
to show on two specified occasions, Olson “fondled or touched the inner thigh, groin,
buttock, anus or breast” of E.R. or “touched the clothing covering the immediate area” of
the same “with the specific intent to arouse or satisfy the sexual desires of the defendant
or” E.R. In order to prove assault with intent to commit sexual assault, the State had to
show on three specified occasions, Olson:
committed an assault on [E.R.] which includes any of the following:
a. Any act which is intended to cause pain or injury to, or which is
intended to result in physical contact which will be insulting or offensive to
another, coupled with the apparent ability to execute the act.
6

At trial, Olson made the following motion for judgment of acquittal: “A

greater amount of evidence favors the defense rather than the State, even when

the Court is required to view the evidence in the light most favorable to the State.”

The court disagreed and denied the motion: “[T]he Court does find that there is

substantial evidence within the record to support the State’s charges herein.” On

appeal, Olson complains, ““E.R.’s claims are contradictory, lack details sufficient

to support the allegations made, suggest the incidents occurred directly in the

presence of others, and are directly refuted by others.” His trial motion did not

mention contradictory claims, a lack of sufficient detail, or contrary direct evidence

in the record. Accordingly, the motion did not preserve these arguments for

appeal.2

B. Motion for New Trial

Following the verdicts, Olson filed a motion for new trial under Iowa Rule of

Criminal Procedure 2.24(2). Appellate review of a motion for new trial depends on

the grounds of the motion. State v. Lopez, 633 N.W.2d 774, 781 (Iowa 2001). We

review a discretionary ground for an abuse of discretion and a legal question for

legal error. Id. at 781–82. “A district court should grant a motion for a new trial

b. Any act which is intended to place another in fear of immediate
physical contact which will be painful, injurious, insulting, or offensive,
coupled with the apparent ability to execute the act.
And the State had to show Olson “did so with the specific intent to commit sexual abuse
against the will of [E.R.].”
2
An exception to this error preservation rule exists where “the record indicates that the
grounds for a motion were obvious and understood by the trial court and counsel.” State
v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) (finding all parties “understood that the
grounds for the motion for judgment of acquittal targeted the insufficiency of the evidence
to support the first element of assault” relating to whether or not the defendant choked the
witness). Here, the statements of counsel were too vague and general to preserve error.
7

only in exceptional circumstances.” State v. Ary, 877 N.W.2d 686, 705 (Iowa

2016).

1. Weight of the evidence

Iowa Rule of Criminal Procedure 2.24(2)(b)(6) allows a defendant to request

a new trial when the verdict is “contrary to law or evidence.” The rule means

“contrary to the weight of the evidence.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa

1998). Where the evidence “preponderates heavily” against the verdict, the district

court should grant a new trial based on the weight of the evidence to avoid a

miscarriage of justice. Id. at 658–59. The weight-of-the-evidence standard

requires the district court to independently “weigh the evidence and consider the

credibility of witnesses.” Id. at 658. On appellate review, we do not re-weigh the

evidence or judge the credibility of the witnesses in our consideration of the denial

of a motion for new trial—our review is limited to the exercise of discretion by the

trial court. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). To prevail, the

moving party “must show that the district court exercised its discretion on grounds

or for reasons clearly untenable or to an extent clearly unreasonable.” Id. at 202.

In his motion for new trial, Olson contended the verdict was “contrary to law

or evidence.” See Iowa R. Crim. P. 2.24(2)(b)(6). The court denied the motion:

[I]n ruling on Defendant’s Motion for New Trial and relative to the
Motion in Arrest of Judgment, the Court considers testimony of the
witnesses, their credibility, and finds a greater weight of credible
evidence supports the State. The jury was properly instructed with
regard to the law. There is no indication by the verdict that the jury
ignored any critical evidence, and the jury’s verdicts are supported
by the weight of the evidence. . . . [T]he court does therefore order
that the . . . Motion for New Trial . . . [is] denied.
8

On appeal, Olson assails E.R.’s testimony as inconsistent and argues the weight

of the evidence is contrary to the jury’s verdicts. The court’s explanation of its

decision indicates it applied the correct legal standard—it considered the credibility

of the presented witnesses and testimony and not just the sufficiency of the

evidence to convict. 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.” Ary, 877 N.W.2d at 706 (citation omitted). The court weighed the

evidence and determined more credible evidence rested on the side of conviction.

This is not a case where the evidence preponderates heavily against the verdicts.

Olson has not shown the court exercised its discretion on grounds or for reasons

that are clearly untenable or to an extent clearly unreasonable. It determined E.R.

was a credible witness and no other evidence in the record, notwithstanding some

contradictions, militates against that conclusion. We discern no abuse of discretion

in the court’s ruling on Olson’s post-trial motions.

2. Evidentiary rulings

a. “Bad person” comment

Olson next contends the district court erred in admitting the portion of the

CPC recorded interview where E.R. recounts a conversation she had with her

grandmother wherein her grandmother opined Olson is a “bad person.” Olson

moved in limine to exclude any mention of prior crimes or bad acts. See Iowa R.

Evid. 5.404(b). The trial court granted the defense limine motion. The prosecutor

then redacted the CPC recording but did not remove the portion where E.R. related

her grandmother opined that Olson is a “bad person.” The State provided defense

counsel a copy of the redacted exhibit of the recorded interview before trial; but
9

defense counsel did not watch the redacted recording and did not object to its

admission. This, the district court ruled, constituted a waiver of the issue.

We review most evidentiary rulings for an abuse of discretion. State v.

Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018). The district court abuses its discretion

when it exercises its discretion “on grounds or for reasons clearly untenable or to

an extent clearly unreasonable.” Id. (quoting State v. Buenaventura, 660 N.W.2d

38, 50 (Iowa 2003)). “Ordinarily, any error resulting from the court’s ruling on a

motion in limine is not preserved unless a timely objection is made when the

evidence which was the subject of the motion in limine is offered at trial.” State v.

Edgerly, 571 N.W.2d 25, 29 (Iowa Ct. App. 1997). Here, counsel did not review

the redacted recording before trial and permitted it to be admitted without objection.

As such, the evidentiary question was waived. The district court did not abuse its

discretion.

We also agree with the State that the grandmother’s comment that Olson is

a “bad person” did not violate the defense motion in limine as it does not constitute

“[e]vidence of other crimes, wrongs, or acts [which are] not admissible to prove the

character of a person.” Iowa R. Evid. 5.404(b). The grandmother’s statement to

E.R. did not testify to crimes, wrongs, or other acts. The grandmother’s statement

was a bald opinion without underlying specifics that is not prohibited by the rule.

The trial court did not abuse its discretion in overruling the belated motion.

b. Vouching testimony

Olson next contends certain statements by Kamille Martin constituted

improper vouching for E.R.’s credibility. Martin was present when E.R. was

interviewed at CPC. Martin testified E.R. answered her questions without
10

hesitation, “easily gave details,” and gave consistent statements. Martin also

described how E.R. had a difficult time describing her private parts, which Martin

said was “not uncommon” for girls. When asked whether the amount of detail E.R.

provided was normal, Martin replied that it depended on the age of the child and

the traumatic nature of the events. She further stated, “I mean, this has an effect

on people—on children—and usually things stick in their minds like what they were

doing at the time, . . . even sometimes exact clothes they were wearing, they’re

able to give you those details because it was a traumatic experience.” Martin also

testified about Lindsay and her “limited” involvement in the process. She stated,

“In my experience . . . , parents usually appear more protective, don’t make

statements about not believing their child. They offer as much information as they

can because they want to protect their children. . . . [Lindsay] did not appear

protective.”

In State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014), our supreme court

reiterated the rule that an expert witness may not comment on the credibility of a

victim of sexual abuse. It is an abuse of discretion for a district court to allow such

testimony. Dudley, 856 N.W.2d at 677. In the child-sexual-abuse context, the

expert witness may not testify that a child witness’s physical manifestations or

symptoms are consistent with sexual-abuse trauma because this indirectly

vouches that the victim is telling the truth. Id. “It is the jury’s function to determine

if the victim is telling the truth, not the expert witness’s.” Id. But the court also

stated in Dudley: “In Myers,[3] we set forth the legal principles regarding expert

3
State v. Myers, 382 N.W.2d 91 (Iowa 1986).
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testimony in child sexual abuse cases. We stated ‘experts will be allowed to

express opinions on matters that explain relevant mental and psychological

symptoms present in sexually abused children.’” Id. at 676 (citation omitted).

We have consistently followed Myers in our subsequent case
law. We have permitted an expert witness to testify regarding the
“typical symptoms exhibited by a person after being traumatized.”
We held this testimony was admissible because it did not directly
comment on whether the victim at issue had symptoms consistent
with “rape trauma syndrome.” In a later case, we allowed expert
testimony to explain to a jury why children victims may delay
reporting their sexual abuse. Again, the expert witness avoided
commenting directly on the child at issue and only testified generally
about victims of sexual abuse.

Id. (citations omitted).

Olson successfully moved in limine to exclude opinions on E.R.’s credibility.

During Martin’s testimony, Olson also entered a trial objection, and the court ruled,

“[T]he objection will be sustained only to the extent that the witness can testify as

to personal observations.” Olson subsequently objected to the statements

described above, and the court overruled the objections.

On our examination of the trial record and the above statements, we find no

abuse of discretion in the court’s rulings. Nothing Martin said can be construed as

an expert vouching for E.R.’s credibility—Martin gave her observations of E.R.’s

statements, including that they were fluent, detailed, and consistent. She did not

testify any of her observations were consistent with sexual abuse trauma. The

purpose of expert witness testimony is to assist the jury in understanding the child

victim’s “seemingly unusual behavior.” Id. at 675. While Martin did comment

generally that children can remember a high level of detail surrounding a traumatic

event, she did not testify E.R.’s recollections or grain of detail were consistent with
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a child sexual abuse victim. Martin also testified E.R.’s difficulty using words to

describe her private parts were normal for girls, not specifically child abuse victims.

Martin’s statements about Lindsay do not constitute vouching at all, as they did not

present an opinion on E.R.’s credibility. Therefore, the court did not abuse its

discretion in allowing this testimony.

Olson also now challenges certain statements made by Detective Rhoads

as impermissibly bolstering E.R.’s credibility. But Olson made no

contemporaneous objection at trial; therefore, he waived this issue for appeal. See

Edgerly, 571 N.W.2d at 29.

c. Lindsay’s plea agreement

Olson complains he was not permitted to query Lindsay on the details of

her plea agreement. At trial, Olson’s counsel elicited testimony from Lindsay about

the charges she was facing and the admission that she had been offered a “deal”

in exchange for her testimony but was not allowed to go into the possible penalties

discussed. The court sustained the State’s objection. Similarly, when questioning

Detective Rhoads, Olson’s counsel was not allowed, based on a sustained

relevance objection,4 to inquire whether Lindsay’s charges were felony-level

offenses. This, Olson now asserts, impeded his ability to demonstrate the issue

of bias in Lindsay’s testimony.

In general, a defendant is “permitted wide latitude in seeking to show bias

of an alleged accomplice who testifie[s] for the prosecution.” State v. Armento,

4
Evidence is relevant if it “has any tendency to make a fact more or less probable than it
would be without the evidence” and the fact “is of consequence in determining the action.”
Iowa R. Evid. 5.401.
13

256 N.W.2d 228, 229 (Iowa 1977). And, “where the State has gone so far as to

enter into a bargain with the accomplice the defendant must be allowed to inquire

about the terms of the bargain so that the jury may better understand the possible

motivations of the accomplice.” State v. Donelson, 302 N.W.2d 125, 131 (Iowa

1981). However, here, Lindsay testified she did not yet have a deal but that a deal

was contingent upon her testifying. Lindsay’s knowledge of the penalties involved

with a deal that had not yet been struck could not be probative of her bias. Olson

was allowed to establish potential bias for Lindsay’s testimony against him.

Further, Olson did not establish a record by an offer of proof to show that Lindsay,

in fact, knew what penalties she faced. We find no abuse of discretion in the court’s

ruling.

d. Other issues

Olson raises two other issues—or rather, asserts they are “matters that

would have been appropriate for the trial court to address” in reviewing his motion

for new trial: (1) he complains the “allegations were a moving target” and (2)

evidence was submitted about an incident that was not charged. Olson did not

raise either issue below, so they are not preserved for our review. See State v.

Horsey, 180 N.W.2d 459, 460 (Iowa 1970). Olson contends each of these

individual errors cumulatively amount to error justifying a new trial. We disagree,

and it is not a close case; the cumulative effect of these alleged errors does not

show Olson was denied a fair trial. They do not constitute the “exceptional

circumstances” under which a court should grant a new trial. Ary, 877 N.W.2d at

705.
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C. Ineffective Assistance of Counsel

Olson next raises claims of ineffective assistance of counsel. “Ineffective-

assistance-of-counsel claims are an exception to the traditional error-preservation

rules.” State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). To prevail on appeal,

Olson must show by a preponderance of the evidence counsel breached an

essential duty and prejudice resulted. See Strickland v. Washington, 466 U.S.

668, 687 (1984). As our default mode, we preserve ineffective-assistance claims

for postconviction-relief (PCR) actions. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). Preservation to develop the record is preferred when the challenged action

or inaction by counsel may implicate trial tactics. Id.

1. Jury instructions

The jury was given instructions on the elements of each offense, but they

did not include a separate instruction defining “sexual abuse” or “sex act.” Olson’s

trial counsel did not request such instructions be included or raise an objection to

their absence, which Olson now contends was ineffective assistance. The State

urges us to resolve this issue by finding counsel did not fail in an essential duty but

admits there may have been strategic reasons for this decision. The record is

inadequate to assess this claim, so we preserve it for possible PCR proceedings.

2. Cumulative ineffectiveness

Finally, Olson contends the cumulative ineffectiveness of his trial counsel is

sufficient to warrant reversal of his conviction on ineffective-assistance-of-counsel

grounds. He faults his counsel for failing to object to the jury instructions, the

uncharged bad act evidence, the redacted CPC video, and Detective Rhoads’s
15

alleged vouching testimony. Again, the record is inadequate to assess the claims,

so they must be preserved for PCR proceedings.

III. CONCLUSION

We find Olson failed to preserve his sufficiency-of-the-evidence argument.

The district court did not abuse its discretion in denying his motion for new trial as

the verdict was not against the weight of the evidence. The court did not abuse its

discretion in any preserved evidentiary ruling. The ineffective-assistance-of-

counsel claims are preserved for PCR proceedings.

AFFIRMED.