                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1506
                           Filed September 10, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL DAVID CAIN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Clayton County, George L. Stigler,

Judge.



       A defendant appeals his conviction for sexual abuse in the third degree.

AFFIRMED.



       Scott J. Nelson, Dubuque, for appellant.

       Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Alan Heavens, County Attorney, and Ry A. Meyer, Assistant County

Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, P.J.

          The State charged Michael David Cain with third-degree sexual abuse in

connection with sex acts he performed on an underage girl. See Iowa Code

§ 709.4(2)(c)(4) (2011). During trial, Cain moved to exclude a recording of a

telephone conversation he had with the girl’s father. The district court denied the

motion and allowed the recording to be played to the jury. A jury found Cain

guilty.

          On appeal, Cain contends the district court abused its discretion in

admitting the recording. He also challenges a jury instruction relating to the date

the crime was committed.

    I.       Recording

          A Clayton County deputy sheriff who was the primary investigator on the

case determined Cain was “53, 54, somewhere in there” and the girl on whom he

committed a sexual act was fourteen. He interviewed the parents of the girl and,

immediately following the interview, recorded a conversation the girl’s father had

with Cain.       During the thirteen-minute conversation, Cain initially denied

committing a sex act but later acknowledged “some shit went on.” He also said

he was not in his “right mind,” he was “so disgusted” he could “hardly live with”

himself, and he was “so frigging lost” he did not “know what to do.”

          Cain contends he was coerced into making the admissions and,

accordingly, the district court should have exercised its discretion to exclude the

recording pursuant to Iowa Rule of Evidence 5.403. See State v. Huston, 825

N.W.2d 531, 536 (Iowa 2013) (reviewing admissibility of evidence for abuse of

discretion). The rule states, “[a]lthough relevant, evidence may be excluded if its
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probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” Iowa R. Evid. 5.403.

       The Iowa Supreme Court applied this rule under similar circumstances in

State v. Cromer, 765 N.W.2d 1 (Iowa 2009). There, the court examined whether

Cromer’s trial attorney was ineffective in failing to object to the admission of an

allegedly coercive fifty-minute recorded conversation between Cromer and the

complaining witness. Cromer, 765 N.W.2d at 8. The court reaffirmed precedent

holding “coercion used to obtain an admission from an accused is . . . relevant to

the balancing of the probative value and the prejudicial effect under Iowa Rule of

Evidence 5.403.” Id. (citing State v. Quintero, 480 N.W.2d 50, 52 (Iowa 1992)).

As the court explained, “Coercion diminishes the reliability of an admission

because ‘the law has no way of measuring the improper influence or determining

its effect on the mind of the accused.’” Id. at 8-9.

       The court proceeded to examine the conversation between Cromer and

the complaining witness.       Id. at 9-10.     The court found the conversation

“emotionally charged,” with the “effect of this emotion on Cromer . . . apparent

over the course of the conversation.”         Id. at 4-5, 9, 11.    The complainant

“repeatedly appealed to their friendship, recounted her feelings of shame, and

told of her nightmares and inability to sleep.”        Id. at 9.   The witness “also

forcefully exclaimed she would never have consented to intercourse.”             Id.

Additionally, police officers who were present during the conversation created a

“coercive environment” by “coaching” the complaining witness throughout the

phone call and gesturing to keep her talking when conversation subsided. Id. at
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9. These factors “tended to make the statements less probative of the ultimate

issue.” Id.

       This case shares similarities with Cromer. Specifically, the girl’s father

appealed to his friendship with Cain in attempting to elicit an admission and the

investigating deputy was present during the conversation. But the father was not

distraught, as the complaining witness was in Cromer, and the conversation

lasted less than fifteen minutes rather than fifty minutes.      Accordingly, we

conclude the probative value of Cain’s statements was not diminished by the

type of coercion present in Cromer.

       Next, we must balance the probative value of the statements against the

potential for unfair prejudice. Cain suggests the conversation confused the jury.

He cites a reference in the recorded conversation to a different date than the

charged date.     See Cromer, 765 N.W.2d at 10 (noting “risk of confusion of

issues”). While Cain did indicate the abuse may have occurred on a different

date, Cain’s admissions related to a single episode of abuse on a single date.

Accordingly, there is scant likelihood the jury would have been confused by the

date reference.

       Another component of an unfair prejudice analysis is the likelihood the

conversation would have “created a danger for the jury to convict . . . based on

the contents of the emotional conversation.” Id. As noted, the girl’s father was

stoic. He matter-of-factly asked Cain to explain what happened and why. His

conversation with Cain was far less emotionally fraught than the duly admitted

testimony of his daughter, who provided a detailed description of Cain’s acts.
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          In contrast, the complaining witness in Cromer asked the defendant

whether he would view the incident as “date rape” if it happened to his sister.

She repeatedly told Cromer “any decent person would have taken her home,”

and she “began to cry” while declaring she “should have been safe” with him. Id.

at 4-5.

          We conclude the prejudicial effect of the recording did not substantially

outweigh its probative value. Accordingly, we further conclude the district court

did not abuse its discretion in admitting the recording over Cain’s objection.

   II.       Jury Instruction

          The State charged Cain with assaulting the girl “on or about” January 20,

2013. As noted, Cain alluded to a different date—February 14—in the recorded

conversation. During deliberations, the jury sent the court the following question:

“What does on or about time frame mean, one month, two months, a few days?”

After conferring with counsel, the court gave the jury the following supplemental

instruction:

          When a charging instrument charges a specific date, as here the
          charge date is January 20, 2013, that does not require that the
          State prove that the event occurred on that specific date. It is
          simply a device by which it alerts an individual to a particular event
          and if you find that the State has met its burden, but you’re unable
          to say whether it occurred on a specific date, if it occurred in a one
          or two-month time period on either side of that date, that is
          sufficient. It is the event and not the date that controls.

Cain asserts by

          giving the one to two months on either side instruction, the District
          Court allowed the jury to merge [the complaining witness’s] specific
          allegations into [his] recorded statement and treat the two separate
          events as one, which clearly and obviously lead to the jury’s finding
          of guilt by linking [his] amorphous statement to [the complaining
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      witness’s] allegations, even though as a matter of proof, there is
      clearly no connection between the two.

      Our “general rule [is] that the State is not required to prove the precise

time and place of a crime.” State v. Yeo, 659 N.W.2d 544, 550 (Iowa 2003)

(citing State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App. 1986)); see also State

v. Washington, 356 N.W.2d 192, 196 (Iowa 1984); State v. Brown, 400 N.W.2d

74, 76-77 (Iowa Ct. App. 1986).        “[U]ncertainty as to the precise date is

immaterial.” State v. Laffey, 600 N.W.2d 57, 60 (Iowa 1999).

      The district court’s supplemental instruction explaining “on or about” was a

correct statement of the law. See Brown, 400 N.W.2d at 76-77 (“The date fixed

in the indictment or information for the commission of a crime is not material, and

a conviction can be returned upon any date within the statute of limitations,

absent a fatal variance between the allegations and proof.”).

      We affirm Cain’s judgment and sentence for third-degree sexual abuse.

      AFFIRMED.
