                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1231
                              Filed October 15, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC WILLIAM WEEKS,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Scott County, Mark R. Lawson (jury

trial) and Nancy S. Tabor (guilty plea), Judges.



       Defendant appeals his convictions for two counts of second-degree sexual

abuse, two counts of third-degree sexual abuse, and two counts of lascivious

acts with a child. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Michael J. Walton, County Attorney, and Melissa Zaehringer, Assistant

County Attorney, for appellee.



       Considered by Danilson, C.J., Bower, J., and Miller, S.J.* Tabor, J., takes

no part.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MILLER, S.J.

       Defendant appeals his convictions for two counts of second-degree sexual

abuse, two counts of third-degree sexual abuse, and two counts of lascivious

acts with a child. The district court did not abuse its discretion in determining the

statements of a pastor were not inadmissible under the pastoral privilege

because the statements were made to the pastor as a friend and not in his

professional capacity.    The court did not abuse its discretion in permitting a

witness to testify to inextricably intertwined evidence. The court did not abuse its

discretion in overruling defendant’s motion for new trial. Furthermore, the court

did not abuse its discretion in sentencing the defendant. We affirm defendant’s

convictions.

I.     Background Facts & Proceedings

       The daughter of Eric Weeks, M.W., testified Weeks started touching her

chest and vagina when she was eight or nine years old, and began having

intercourse with her when she was ten. She additionally testified to hand to

genital contact and mouth to genital contact. She stated these activities occurred

frequently over the course of several years. On one occasion, Weeks had sex

with M.W.’s step-sister, K.H., while M.W. watched, then Weeks had sex with

M.W. while K.H. watched.

       Weeks was charged with two counts of second-degree sexual abuse, in

violation of Iowa Code section 709.3(2) (2011), two counts of third-degree sexual

abuse, in violation of section 709.4(2)(b), and two counts of lascivious acts with a

child, in violation of section 709.8(1), (2), based on his activities with M.W.
                                          3


       Prior to trial, Weeks sought to exclude the testimony of Todd Hunter, a

pastor, based on the pastoral privilege found in section 622.10(1).        Hunter

testified at a hearing that he and Weeks did not talk about religious matters, but

they were “two cycling buddies talking.” Aside from one text when Weeks stated,

“Please say a prayer for me today. I can’t take the pain. Maybe he will listen to

you,” Hunter stated “at no point in time was Eric interested in bowing his head

and praying or having me say a prayer for him.” The district court determined

Weeks’s conversations with Hunter were not protected by the pastoral privilege

in section 622.10(1).

       The State filed a motion asserting that under the doctrine of inextricably

intertwined evidence K.H. should be permitted to testify to her history of sexual

abuse by Weeks, which the State argued would help the jury understand why

K.H. was present on one occasion when Weeks engaged in a sex act with M.W.

The present case involved only M.W.; the charges against Weeks concerning his

activities with K.H. had been severed. The district court ruled K.H. could testify

Weeks committed a sex act with her at the same time he committed a sex act

with M.W. because this was inextricably intertwined testimony.         The court

determined, however, “the State may not use evidence of other sex abuse of a

witness who is not involved in the trial to ‘complete the story.’”

       A jury trial commenced on May 20, 2013. M.W. and K.H. testified as

outlined above. Hunter testified Weeks told him that one time he and M.W. were

in a hotel room when they went out of town to a sporting event, “and then things

got out of control,” or “out of hand.”        He also told Hunter, “Some of these
                                          4


allegations are true, but not all of them.” The mother of M.W. testified Weeks told

her that one time when he was in a hotel room with M.W., “a line had been

crossed.” She also testified Weeks told her he felt like he was helping to keep

M.W. safe, “by her being with him rather than with boys her own age.”

       The jury found Weeks guilty of two counts of sexual abuse in the second

degree, two counts of sexual abuse in the third degree, and two counts of

lascivious acts with a child. Weeks filed a motion for new trial, claiming the

verdicts were contrary to the weight of the evidence. He also challenged the

district court’s rulings on his motion to exclude the testimony of Hunter and the

State’s motion to include the intrinsically intertwined evidence of K.H. The court

denied his motion for new trial. Weeks was sentenced to forty-five years in

prison.1 He now appeals his convictions and the resulting sentences.

II.    Pastoral Privilege

       Weeks contends the district court erred in ruling that his statements to

Pastor Hunter were not protected by the pastoral privilege found in section

622.10(1). This section provides:

       [A] member of the clergy shall not be allowed, in giving testimony,
       to disclose any confidential communication properly entrusted to
       the person in the person’s professional capacity, and necessary
       and proper to enable the person to discharge the functions of the
       person’s office according to the usual course of practice or
       discipline.

Iowa Code § 622.10(1). Weeks asserts he made statements to Hunter in his

professional capacity as a pastor, and he meant those statements to be

confidential. He claims he sought counsel from Hunter.
1
  Some of defendant’s sentences for other offenses, involving other victims, were made
consecutive to his sentences for the offenses on appeal here.
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      Our standard of review for a ruling on a statutory evidentiary privilege is

for the correction of errors at law. See State v. Anderson, 636 N.W.2d 26, 30

(Iowa 2001). “Our standard of review for the admissibility of evidence alleged to

be privileged is for an abuse of discretion.” Id. There is an abuse of discretion

when the court’s discretion is exercised on grounds or for reasons clearly

untenable or to an extent clearly unreasonable. State v. Putnam, 848 N.W.2d 1,

8 (Iowa 2014).

      In considering whether statements made to a member of the clergy come

under the statutory privilege found in section 622.10, the communication must be

(1) confidential, (2) entrusted to a person in his or her professional capacity, and

(3) necessary and proper for the discharge of the function of the person’s office.

State v. Richmond, 590 N.W.2d 33, 35 (Iowa 1999). Section 622.10 should be

liberally construed in order to carry out its manifest purpose. State v. Alspach,

524 N.W.2d 665, 668 (Iowa 1994).

      At the hearing on Weeks’s motion to exclude the testimony of Hunter,

Hunter testified he and Weeks became acquainted through a bicycling group. He

stated Weeks was not a member of his church and Weeks had specifically told

him, “he didn’t want to ever talk about church and he didn’t want to talk about

religion and he didn’t want to talk about God.” On one Sunday, shortly before he

was arrested, Weeks attended a church service, but did not talk to Hunter at that

time. At one point Weeks sent Hunter a text stating, “Please say a prayer for me

today. I can’t take the pain. Maybe he will listen to you.” Later on that day,

Weeks’s mother called Hunter and said Weeks was feeling suicidal so Hunter
                                         6


went to Weeks’s parents’ house, where he was staying.           Hunter stated that

during their discussion, “God never once was talked about, religion was never

once talked about, church was never once talked about, praying was never once

talked about.” He also stated, “We sat and talked like two cycling buddies.”

       We conclude the district court did not abuse its discretion in determining

Hunter’s statements were not inadmissible under the pastoral privilege found in

section 622.10. The evidence shows Hunter was not acting as a pastor when

Weeks talked to him. According to Hunter’s testimony, Weeks never sought

spiritual advice from Hunter. Weeks’s statements were not entrusted to Hunter in

his professional capacity. Furthermore, the conversations were not necessary

and proper for the discharge of the pastor’s office because he was not

functioning as a pastor during their conversations but rather as a friend.

III.   Inextricably Intertwined Evidence

       Weeks contends the district court erred in allowing K.H. to testify she

observed him having sexual intercourse with M.W. during the same occasion

when he had sexual intercourse with K.H., under the doctrine of inextricably

intertwined evidence. He asserts it would not have rendered K.H.’s testimony

“unintelligible, incomprehensible, confusing, or misleading,” if she had merely

testified to what she had observed, without also stating she had sexual

intercourse with Weeks at that time. Weeks claims the evidence concerning K.H.

was unduly prejudicial.
                                         7


       We review a district court’s evidentiary rulings for an abuse of discretion.

Putnam, 848 N.W.2d at 8.       “Even if a trial court has abused its discretion,

prejudice must be shown before we will reverse.” Id.

       “The inextricably intertwined doctrine holds other crimes, wrongs, or acts

evidence that is inextricably intertwined with the crime charged is not extrinsic

evidence but, rather, intrinsic evidence that is inseparable from the crime

charged.” State v. Nelson, 791 N.W.2d 414, 420 (Iowa 2010). It provides a

narrow exception to Iowa Rule of Evidence 5.404(b), prohibiting the admission of

evidence of other crimes, wrongs, or acts. Id. at 423. Evidence is admissible

under the inextricably intertwined doctrine only “to complete the story of what

happened when the other crimes, wrongs, or acts evidence is so closely related

in time and place and so intimately connected to the crime charged that it forms a

continuous transaction.” Id. Furthermore, the evidence is admissible only “when

a court cannot sever this evidence from the narrative of the charged crime

without leaving the narrative unintelligible, incomprehensible, confusing, or

misleading.”   Id.   Because rule 5.404(b) is not applicable, the evidence is

admitted “without limitation and irrespective of its unfair prejudice or its bearing

on the defendant’s bad character.” Id. at 420.

       We determine the district court did not abuse its discretion in permitting

K.H. to testify Weeks engaged in a sex act with her just before she observed

Weeks engaging in a sex act with M.W. The evidence was closely related and

so intimately connected to the allegation Weeks had sexual intercourse with

M.W. at the same time and place that it formed a continuous transaction. If K.H.
                                       8


had testified she observed Weeks and M.W. engaging in sexual intercourse,

without also testifying Weeks engaged in sexual intercourse with her in the same

bedroom and with M.W. present immediately previous to this, her testimony

would have been unintelligible, incomprehensible, confusing, or misleading

because of questions of how she happened to be present during this incident and

why Weeks permitted her to observe the incident. We note the district court

denied the State’s request to permit K.H. to testify about her history of sexual

abuse by Weeks, and the court carefully limited K.H.’s testimony to the incident

when she observed Weeks engaging in a sex act with M.W.

IV.   Motion for New Trial

      Weeks claims the district court should have granted his motion for a new

trial. He argues the jury’s verdicts were contrary to the weight of the evidence.

He asserts the testimony of M.W. was not credible because of discrepancies in

her statements. He points out she did not initially tell law enforcement officers

that the intercourse occurred in locations within the house other than her

bedroom. He also notes she was vague concerning the frequency of her sexual

contact with Weeks.

      A new trial should be granted when the jury’s verdict is contrary to the

weight of the evidence. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). The

court may weigh the evidence and consider the credibility of witnesses. Id. at

658. A new trial should be granted only in exceptional cases where the evidence

preponderates heavily against the verdict. State v. Serrato, 787 N.W.2d 462,

472 (Iowa 2010). We review a district court’s decision on a motion for new trial
                                          9

for an abuse of discretion. See State v. Thompson, 836 N.W.2d 470, 491 (Iowa

2013).

         The greater weight of the evidence presented during the trial

preponderated in favor of the jury’s verdicts. M.W. provided credible testimony

about the sexual abuse by Weeks.          Her testimony was corroborated by the

testimony of K.H. that she observed Weeks having sexual intercourse with M.W.

Her testimony was furthermore corroborated by that of her younger brother, who

testified he had observed Weeks coming out of M.W.’s room on occasion.

M.W.’s mother testified Weeks and M.W. would sometimes stay in a hotel out of

town when M.W. was attending a sporting event.            The mother also testified

Weeks had told her, “a line had been crossed,” with M.W. In addition, Hunter

testified Weeks told him, “things got out of control,” or “out of hand,” once when

he stayed in a hotel with M.W.         Weeks also told Hunter, “Some of these

allegations are true, but not all of them.” We conclude the district court did not

abuse its discretion in denying Weeks’s motion for new trial.

V.       Sentencing

         Weeks claims the district court abused its discretion in sentencing him to a

total of fifty-five years in prison.2 He asserts that sentencing him here to lengthy

consecutive sentences was a punitive measure and not a rehabilitative one. He

asserts the court should not have sentenced him to consecutive sentences.




2
   For the offenses involving M.W., Weeks was sentenced to terms totaling forty-five
years in prison. On appeal, he also challenges the sentences he received for offenses
involving other victims, which are to be served consecutively to his sentences for the
offenses involving M.W.
                                        10


       Our review of a district court’s sentencing decision is for the correction of

errors at law. State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). “We will

not reverse the decision of the district court absent an abuse of discretion or

some defect in the sentencing procedure.” State v. Hennings, 791 N.W.2d 828,

833 (Iowa 2010). A court’s “sentencing decision enjoys a strong presumption in

its favor.” State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).

       In sentencing a defendant a court should consider the defendant’s age,

prior record of convictions, employment, family circumstances, the nature of the

offense, and other appropriate reasons. Iowa Code § 907.5. The court should

craft a sentence that “will provide maximum opportunity for the rehabilitation of

the defendant and protection of the community from further offenses by the

defendant and others.” Id.

       The district court gave several reasons for Weeks’s sentences in this

case. The court stated, “community protection, and particularly the protection of

minors you would come into contact with, is also a significant factor in the Court’s

sentencing decision.” The court also noted defendant’s age, his criminal history,

his need for substantial and prolonged treatment for sexual addiction, the harm

he caused family members, and the recommendation of the presentence

investigation report.   In imposing consecutive sentences, the court noted the

long-standing and persistent nature of the sexual abuse.           We determine the

district court did not abuse its discretion in sentencing Weeks.

       We affirm Weeks’s convictions.

       AFFIRMED.
