                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1425
                              Filed August 19, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDRIX ROMILUS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes

(motion to sever) and Stewart P. Werling (trial), Judges.



      A defendant appeals his convictions, alleging the district court should have

granted his motion to sever and his motion for mistrial. AFFIRMED.



      Murray W. Bell of Murray W. Bell, P.C., Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

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

County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

        Edrix Romilus appeals his judgment and sentences for two counts of

second-degree sexual abuse, one count of third-degree sexual abuse, and three

counts of lascivious acts with a child. He contends the district court (A) abused

its discretion in denying his motion to sever the counts relating to one child from

the counts relating to another and (B) should have granted his motion for mistrial

based on an expert’s comments about one of the complaining witnesses.

   I.      Background Facts and Proceedings

        In an eleven-count trial information, the State charged Edrix Romilus with

committing sexual acts on three children, S.P., S.R., and R.R. Romilus moved to

sever the counts pertaining to each child. The district court granted the motion

with respect to R.R. The district court dismissed one count involving this child,

and the jury acquitted Romilus of the remaining two counts.

        The district court denied the motion to sever with respect to S.P, and S.R.

The State filed an amended trial information charging Romilus with one count of

second-degree sexual abuse and one count of lascivious acts with S.P., and one

count of second-degree sexual abuse, one count of third-degree sexual abuse,

and two counts of lascivious acts with S.R. The case went to trial twice, with the

first trial resulting in a mistrial and the second resulting in findings of guilt on each

of the counts. Romilus appealed.
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   II.      Analysis

            A. Severance

         Romilus contends the district court should have severed the trials

involving S.P. and S.R. The State counters that Romilus failed to preserve error

because he did not renew his motion to sever during the second trial.

         The Iowa Supreme Court has stated a mistrial returns the parties to their

original positions. See Harden v. Ill. Cent. R.R. Co., 118 N.W.2d 76, 77 (Iowa

1962). The implication, then, is that any previously-filed motions must be refiled.

However, the State has cited no precedent holding a motion to sever filed in one

trial must be re-asserted following a mistrial. In the absence of controlling law on

this question, we decline to rest our opinion on error preservation grounds.

Proceeding to the merits, we review the district court’s ruling for an abuse of

discretion. See State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992).

         Iowa Rule of Criminal Procedure 2.6(1) states two or more indictable

public offenses arising from the same transaction or occurrence or which are part

of a common scheme or plan, shall be charged together “unless, for good cause

shown, the trial court in its discretion determines otherwise.” Romilus contends

there was no “common scheme or plan.”

         [T]ransactions or occurrences are part of a common scheme or
         plan under Iowa Rule of Criminal Procedure 2.6(1) when they are
         the products of a single or continuing motive. In ascertaining
         whether a common scheme or plan exists, we have found it helpful
         to consider factors such as intent, modus operandi, and the
         temporal and geographic proximity of the crimes.

State v. Elston, 735 N.W.2d 196, 198-99 (Iowa 2007) (citations and internal

quotation marks omitted).
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       The district court found the temporal and geographic proximity of the

crimes to be the salient factors:

       All the acts allegedly occurred within [Romilus’s] home, showing
       geographic proximity. All the acts allegedly occurred over the same
       period of years, and many of the acts were directly consecutive to
       one another, showing temporal proximity. Taken together, these
       factors demonstrate that [Romilus] was acting according to a
       common scheme or plan.

We discern no abuse of discretion in this aspect of the ruling. See State v.

Romer, 832 N.W.2d 169, 182 (Iowa 2013) (“Two of the three events (and seven

of the offenses charged) occurred at Romer’s home.”); Elston, 735 N.W.2d at

199 (stating “[a]ll of the transactions allegedly occurred in close geographic

proximity within the Neffs’ small home”).     We also note an additional factor

supporting the court’s determination of a “common scheme or plan”—“[a]ll of the

crimes . . . could be found to have been motivated by [a] desire to satisfy sexual

desires through the victimization of children.” Elston, 735 N.W.2d at 199.

       Romilus’s reliance on State v. Cox, 781 N.W.2d 757 (Iowa 2010), is

misplaced. There, the district court severed charges involving two cousins. Cox,

781 N.W.2d at 759. On appeal, the Iowa Supreme Court was not faced with a

severance question under rule 2.6(1) but with a question of the admissibility of

prior bad acts under Iowa Rule of Criminal Procedure 5.404(b). See id, at 769-

71. The two rules serve different purposes. See Romer, 832 N.W.2d at 183

(stating “an attempt to equate our evidentiary rule’s principles with rule 2.6(1)’s

principles is inapposite”); State v. Lam, 391 N.W.2d 245, 249-50 (Iowa 1986)

(noting the “evidentiary rule deals with what evidence is properly admissible to

prove the crime charged,” whereas “the joinder of offenses rule deals with the
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more basic question of what crimes can be charged and tried in a single

proceeding”).

       State v. Bair, 362 N.W.2d 509 (Iowa 1985), cited by Romilus, also is

inapposite. There, the district court relied on an earlier version of Iowa Rule of

Criminal Procedure 2.6(1) in concluding the district court should have severed

criminal counts for trial. Bair, 362 N.W.2d at 511. The earlier version of the rule

did not contain a reference to a “common scheme or plan.”            Id.   The court

acknowledged the subsequent amendment “liberalize[d] and broaden[ed]

charging practices so as to allow prosecutors more leeway in seeking to join

multiple offenses for a single prosecution.” Id. The court concluded the relevant

conduct might have qualified as a “common scheme or plan,” but it did not

amount to the “same transaction or occurrence” under the then existing rule. Id.

at 512.

       Our analysis cannot end here because “[a]lthough the existence of a

‘common scheme or plan’ indicates the charges should be joined, the district

court nonetheless had discretion to sever the charges for ‘good cause.’” Romer,

832 N.W.2d at 183 (citing Elston, 735 N.W.2d at 199). To demonstrate an abuse

of discretion in the court’s refusal to sever the charges, Romilus had to show

prejudice. Id.

       Citing State v. Delaney, 526 N.W.2d 170 (Iowa Ct. App. 1994), Romilus

essentially applies a prejudice analysis derived from Iowa Rule of Evidence

5.404(b). However, the court’s discussion of rule 5.404(b) prejudice in Delaney

was not in the context of the severance issue but in the context of the trial court’s

admission of prior bad acts evidence.        Delaney, 526 N.W.2d at 175-76.        In
                                          6

Romer, the Iowa Supreme Court expressly rejected a rule 5.404(b) prejudice

analysis in the severance context. 832 N.W.2d at 183. The court focused on the

relevancy of the evidence, the fact the evidence was “legally intertwined,” and the

fact the court gave the jury a cautionary instruction. Id.; but see Elston, 735

N.W.2d at 199-200 (applying rule 5.404(b) balancing test).

       The district court applied the proper prejudice test. The court stated:

       [T]he court, in its discretion, determines that the prejudice against
       Defendant is not enough to outweigh the judicial economy of trying
       the separate counts together with respect to the counts related to
       S.P. and S.R. The evidence of the alleged abuse is intertwined
       between the two victims and will necessitate the same testimony at
       two trials. Specifically, the abuse of S.P. and S.R. allegedly
       occurred sequentially and both victims were aware of the other’s
       presence, alone, with Defendant in his room.

We discern no abuse of discretion in this aspect of the court’s ruling. The court

could have severed the charges involving the children. But many of the same

witnesses would have testified in both trials. Additionally, the district court gave

the jury a cautionary instruction as follows:

       The defendant has been charged with six counts. This is just a
       method for bringing each of the charges to trial. If you find the
       defendant guilty or not guilty on any one of the six counts, you are
       not to conclude the defendant is guilty or not guilty on any one of
       the others. You must determine whether the defendant is guilty or
       not guilty separately on each count.

In light of this instruction and the potential duplication of witnesses in two trials,

we conclude judicial economy concerns outweighed the prejudice of having two

complaining witnesses.

       We recognize the outcome in the severed trial involving R.R. favored

Romilus, a fact he highlights in support of his prejudice argument. However, we

have no way of knowing whether Romilus was acquitted because the State
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presented only one complaining witness or because the evidence against

Romilus was weaker in the case involving R.R.

       We turn to the jury’s deadlock in the first trial involving S.P. and S.R., an

outcome Romilus also cites in favor of a prejudice finding. In our view, the fact

the jury was unable to find guilt even with the State’s presentation of two

complaining witnesses cuts against a finding of prejudice.

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

Romilus’s motion to sever the counts involving S.P. from the counts involving

S.R.

           B. Expert Testimony

       During the second trial, an expert witness who examined S.R. testified as

follows:

       [S.R.] was anxious, but not where she was too uncomfortable to
       share. She was very direct, eye contact, no hesitation in her
       speech and how she relayed her information. So even though she
       was a little anxious about this process, she—her verbal skills and
       her ability to relate her experience were very much direct, direct
       eye contact. She was sure about what she was saying.

Romilus moved for a mistrial. He argued the witness impermissibly vouched for

S.R.’s credibility when she stated S.R. “was sure about what she was saying.”

The district court denied the motion.

       The Iowa Supreme Court recently revisited the permissible parameters of

expert testimony in sex abuse cases. See State v. Dudley, 856 N.W.2d 668

(Iowa 2014); State v. Jaquez, 856 N.W.2d 663 (Iowa 2014); State v. Brown, 856

N.W.2d 685 (Iowa 2014). In Dudley, the court stated:

              We see no reason to overturn this well-settled Iowa law
       prohibiting an expert witness from commenting on the credibility of
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      a victim in a criminal sex abuse proceeding. Although we are
      committed to the liberal view on the admission of psychological
      evidence, we continue to hold expert testimony is not admissible
      merely to bolster [witness] credibility.

856 N.W.2d at 676-77. The trio of cases included an examination of various

expert statements to determine whether they crossed the line. See Jaquez, 856

N.W.2d at 665-66; Brown, 856 N.W.2d at 689.

      The expert’s statement that S.R. was “sure about what she was saying”

falls on the right side of the line. See Dudley, 856 N.W.2d at 678 (concluding

forensic interviewer’s assertion that child’s statements “were consistent

throughout the interview” did not cross the line into impermissible vouching);

Brown, 856 N.W.2d at 688-89 (concluding expert’s statement that child’s “history

is detailed and clear,” child “has been consistent in what she has reported to her

mother and to this examiner,” and child “was clear about where the touching

occurred and confidently demonstrated that” did not cross the line).

      We discern no abuse of discretion in the court’s ruling.         Because the

expert’s statement did not cross the fine line between permissible testimony and

impermissible vouching, we affirm the district court’s denial of Romilus’s mistrial

motion.

      AFFIRMED.
