                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0549
                                Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT E. SINN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Henry County, Michael J. Schilling,

Judge.



      Defendant challenges his conviction and sentence for sexual abuse in the

third degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       Robert Sinn appeals his conviction for sexual abuse in the third degree, in

violation of Iowa Code section 709.4 (2016). Sinn raises two arguments on appeal.

He contends the district court erred in declining to give his requested spoliation

instruction. He also argues there is insufficient evidence to support his conviction.

                                         I.

       In August 2016, Sinn was temporarily staying with C.W., his former partner

and mother of his seventeen-year-old daughter S.S. During his stay with C.W.,

Sinn repeatedly propositioned C.W. for fellatio and sexual intercourse. On one

occasion, he exposed his penis to her and asked her to perform oral sex. She

declined his repeated advances. On the night of August 4, C.W. testified she drove

Sinn to the bar for drinks because Sinn was not licensed to drive. While out with

Sinn, C.W. consumed four drinks. C.W. testified she had no recollection of any

events after consuming her last drink until she awoke and found herself lying on

her stomach in a ditch. She testified her head was inside a metal pipe, it was

raining, she was cold, and she felt pain in her eye and vagina. She was naked

from the waist down—wearing only a shirt but no underwear, shorts, or shoes.

C.W. clawed her way up the muddy ditch, walked to a nearby home, and banged

on the door. The homeowner answered the door. The homeowner testified C.W.

was hysterical and covered in mud. He called the police. Then he took C.W. into

the bathroom and placed her in the shower because she was so caked in mud she

was having trouble seeing.

       C.W. was taken to the Henry County Health Center. She was treated and

released, but she came back later in the day because she was having anxiety and
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suffering pain in her ribs. The examining physician testified C.W. had suffered

trauma to her face and head. Her eye was bruised and almost swollen shut. C.W.

had scratches and abrasions on her lower extremities. C.W. reported pain in her

vaginal area. The physician noted an area of abrasion on the vaginal introitus that

appeared to be recent. The physician completed a rape kit. There was no semen

detected. The doctor believed C.W. had been assaulted with possible penetration

of the vagina. Bloodwork tested positive for the presence of alcohol and marijuana

but no other substances.

       S.S., Sinn and C.W.’s daughter, was living with Teresa Roberts, C.W.’s

neighbor. S.S. testified when she got home from work, Sinn was at Roberts’

house. He was nervous and soaking wet. He told S.S. four different versions of

the events of the evening, but all of the versions ended with C.W. being left in the

ditch because, according to Sinn, C.W. got out of the car and refused to get back

in. Nonetheless, S.S. did not go search for C.W., concluding her mother would

call if she needed help. S.S. testified Sinn later asked her “if Mom had a black

eye,” which caused S.S. to grow concerned. S.S. testified she saw Sinn with a

little blue pill earlier in the day. He called the pill “his happy pill.”

       Roberts testified Sinn woke her up that evening around 11 p.m. He was

wet and pacing. He told her he was with C.W. and C.W. had gotten out of the car

to vomit. Sinn told Roberts C.W. would not get back in the car so he left C.W. in a

ditch. He told Roberts C.W. did not have her phone because it was in his car. He

also told Roberts he saw C.W. “being handsy” with a man at the bar earlier in the

evening and appeared upset by this. Roberts gathered up a friend of her son and
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went to go look for C.W. They looked for approximately one hour, but they did not

find her.

       New London Assistant Chief of Police Brandon Fowler spoke with Sinn on

the night in question. Officer Fowler initially went to C.W.’s residence to conduct

a welfare check on C.W.’s ten-year-old son, who was at home alone.              After

speaking to C.W.’s son, Fowler went to Roberts’ house to ask her some questions.

Fowler learned Sinn was at Roberts’ house, and he asked for Sinn to come outside

and speak with him. Sinn did, and Fowler asked him where he had been and with

whom. Fowler testified Sinn kept asking over and over again if C.W. was all right

and repeating “he hoped he wasn’t in any trouble for this.” Sinn told Fowler C.W.

had gotten drunk and performed oral sex on him while Sinn drove around. Sinn

told Officer Fowler C.W. exited the car after the two fought and fell down “like three

different times.” Fowler testified Sinn told him he tried helping C.W. into the car

but could not so he left her there to try and get help. At this time, Fowler had not

yet told Sinn C.W. was found and at the health center.

       Henry County Deputy Sheriff Jesse Bell also interviewed Sinn on the night

in question. Deputy Bell had been at the health center with C.W., but he left when

he learned Fowler had located Sinn at Roberts’ house. Sinn initially told Deputy

Bell C.W. left the bar with another man. Sinn told the deputy he got a ride home

with a cousin. Deputy Bell told Sinn he believed C.W.’s phone was in Sinn’s car,

and Bell asked if they could retrieve it. Sinn consented. The deputy observed a

brown sandal on the passenger floorboard. Sinn located the matching sandal and

C.W.’s phone in the backseat and gave them to Deputy Bell. The phone had mud

stuck to it. The deputy walked around the vehicle and shined his flashlight through
                                         5


the window. He observed jean shorts on the driver’s side in the backseat. Sinn

consented to the deputy taking the shorts out of the vehicle. The shorts were wet

and muddy. Sinn told Deputy Bell the shorts belonged to him and the shorts were

wet and muddy because Sinn had fallen down while wearing them. The shorts

were women’s shorts, and the deputy concluded the car was part of the crime

scene and secured the vehicle to be searched pursuant to a warrant. Upon

searching the vehicle later, the authorities found a pair of women’s underwear in

the backseat. C.W.’s driver’s license was in the pocket of the denim shorts. C.W.

later identified the underwear, shorts, and sandals as the clothing she wore that

night. Deputy Bell observed Sinn had white gravel and dirt caked onto his jeans.

        After Deputy Bell told Sinn he did not believe his story, Sinn’s version of

events changed. Sinn stated he and C.W. left the bar together and drove around

while C.W. performed oral sex on him. Sinn said the two tried to have sex but

were too drunk. At some point, according to Sinn, C.W. exited the vehicle because

they were arguing or because she needed to vomit. She refused to get back into

the vehicle. Sinn told police he left C.W. there and went to get help. He said he

did not call anyone for help because “he doesn’t use his phone.” He was adamant

he and C.W. did not have sexual intercourse. Sinn also said he lied initially

because he was afraid he would be in trouble for leaving C.W. on the side of the

road.

        Sinn also gave the deputies a cell phone he pulled from his pocket. Sinn

did not know to whom it belonged, but he stated he must have got it at the bar. It

was determined the phone belonged to Troy Stith, the owner of one of the bars

Sinn and C.W. went to on the night in question. Stith told police he asked C.W. to
                                            6


leave the bar because she appeared very intoxicated. She groped Stith and then

tripped over a barstool. Stith reviewed surveillance footage from the bar, which

showed C.W. took his phone when she groped him and handed it to the bartender,

who gave it to Sinn. The bar did not retain the footage.

       Two persons from the jail testified at trial. The first was the jail administrator.

She testified Sinn spoke to her after Sinn’s initial appearance in the case. He was

upset and said “that he didn’t know how he could get this—this charge from just

getting a blow job from some girl.” Christopher Conrad, who shared a jail cell with

Sinn, testified at trial. Conrad had already resolved his case and was serving his

sentence in jail. He did not ask for nor receive any benefit for his cooperation. He

claimed he came forward because a relative had been raped. Conrad testified

Sinn told him he forced a woman into the car with him and drove her around while

he waited for the drugs he had given her to take effect. Sinn said he took the

woman to a gravel road where no one was around. Sinn told Conrad he punched

the woman and knocked her unconscious. Conrad testified Sinn told him he “took

advantage of her, took her-- tore her panties off and scratched her p*ssy.” He also

“made her suck his d*ck.” Sinn said he took the woman’s phone and “left the b*tch

for dead.”

       Sinn was charged with theft and sexual abuse in the second degree as a

habitual offender. The district court granted Sinn’s motion for judgment of acquittal

on the theft charge. The jury found Sinn guilty of the lesser included offense of

sex abuse in the third degree.           The district court sentenced Sinn to an

indeterminate term not to exceed fifteen years as a habitual offender.
                                           7


                                          II.

       Sinn argues the district court erred in concluding he was not entitled to a

spoliation instruction relating to the unavailability of the bar surveillance footage.

This court reviews the refusal to give a spoliation instruction for errors at law. See

State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004). The district court does not

have discretion to refuse a spoliation instruction when there is sufficient evidence

in the record to generate a jury question on the spoliation inference. See id.

       “A spoliation instruction is a direction to the jury that it [may] infer from the

State’s failure to preserve [evidence] that the evidence would have been adverse

to the State.” Id. To justify a spoliation instruction, substantial evidence must

show: “(1) the evidence was in existence; (2) the evidence was in the possession

of or under control of the party charged with its destruction; (3) the evidence would

have been admissible at trial; and (4) the party responsible for its destruction did

so intentionally.” Id. (citing State v. Langlet, 283 N.W.2d 330, 335 (Iowa 1979)).

Even if a spoliation instruction should have been given, we will not reverse the

judgment of the district court if no prejudice occurred. See id. at 633 (“Instructional

error is not reversible error unless there is prejudice.”). “Prejudice exists when the

rights of the defendant have been injuriously affected or the defendant has suffered

a miscarriage of justice.” Id.

       The district court did not err in declining to give Sinn’s proposed spoliation

instruction. Sinn failed to establish the State was ever in possession or control of

the surveillance footage. A deputy did view the surveillance footage and asked

Stith for a copy. Law enforcement followed up with Stith on several occasions, but

Stith did not make a copy of the footage because he did not know how. When
                                           8


Stith was deposed pretrial, he stated he thought the footage was still available. By

the time of trial, however, the footage had been automatically recorded over and

was no longer available. Stith is not the State, and he is not a party to this case.

See State v. Majerus, No. 16-1000, 2017 WL 4570361, at *5–6 (Iowa Ct. App. Oct.

11, 2017) (holding declination of spoliation instruction not erroneous where the

State failed to obtain surveillance footage from a third party). Stith’s possession

of the surveillance footage is not the State’s possession of the same. Nor can the

State be charged with intentionally failing to take possession of the footage “in

order to avail itself of the third-party possessor’s neutral record destruction policy.”

See State v. Schrock, No. 13-1832, 2014 WL 5243444, at *2 n.4 (Iowa Ct. App.

Oct. 15, 2014).

       In addition, there is no evidence of intentional destruction of the surveillance

footage. Stith testified that he did not understand how to burn a copy of the footage

and that the footage was overwritten in the normal course. “Ordinarily evidence

destroyed under a neutral record destruction policy is not considered intentionally

destroyed so as to justify a spoliation instruction.” See Hartsfield, 681 N.W.2d at

632. We recognize that the State’s knowing failure to preserve the video could

satisfy this prong of the four-part test. Id. at 633. However, Stith believed the video

would be available for trial. There is no evidence the State had a reason to believe

to the contrary. See Schrock, 2014 WL 5243444, at *2 (“It is true under Hartsfield

that the State need not destroy the evidence itself, but it must nevertheless have

had some knowledge that its inaction would result in the destruction of the

evidence. Schrock has made no such showing here.”). “Mere negligence is not

enough, for it does not sustain the inference of consciousness of a weak case.”
                                         9

See State v. Stephen, No. 10-0286, 2011 WL 5393453, at *13 (Iowa Ct. App. Nov.

9, 2011) (quoting Langlet, 283 N.W.2d at 333)).

       In any event, there is no showing of prejudice with respect to the sexual

abuse charge. Unlike Hartsfield, the contents of the video were described by an

impartial witness. The impartial witness testified the video showed Sinn and C.W.

conversing at the bar and captured C.W.’s drunken stumbling. It was not disputed

at trial that Sinn and C.W. were at the bar together. It was not disputed C.W. was

drunk. It was not disputed C.W. and Sinn left the bar together. It was also not

disputed C.W. later found herself nearly naked face down in a ditch during the

middle of a rain storm and that Sinn left her there. Her phone, sandals, muddy

shorts, and underwear were found in Sinn’s car. The video had limited, if any,

relevance to the sexual-abuse charge. At trial, defense counsel conceded the

video surveillance footage was more relevant to the theft charge. Defense counsel

conceded the relevance of the footage was limited after the district court dismissed

the theft charge.

       The district court did not commit reversible error in declining the requested

spoliation instruction.

                                        III.

       In his next claim of error, Sinn challenges the sufficiency of the evidence

supporting his conviction for sexual abuse. He contends there was insufficient

evidence of a sex act. We will uphold a verdict if substantial record evidence

supports it. See State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). “Evidence is

substantial if it would convince a rational fact finder that the defendant is guilty

beyond a reasonable doubt.” Id. at 75–76. When reviewing for the sufficiency of
                                          10


the evidence, we view the evidence in the light most favorable to the State but

consider all evidence in the record. Id. at 76. “The State must prove every fact

necessary to constitute the crime with which the defendant is charged. The

evidence must raise a fair inference of guilt and do more than create speculation,

suspicion, or conjecture.” Id. (internal citations omitted). “Inherent in our standard

of review of jury verdicts in criminal cases is the recognition that the jury [is] free

to reject certain evidence, and credit other evidence.” State v. Nitcher, 720 N.W.2d

547, 556 (Iowa 2006).

       We evaluate the sufficiency of the evidence in light of the instructions given

where, as here, the instructions were given without objection. See State v. Canal,

773 N.W.2d 528, 530 (Iowa 2009) (“[Defendant] did not object to the instructions

given to the jury at trial. Therefore, the jury instructions become the law of the

case for purposes of our review of the record for sufficiency of the evidence.”). The

marshaling instruction provided:

       1. On or about August 4, 2016, through August 5, 2016, the
       defendant performed a sex act with C.W.
       2. The defendant performed the sex act by force or against the will
       of C.W. or while C.W. was suffering from a mental incapacity or
       physical incapacity which prevented C.W. from giving consent. The
       terms “mental” and “physical incapacity” are defined elsewhere.
       3. The defendant knew or reasonably should have known that C.W.
       was mentally incapacitated or physically incapacitated.

The jury instruction defined “sex act” to mean any sexual contact:

       1. By penetration of the penis into the vagina or anus.
       2. Between the mouth of one person and the genitals of another.
       3. Between the genitals of one person and the genitals or anus of
          another.
       4. Between the finger or hand of one person and the genitals or
          anus of another person.
       5. By a person’s use of an artificial sex organ or a substitute for a
          sexual organ in contact with the genitals or anus of another.
                                         11



       When the evidence is viewed in the light most favorable to the verdict, there

is substantial evidence to support a reasonable inference Sinn committed a sex

act by penetration of the penis into the vagina. C.W. awoke in a ditch missing her

underwear, shorts, and shoes. She complained of pain in her vagina both upon

awaking and at the hospital. She testified Sinn had previously exposed his penis

to her, and she observed his penis was pierced. She testified she “felt gross down

there.” She had scratch marks on her legs consistent with fingernails.           The

emergency-room physician concluded C.W. had injuries consistent with an assault

and possible penetration of the vagina. S.S. testified Sinn was in possession of

his blue happy pill prior to leaving with C.W. Police were unable to locate any pills,

from which the jury could infer Sinn used it. Conrad testified Sinn told him he drove

the woman to a gravel road where no one was around and “took advantage of

[C.W.], tore her panties off and scratched her p*ssy.” Scratch is a slang term

meaning to “engage in a sexual act with, most commonly intercourse.” Scratch,

Urban Dictionary, https://www.urbandictionary.com/define.php?term =scratch.

       There is also substantial evidence of a sex act between the mouth of one

person and genitals of another. Conrad testified Sinn told him “he made her suck

his d*ck.” Officer Fowler testified Sinn told him that he drove around with C.W.

while she performed oral sex. Deputy Bell testified Sinn made similar statements

to him.

       Sinn’s admissions were corroborated by other evidence.           See State v.

Meyers, 799 N.W.2d 132, 139 (Iowa 2011) (discussing the requirement of

corroborating evidence to show a sex act occurred). Stith testified Sinn and C.W.
                                       12


were together at the bar. Conrad testified Sinn told him he drove the woman to a

gravel road where no one was around and punched the woman and knocked her

unconscious.    Sinn’s vehicle was caked with fresh mud, corroborating Sinn’s

admission he drove around on rural roads during a rain storm while C.W.

performed oral sex on him. Deputy Bell testified he observed white gravel and

stains on Sinn’s pants. C.W. was in a ditch by a gravel road. She had a bruised

and swollen eye consistent with being punched unconscious.

       Because we have concluded there is substantial evidence establishing both

sex acts, we need not address Sinn’s claim new trial is required pursuant to State

v. Tyler, 873 N.W.2d 741 (Iowa 2016) and State v. Schlitter, 881 N.W.2d 380 (Iowa

2016) because the jury returned only a general verdict when alternative factual

methods of committing a single legal offense were presented to the jury.

                                      IV.
       For the above-stated reasons, we affirm Sinn’s conviction for sexual abuse

in the third degree.

       AFFIRMED.
