                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1196 / 12-1490
                             Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC SCOTT OLSEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,

Judge.



      Eric Olsen appeals his convictions for homicide by vehicle and leaving the

scene of an accident. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney

General, Michael H. Walton, County Attorney, and Kim Shepherd, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
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DOYLE, P.J.

       Eric Olsen appeals his convictions for homicide by vehicle-recklessness,

in violation of Iowa Code section 707.6A(2)(a) (2011), and leaving the scene of a

fatality accident, in violation of sections 321.261 and 321.263. Olsen claims the

evidence was insufficient to support the jury’s findings of guilt. Olsen also takes

issue with several evidentiary rulings by the district court. We affirm.

I.     Sufficiency of the Evidence

       The jury was instructed that the State would have to prove the following

elements of homicide by vehicle:

             1. On or about the 17th day of January, 2011, the defendant
       operated a motor vehicle in a reckless manner.
             2. The defendant’s recklessness unintentionally caused the
       death of Wanda Weldy.

The jury was instructed that the State would have to prove the following elements

of leaving the scene of a fatality accident:

              1. On or about the 17th day of January, 2011, the defendant
       was the driver of motor vehicle which was involved in an incident
       which resulted in the death of another person.
              2. The defendant knew that the other person suffered
       serious injury or death.
              3. The defendant left the scene of the incident.
              4. The defendant:
                     a. Did not leave his driver’s license, automobile
                  registration receipt, or other identification information at
                  the scene of the incident; or,
                     b. Did not report the incident promptly to law
                  enforcement authorities and:
                             i. Did not return to the scene immediately; or
                             ii. Did not inform law enforcement authorities
                         where he could be located.

The jury was further instructed on the meaning of the terms “reckless” and

“serious injury”:
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               A person is “reckless” or acts “recklessly” when he willfully
       disregards the safety of persons or property. It is more than a lack
       of reasonable care which may cause unintentional injury.
       Recklessness is conduct which consciously is done with willful
       disregard of the consequences. For recklessness to exist, the act
       must be highly dangerous. In addition, the danger must be so
       obvious that the actor knows or reasonably should foresee that
       harm more likely than not will result from the act. Though
       recklessness is willful, it is not intentional in the sense that harm is
       intended to result.
               A “serious injury” is a bodily injury which creates a
       substantial risk of death or which causes serious permanent
       disfigurement or extended loss or impairment in the function of any
       bodily part or organ. “Serious injury” includes death. The term
       “bodily injury” means physical pain, illness or any impairment of
       physical condition.
               For the defendant to know or have knowledge of something
       means he had a conscious awareness that Wanda Weldy suffered
       bodily injury, serious injury, or death.

       Viewing the facts in the light most favorable to its verdict, see State v.

Thompson, 836 N.W.2d 470, 474 (Iowa 2013), the jury could have found the

following. Olsen was drinking at the Pour House bar in Davenport with his “on

and off” girlfriend, Wanda Weldy on January 17, 2011. A surveillance video

depicted Olsen and Weldy leaving the bar at 1:37 a.m. Nearby, at approximately

1:50 a.m., Mark Burns was awakened by loud engine noises in his front yard at

2806 North Fairmount Street. Burns looked out the window and saw Olsen’s

blue pickup truck in the yard. The truck was stuck, and the driver was revving

the engine and spinning the wheels trying to get free. After about one minute,

the truck got out of the yard and squealed its tires as it left, driving northbound on

Fairmount Street. Burns saw the truck turn right onto West 29th Street.

       Within one minute, Burns—still looking out his window—noticed another

pickup truck driving north on Fairmount Street. The truck stopped in front of his

parents’ house, a few doors south of Burns’s house, on Fairmount Street. At that
                                        4


point, Burns woke up his wife, told her “something is going on around here,” and

ran outside.

      The driver of the second truck, Ryan Uhle, was driving home on Fairmount

Street when he spotted what he thought was a garbage bag in the road. As he

got closer, Uhle realized it was a body (Wanda Weldy) and a shoe lying in the

road. Uhle stopped his truck and tried to rouse Weldy before running to a nearby

house (Burns’s parents) to call police. By that time, Burns had run over from his

house.   Burns asked Uhle what happened, and checked Weldy’s condition.

Weldy had no pulse, was not breathing, and was covered in blood.                An

ambulance arrived and rushed her to the hospital.

      An autopsy performed on Weldy’s body indicated a black, smudgy

substance on her chest and head in a grid-like pattern. A doctor opined that with

her injuries, Weldy would have died relatively rapidly, within minutes. Her cause

of death was determined to blunt force trauma. The doctor confirmed Weldy’s

injuries were consistent with her being run over by a motor vehicle, noting the

black grid-like pattern on her body appeared to be tire tread. The injuries aligned

on one side of her body, consistent with one continuous process of injury.

      At the scene, police found and diagrammed fresh tire marks on the road

and in the plowed snow indicating a vehicle had made a U-turn from northbound

to southbound on Fairmount Street, accelerated at the intersection of Fairmount

Street and West 29th Street, and then changed direction again in Burns’s yard at

2806 Fairmount Street. Police also diagrammed a blood spot and a shoe lying in

the road near Burns’s parents’ house at 2715 Fairmount Street. An evidence

technician took a cast of the tire tracks in the snow. Weldy’s clothing did not
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have tearing or scraping to be expected if she had slid or rolled on the pavement.

Her jeans had a black substance in a pattern that ran up the leg. Marks on her

body were consistent with being caused by a tire. Police opined the evidence did

not support a theory that Weldy had “alighted” from a moving vehicle, but rather

that she was lying on the ground when she was run over.

      Meanwhile, at 2:01 a.m., a security guard at a local hospital saw a person

park a blue pickup truck and “power walk” away from the hospital. The truck was

determined to be registered to Olsen; it matched the description of the truck

Burns had seen in his yard; its tire treads were consistent with the tire tracks on

Fairmount Street and Weldy’s body. Shoeprints on the inside of the windshield

and passenger window were consistent with the sole pattern of Weldy’s shoes.

      Later that morning, police found Olsen in a home near the hospital where

his truck was parked.     Olsen never reported an accident to police.        In an

interview with police, Olsen lacked emotion considering he claimed he had just

learned about his girlfriend’s death. Olsen claimed he was driving Weldy to Wal-

Mart when she jumped out of his moving truck. He said he turned around, but

she did not want to get back in the truck. Olsen said, “[I]f somebody jumps out of

a truck at 35, 40 miles per hour they can break their leg, they can break their

neck, anything can happen to them.” He said Weldy had also jumped out of the

truck the previous Thursday. Police noted several discrepancies in that story

compared to statements he made during various jail phone conversations,

including that he did not see Weldy when he backed out of the yard and he

thought he might have run her over and that Weldy might have gotten caught in

the seatbelt and hit her head. Olsen did not testify at trial. His defense theory
                                         6


was that Weldy got angry and jumped out his truck; when he turned around he

did not see her so he assumed she ran away.

       On appeal, Olsen contends “[o]ne has to speculate about whether Olsen

was reckless in the operation of his vehicle and, even if he were, if his actions

were the cause of Weldy’s death” where

       other cars were driving on the road, the body was not located by
       where Olsen drove into the yard, there was the possibility Weldy
       was mobile after she left the vehicle, there was no evidence of
       damage to Olsen’s vehicle, and any evidence tying Olsen’s truck
       tires to Weldy’s injuries was inconclusive.

He further claims “one has to speculate about whether Olsen even hit Weldy and,

more importantly, if he knew how badly she was injured.”

       Viewing the evidence in the light most favorable to the State, we are

persuaded that a reasonable juror could have found Olsen’s reckless driving

caused Weldy’s death, and that Olsen knew he had been in an accident capable

of causing Weldy’s death. See State v. Biddle, 652 N.W.2d 191, 197 (Iowa

2002) (setting forth standard of review in challenges to the sufficiency of the

evidence supporting a guilty verdict). We affirm, finding substantial evidence

supports the jury’s finding of guilt.

       Olsen also claims the district court abused its discretion in denying his

motion for new trial. At trial, the State and Olsen presented conflicting evidence

as to the circumstances of the incident and the cause of Weldy’s death; the jury

chose to believe the State’s evidence. Olsen requested a new trial on the basis

of insufficiency of evidence, claiming “the credible evidence is the evidence

presented by the defense.” The district court rejected the claim, stating:
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              With respect to the issue of whether the verdicts were
       contrary to the weight of the evidence, the Court starts with the rule
       that the jury may believe all, part or none of any witness’s
       testimony. Looking at the evidence in its entirety, and with the view
       towards the evidence supporting the verdicts, the Court does
       conclude that the weight of the credible evidence does, in fact,
       support the verdicts rendered by the jury in this matter, and
       therefore, the Motion for New Trial with respect to that issue will be
       overruled . . . .

We conclude the court properly exercised its discretion in its ruling. See State v.

Reeves, 670 N.W.2d 199 (Iowa 2003) (“The district court has broad discretion in

ruling on a motion for new trial.”); State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa

1998) (stating the district court may grant a motion for new trial “[i]f the court

reaches the conclusion that the verdict is contrary to the weight of the evidence”).

II.    Evidentiary Rulings

       Olsen takes issue with several evidentiary rulings by the district court,

claiming the court abused its discretion in (1) excluding evidence of a prior act by

the victim, (2) admitting evidence of Olsen’s prior domestic abuse of the victim,

and (3) denying access to the victim’s mental health records.

A.     Exclusion of Evidence Regarding the Victim’s Character

       Olsen appeals the district court’s refusal to admit evidence of a specific

instance he claims would have supported the theory that Weldy jumped out of his

truck by “her own free will.” He presented an offer of proof of a February 2010

incident during which he and Weldy were arguing in the backseat of his friend’s

car when Olsen told the friend to stop the car because Weldy had “hopped out”

while the car was moving. Olsen’s friend acknowledged he did not see what

happened before Weldy went out the car door, who opened the door, and what

Olsen was doing at the time Weldy went out the door.
                                          8


       The district court excluded the proffered evidence, determining it was

improper character evidence. See Iowa Rs. Evid. 5.404(a)(2)(A) (“Evidence of a

person’s character or a trait of the person’s character is not admissible for the

purpose of proving that the person acted in conformity therewith on a particular

occasion, except . . . evidence of a pertinent trait of character of the victim of the

crime offered by an accused, or by the prosecution to rebut the same . . . .”),

5.405(b) (“In cases in which character or a trait of character of a person is an

essential element of a charge, claim, or defense, proof may also be made of

specific instances of the person’s conduct.” (emphasis added)); State v. Jacoby,

260 N.W.2d 828, 837 (Iowa 1977) (“[W]here the accused denies the killing or

asserts it was unintentional, evidence of the deceased’s character is

inadmissible”). We conclude the evidence was properly excluded.

B.     Admission of Evidence Regarding Olsen’s Prior Abuse of the Victim

       Olsen appeals the district court’s admission of evidence of his prior acts of

violence toward Weldy, claiming none of the charges submitted to the jury

required the State to prove Olsen’s specific intent, and even if the evidence was

relevant, the danger of unfair prejudice “far outweighed” its probative value.

Olsen takes issue with the following evidence: testimony from the paramedic who

responded to the scene on January 17, 2011, that he recognized Weldy from a

different incident on January 13, 2011, when he had responded to a domestic

assault call and Weldy had told him she had been “pushed out of a truck”;

testimony from police who responded to a domestic assault call at Olsen’s house

on January 12, 2011, after Olsen threw Weldy to the ground when she came to

retrieve her belongings; and testimony from police who responded to a report of
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domestic assault involving Olsen and Weldy in November 2010 and saw Weldy

with scratches and blood on her face.

          The district court allowed the testimony, with a cautionary instruction,

determining it was admissible evidence of other bad acts. The court stated “the

incidents are relevant to establish the volatile and violent nature of the

relationship between the defendant and the alleged victim,” “would tend to help

establish motive, intent, or absence of mistake or accident,” and “occurred within

approximately two months of the alleged victim’s death.” The court concluded

“the highly probative nature of the three incidents . . . substantially outweighs any

danger of unfair prejudice to the defendant, particularly when coupled with an

admonishment to the jury concerning the purpose for which such evidence may

be offered along with an instruction setting forth its limited utility.” 1 See Iowa R.

Evid. 5.403 (“Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice . . . .”), 5.404

(“Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that the person acted in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.”); State v. Rodriquez, 636 N.W.2d 234, 242 (Iowa 2001)


1
    The jury received the following limiting instruction in regard to the evidence at issue:
          Each of the new three witnesses that are being called by the state are
          going to offer testimony concerning incidents which occurred prior to
          January 17th, 2011.        Evidence concerning those incidents is not
          admissible to prove the character of Mr. Olsen or that Mr. Olsen acted in
          conformity with the actions that are alleged to have occurred in
          connection with those incidents. That evidence is being offered merely
          for the purpose of showing that what occurred on January 17th was not a
          mistake or accident.
                                          10


(allowing evidence of prior assaults against same victim where the defendant

claimed the injuries he inflicted on the victim that day were “unintended” and his

prior bad acts made it “more probable” that his actions constituted an element of

the crime at issue). Here, Olsen’s defense was that Weldy voluntarily jumped

from his moving vehicle and was accidentally or mistakenly run over.               We

conclude the district court properly exercised its discretion to permit evidence of

prior domestic abuse of Weldy by Olsen.

C.     Denial of Access to Victim’s Mental Health Records

       Olsen appeals the district court’s denial of his motion to compel production

of Weldy’s mental health records, claiming the records would have supported a

finding that Weldy “had a history of jumping out of vehicles” and “would make it

more likely that Weldy voluntarily jumped out of Olsen’s vehicle on the night in

question.”   Prior to trial, the district court conducted an in camera review of

Weldy’s medical records from Genesis Medical Center from March 8, 2000,

through January 17, 2011, and from Vera French Community Mental Health

Center from September 27, 2005, through December 1, 2010.2                  The court

determined the records did not contain exculpatory information, and that to the

extent any information was exculpatory, Weldy’s privacy interests outweighed

Olsen’s need for disclosure.




2
  In April 2013, the Iowa Supreme Court entered an order allowing appellate counsel
access to Olsen’s January 2012 motion to compel and the State’s February 2012
resistance to that motion. Those filings, along with the district court’s order denying
Olsen’s motion to compel, are included in a sealed appendix before this court for
purposes of this appeal, which we have reviewed and considered in reaching our
conclusion on this issue.
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      Olsen claims the court’s ruling makes it “impossible for an appellate court

to . . . know whether the court determined there was no exculpatory evidence at

all, or whether there was some exculpatory evidence that did not warrant limited

disclosure.” Our supreme court, however, has not interpreted Iowa Code section

622.10(4), which sets forth the protocol for criminal defendants’ access to

potentially exculpatory mental health records of their alleged victims, to require

the district court to make the written findings Olsen claims were necessary here.

Indeed, section 622.10(4)(a)(2)(d) provides:

              Upon the court’s determination, in writing, that the privileged
      information sought is exculpatory and that there is a compelling
      need for such information that outweighs the privacy interests of the
      privilege holder, the court shall issue an order allowing the
      disclosure of only those portions of the records that contain the
      exculpatory information.

(Emphasis added); see Thompson, 836 N.W.2d at 490 (holding section

622.10(4) “is constitutional on its face”).    Here, the district court determined

Weldy’s privacy interests outweighed Olsen’s need for any exculpatory

information, and issued its ruling denying access to the records. We conclude

the court properly applied section 622.10(4) in determining whether to allow

access to the confidential medical records at issue.

      Alternatively, Olsen asks this court to conduct an in camera review of the

medical records at issue.    Our appellate courts have routinely conducted in

camera reviews of confidential materials in addressing claims on appeal

concerning the district court’s discovery rulings. See, e.g., Otteson v. Iowa Dist.

Court for Linn Cnty., 443 N.W.2d 726, 729 (Iowa 1989); Pathology Consultants v.

Gratton, 343 N.W.2d 428, 438 (Iowa 1984). We have thoroughly examined the
                                           12


sealed documents as a part of our review and agree with the district court’s

determination that no exculpatory information is contained therein. Therefore, we

find no abuse of discretion in the district court’s ruling . See Thompson, 836

N.W.2d at 476 (“Nonconstitutional challenges to discovery rulings are reviewed

for abuse of discretion.”).

       To the extent Olsen claims violations involving the right to present a

defense based on the denial of access to Weldy’s medical records to his trial or

appellate counsel, we review those claims de novo. Id. at 476. We find these

claims unpersuasive under our supreme court’s recent ruling in Thompson, 836

N.W.2d at 476, 486 (holding the criminal defendant does not have state or

federal due process right “to an in camera inspection by his own lawyer”).3

       Having considered the issues raised on appeal, we affirm Olsen’s

judgment and sentence for homicide by vehicle and leaving the scene of a fatality

accident.

       AFFIRMED.




3
 Insofar as Olsen claims his counsel was ineffective in failing to gain access to Weldy’s
medical records, we conclude Olsen is unable to prove this claim where trial counsel
sought—albeit unsuccessfully—access to those records.
