                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2052
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYAN LEE ROCHE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,

Judge.



      Bryan Roche appeals his judgment and sentence for first-degree

kidnapping, first-degree sexual abuse, attempted murder, and willful injury.

AFFIRMED.



      Mark C. Meyer, Cedar Rapids, for appellant.

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

Attorney General, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Bryan Roche appeals his judgment and sentence for first-degree

kidnapping, first-degree sexual abuse, attempted murder, and willful injury. He

contends (1) the evidence was insufficient to support the jury’s finding of guilt on

the kidnapping charge; (2) the district court should have suppressed his

statements to law enforcement officers on the ground they were involuntary; and

(3) the jury instructions on sexual abuse reduced the State’s burden of proof.

I.     Sufficiency of the Evidence – Kidnapping

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

elements of first-degree kidnapping:

               1. On or about the 21st day of April, 2013, the defendant
       confined [S.P.].
               2. The defendant did so with the specific intent to subject
       [S.P.] to sexual abuse.
               3. The defendant knew he did not have the consent of [S.P.]
       to do so.
               4. As a result of the confinement, [S.P.] was intentionally
       subjected to sexual abuse.

       Roche focuses on the evidence supporting the confinement element. This

element requires “more than the confinement or removal that is an inherent

incident of commission of the crime of sexual abuse.” State v. Robinson, 859

N.W.2d 464, 475 (Iowa 2015). The element may be satisfied if the confinement

“substantially increases the risk of harm to the victim, significantly lessens the

risk of detection, or significantly facilitates escape following the consummation of

the offense.” Id. Roche contends this standard was not satisfied. A reasonable

juror could have found otherwise.
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        A juror could have found that S.P. and Roche met online and became

friends. According to S.P., Roche “showed up unannounced” one Sunday. S.P.

told him she was cleaning, but he could come in. As she picked “stuff off” the

floor, Roche grabbed her around the neck and “pull[ed] tighter and tighter” until

she passed out.      When she began regaining consciousness, she heard her

three-year-old daughter screaming and realized Roche “was starting to tie [her]

up” with “red tape.” Roche removed S.P.’s sock, shoved it into S.P.’s mouth, and

taped her mouth. Then he “started cutting” her “clothes off.” When S.P. was

naked, Roche raped her, vaginally and anally.

        By this time, the sock had fallen out of S.P.’s mouth and she “started to

scream.” Roche told her if she did not quiet down, he would hurt her child.

Roche picked S.P. up and took her to her bedroom. He “threw [her] on the bed”

and raped her one more time. Then he “picked [her] up again” and took her into

the hallway, where he raped her a fourth time. He told her he would continue

doing it “until the fun was over.”

        Next, S.P. watched as Roche got a knife from his coat and stabbed her in

her neck. S.P. “broke free” and attempted to tamp down the bleeding. Roche

stabbed her again in the abdomen. S.P. managed to retreat to her bedroom,

where she braced the door shut with her back. Roche, who stood outside the

door, told her he “only came over to rape [her], but it got out of hand.” He said if

she died, he would not go to jail.

        Roche remained outside the bedroom door for “[a]bout two hours.” At that

point, he told her “he wanted to leave and” her “blood was starting to smell pretty

bad.”   He demanded “the tape back because . . . it was evidence.”             S.P.
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extricated herself from the remaining tape, cracked the bedroom door open, and

threw the tape out. She heard the apartment door slam. Eventually, S.P. went

into the living room and discovered her cell phone “was gone.” She sought help

from a neighbor, who called the police.

       A reasonable juror could have found from these facts that Roche’s

confinement of S.P. was more than incidental to the sexual abuse. Roche used

a knife, “substantially increas[ing] the risk of harm to S.P.” Id. He taped her

mouth, threatened to harm her child when she screamed, transferred her to the

bedroom, and removed her cell phone, “significantly lessen[ing] the risk of

detection.” Id. And he waited for her to die and insisted on retrieving evidence of

the crime, “significantly facilitate[ing] escape following the consummation of the

offense.” Id. These facts amount to substantial evidence in support of the jury’s

finding of guilt. See id. at 467; see also State v. Ronnau, No. 14-0787, 2016 WL

351314, at *5 (Iowa Ct. App. Jan. 27, 2016) (affirming conviction where

defendant strangled woman until she passed out, transported her to the other

side of the street near a bush, attempted to rip out her tongue when she tried

screaming, and threatened to kill her); State v. Norem, No. 14-1524, 2016 WL

146237, at *5-6 (Iowa Ct. App. Jan. 13, 2016) (affirming conviction where

defendant beat his wife, forced her into a car, drove her home, beat her again,

and forced her to perform multiple sex acts); State v. Schildberg, No. 14-1581,

2015 WL 4642503, at *1-2 (Iowa Ct. App. Aug. 5, 2015) (affirming conviction

where defendant pulled his girlfriend out of bed by her hair, broke one of her ribs,

choked her with his legs around her neck, forced her to have sex, made her go
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with him to a gas station so she would not escape, kept her phone and purse

away from her, and did not allow her to leave the residence when they returned).

II.    Suppression Ruling – Involuntary Statements

       Roche moved to suppress videotaped statements he made to law

enforcement officers on the ground they were obtained involuntarily. Following a

hearing, the district court denied the motion. At trial, the State admitted some of

Roche’s statements.

       On appeal, Roche argues (1) the statements were involuntary, and (2) the

statements were the product of promissory leniency.         Preliminarily, we will

address an error preservation question relating to the promissory leniency claim.

       Roche did not raise promissory leniency in the district court. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“[I]ssues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”).

He attempts to circumvent this obstacle by suggesting the district court decided

the issue notwithstanding his failure to raise it.

       It is true the court mentioned promissory leniency.        But the court’s

reference arose in a different context. The court was asked to decide whether

the statements were voluntary under a constitutional totality-of-the-circumstances

test. See State v. Madsen, 813 N.W.2d 714, 722 (Iowa 2012). In its analysis

under this test, the court noted the absence of promises of leniency.

Significantly, the court neither invoked nor applied the evidentiary test used to

determine whether law enforcement officers made promises of leniency to extract

a confession. See State v. McCoy, 692 N.W.2d 6, 28-29 (Iowa 2005). Absent

application of this evidentiary test, error was not preserved on the promissory
                                           6

leniency claim. See Madsen, 813 N.W.2d at 723 (“The motion to suppress cited

constitutional authority and did not cite McCoy or otherwise develop the

evidentiary standard, nor did the district court address the evidentiary test . . . .

The evidentiary standard was not preserved for direct appeal.”). Accordingly, we

decline to address the promissory leniency claim and proceed to the

voluntariness issue.

       “Under     a    constitutional   totality-of-the-circumstances   voluntariness

analysis, statements are voluntary if the defendant’s will is not overborne or [the]

capacity for self-determination is not critically impaired.”    Id. at 722.   In this

context, the Iowa Supreme Court has stated “[a] number of factors help in

determining voluntariness,” including (1) the defendant’s age; (2) whether the

defendant had prior experience in the criminal justice system; (3) whether the

defendant was under the influence of drugs; (4) whether Miranda warnings were

given; (5) whether the defendant was mentally “subnormal”; (6) whether

deception was used; (7) whether defendant showed an ability to understand the

questions and respond; (8) the length of time the defendant was detained and

interrogated; (9) the defendant’s physical and emotional reaction to interrogation;

and (10) whether physical punishment, including deprivation of food and sleep,

was used. See State v. Payton, 481 N.W.2d 325, 328-29 (Iowa 1992); accord

Madsen, 813 N.W.2d at 722-23.

       Roche argues he was only twenty-one years old, “had no prior

involvement with the criminal justice system,” was deceived by police before he

arrived at the police station, and had his “will overborne by unrelenting

interrogation.”
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       Roche’s age is not in dispute. As the district court noted, he was an adult

at the time of questioning. Cf. In re Thompson, 241 N.W.2d 2, 7 (Iowa 1976)

(noting Thompson “was only seventeen” at the time of questioning). According to

one of the officers, Roche seemed “very intelligent and very alert” and seemed

“calm” and “relaxed.” Roche told the officer he did not use drugs or alcohol. The

officer characterized him as “perfectly sober.” Cf. State v. Cullison, 227 N.W.2d

121, 125 (Iowa 1975) (noting defendant “had a history of drug use”).

       Roche did not have an adult criminal record. However, Roche disclosed

some contact with police as a juvenile.

       Roche was administered Miranda1 warnings and signed a waiver of his

rights. At first blush, this factor would seem to establish the voluntariness of

Roche’s statements. However, Roche contends the effect of the warnings was

diluted by the manner in which he was apprehended. Specifically, officers came

to his house and told him he was not in custody, even though an officer was

posted at the back door to prevent him from leaving.

       We agree the officers were less than candid when they insisted Roche

was not in custody at his home, during transport to the police station, and even

after he was placed in a locked room at the police station.          See Taylor v.

Alabama, 457 U.S. 687, 690 (1982) (noting “the fact that the confession may be

‘voluntary’ for purposes of the Fifth Amendment, in the sense that Miranda

warnings were given and understood, is not by itself sufficient to purge the taint

of [an] illegal arrest”); McCoy, 692 N.W.2d at 23 (noting the State had burden to

1
  “In Miranda the Supreme Court mandated that during custodial interrogation, an
accused be advised of certain constitutional rights.” State v. Davis, 446 N.W.2d 785,
788 (Iowa 1989) (citing Miranda v. Arizona, 384 U.S. 436, 444-45 (1966)).
                                            8


prove the defendant went to the station voluntarily and the facts established “the

police illegally seized the defendant in violation of the Fourth and Fourteenth

Amendment”). But Roche makes no argument that their lack of candor rendered

the initial detention an illegal seizure under the Fourth Amendment to the United

States Constitution. Nor does he contend his consent to be questioned at the

police station, first voiced in his apartment, was involuntary.            Under these

circumstances, we are persuaded Roche’s waiver of his Miranda rights was

voluntary.

       We turn to whether the circumstances of Roche’s interrogation overbore

his will, as he contends. Officers placed Roche in a six-foot-by-six-foot room.

The door automatically locked and required a key to exit. The room was wired

for video and sound recording, and the interview was recorded.2 As the district

court noted, Roche spent several hours in this room but the interrogation was

intermittent. Roche was left alone for lengthy periods of time.

       Admittedly, the interrogation was intense; the officers confronted Roche

with childhood traumas and facts of the case gleaned from other sources, called

him a liar, and exhorted him to tell the truth. But the video does not “depict a

man whose will was overborne or whose capacity for self-determination was

impaired.” Madsen, 813 N.W.2d at 723. To the contrary, Roche fairly calmly

confessed and directed officers to a dumpster where he had discarded evidence.

We conclude the confession was voluntary.

2
   The recording was made with non-standard software which was cumbersome to
download and utilize. The video portion of the recording is clear. The audio portion is
not. The jury was given a transcript of the audio as a demonstrative exhibit only, for the
limited purposes of assisting the jury in viewing the video. We have examined the
transcript but have not verified its accuracy against the recording.
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III.   Jury Instructions on Sexual Abuse

       The marshalling instruction for first-degree sexual abuse stated:

               1. On the 21st day of April, 2013, the defendant performed a
       sex act with [S.P.].
               2. The defendant performed the sex act by force or against
       the will of [S.P.].
               3. During the commission of sexual abuse, the defendant
       caused [S.P.] a serious injury.

Roche objected to the following instruction explicating the third element on the

ground that the instruction reduced the State’s burden of proof:

       With regard to element number 3 of Instruction No. 26, the serious
       injury need not occur simultaneously with the commission of the
       sexual abuse in order to constitute first-degree sexual abuse. It is
       sufficient if the serious injury precedes or follows the sexual abuse
       as long as the injury and sexual abuse occur as part of an
       unbroken chain of events or as part of one continuous series of
       acts connected with one another.

He contends, the jury instruction “confused the legislative standard for what is

necessary to convict with a judicial standard for what is merely sufficient to

convict, and this error diminished the State’s burden of proof.” We disagree.

       In State v. Carter, 602 N.W.2d 818, 821-22 (Iowa 1999), the Iowa

Supreme Court addressed the legislative definition of first-degree sexual abuse

and, specifically, the provision requiring the commission of a serious injury “in the

course of” committing sexual abuse. See Iowa Code § 702.9 (2013). The court

stated:

       We hold that under Iowa Code section 709.2 the serious injury
       need not occur simultaneously with the commission of the sexual
       abuse in order to constitute first-degree sexual abuse under Iowa
       Code section 709.2. It is sufficient if the serious injury precedes or
       follows the sexual abuse as long as the injury and sexual abuse
       occur as part of an unbroken chain of events or as part of one
       continuous series of acts connected with one another.
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Carter, 602 N.W.2d at 822.

       The instruction in this case mirrors the court’s holding in Carter.3 Although

the holding arose in the context of a sufficiency-of-the-evidence challenge, this

procedural context makes it no less valid as an interpretation of the pertinent

statute. We conclude the district court did not err in instructing the jury pursuant

to this holding.

       We affirm Roche’s judgment and sentence.

       AFFIRMED.




3
 In Carter, the district court used Iowa’s Uniform Criminal Jury Instruction 900.1. 602
N.W.2d at 821 n.2. The district court used the same instruction here.
