State of Iowa v. Nicole Marie Finn

IN THE COURT OF APPEALS OF IOWA

No. 18-0181
Filed October 7, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

NICOLE MARIE FINN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.

Nicole Finn appeals her convictions for one count of first-degree murder and

three counts of first-degree kidnapping. AFFIRMED.

Nicholas B. Dial of Dial Law Office, P.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

A boy called 911 and told the dispatch shift supervisor that his sister was

not breathing. A West Des Moines police officer went to the house to assist. She

discovered Nicole Finn performing chest compressions on her “very thin, very frail”

teenage daughter, in a room stripped of furniture and carpeting. The teen’s body

temperature was “[c]old.” The teen was taken to a hospital, where an emergency

room physician expressed “shock[ ] at her appearance.” In the physician’s words,

the teen “was just emaciated, wasted away.” She testified that hospital staff “tried

everything that [they] could to try to save her,” but the teen died four hours later.

Three other children lived in Finn’s home. Two of them were also

hospitalized. One was described as “pale” and “thin,” with “several wounds that

weren’t healing properly” and “swollen” arms and legs. The other was similarly

described as “very skinny,” with “big and swollen” legs, and “nothing to him

basically.” The fourth child was relatively healthy and was sent to his father’s

home.

The State charged Finn with several crimes arising from the treatment of

the three hospitalized children. A jury found her guilty of one count of first-degree

murder and three counts of first-degree kidnapping. The district court merged the

sentences for murder and the kidnapping count involving the child who died, ran

those sentences concurrently with each other, and ordered Finn to serve three

consecutive terms of life in prison.

On appeal, Finn (1) challenges the sufficiency of the evidence to support

the findings of guilt on “each kidnapping charge”; (2) argues the district court

improperly instructed the jury on the meaning of a term used in the marshalling
3

instruction for kidnapping; (3) contends the district court abused its discretion in

denying her motions for change of venue; (4) argues the district court abused its

discretion in denying her motions to strike three jurors for cause; and (5) contends

her trial attorneys were ineffective in failing to object to a jury instruction that

“assume[d] the existence of facts disputed in the record.”

I. Sufficiency of the Evidence

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

elements of first-degree kidnapping:

On or about December 1, 2015, through October 25, 2016,
the defendant confined or removed [the child].
1. The defendant did so with the specific intent to:
a. Inflict serious injury upon [the child], and/or
b. Secretly confine [the child].
2. The defendant knew she did not have the consent or
authority of [the child] to do so.
3. As a result of the confinement or removal [the child]
a. Suffered a serious injury, and/or
b. Was intentionally subject to torture.

The crime of kidnapping also was included in the first-degree murder marshalling

instruction as an alternative means of satisfying one of the elements.

Finn argues “confinement does not exist” under the first kidnapping

element. In her view, “The three children lived in the same room of their house,”

“[t]he children left the room on a regular basis,” “[t]he children also left the house,”

and “[t]he room was alarmed, but not locked.” We address this issue first because,

if the evidence is insufficient to support the findings of guilt, double jeopardy would

mandate reversal. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003)

(“Normally, when error occurs at trial resulting in a reversal of a criminal conviction

on appeal, double-jeopardy principles do not prohibit a retrial. An exception exists,
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however, when the defendant’s conviction is reversed on grounds that the

evidence was insufficient to sustain the conviction.”).

The jury was instructed on the meaning of confinement as follows:

A person is “confined” when her or his freedom to move about
is substantially restricted by force, threat or deception. The person
may be confined either in the place where the restriction began or in
a place to which she or he has been removed. No minimum time of
confinement or distance of removal is required. It must be more than
slight. The confinement and/or removal must have significance apart
from the infliction of serious injury or torture.
In determining whether confinement and/or removal exists,
you may consider whether:
1. The risk of harm to the person confined was substantially
increased.
2. The risk of detection was significantly reduced.
3. Escape was made significantly easier.

A reasonable juror could have found the following facts relative to the confinement

element.

The fourth child testified that the three children who were named in the

kidnapping charges slept in a single room. The children were not allowed to use

the bathroom without Finn’s permission and with supervision by her or by the fourth

child. The children started “going to the bathroom” in the bedroom. Finn removed

the beds and carpeting when “it started to smell really bad.” Finn also nailed the

bedroom window shut to prevent the children from “sneaking out” and “[a]sking for

money and food.” To alert her that someone had opened the bedroom door, she

placed “a laundry basket with a pillow case tied to it and pillow case tied to the

door.” Later, Finn fitted the bedroom door with an alarm that beeped when the

door was opened.

One of the children who was restricted to the room testified “we weren’t

allowed to do very much.” He stated, “It was very rare [he] came out of [his] room
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in the summer.” In his words, “since we were in the room almost like the whole

entire day sometimes, we had nowhere to go.” The three children “had to ask” to

go to the bathroom “from inside the room.” Because Finn did not come if she was

busy or sleeping, they went “to the bathroom everywhere in the room.” The

children also had to ask for “something to eat.” When they received food, they had

to hold it and stand against a hallway wall while eating. About once a week, they

“would have to ask for everything [they] needed,” and “then [they] would be able

to have privileges to go outside the room.” The child confirmed the placement of

an “alarm on the door.” He also confirmed that the window was nailed shut and,

later, reinforced with small and large screws and “boards on the outside.” The

reinforcements prevented the children from leaving through the window to get food.

Substantial evidence supports the jury’s finding that the three children’s

“freedom to move about [was] substantially restricted by force, threat or deception”

and that they were “confined” within the meaning of the kidnapping instruction.

See State v. Siemer, 454 N.W.2d 857, 864 (Iowa 1990) (finding sufficient evidence

of confinement where a child handcuffed to a bed in the basement “was unable to

fulfill any of his most basic human needs such as relieving himself in a sanitary

way or reaching food or water”); cf. State v. Albright, 925 N.W.2d 144, 155 (Iowa

2019) (affirming finding of guilt for kidnapping where a person was confined “for

over thirteen hours” and stating “[t]his was not a ‘minimal degree of confinement’”

(citation omitted)).

We affirm the jury’s findings of guilt on the three kidnapping counts and on

the kidnapping alternative to the first-degree murder count.
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Finn putatively raises a claim that the jury’s finding of guilt was against the

weight of the evidence. Our review of the district court’s denial of a new trial motion

on this ground is for an abuse of discretion. See State v. Neiderbach, 837 N.W.2d

180, 190 (Iowa 2013). The standard is “more stringent than the sufficiency-of-the-

evidence standard.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).

The district court cited the stringent standard in denying the motion, stating

“the court should exercise its power to grant a new trial when the verdict is contrary

to the weight of the evidence, but only in the extraordinary case in which the

evidence preponderates heavily against the verdict rendered.” The court

concluded “the evidence does not preponderate heavily against the verdict and . . .

the verdict is not contrary to the weight of the evidence.” We discern no abuse of

discretion in the court’s ruling.1

II. Jury Instruction – First-Degree Kidnapping

As noted above, the kidnapping instruction required proof “[t]he defendant

knew she did not have the consent or authority of [the child] to” confine or remove

the child. The jury received an instruction on the meaning of authority, as follows:

The term “authority” does not include acts which constitute
undue severity, cruelty, cause serious injury or subject one to torture.
A parent has the authority to confine or remove a minor under
reasonable circumstances within the limitations of moderation and
reasonableness.
In determining the reasonableness of the defendant’s acts,
you may consider the age, physical condition and other
characteristics of the minor; the gravity of the misconduct; the
amount and nature of the defendant’s acts; and whether the

1The district court made brief mention of “the sufficiency of the evidence standard,”
but it is clear from the court’s entire discussion, including citations to several
opinions, that the court applied the correct weight-of-the-evidence standard.
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defendant’s acts were corrective rather than to satisfy the anger of
the defendant.
The term “minor” means any person under the age of eighteen
(18).

Finn objected to the instruction on the ground that it was a “compilation of different

instructions which don’t actually apply to kidnapping or to confining” and the

instruction added “words that lead the jury to reaching a conclusion about the term

authority . . . that . . . invades the province of the jury.” The district court overruled

the objection, reasoning that the instruction was “necessary and . . . an accurate

statement of the law to help the jury understand what the term authority means in

the context of the three counts of kidnapping in the first-degree” and, specifically,

“the limits of parental authority.”

On appeal, Finn contends the instruction “violates the constitutional

prohibition on presumptions.” This argument was neither raised nor addressed.

Accordingly, we decline to consider it. See State v. Krogmann, 804 N.W.2d 518,

523 (Iowa 2011) (stating the defendant “had to alert the district court to his specific

objections, and he had to do so in a timely manner”); Olson v. Sumpter, 728

N.W.2d 844, 848–49 (Iowa 2007) (“The objecting party must specify [ ] the matter

objected to and on what grounds. The objection must be sufficiently specific to

alert the trial court to the basis of the complaint so that if error does exist the court

may correct it before placing the case in the hands of the jury.” (citations and

internal quotation marks omitted)).

Finn also argues the instruction misstated the law. Although the State

asserts this argument also was not preserved for review, we believe counsel’s

objection encompassed the assertion, as well as her third assertion that the
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instruction “confuse[d] the issues and mis[led] the jury.” Accordingly, we will

address the merits of those two claims.

In approving the instruction on the meaning of authority, the district court

considered State v. Siemer, 454 N.W.2d 857, 862 (Iowa 1990), a case strikingly

similar to this one. There, the supreme court concluded “parents may not hide

behind the guise of authority to escape punishment for conduct that is proscribed

for all others by the kidnapping statute.” Siemer, 454 N.W.2d at 863. The court

reasoned, “While a parent has the authority to confine or remove a child under

reasonable circumstances, we can conceive of no circumstance under which a

parent could lawfully exercise such authority while harboring the intent to . . .

subject the child to serious injury.” Id. at 864.

The first two sentences of the “authority” instruction were drawn directly

from the holding of Siemer. As for the factors listed in the instruction, they were

drawn from Iowa Criminal Jury Instruction 2610.8 on unreasonable force in the

child endangerment context. Neither the factors nor the language preceding it

“unduly emphasize[d] terms in a manner which point[ed] the jury to a particular

outcome,” as Finn contends. To the contrary, we agree with the district court that

the instruction simply clarified the limits of parental authority in the kidnapping

context. We conclude the court did not err in giving the instruction. See State v.

Ambrose, 861 N.W.2d 550, 554 (Iowa 2015) (setting forth standard of review).

III. Change of Venue

Finn filed a motion for change of venue based on pretrial publicity in the Des

Moines area. The district court afforded Finn time to survey potential jurors about

their knowledge of the case. After receiving the survey responses, the court
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denied the motion. The court found that media coverage had “dissipated with time”

and much of the coverage focused on the claimed failings of a State agency. The

court noted that “77% of the potential jurors responded that they could be fair and

impartial jurors” and “a detailed juror questionnaire” could ferret out “a strong bias

or prejudice against” Finn. The court concluded there was no showing “of

substantial prejudice” and ordered the trial to go forward in Polk County.

Several months later, Finn renewed her motion. At a hearing, one of her

attorneys asserted that “the media onslaught ha[d] continued” and had become

“more provocative.” The district court again denied the motion.

On appeal, Finn contends, “The evidence presented clearly shows the

indefatigable and pervasive reporting of the case.” In her view, “The case should

. . . be reversed and remanded on all counts.”

“Reversal is warranted only where the trial court’s decision demonstrates

an abuse of discretion.” State v. Newell, 710 N.W.2d 6, 33 (Iowa 2006) (citation

omitted). The touchstone of the decision is whether “the court is satisfied from a

motion for a change of venue and the evidence introduced in support of the motion

that such degree of prejudice exists in the county in which the trial is to be held

that there is a substantial likelihood a fair and impartial trial cannot be preserved

with a jury selected from that county.” Iowa R. Crim. P. 2.11(10)(b). “Exposure to

news accounts does not by itself create a substantial likelihood of prejudice in the

minds of prospective jurors.” State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989).

Nor is the “inflammatory nature of pretrial publicity . . . the sole focus of a court in

ruling on a motion for change of venue.” State v. Nebinger, 412 N.W.2d 180, 184

(Iowa Ct. App. 1987). “The crucial determination is whether, as a result of pretrial
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publicity or for other reasons, a substantial number of prospective jurors hold such

fixed opinions on the merits of the case that they cannot impartially judge the

issues to be determined at trial.” Harris, 436 N.W.2d at 367. “[J]ury voir dire should

be trusted to expose any substantial prejudice among potential jurors.” Nebinger,

412 N.W.2d at 185).

The district court followed these precepts. After finding that the original

motion lacked evidentiary support, the court delayed a ruling pending

dissemination of questionnaires to potential jurors. On obtaining the responses,

the court considered “the degree of prejudice in the county,” as required by Iowa

Rule of Criminal Procedure 2.11(10)(d).

The court revisited the issue several months later. At that time, the court

acknowledged the media attention given to the case as well as comments by public

figures. Some of the publicity cited by the defense was indeed inflammatory. See

id. at 184 (stating “a number of the comments made by the program moderator

and callers were, in fact, inflammatory”); cf. State v. Walters, 426 N.W.2d 136, 139

(Iowa 1988) (“But the record does not disclose, as defendant would have it,

sensational reporting of a routine crime. Rather, there was routine reporting of a

sensational crime.”). But, to the extent the information came through the sharing

of websites and social media, the court stated “they’re going all over the state” and

“the same concerns” in selecting a jury in Polk County “would exist in another

county.” The court denied the motion a second time, leaving open the option of

changing venue if it appeared that a fair and impartial jury could not be drawn after

reviewing juror questionnaires. See Harris, 436 N.W.2d at 367 (finding no abuse

of discretion in denial of change-of-venue motion where “[t]he court’s order
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indicated that voir dire would be transcribed and that it would reconsider the

necessity of a venue change at the time of or following jury selection”).

The court next convened 314 prospective jurors. The parties and the district

court took pains to question those whose questionnaire responses triggered

concerns, asking relevant questions about exposure to pretrial publicity and

whether the exposure affected their ability to fairly assess the evidence. The fact

that 146 of the individuals were excused for cause is a testament to the importance

placed on the voir dire process.

Finn nonetheless contends the dismissal of so many jurors calls into

question the State’s “vaunted” statistics on impartiality. But she does not quantify

the prospective jurors who were exposed to pretrial publicity and the percentage

of those individuals who, in her view, could not act impartially in the face of the

publicity. On this record, we conclude the district court did not abuse its discretion

in denying the new trial motions.

IV. Denial of Motion to Strike Jurors

Finn next contends the district court abused its discretion in denying her

motion to strike three jurors for cause. See State v. Jonas, 904 N.W.2d 566, 570

(Iowa 2017) (setting forth standard of review). The issue is governed by Iowa Rule

of Criminal Procedure 2.18(5)(k), which permits a for-cause challenge where a

juror has “formed or expressed such an opinion as to the guilt or innocence of the

defendant as would prevent the juror from rendering a true verdict upon the

evidence submitted on the trial.”

Finn begins with Juror 36. In her view, the juror should have been removed

for cause because he “expressed sadness” when “his wife spoke to him about the
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events of this case” and because he was “married to someone who work[ed] at the

shelter where one of the children was residing.”

The district court denied Finn’s challenge, reasoning “[t]here is absolutely

no indication that [a] connection was ever made” with the child’s stay at the shelter.

The court noted that when “the question was asked whether [Juror 36] and his wife

talked about residents at [the shelter,] he indicated no.” We discern no abuse of

discretion in the court’s ruling, particularly in light of Juror 36’s expressed belief

that he could “keep an open mind.”

The same holds true for Juror 51, who Finn also challenged for cause.

Although he “read some articles” about the case, he did not believe any of the

outside information would affect his ability to sit impartially if called as a juror.

We are left with Juror 76, who saw “an alert” about the case on her news

feed. She was asked “[w]hat, if any, impact” that had on jury service. She

responded, “It doesn’t affect me, I don’t think. I don’t know really anything about

the case.” She specifically denied receiving enough outside information to have

formed an opinion about the child’s death. She stated she “would . . . be as fair

as” she could, notwithstanding the fact she had children around the same age as

Finn’s children, because Finn “deserve[d] a fair trial.”

We are persuaded that none of the three challenged jurors expressed an

opinion about the guilt of Finn. For that reason alone, the district court did not

abuse its discretion in denying Finn’s three challenges for cause. In light of our

conclusion, we need not address the State’s argument that the rulings were non-

prejudicial. See State v. Doorenbos, No. 19-1257, 2020 WL 3264408, at *7 (Iowa

Ct. App. June 17, 2020).
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V. Ineffective Assistance – Failure to Object to Jury Instruction

Finn contends her attorneys were ineffective in failing to challenge the

following jury instruction: “The defendant’s actions in starving [one of the children]

resulted in the death of [the child] if those actions caused or directly contributed to

[the child’s] death.” In her view, the instruction assumed a fact not in evidence,

namely starvation, which was an element the State had to prove.2 We find the

record adequate to address the issue. See Kuhse, 937 N.W.2d at 627 (“[W]e will

decide whether the appellate record is adequate to determine the claim.”). Finn

must establish deficient performance and prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

We assume without deciding that counsels’ failure to object to the

instruction amounted to deficient performance. On our de novo review of the

record, we are persuaded that the claim fails on the prejudice prong. Specifically,

the State presented overwhelming evidence that Finn starved her child. See State

v. Lorenzo Baltazar, 935 N.W.2d 862, 872 (Iowa 2019) (rejecting prejudice prong

of ineffective-assistance claim where evidence was overwhelming). Accordingly,

there is no reasonable probability the result would have been different had counsel

2The supreme court recently stated:
Although the Iowa Code no longer permits claims of ineffective
assistance of counsel to be decided on direct appeal, see 2019 Iowa
Acts ch. 140, § 31 (to be codified at Iowa Code § 814.7 (2020)), we
held in State v. Macke, that this provision ‘do[es] not apply to a direct
appeal from a judgment and sentence entered before July 1, 2019.’
933 N.W.2d 226, 228 (Iowa 2019). Because the judgment and
sentence here were entered before July 1, 2019, we are not
foreclosed from considering [the defendant’s] claim of ineffective
assistance.
State v. Kuhse, 937 N.W.2d 622, 627 (Iowa 2020) (alteration in original).
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challenged the jury instruction. See Kuhse, 937 N.W.2d at 628 (“The crux of the

prejudice component rests on whether the defendant has shown ‘that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” (citation omitted)); State v. Asbury, No.

17-0117, 2018 WL 4635683, at *5 (Iowa Ct. App. Sept. 26, 2018) (“Even if the

instructions had been crafted in a more fact-neutral fashion, there is no reasonable

probability the jury’s verdict would have been different.”).

We affirm Finn’s judgment and sentence.

AFFIRMED.