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IN THE COURT OF APPEALS OF IOWA No. 1-757 / 11-0069 Filed November 23, 2011

STATE OF IOWA, Plaintiff-Appellee, vs. ROBERT MYLAN BUTTS, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady (motion to suppress) and James S. Heckerman (trial), Judges.

The defendant appeals from judgment and sentences imposed upon his convictions for second-degree kidnapping, first-degree burglary, going armed with intent, assault while participating in a felony, assault with intent to commit sexual abuse, carrying weapons, and possession of burglar's tools. AFFIRMED.

Keith E. Uhl, Des Moines, and John S. Berry of Berry Law Firm, Lincoln, Nebraska, for appellant. Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Jon J. Jacobmeier, Assistant County Attorney, for appellee.

Heard by Danilson, P.J., and Tabor and Mullins, JJ.

2 DANILSON, P.J. Robert Mylan Butts appeals his convictions challenging the sufficiency of the evidence of confinement or removal to support a second-degree kidnapping charge. He also asserts a search warrant was unconstitutionally overbroad; the trial court abused its discretion in admitting evidence; there was insufficient evidence of specific intent to sustain several of the convictions; and the trial court erred in instructing the jury. Because the convictions were supported by

substantial evidence; the search warrant was not overbroad; the district court did not abuse its discretion in admitting the redacted 911 recording or the stipulation of items found upon execution of a search warrant; and because the jury instructions on the defendant's defenses were not prejudicial, we affirm. I. Background Facts and Proceedings. At about 11:00 p.m. on November 11, 2009, Jennifer walked her boyfriend out of the apartment she shared with her sister Regina. After saying good night to him, Jennifer returned to the apartment and turned the deadbolt. She spoke with Regina for a few minutes and then went to her bedroom, which was past Regina's bedroom and at the far end of the hall. Regina was lying on the couch watching television, but was startled when she looked up to see a stranger, later identified as the defendant, Robert Butts, coming through the locked door into her apartment. Butts shut the door behind him and locked the deadbolt. He was wearing plastic gloves and a grey hooded sweatshirt, with the hood pulled tight around his face. He was holding a gun. The intruder walked to Regina, held the gun near her at eye level, and asked if anyone else was there. Regina loudly told the intruder no one else was at home,

3 hoping to alert her sister to his presence. As Regina talked with Butts, she saw Jennifer creep down the hallway and quickly disappear. Jennifer had gone into the hallway because she heard a noise. She saw a man in a hooded sweatshirt standing near Regina. Regina looked terrified. The man told Regina, "You're going to f***ing cooperate right now." Jennifer was able to get into the bathroom closet and call 911, whispering to the dispatcher. Regina said the intruder "told me that I'mthat I am going to do what he wants. He didn't want to hurt me but he will if I scream." As Regina attempted to "buy time" by asking Butts questions, he grabbed her by the back of the arm, pulled her from the couch, and forced her to walk down the hallway while pointing a gun at her. Butts took Regina to the farthest bedroom and pushed the door shut behind him. The door closed but an item on the floor prevented it from shutting and latching entirely. Butts sat Regina on the bed and stood directly in front of her. She

pleaded with him: "You don't have to do this; you can't do this, this is rape. You can leave now and I won't say anything. I don't even know who you are." He responded by asking Regina if she had a boyfriend and if she was still a virgin. He ordered Regina to undress. When she refused, he put the gun in the back waistband of his pants and started coming toward her. She panicked, asking Butts if he had a condom; he said he did and motioned toward his back pocket. Regina continued to resist his demands that she disrobe. Butts forcibly removed Regina's sweater and tank top. He held her and unfastened her bra and pulled it off her. Regina pulled her knees up, but Butts straightened out her legs and unbuttoned, unclasped, and unzipped her pants.

4 At the 911 dispatcher's direction, Jennifer had crept to the front door to unlock it so officers could enter the apartment. Jennifer was able to peek into the bedroom and saw a shirtless Regina lying on the bed with the defendant standing over her. Jennifer could hear her sister pleading repeatedly, "You don't have to do this. I'm not going to tell anybody. Please don't do this."

Regina heard a knock at the door: Q. And what happened? A. [Butts]he froze for a split second and he told me just to ignore it; they'll go away. If you scream, I'm going to hurt you. Q. Okay. What happened then? A. The defendant and I both heard footsteps likelike running for the steps out in the hallway and he turned his back to me and went towards the bedroom door and we both heard the front door unlock and people coming in so he was getting ready to open the bedroom door when I jumped off the bed and I grabbed him by the back of his hoodie. I pulled the gun out from behind his pants and kind of shifted him off balance into the hallway and then the cops were there and they said "get down on the ground," "drop the weapon" and so I dropped it and I hit the floor, both knees, just started crying hysterically. Police officers took Butts into custody, but he was combative and not cooperative. He refused to comply with commands to be still and not talk, he resisted the officers and kept insisting "nothing happened, I wasn't going to hurt her." In addition to the gun Regina had taken from Butts, officers found Butts was carrying a knife and lock-picking equipment. As he was being led to a patrol car, Butts' continued noncompliance with directives to "keep walking, stop moving, stop turning" went unheeded and resulted in the officer sweeping Butts' legs from under him and then using a taser. While Butts was on the ground, the officer noticed Butts had removed one of the gloves he was wearing and had the other partially off. In the opinion of responding officers John Huey, Dana Schott,

5 and Joseph Hothersall, who were first on the scene and placed Butts in custody, Butts did not appear to be intoxicated or drunk. Butts provided false names and social security numbers to police officers. At the time he was booked into the jail several hours after his arrest, 1 officers did not know his identity. Officers ultimately learned Butts' identity when he was required to give his name to make a telephone call. With his name provided, the officers were able to determine Butts' local address2 and located his vehicle parked in front of the apartment building next to Regina's. The officers learned Butts' apartment was in the same complex as the sisters' apartment. Officers obtained search warrants for Butts' apartment and vehicle. Upon execution of the search warrants, law enforcement seized, among other things, a stun gun; a rifle; a pistol; knives; ammunition; a backpack containing a camera, condoms, socks wrapped in plastic, and hair dye; a night vision scope; other monitoring equipment; and computers and digital storage/memory devices. An additional warrant was obtained to search the contents of the computer and digital storage devices, which were discovered to contain videos on picking locks, as well as pornography, including simulated rape scenes. Butts was charged with second-degree kidnapping, first-degree burglary, going armed with intent, assault while participating in a felony, intimidation with a

Butts was taken to the hospital before booking, but did not give his name at the emergency room. 2 Butts' primary home was in South Dakota, but he worked in Omaha and had an apartment in Council Bluffs, Iowa.

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6 dangerous weapon, assault with intent to commit sexual abuse, carrying weapons, possession of burglar's tools, and obstruction of prosecution.3 Butts filed notice he intended to raise defenses of insanity, diminished responsibility, and intoxication. Butts moved to suppress items seized when police executed a search warrant of his apartment, complaining it was not supported by probable cause, was overbroad, and did not state an adequate nexus to the apartment. After a hearing, the district court denied the motion to suppress concluding: Butts had been arrested less than eight hours before the Application for Search Warrant was presented to Judge Eveloff. He had been arrested inside an apartment in another building in the same apartment complex. Butts had in his possession a firearm, a knife, latex gloves, and a lock picking kit. He was shoeless. A Deputy County Attorney had been consulted before the Warrant Application was presented. Officers were instructed to look for evidence pertaining to the offenses for which Butts had been arrested and also for evidence which might pertain to potential defenses to those charges. There was probable cause to issue a warrant to search Butts' apartment on November 12, 2009. A person of reasonable prudence would believe that evidence of a crime might be located there in Butts' apartment. .... Butts is charged with burglary, weapons offenses, assaultive conduct, offenses of a sexual nature, obstruction of prosecution, and kidnapping. The warrant contained a lengthy list of items to be searched for. The number and breadth of the charges is great. The items listed are clearly related to the offenses chargedlock picks, lock pick instructions, containers and/or boxes which would store lock picks, receipts for lock picks, and latex gloves. Because Butts was allegedly engaged in a Burglary when he was arrested, stolen items would be related to the offenses charged. Items that would show mental status or competence or the ability to form specific intent would be relevant. Pornography may be relevant to an element or defense related to the charges brought. The warrant is sufficiently specific regarding the items to be searched for and is not overly broad with regard to the items to be search for.
3

Prior to trial, the State dismissed the charge of intimidation with a dangerous

weapon.

7 .... In this case, given the nature of the charges filed, the location of the break-in, and the location of Butts' apartment, it is reasonable to expect to find evidence pertaining to the crimes being investigated inside Butts' apartment. When this information is viewed in a common-sense manner, including all reasonable inferences that support a finding of probable cause, sufficient nexus was demonstrated in the Application for Search Warrant between Butts' apartment and the items to be seized. Butts moved in limine to have the recording of the 911 call redacted from twenty-six minutes to fourteen minutes. He claimed the final twelve minutes, during which Jennifer was crying and sobbing hysterically, were unduly prejudicial. The court ruled the recording was admissible but should be redacted to omit "the screaming and yelling." Butts also moved in limine to have "the graphic depictions of simulated rape" contained in his computer equipment deemed inadmissible as irrelevant and prejudicial. The State responded: The fact that he was somebody that was into rape pornography is certainly relevant to somebody that would head across the apartment complex and then commit this rape. They've raised not only insanity in this case but they've also raised intoxication and diminished responsibility. Those do not shift the burden. . . . . I still have to prove his specific intent, that he acted on it there that evening. So it is our intention to address these issues. We believe it squarely goes toward his intent. Additionally found on thatthe computer we re several videos about lock picking. I mean, he picked the lock into these girls' apartment. He was found with lock picks on him at the time. And so the contents of his computer, you know, we believe are . . . definitely probative. We have no intention of playing those. I don't think that's necessary or appropriate. The prosecutor offered to enter into a stipulation of the contents of the computer. Butts acknowledged his psychiatrist's report mentions pornography

8 and agreed to discuss a stipulation with the State. The court reserved ruling to allow the parties to discuss a possible stipulation. Trial was held October 12 through 18, 2010. The State presented the testimony of Jennifer, the arresting officers, and other detectives and identification technicians. A redacted fourteen-minute version of the 911 call was played during Jennifer's testimony. Butts did not appear intoxicated. Thomas Payne, the business acquaintance who spent much of November 11, 2009, with Butts, testified about their activities that day, including drinks at dinner and then at a bar afterward. Payne stated Butts did not seem depressed. He stated Butts dropped him off at his hotel around 10 p.m., at which time Butts did not appear intoxicated and he "did not have any reservations about riding in the car with him or him driving." On cross-examination, Payne testified his and Butts' work involved data bases for "the intel community," law enforcement, and the Department of Defense. He described Butts was an "[e]xceptional" employee who was involved in "classified work." The following stipulation was read into evidence: Come now the State of Iowa and Robert M. Butts by and through counsel and hereby stipulate to the following facts: 1) Various computers, hard drives and electronic media storage devices were seized from the defendant's apartment pursuant to a search warrant executed on November 12, 2009. 2) These items were forensically examined by federal authorities on March 2, 2010. 3) Located on the hard drive of one of the computers were numerous pornographic pictures and videos. Many of the videos depicted simulated rape scenes. Each of the responding officers testified

9 4) These simulated rape videos appear to be placed on the hard drive from January 7th, 2007 to October 29, 2009. 5) There is no evidence to suggest that any of these videos were accessed or viewed after October 29, 2009. 6) Located on a memory card, SD card, were three Adobe portable document format or PDF files pertaining to lock picking. These files were placed on the SD card on November 30th, 2008 and are listed as follows. A: Secrets of lock picking. B: Ted the tool, MIT guide to lock picking. C: Mini lock picking manual. The stipulation was a court exhibit only; it did not go to the jury. Regina then testified. When asked about Butts' demeanor, Regina

testified he did not seem drunk or asleep, noting he was "very aware of his surroundings. His eyes weren't glazed over. He wasn't stuttering. He wasn't blinking excessively. He was focused on me the entire time." Just prior to resting, the State read a stipulation as to the measurements inside the sisters' apartment. Following the State's case in chief, the defense moved for directed verdict, which was granted as to the obstruction of prosecution charge. The defense then called Butts' mother, Jeanette Butts, who testified Butts had been a sleepwalker as a child; it was "his life dream to serve his country and to be as good an officer as he could be"; he became "a lot more quiet" upon his return from his 2005 deployment; Butts was not happy with his 2006 assignment in intelligence and cyber warfare; and his civilian career was very stressful. The defendant's wife testified that as his twenty-year military career went on, Butts "was drinking more, sleeping less, angry more." When asked if he had sleepwalking incidents during the marriage, she stated: A. More like talking.

10 Q. Talking? A. Yeah. He'd wake me up in the middle of the night and say something, some nonsense and then get mad and leave. Q. I'm sorry? A. And then he'd get mad and leave. You know, I--when I didn't understand what he was talking about, he'd get Q. Leave where? A. Leave theyou know, leave the room. Q. All right. And you think he was asleep during those times? A. I have no idea. I don't know. She related that on New Year's Eve 2004 after drinking, Butts chased his one son and shot him with a paint ball gun and then choked his other son until she poked him in the hand with a hat pin. Butts claimed not to remember much of the incident the following day. She offered it was not unusual for Buttsa career military man interested in history, the intelligence field, and gun collectingto possess guns, night scopes, and the other items found in his apartment. Psychiatrist Daniel Wilson testified he had determined Butts "suffers from several neuropsychiatric illnesses," including Gulf War Syndrome, PostTraumatic Stress Disorder (PTSD), childhood closed-head injuries, anxiety, intoxication, and disassociation due to sleepwalking. Dr. Wilson opined Butts "was dissociated[4] and asleep at the time of these events. He was also under a great deal of secondary stress which predisposed him to that dissociation." He stated Butts did not have the requisite ability to form any type of criminal intent. On cross-examination Dr. Wilson stated, I have opinions about a variety of factors, all of which led to a dissociative state as he was somnambulistic as was facilitated by having drunk too much and the other toxic factors inthat probably affected his brain, all of which were made worse by the anxiety and difficulties and mood disorder that lowered the threshold for dissociation, yes.
Dr. Wilson stated dissociative "is a psychiatric term or neurologic term for when the conscious part of the brain is shut off from the unconscious part of the brain."
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The prosecutor engaged in the following dialogue with Dr. Wilson: Q. . . . I understand what you're saying. There's a variety of things that came together in a synergy and led him to sleepwalk. I want it to be very clear though that your statement is that at the time of the events in the apartment on Littlejohn Circle of November 11th, 2009, he was sleepwalking. Is that your opinion? A. That is your opinion. Q. I'm asking you. Is that your opinion? A. I have testified what my opinion is and I've just said and I'll say it again. It does not reduce to that single point. That is a crucial point but thatI have never reduced my diagnosis in this case to Sleepwalking Disorder, period. .... Q. Okay. Then there's the dissociative state apparently of somnambulism, sleepwalking and my understanding is that's your interpretation or your opinion as to what he ended up in. I understand there's a variety of causes but he ultimately was sleepwalking at the time this event took place. A. Well, when you say ultimately, it's as if you're throwing away a number of other clinical factors which I'm unwilling to do. And if you wish to keep asking me about it, you can continue to ask me about it. But I think I've testified to the range and depth of his symptoms rather fulsomely. .... THE COURT: Okay. Doctor, I'm sorry, and I'm notI have no interest in the outcome of this case one way or the other. But it's a real simple question. Was he sleepwalking or was he not sleepwalking? THE WITNESS: Yes, I've testified that he was sleepwalking but it is not reduced to that. Later still, Dr. Wilson stated: "I believe, as I've testified, that he has a sleepwalking disorder, potentiated by substance abuse, potentiated by encephalopathy possibly and potentiated by the general stress and depressive circumstances he found himself in." Dr. Wilson was asked about his Axis I diagnosis, "Rule -out Paraphilia."5 He acknowledged he was aware Butts was hypersexual at this time,

Paraphilia is defined as "[a]ny of a group of psychosexual disorders characterized by sexual fantasies, feelings, or activities involving an object, a

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12 masturbating often and viewing simulated rape pornography on his computer. Dr. Wilson testified he did not diagnose Butts with a sexual disorder; rather he attributed these symptoms to a mood disorder and PTSD. Q. You're aware in Iowa that temporary insanity caused by voluntary intoxication is not a defense to criminal activity? A. Yeah. I don't believe that I've testified that he was primarily intoxicated and II wasn't aware that in Iowa law butbut I don't see that as a salient factor here. Q. But you did testify that his dissociation and sleepwalking were likely facilitated by drinking? A. Yes. Butts testified in his own defense at trial, discussing his military service and accompanying accolades in great detail. Butts was asked about the "really disturbing pornography" on his computer, about which he attempted to explain: Well, there's a long story to that. But, first of all, I won't deny the fact that I watched pornography, you know. I did. And like I told my son in that very personal letter that you heard an excerpt from, . . . . But, anyway, as part of my dutiesI can't talk about a lot of them. As part of my duties in my last assignment in the Army there's a lot of that stuff, video filesnot just pornography but video files that are a fairly important piece ofof how we do cyber warfare. He stated he retired from the military in 2008 and began working for a military contractor. Butts testified he "poured [him]self into it to win work." The "work was challenging and exciting but every time we won more work, it meant more work for me and my office." He continued, "they wouldn't increase us. . . . [a]nd by the summer of 2009 I was thinking about killing myself." He testified he was experiencing more and more "combat-related memory stuff" and consequently he was "self-medicating" with alcohol, pornography, and masturbation.

nonconsenting partner such as a child, or pain or humiliation." College Dictionary 1009 (4th ed. 2004).

American Heritage

13 Butts testified that on November 11, 2009, he went out with a fellow business employee and had several drinksone at dinner and six to eight shots of Irish Whiskey after dinner. He then dropped off his companion and went to a "strip joint" where he had one or two more beers. Butts then returned to his apartment and poured himself a half a glass of scotch: he was numb and

depressed. He testified he has no further memory of that evening until he was standing in a hallway with lights in his face about a half hour to an hour later. His attorney asked him, "[Y]ou had to do a lot of gearing up. You had a holster, a gun. You had to put a magazine in. You had a knife; you had these lock picks. Do you remember doing any of those things? " Butts responded, "No, not at all. Imagine my own disappointment." The defense's objection to the proposed jury instruction concerning Butts' insanity defense (Instruction No. 46) was overruled. The defense had proffered a proposed limiting instruction about pornography, but withdrew it. Defense

counsel stated he had conferred with Butts and "we agreed that we do not want the instruction." The court offered to provide a more generic limiting instruction, which Butts rejected. The jury convicted Butts of second-degree kidnapping, first-degree burglary, going armed with intent, assault while participating in a felony, assault with intent to commit sexual abuse, carrying weapons, and possession of burglar's tools. Butts now appeals, contending (1) there is insufficient evidence of confinement or removal to sustain the kidnapping conviction; (2) the search warrant was unconstitutionally overbroad; (3) the trial court abused its discretion

14 in admitting evidence; (4) there was insufficient evidence of specific intent to sustain six of the seven convictions; and (5) the trial court erred in instructing the jury that temporary insanity as a result of intoxication is not a defense. II. There Was Sufficient Evidence of Confinement or Removal. A person commits kidnapping when the person either confines a person or removes a person from one place to another, knowing that the person who confines or removes the other person has neither the authority nor the consent of the other to do so . . . accompanied by . . . [t]he intent to inflict serious injury upon such person, or to subject the person to a sexual abuse. Iowa Code

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