IN THE COURT OF APPEALS OF IOWA

No. 18-0492

Filed February 6, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CARLOS SIERRA-ROJAS,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Warren County, Kevin A. Parker, 

District Associate Judge.

Carlos Sierra-Rojas appeals from his conviction and sentence for 

harboring a runaway. AFFIRMED.

Seth Harrington of Harrington Law LC, Urbandale, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney 

General, for appellee.

Considered by Potterfield, P.J., Mahan, S.J.,* and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2

DANILSON, Senior Judge.

Carlos Sierra-Rojas1 appeals from his conviction and sentence, following a 

jury trial, for harboring a runaway, in violation of Iowa Code section 710.8(3) 

(2017). Rojas contends the district court erred in denying his pretrial motion to 

dismiss for improper venue; erred in denying his motion for directed verdict based 

on insufficient evidence; abused its discretion in admitting an untimely disclosed, 

irrelevant, and unfairly prejudicial exhibit; and erred in not instructing the jury that 

he did not have an affirmative duty to report the runaway’s whereabouts to law 

enforcement. 

Because venue is nonjurisdictional, Rojas’s failure to file a pretrial motion 

for change of venue was not preserved. Because there was sufficient evidence 

Rojas committed the crime of harboring a runaway, the complained-of exhibit was 

disclosed as early as practicable and was not irrelevant and cumulative, and we 

determine he was not prejudiced by the court’s refusal to give his proposed jury 

instruction, we affirm.

I. Background Facts and Proceedings.

The following facts were presented to the jury. On or about February 15, 

2017, fifteen-year-old R.C. left her mother’s home in Madison County, Iowa, 

without first obtaining her mother’s permission. R.C. left a note, telling her mother 

the family was better off without having R.C. there and that R.C. would eventually 

return—R.C. testified the note may have said “a few days.” An adult male named 

 

1 The defendant in his appellate brief uses the surname Rojas, as will we.
3

Tom2 and a female named Lexi picked R.C. up from her mother’s home and drove 

her to Des Moines, which is in Polk County, to Kathy and Jacob’s house. When 

R.C.’s mother realized her daughter was gone, she called the Madison County 

Sheriff for help. R.C.’s mother reported R.C. was a runaway. 

On the night of February 15, R.C. stayed at Jacob’s house. The next day,

Kathy drove R.C. to her mother’s house so R.C. could get a backpack containing 

money and other items. Kathy drove R.C. back to Des Moines, and they stopped 

at an apartment. Around noon, R.C. went with Tom and another adult, David, to a 

fast-food restaurant. R.C., Tom, and David sat together at the restaurant, and 

Rojas was sitting diagonally from them.

Rojas looked over at the table several times and smiled. R.C. characterized 

Rojas as “staring” at her. David made a comment to R.C. about Rojas, and R.C. 

went over to the table to say hello. R.C. introduced herself and told Rojas she was 

nineteen years old. Rojas told R.C. he was twenty years old. R.C. eventually left 

the restaurant with Rojas and David and went to a nearby retail store. R.C. and 

David then got into an argument, and David left. R.C. and Rojas returned to the 

fast-food restaurant, then later R.C. and Rojas went to Rojas’s house, which was 

nearby. Rojas lived with his father.

From Rojas’s house, the two of them took a bus to the mall. R.C. paid both 

fares. After walking around the mall, R.C. and Rojas returned to Rojas’s house via 

 

2 R.C. testified that Tom was eighteen years old at the time. R.C. knew many of the 

individuals with whom she interacted only by their first names. We will refer to these 

peripheral persons by first name only. 
4

the bus—R.C. again paying the fares. The rest of the evening, R.C. and Rojas 

watched television together and then slept in the same bed.

The morning of February 17, R.C. and Rojas went to the fast-food 

restaurant to get food and use the restaurant’s wireless internet. R.C. paid for both 

of their food. After an hour or two, they returned to Rojas’s house and watched 

television the rest of the day. R.C. and Rojas again spent the night in the same 

bed.

On February 18, R.C. and Rojas watched more television. They again went 

to the nearby fast-food restaurant. R.C. again paid for food for both of them. While 

they were at the restaurant, R.C. used Rojas’s phone to login to her Facebook 

account. A friend of R.C.’s mother had messaged R.C., telling her R.C. was on 

the news. R.C. then did an internet search of herself and found a news article. 

The article showed a photo of R.C., established she was fifteen years old, and 

explained she had run away from home on February 15. R.C. showed the article 

to Rojas, and the two of them discussed its contents. R.C. and Rojas left the 

restaurant and returned to Rojas’s house. They watched more television, and R.C. 

spent the night. R.C. and Rojas had sex that night.

On February 19, R.C. used Rojas’s phone to message E.L.3 R.C. testified 

she contacted E.L. to see if they could meet at the mall and go to a movie. E.L. 

contacted R.C.’s mother and informed her R.C. had messaged him. R.C.’s mother 

testified she asked E.L. if he could get R.C. to meet up with him, and he said he 

could.

 

3 R.C. considers E.L. her stepbrother. E.L. is the son of R.C.’s mother’s former boyfriend.
5

R.C. and Rojas took the bus to the mall—R.C. paid the fares—and met E.L. 

there. R.C.’s mother testified E.L. told her R.C. “was getting spooked” being at the 

mall, and the plan to see a movie there was abandoned. E.L. then told R.C. he 

was going to take them to a movie in Indianola. R.C. and Rojas got into E.L.’s car, 

and E.L. drove them to a park in Indianola, which is in Warren County.

After she knew R.C. was in Indianola with E.L., R.C.’s mother contacted the 

police and went to Indianola with her two other daughters and E.L.’s father. R.C. 

testified she knew she was meeting up with her mom after E.L. took her to the 

park. Two police officers, Kyle Peterson and Brian Stern, arrived in separate cars 

around the same time R.C.’s mother arrived. Both officers testified at trial.

Officer Peterson first spoke with R.C.’s mother and confirmed R.C. was a 

runaway. Officer Peterson then approached E.L.’s vehicle and spoke with R.C. 

R.C. told Officer Peterson about her activities between February 15 and February 

19. Officer Peterson learned R.C. and Rojas had sex. After speaking with R.C., 

Officer Peterson spoke with Rojas. He testified Rojas told him Rojas was “helping 

[R.C.] out” and knew she was a runaway. Rojas confirmed to Officer Peterson that 

Rojas and R.C. had sex.

Officer Stern initially spoke with R.C. and was eventually able to confirm her 

identity. Officer Stern then spoke to Rojas outside the vehicle and learned Rojas 

was aware R.C. was a runaway. Stern testified Rojas “said that he was trying to—

he thought she was trying to leave the state, so he was trying to help her with that, 

to get her out of the state.”4 Officer Stern testified Rojas told him Rojas did not 

 

4 R.C. later testified she never told Rojas she wanted to leave the state, nor did Rojas ask 

her to leave the state.
6

know R.C. was fifteen years old. He did not remember whether Rojas told him 

R.C. had been staying with Rojas, but Officer Stern “got the impression, just from 

the conversation with him, that they had been together at least for a little while.”

The officers conferred with one another, and Officer Peterson arranged for 

Rojas to go with R.C. and her family back to Rojas’s house to retrieve R.C.’s 

personal belongings. Later, charges were filed against Rojas for harboring a 

runaway, and he was arrested.

According to the trial information, the State accused Rojas of harboring a 

runaway child, in violation of Iowa Code section 710.8(2). However, the charging 

language mirrors that found in Iowa Code section 710.8(3) rather than 710.8(2):

The said Carlos Carmelo Sierra-Rojas, on or about February 

19, 2017, in the County of Warren, and State of Iowa, did harbor 

R.C., a runaway child, with the intent of allowing the runaway child 

to remain away from home against the wishes of the child’s parent, 

guardian, or custodian.[5]

Rojas filed a pretrial motion to dismiss, arguing venue was not proper in 

Warren County because if any offense occurred it happened outside Warren 

County. The court denied the motion.6 The case proceeded to trial.

During trial, the State offered as an exhibit a screenshot of what appeared 

to be a text message between Rojas and R.C., sent at 7:56 p.m. the day before 

trial. Rojas’s text to R.C. states:

 

5 Paragraph “3” states, “A person shall not harbor a runaway child with the intent of 

allowing the runaway child to remain away from home against the wishes of the child’s 

parent . . . .” 

At trial, the State did not argue Rojas was guilty under 710.8(2), which provides, 

“A person shall not harbor a runaway child with the intent of committing a criminal act 

involving the child or with the intent of enticing or forcing the runaway child to commit a 

criminal act.”

6 Rojas again raised this issue in a motion for directed verdict, which was also denied.
7

So If you do all you would have to say is that we didn’t have 

sex if they bring it up. There’s a 50 50 chance they will but THE 

MAJOR PART IS TO SAY IF THEY ASK IF WE HAD SEX IS NO. 

NO MATTER WHAT WAS SAID. I ALREADY AM GOING TO SAY 

NO. YOU AND ME SAY NO AND WE’RE GOOD.

Rojas objected to the exhibit on the grounds that the evidence was not 

disclosed until the morning of trial and was irrelevant and prejudicial. The court 

admitted the exhibit, finding it was relevant to the question of Rojas’s intent and 

excusing the timeliness of disclosure based on the fact the message had been 

sent the day before trial. At the close of the State’s case-in-chief, Rojas moved for 

a directed verdict based on improper venue and insufficient evidence of Rojas’s 

intent. The court denied the motion.

Rojas rested without presenting any additional evidence. Citing State v. 

Freemont, No. 03-0139, 2004 WL 2168424, at *2 (Iowa Ct. App. Sept. 29, 2004), 

Rojas proposed a jury instruction which stated, “The Defendant did not have an 

affirmative duty to report R.C.’s whereabouts to the authorities.” The court 

summarily ruled it would not include the proposed instruction. The jury found Rojas 

guilty.

Prior to sentencing, Rojas filed a motion for a new trial based, in part, on 

the admission of State’s Exhibit 2, the screenshot. That motion was denied. Rojas 

was sentenced to two years’ incarceration, which was suspended, ordered to pay 

a fine, and was placed on probation. Rojas appeals.

II. Scope and Standards of Review.

We review a district court’s ruling on a motion to dismiss for errors at law. 

State v. Finders, 743 N.W.2d 546, 548 (Iowa 2008). When reviewing a ruling on 
8

a motion to dismiss, we accept as true the facts alleged by the State in the trial 

information and minutes of testimony. Id.

Issues of statutory interpretation are reviewed for correction of errors at law. 

See State v. Olsen, 848 N.W.2d 363, 366 (Iowa 2014). 

We review challenges to the sufficiency of the evidence for correction of 

errors at law. State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017). We will uphold 

a verdict if substantial 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. We consider 

the evidence in the record “in the light most favorable to the State, including all 

reasonable inferences that may be fairly drawn from the evidence.” Id. at 76. We 

will consider all evidence in the record, including evidence that does not support 

the verdict. State v. Petithory, 702 N.W.2d 854, 856–57 (Iowa 2005). Evidence 

raising only “suspicion, speculation, or conjecture is not substantial.” State v. 

Leckington, 713 N.W.2d 218, 221 (Iowa 2006).

We review the court’s evidentiary rulings for an abuse of discretion. State 

v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). “A court abuses its discretion 

when its ‘discretion was exercised on grounds or for reasons clearly untenable or 

to an extent clearly unreasonable.’” State v. Long, 814 N.W.2d 572, 576 (Iowa 

2012) (citation omitted). “Even if an abuse of discretion is found, reversal is not 

required unless prejudice is shown.” State v. Jordan, 779 N.W.2d 751, 756 (Iowa 

2010) (citation omitted).

We review refusals to give a requested jury instruction for correction of 

errors at law. Alcala v. Marriott Intern., Inc., 880 N.W.2d 699, 707 (Iowa 2016). 
9

“As long as a requested instruction correctly states the law, has application to the 

case, and is not stated elsewhere in the instructions, the court must give the 

requested instruction.” State v. Martinez, 679 N.W.2d 620, 623 (Iowa 2004) 

(quoting State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996)). However, “[e]rror in 

giving or refusing jury instructions does not merit reversal unless it results in 

prejudice to the defendant.” Kellogg, 542 N.W.2d at 516.

III. Discussion.

A. Venue.

Rojas contends the court should have granted his motion to dismiss 

because venue was not proper in Warren County. The State responded that 

dismissal was “not the proper avenue.” The State argued, “If anything, it is a 

transfer to Polk County where, in defendant’s filings, he said this occurred.” The 

State observed that if the defendant wanted a transfer to Polk County to be tried 

there, “the State is more than willing to have it transferred.” The court ruled the 

issue “is not a matter for a motion to dismiss” but rather a “matter on a motion for 

change of venue,” which “[a]t this point in time, that’s not been filed.” 

“All objections to venue are waived by a defendant unless the defendant 

objects thereto and secures a ruling by the trial court on a pretrial motion for 

change of venue.” Iowa Code § 803.2(3). In State v. Donnelly, 242 N.W.2d 295 

(Iowa 1976), our supreme court examined the history and effect of changes to Iowa 

Code section 753.2 (now codified at section 803.2). Our supreme court concluded 

the legislature intended to make a substantive change from the previous venue 

provision, under which venue was explicitly a jurisdictional fact the State had to 

prove. See Donnelly, 242 N.W.2d at 297; see also State v. Allen, 293 N.W.2d 16, 
10

20 (Iowa 1980) (noting previously “venue must be proved beyond a reasonable 

doubt” but was “no longer considered jurisdictional”). Because of the legislative 

change, venue is no longer “an essential element of the crime itself,” nor “is it so 

vital that objections regarding it cannot be waived.” Allen, 293 N.W.2d at 20. 

Here, Rojas did not file a pretrial motion for change of venue but argued 

that venue was jurisdictional. The law is otherwise.7 We find no error. See Iowa 

Code § 803.2(3); Allen, 293 N.W.2d at 20.

B. Sufficiency of the Evidence.

Rojas also contends there was insufficient evidence he provided aid, 

support, or shelter to R.C., or that he intended to allow R.C. to remain away from 

home against the wishes of her parent. The State contends error is not preserved 

on the intent argument.

We first address the State’s error-preservation argument. For an issue to 

be properly preserved, it “must ordinarily be both raised and decided by the district 

court.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When a district 

court fails to rule on an issue properly raised by a party, the party who raised the 

 

7

In State v. Liggins, our supreme court wrote:

We believe state territorial jurisdiction is an essential element of the 

crime. As such the issue is properly submitted at trial. Only if the 

jurisdictional facts are undisputed should the court determine the issue by 

pretrial order. The State is required to prove territorial jurisdiction beyond 

a reasonable doubt.

. . . .

In contrast, venue in Iowa is now a nonjurisdictional issue. Venue 

deals with convenience and location of the trial rather than the power of the 

court to decide an issue on its merits. A defendant must secure a ruling by 

the trial court before trial or the venue issue is waived. 

524 N.W.2d 181, 184–85 (Iowa 1994) (citations omitted).
11

issue must file a motion requesting a ruling in order to preserve error for appeal.” 

Id.

Rojas raised the sufficiency of the evidence of his intent in a motion for a 

directed verdict:

Secondly, there has not been sufficient evidence presented 

on which a reasonable jury could find that Mr. Sierra-Rojas commited 

this crime beyond a reasonable doubt.

. . . .

More importantly, there is no way that a reasonable jury could 

find that Mr. Sierra-Rojas had the requisite intent for this crime, that 

he intended to give her help to allow her to remain away from home.

The State responded:

The defendant intended to allow [R.C.], a runaway child, to 

remain away from home against the wishes of her parent. Clearly, 

he knew that she was a runaway on February 18, when he saw the 

news article with [her]. He knew she was 15. He knew she was a 

runaway. He . . . knew her mom had reported her as a runaway. He 

didn’t do anything. He allowed her to stay another night at his place.

. . . . 

The State has presented sufficient evidence for this factfinder 

to find the defendant guilty of these offenses—of this offense based 

on these elements.

The court ruled:

The court notes that in the light most favorable to the State, 

the court makes the following findings. And that’s on a motion for 

directed verdict, the State has to prove this matter. But, also, there 

has been no other evidence presented except the State’s case-inchief.

. . . . 

Further, that there is sufficient evidence to show that she was a child 

under the age of [eighteen] and that Mr. Rojas did provide some 

shelter or aid to [R.C.]. So the court denies the defendant’s motion 

for directed verdict.

We conclude Rojas preserved error regarding sufficiency of the evidence of 

his intent. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (“If the 

court’s ruling indicates that the court considered the issue and necessarily ruled 
12

on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has been 

preserved.” (citation omitted)). Rojas raised the issue, and the State responded to 

Rojas’s arguments. Althought the court specifically referenced only the sufficiency 

of the evidence that R.C. was a child under the age of eighteen and that Rojas 

provided her shelter or aid, the court necessarily ruled there was sufficient 

evidence on the issue of intent when it denied the motion.8

In support of his argument that there is insufficient evidence, Rojas directs 

us to two unpublished cases: Freemont, 2004 WL 2168424, at *1, and State v. 

Reese, No. 15–2200, 2016 WL 6270143, at *1 (Iowa Ct. App. Oct. 26, 2016).

In Freemont, the defendant was convicted of harboring a runaway under 

Iowa Code section 710.8(3),

9 sexual abuse in the third degree, and providing 

alcohol to an underage person. 2004 WL 2168424, at *1. Freemont appealed the 

conviction of harboring a runaway, contending there was insufficient evidence to 

support that conviction. Id. The runaway stayed at the same house as Freemont, 

which was also occupied by Freemont’s mother, Freemont’s brother, and several 

other people—a total of thirteen. Id. The runaway testified everyone in the house, 

including Freemont, knew she was a runaway. Id. The runaway received food 

and shelter at the house, and while the runaway stayed there, Freemont slept on 

the couch at night. Id. On the third and fourth nights, Freemont brought alcohol 

 

8 We further note the court expressly acknowledged earlier during trial, in ruling on the 

admissibility of State’s Exhibit 2, “the State is required to prove that the defendant assisted 

or intended to allow [R.C.] to remain away from her parent or parents and knew that she 

was a runaway. . . . They also have to prove the defendant’s intent. This is a specific 

intent crime.” The court was fully aware of the State’s burden to prove all the elements of 

the crime.

9 This statute was last amended in 1996 and is thus identical as applied to Freemont, 

Reese, and the present case.
13

to the runaway and had sex with her. Id. Freemont was subsequently arrested 

and charged. Id.

The State argued Freemont was obligated to report the runaway to 

authorities, and when he failed to do so and gave her alcohol, he facilitated and 

encouraged her to remain away. Id. at *2. Our court observed that Iowa Code 

section 710.8 makes no reference to reporting runaways to authorities. Id. Our 

court also observed, “[T]he evidence is clear that defendant had no ownership of 

the house nor control over the actions of others in the house where he stayed. He 

was merely a guest at the house, which the defendant argued at trial.” Id. Our 

court concluded there was insufficient evidence the defendant provided aid, 

shelter, or support, or otherwise assisted her in remaining a runaway. Id. As a 

further observation, our court noted “there is no evidence of the defendant’s intent 

to allow [the runaway] to remain away from home against the wishes of her parent 

. . . . Supplying [the runaway] with alcohol and committing a sex crime upon her 

does not supply that intent.” Id. Our court reversed Freemont’s conviction for 

harboring a runaway. Id. at *3.

In Reese, the defendant was convicted of harboring a runaway under Iowa 

Code section 710.8(3). 2016 WL 6270143, at *1. Reese was the runaway’s 

grandmother. Id. On appeal, Reese argued there was insufficient evidence she 

aided, supported, or sheltered the runaway and of her intent to allow the runaway 

to remain away from home against the wishes of her guardian. Id. The runaway’s 

guardian allowed the child to spend the night at Reese’s house, and the child asked 

to move in with her mother, who lived at Reese’s house. Id. The guardian initially 

acceded to the child’s request, but was advised the next day to resume custody 
14

and go through the courts to terminate the guardianship. Id. The guardian asked 

for the child’s return, but the child’s mother refused. Id. When the guardian 

telephoned Reese to seek her assistance, Reese hung up on her. Id. Reese 

continued to ignore the guardian’s phone calls for three weeks, eventually 

disconnecting the phone. Id. Reese also suggested to the runaway that they cut 

their hair and change their names. Id. Police officers went to Reese’s house four 

times to find the runaway, and Reese was not forthcoming about the child’s 

whereabouts. Id. The runaway recalled on two occasions Reese told her to hide—

during the fourth police visit the police located the runaway hiding inside a clothes 

dryer. Id.

Our court distinguished Reese from Freemont. Unlike the defendant in 

Freemont, Reese provided the runaway with shelter because the house belonged 

to her—she was purchasing her residence on contract and exercised control over 

the activities that occurred there. See Reese, 2016 WL 6270143, at *2. Reese 

provided the runaway with care and medicine when the child was sick. Id. at *1. 

And on the element of intent, Reese shunned contact with the guardian and 

assisted the runaway in evading detection by police. Id. at *2. Our court observed 

“Reese played an independent and active role in giving [the runaway] refuge from 

the child’s legal placement,” and our court affirmed the conviction. Id.

The present case does not fit neatly within the facts of either Freemont or 

Reese. After learning R.C. was a runaway, Rojas allowed R.C. to spend the night. 

The jury was not presented any evidence regarding the housing arrangement 
15

between Rojas and his father.10 R.C. testified she met Rojas’s father on February 

18, but there is no evidence regarding Rojas’s father’s response to her presence. 

Viewing the evidence in the light most favorable to the State, we conclude Rojas 

was authorized or had apparent authority to allow guests to stay at the house. It 

is clear Rojas was residing with his father, and there was no evidence he could not 

have guests at the residence. Furthermore, in allowing R.C. to remain at the house 

after learning she was a runaway, Rojas “harbored” her by providing her shelter.

The evidence of Rojas’s specific intent is less clear. The jury was correctly 

instructed on the definition of specific intent: 

“Specific intent” means not only being aware of doing an act 

and doing it voluntarily, but in addition, doing it with a specific 

purpose in mind.

Because determining the defendant’s specific intent requires 

you to decide what he was thinking when an act was done, it is 

seldom capable of direct proof. Therefore, you should consider the 

facts and circumstances surrounding the act to determine the 

defendant’s specific intent. You may, but are not required to, 

conclude a person intends the natural results of his acts.[11]

Further an actor’s specific intent is a mental process that is seldom capable of 

being shown by direct evidence. State v. Walker, 574 N.W.2d 280, 289 (Iowa 

1998). However, specific intent “may be shown by circumstantial evidence and 

the reasonable inferences drawn from that evidence.” Id. Circumstantial evidence 

may be considered in determining whether intent can be inferred. See State v. 

Clarke, 475 N.W.2d 193, 197 (Iowa 1991). Like direct evidence, circumstantial 

 

10 Throughout his brief, Rojas refers to himself as a “guest” in his father’s house. No 

evidence was presented to the jury that would support that characterization.

11 Iowa Crim. Jury Instruction 200.2.
16

evidence must raise a fair inference of guilt; it must do more than create 

speculation, suspicion, or conjecture. Id.

In Reese, the defendant’s specific intent was apparent from her active 

participation in thwarting the guardian’s attempts to contact and retrieve the

runaway, hiding the child from police, and telling the child they should cut their hair 

and change their names to escape detection. In Freemont, our court noted that 

providing alcohol to the runaway and commiting a sex crime against her did not 

provide the requisite intent under section 710.8(3), but that conclusion was coupled 

with a factual scenario under which the defendant did not provide aid, support, or 

shelter to the runaway. 

Here, Rojas did not actively participate in thwarting the parent’s attempts to 

contact and retrieve R.C. Rojas did not purposely attempt to hide R.C., encourage 

her to remain a runaway, or prevent her from returning home. Rojas did not 

interfere with police officers. Rojas did not report the runaway to authorities, but 

he was under no obligation to do so. 

Nonetheless, on Saturday, February 18, 2017, Rojas became informed that 

R.C. was fifteen years of age, was a runaway, and law enforcement officials were 

trying to find her. Later that day, he again provided her shelter at his residence 

and also had sex with R.C. Rojas told Officer Stern he thought R.C. was 

attempting to leave the state, and he was helping her. The jury was permitted, but 

not required, to conclude Rojas intended the natural results of his acts—providing 

R.C. shelter naturally resulted in allowing the runaway child to remain away from 

home against the wishes of the child’s parent. There was sufficient evidence Rojas 
17

intended to allow R.C. to remain away from home against the wishes of her 

parent.12 The court did not err in denying the motion for a directed verdict.

C. Admission of State’s Exhibit 2, the Screenshot.

Rojas contends the district court abused its discretion in admitting State’s 

Exhibit 2 on the ground the exhibit had not been disclosed until the morning of trial 

and that it was irrelevant and unfairly prejudicial.

According to the State, the prosecutor did not receive the messages from 

R.C. until 8:02 p.m. the night before trial. The messages had apparently been sent 

at 11:56 a.m. the day before trial. The State emailed the exhibit to Rojas’s attorney 

at 11:00 p.m. the night before trial. Because the messages did not exist until the 

day before trial and State disclosed the exhibit shortly after it was received, the 

court did not abuse its discretion in excusing the late disclosure.

In the message, Rojas asks R.C. to lie at trial about the fact they had sex. 

Rojas argues the exhibit is irrelevant because: “Nothing about a text sent in 

February of 2018 (over year later) has any bearing on the existence of any of [the 

material facts].” The State argued the exhibit was relevant because: “It goes to 

show his intent, his planning, his motive into what he was doing with harboring a 

runaway.” Rojas’s intent is a material fact. The State’s theory is that Rojas had 

the intent in 2017 for R.C. to remain a runaway so that he could have sex with her. 

We agree the exhibit has some relevance on that point—if R.C. denied she had 

 

12 The newspaper article observed by R.C. and Rojas on the computer indicated the 

Madison County Sheriff’s Office was seeking help to locate R.C. and that she was last 

seen in the family residence by family members at approximately 9 p.m. on February 15th.
18

sex with Rojas, the State’s explanation for why Rojas intended R.C. to remain a 

runaway would be less plausible. 

Lastly, Rojas claims the exhibit was prejudicial because “the jury was either 

misled to believe a sexual encounter constituted an element of the offense, or 

convicted him without proof, due to their sense of horror, their sympathy, or their 

believe that he was a bad person and their desire to punish.” In ruling on the 

exhibit’s admissibility, the court did not address prejudice. A court may exclude 

relevant evidence if its probative value is substantially outweighed by a danger 

unfair prejudice. Iowa R. Evid. 5.403.

Here, the alleged prejudice Rojas complains of was already introduced 

through the testimony of other witnesses, including R.C. Rojas did not object to 

those witnesses’ testimony based on unfair prejudice. Even if the court thought 

the evidence was prejudicial, exclusion would have been permitted, not required. 

See id. Even assuming the screenshot may have been excluded, the evidence 

was cumulative. See State v. Plain, 898 N.W.2d 801, 813 (Iowa 2017) (“Tainted 

evidence that is merely cumulative does not affect the jury’s finding of guilt.”). 

Because the exhibit was relevant and cumulative, the court did not abuse its 

discretion in admitting the exhibit. 

D. Proposed Jury Instruction.

Finally, Rojas contends the district court erred in refusing to give a proposed 

jury instruction that he did not have an affirmative duty to report the runaway’s 

whereabouts to law enforcement, citing Freemont. The State counters the 

instruction would be duplicative because the “jury knew that failing to report a 

runaway was not an element of the crime.”
19

We observe, as the Freemont court did, that Iowa Code section 710.8 

contains no requirement a person report a runaway’s whereabouts to law 

enforcement. We conclude the court abused its discretion by failing to give the 

requested instruction because it correctly stated the law, had application to the 

case, and was not stated elsewhere in the instructions. See Plain, 898 N.W.2d at 

817; Kellogg, 542 N.W.2d at 516. However, in Plain, the court noted that even 

where a court abuses its discretion in failing to give a proper instruction, reversal 

is not required:

“Error in giving or refusing to give a jury instruction does not warrant 

reversal unless it results in prejudice to the complaining party.” 

“When the error is not of constitutional magnitude, the test of 

prejudice is whether it sufficiently appears that the rights of the 

complaining party have been injuriously affected or that the party has 

suffered a miscarriage of justice.” “We [do] not reverse for marginal 

or technical omissions . . . .”

898 N.W.2d at 817 (alteration in original) (citations omitted). 

Rojas’s proposed instruction is not of constitutional magnitude, and we do 

not find he was prejudiced by the court’s refusal to give the instruction. See id. 

We are unable to conclude Rojas was injuriously affected or suffered a miscarriage 

of justice upon Rojas’s speculation that the jury decided the case upon an improper 

basis. Here, the instructions are not confusing, and the court did not materially 

misstate the law. Nothing in the record suggests the jury was misled or confused. 

We determine Rojas was not prejudiced by the court’s refusal to give his proposed 

jury instruction. We affirm the conviction.

AFFIRMED.