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Split decision in Eilander trial

Lynnville man found guilty of second-degree burglary, acquitted of third-degree sexual abuse

Published: Monday, May 20, 2013 12:28 p.m. CDT • Updated: Monday, May 20, 2013 12:36 p.m. CDT

Gary Lee Eilander, 43, of Lynnville was found guilty of the crime of second-degree burglary Friday at the end of a three-day jury trial in Jasper County District Court. He also was found not guilty of the crime of third-degree sexual abuse.

The jury of nine women and three men deliberated for about 90 minutes Friday afternoon before reaching its verdict in the case. Assistant County Attorney Scott Nicholson asked District Court Judge Terry Rickers to poll the jurors for their individual verdicts, which returned a unanimous affirmation of the verdict that was read.

Second-degree burglary is a Class C felony, punishable by up to 10 years in prison, although a prison sentence is not mandatory.

After the jury was excused, Eilander’s attorney, Jonathan Noble, asked the court to reconsider his bond, which was $35,000 cash or surety at the time. Noting the nature of the offense for which Eilander was found guilty, Rickers said he would not allow Eilander to be released on his own recognizance, but did reduce the required bond to $25,000 — cash or surety — which he said was more in line with court standards.

Other conditions of pre-sentencing release would include good behavior, and alcohol monitoring by the Iowa Department of Corrections.

Prior to sentencing, which is currently scheduled for 9:30 a.m. Monday, July 29, Eilander must undergo a pre-sentencing investigation with Department of Corrections. A no-contact order previously ordered in July of 2012 was continued.

During deliberations, jurors had to wade through 38 instructions from the court before handing down their verdict. Each count had multiple forms of verdict to choose from.

On the first count of first-degree burglary, jurors were able to select from not guilty or guilty of first-degree burglary, second-degree burglary, third-degree burglary, or criminal trespass. On the second count of third-degree sexual abuse, jurors could select from not guilty or guilty of third-degree sexual abuse, assault with intent to commit sexual abuse, or assault.

Earlier in the day, Rickers heard a motion from Nicholson to allow a rebuttal witness previously unknown to either party. Bonnie Watson of Story City, formerly a resident of Lynnville for a number of years, took the stand during an offer of proof of evidence without the jury present.

Watson testified she used to work at the Zip-In convenience store in Lynnville, where Eilander was a frequent customer. She also identified Eilander visually for the court. Her testimony centered on an incident from Jan. 29, 2005, in which Eilander walked into her home — appearing to be intoxicated — unannounced and uninvited.

“I was freaked out; somebody just walked in my front door,” she said. “He said he wanted to talk with my daughter, but didn’t say why.”

Watson testified her daughter, then 16 years old, also worked at the Zip-In. Her daughter was not in the home at the time, and Watson said she asked Eilander to leave, which he did. She then called 911.

Following her testimony, Nicholson told Rickers he could find no record of any arrest or charges based on the incident, only a record of the 911 call. Nicholson said he had not previously talked about the case with Watson, and had used the offer of evidence as an opportunity to learn all she knew, some of which would not be admissable, even if she had been allowed to testify.

Nicholson said he had hoped to use Watson’s testimony to impeach Eilander’s own testimony the day before. Eilander said he could not remember being in the victim’s house, but could not believe he would have been in there because, it “wasn’t something [he] would do.”

“His credibility should be allowed to be attacked with this type of evidence,” Nicholson said. “Otherwise, the jury is left with only Mr. Eilander’s statements that he’s not able to do this sort of thing, that he hadn’t before, both of which were untruthful.”

Noble objected to Watson’s testimony on the grounds it would unfairly prejudice the jury in this case. Rickers sustained the objection, noting there weren’t enough similarities in the two incidents, and a seven-year gap between them, which would damage Eilander’s due process rights if jurors were allowed to hear the testimony.

During closing arguments, both attorneys had burdens of proof to lay out before the jury. Representing the State of Iowa, Nicholson had the largest burden of proof and argued four members of the victim’s family identified Eilander as being in their home during the early morning hours of June 30, 2012, and that he touched the victim with skin-to-skin, hand-to-genitals contact, which is considered a sex act by Iowa law.

Nicholson also noted the testimony of Zach Rea, who he frequently socialized with, who stated Eilander had made comments about the victim’s appearance the night before the incident. He also pointed to the testimony of Joshua Hellickson, who was in the Jasper County Jail with Eilander and said Eilander had admitted to touching the victim inappropriately.

Nicholson also discussed the depth of detail in Eilander’s own testimony, that seemed to go blank only during the time he was alleged to have been in the victim’s home. Blacking out — an intoxication defense — could only be applied to the burglary charge, not to the charge of sexual abuse — unless it created a disability that prevented him from making a specific intent.

Nicholson argued that by referencing the victim’s father by name was evidence of no loss of faculties.

“When I gave Mr. Eilander a chance to explain what the [victim’s] family had to gain from lying about him, he couldn’t come up with one,” he said. “When I asked why Mr. Rea would lie, he couldn’t think of a reason ... When I asked why Mr. Hellickson would lie about him, his only response was, ‘To get me in trouble.’”

In his closing argument, Noble noted that by Rea’s evidence alone, Eilander had been drinking for more than 14 hours and was “hammered drunk.” He also noted Eilander has a drinking problem, and had developed a reputation as the town drunk in Lynnville.

Noble also noted the fact that Eilander repeatedly did not react to the victim or members of her family when they tried to verbally communicate with them, and that he was being led out of the house with one person on each arm to guide him out.

“No person in his right mind would stand there, with no reaction, if he was caught in a house that is not his own, especially with what is alleged to have occurred there,” Noble said.

In his closing rebuttal, Nicholson pointed out the testimony of the victim was incontrovertible, making the charge of third-degree sexual abuse a “slam dunk.” He said the evidence only showed Eilander was intoxicated, not that he was suffering from an disability to form specific intent.

Daily News Editor Bob Eschliman may be contacted at (641) 792-3121, ext. 423, or at beschliman@newtondailynews.com.

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