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concluding language of section 709.12 did not restrict use of artificial or substitute sexual organs to the perpetrator and finding defendant used victims' buttocks as substitute for vaginas
Summary of this case from State v. ThedeOpinion
No. 5-628 / 04-1086
Filed November 23, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall (motion to sever) and Robert B. Hanson (trial), Judges.
Brett Anderson appeals from his conviction for four counts of second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephen J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
The defendant-appellant, Brett Anderson, appeals from his convictions on four counts of sexual abuse in the second degree. He contends the district court erred (1) in overruling his motions for judgment of acquittal based on insufficient evidence, (2) in not granting his motion to sever, and (3) in shifting the burden of proof to him. He also contends he received ineffective assistance of counsel. We affirm the defendant's convictions. We conclude trial counsel was not ineffective in not challenging the constitutionality of the statutes. We preserve the remaining ineffective assistance claims for possible postconviction proceedings.
Background facts.
The defendant is a single man in his early thirties with no children. He met a woman at work in 2002 and became friends with her, her husband, and her son, E.W.E.W. spent a lot of time with the defendant, who bought him a television and Yu-Gi-Oh game cards. The defendant had a trampoline in the yard and a Sony Playstation II video game system in his home. In 2002 and 2003, several children spent time at the defendant's home, including staying overnight. In July of 2003, six boys, all under age twelve, alleged the defendant touched them inappropriately when they spent the night at his home. They alleged the defendant either rubbed their penis or buttocks through their clothes or "humped" their buttocks with his penis.
Course of proceedings.
In August of 2003 the State charged the defendant with five counts of second-degree sexual abuse and one count of indecent contact with a child, in violation of Iowa Code sections 709.1, 709.3, and 709.12 (2003). Each count related to a different victim. In October the defendant moved to sever the trials. The district court denied the motion in late November. In late January 2004 the defendant waived a jury trial. The parties stipulated to the use of videotaped interviews of the victims at trial in place of in-person testimony. Following a bench trial in late February and early March, the court found the defendant guilty of counts II through V of second-degree sexual abuse. In June, the court sentenced the defendant to four terms of up to twenty-five years, with the sentences for counts II and III to be concurrent, for counts IV and V to be concurrent. The court ordered the sentences for counts IV and V to be served consecutively to the sentences for counts II and III, for a total not to exceed fifty years.
Scope and standards of review.
Insufficient evidence.
Review of challenges to the sufficiency or weight of the evidence are reviewed for correction of errors at law. Iowa R. App. P. 6.4. We view the evidence in the light most favorable to the State, including any legitimate presumptions or inferences that may fairly and reasonably be deduced from the evidence. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005) (citing State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005)).
Motion to sever.
We review a trial court's refusal to sever charges for an abuse of discretion. State v. Delaney, 526 N.W.2d 170, 174 (Iowa Ct.App. 1994). Iowa Rule of Criminal Procedure 6.1 allows multiple charges that "arose from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan" to be prosecuted as separate counts in a single complaint." "In reviewing the trial court's decision, we balance any unfair prejudice which could result from a joint trial against the state's interest in judicial economy." Delaney, 526 N.W.2d at 175. The defendant has the burden of proof. State v. Trudo, 253 N.W.2d 101, 104 (Iowa 1977), cert. denied, 434 U.S. 903, 98 S. Ct. 299, 54 L. Ed. 2d 189 (1977).
Shifting burden of proof.
Alleged violations of a defendant's due process rights are reviewed de novo. See State v. Klindt, 542 N.W.2d 553, 554 (Iowa 1996). The State has the burden to prove each element of the crime charged beyond a reasonable doubt. See State v. McMullin, 421 N.W.2d 517, 519 (Iowa 1988). "Improper allocation of the burden of proof constitutes reversible error." State v. Lawler, 571 N.W.2d 486, 491 (Iowa 1997).
Ineffective assistance.
Claims of ineffective assistance of counsel are afforded a de novo review. State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000). A defendant must demonstrate (1) defense counsel failed in an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). We may dispose of a claim if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). We generally preserve claims of ineffective assistance of counsel for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997).
Discussion.
Insufficient evidence.
The State must prove each element of a crime charged by evidence beyond a reasonable doubt. State v. Fintel, 689 N.W.2d 95, 100 (Iowa 2004). "The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003) (quoting State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)).
Sexual abuse requires proof of a "sex act." Iowa Code § 709.1. The code defines sex act:
The term "sex act" or "sexual activity" means any sexual contact between two or more persons by: penetration of the penis into the vagina or anus; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, . . . or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.
Id. The contact may occur through clothing. State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994); State v. Phipps, 442 N.W.2d 611, 613 (Iowa Ct.App. 1989). Other parts of a person's body may serve as "substitutes" for sexual organs. In re J.D.S., 436 N.W.2d 342, 349 (Iowa 1989) (finger as substitute for a penis); State v. Whetstine, 315 N.W.2d 758, 761 (Iowa 1982) (same); State v. Mueller, 344 N.W.2d 262, 267 (Iowa Ct.App. 1983) (hand as substitute for a vagina).
A. Count II (N.P.).
In the interview, N.P. said the defendant, thinking N.P. was asleep, rubbed the area over his penis through his clothes for about five minutes, but stopped when he turned away. The defendant also touched the area over N.P.'s hip. N.P. also said R.M. warned him previously not to go to the defendant's home because the defendant would touch him inappropriately. According to N.P., R.M. told him the defendant had touched him on more than one occasion.
The defendant argues N.P.'s interview contains inconsistencies and lack of independent recall. The defendant asserts "N.P.'s statement is not clear whether the defendant was standing up or lying down. . . . [or] whether or not N.P. was covered with a blanket at the time of touching." He argues, "[t]here seems to be a question as to the area of the body Mr. Anderson thought he was touching, as well as whether or not the incident actually occurred." He contends N.P. "may have believed the acts occurred on the basis of suggestion" either from R.M.'s comments or from N.P. seeing the names of other alleged victims on the prosecutor's desk.
The district court made specific findings the boys were credible and the defendant was not. It also found the events reported occurred. N.P.'s mother testified her son changed from "happy-go-lucky" to being distant and afraid to be left alone with men after the incident. We conclude sufficient evidence supports the court's verdict on this count.
B. Counts III (R.M.), IV (E.W.), and V (S.B.).
These counts are addressed together because the defendant's arguments are the same for each count.
In his interview, eight-year-old R.M. said he spent the night at the defendant's home and slept in the defendant's bed. R.M. awoke when he felt the defendant rubbing his penis against his buttocks, which were exposed because the defendant had pulled down R.M.'s clothes.
E.W. had spent many nights at the defendant's home. One time he was sleeping on his stomach on the sofa-sleeper. He awoke to the defendant touching his penis to E.W.'s buttocks, which were exposed because the defendant had pulled down his pajamas. E.W. described the defendant's actions as "humping" him.
S.W. spent the night at the defendant's home. He awoke when he felt the defendant "humping" him on his "backside." S.B. had his clothes on, but the defendant was naked. S.B. said he could feel the defendant's penis "going up and down" "like a stick" against his buttocks.
The defendant contends none of the boys could know what he was rubbing against their buttocks because he was behind them and they did not see what he was doing. He further contends "buttocks" is anatomically distinct from "anus," so even if he was rubbing his penis against the boys' buttocks, that act does not meet the statutory definition of sex act.
The State responds that it tried the case under the theory that the defendant was using the boys' buttocks as a substitute for a vagina, so it was not required to prove the defendant's genitalia contacted the boys' anus. The district court accepted the State's interpretation of the statutory definition of sex act. All the cases cited above concerning substitutes for sex organs involve the perpetrator using the perpetrator's body part (hand or finger) as a substitute sex organ. In the case before us, the district court considered using part of a victim's body as a substitute sex organ as within the statutory definition.
The defendant argues reading the definition to allow a victim to supply the substitute sex organ "has no basis in Iowa law and could lead to absurd results." He contends even innocent contact between a perpetrator's penis and part of a child's body would fall within the definition. This contention fails because State v. Pearson concludes contact between an adult and child must be sexual in nature to fall within the definition of sex act. Pearson, 514 N.W.2d at 455; see Iowa Code § 709.17 ("The term `sex act". . . means any sexual contact") (emphasis added).
The defendant also argues the use of the term "committing" in Iowa Code sections 709.3 and 709.12 makes it clear the substitute sex organ must be supplied by the perpetrator, not the victim. The State argues the plain language of the definition is broad and does not specify actors. It asserts the legislature could have drafted the definition to specify the actors if it had wanted to do so. See generally Whetstine, 315 N.W.2d at 761 (noting language in a Nebraska statute defining "sexual penetration" to include the use of "any object manipulated by the actor" into the victim's body) (emphasis added).
We conclude the statutory language is broad and does not restrict the use of artificial or substitute sexual organs to the perpetrator. When the legislature added the "finger or hand" language it had the opportunity to specify the actor, but chose to use the less restrictive "one person" and "another person" language. We conclude substantial evidence supports the court's verdicts on these counts.
Motion to sever.
The defendant claims the district court erred in not granting his motion to sever. Iowa Rule of Criminal Procedure 2.6(1) gives the trial court discretion to sever prosecution of multiple offenses:
Two or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise.
The defendant bears the burden of establishing "his interest in receiving a fair trial uninfluenced by the prejudicial effects which could result from a joint trial outweighed the State's interest in judicial economy." State v. Smith, 576 N.W.2d 634, 636-37 (Iowa Ct.App. 1998), overruled on other grounds by State v. Owens, 635 N.W.2d 478, 484 (Iowa 2001) (quoting State v. Lam, 391 N.W.2d 245, 251 (Iowa 1986)). The prejudice discretionary severance seeks to prevent includes that which inherently attends evidence of a defendant's other crimes. State v. Dicks, 473 N.W.2d 210, 214 (Iowa Ct.App. 1991).
However, in a benchtrial case, as here, there is less likelihood that a failure to sever has prejudiced the defendant than in a trial to a jury. By virtue of training and experience, the court is better able to compartmentalize the evidence regarding the various charges and guard against the prejudice a severance seeks to prevent.
State v. Geier, 484 N.W.2d 167, 172-73 (Iowa 1992).
The defendant argues the six counts were not part of a common scheme or plan. He further argues the acts alleged occurred over a period of seven months, involved six different victims, and were not identical. He asserts, "it would have been difficult, if not impossible, for any trier of fact to compartmentalize the inflammatory nature of the evidence in the instant matter."
A "common scheme or plan by its very definition presupposes that it involves a series of separate transactions or acts." State v. Lam, 391 N.W.2d at 249. A "common scheme or plan" requires some connection between the crimes aside from the fact they are similar and committed by the same person. State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971). A district court can look to such factors as modus operandi, "continuing motive," and temporal and geographic proximity. Lam, 391 N.W.2d at 250. In State v. Dicks, 473 N.W.2d 210, 214 (Iowa Ct.App. 1991), the defendant's acts occurred in different locations over a three-year period, yet we determined:
Nevertheless, the other factors weigh heavily in favor of trying the charges together. These include similar acts carried out in similar ways with a long standing and continuing motive to gratify himself and, perhaps, to corrupt the morals of several children.
We hesitate to place undue emphasis on judicial economy where the counterbalancing consideration is fairness of the trial. However, we find no prejudice to the defendant for two reasons. First, if the separate acts in this case were not part of the res geste, they nevertheless may have been admissible to show the defendant's motive, opportunity, intent, preparation, plan, knowledge, and identity. See State v. Wade, 467 N.W.2d 283, 285-86 (Iowa 1991). Second, the trial here was heard by the court, sitting without a jury, which made extensive findings of fact demonstrating that it appropriately and effectively compartmentalized the evidence, as was shown particularly in its acquittal of the defendant on two of the six counts.
Shifting burden of proof.
The defendant contends certain statements by the court in its ruling show the court impermissibly shifted the burden of proof to the defendant to prove his innocence, thus violating his due process rights. The court observed, "defendant took the stand at trial and, beyond his categorical denials, offered nothing concrete which would explain why these four victims would make up, consciously or unconsciously, such allegations." It also noted, "[d]efendant supplied no believable explanation for the amount of contact he obviously had with these four or for the amount of attention — particularly through gifts — he showered on them."
The defendant states error was preserved "in the district court's conclusions of law." The State argues the defendant did not adequately preserve error on his due process claim because it was not raised in any post-trial motions. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997) (noting Iowa does not recognize a "plain error" rule allowing review of constitutional issues not raised in the trial court); see also Iowa R. Crim. P. 2.24(2)( c) ("On a motion for a new trial in an action tried without a jury, the court may where appropriate, in lieu of granting a new trial, vacate the judgment if entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and enter judgment accordingly.").
The statements from the court's ruling do not shift the burden of proof to the defendant. In context, the court is discussing the credibility of the victims, the lack of motive to lie, and motives not to come forward. The court made an explicit finding the State proved four of the charges beyond a reasonable doubt. The court placed the burden squarely on the State, not the defendant. Finding the defendant not guilty on two of the six charges also supports the conclusion the court knew the State had the burden of proof and not the defendant.
Ineffective assistance of counsel.
The defendant raises his claims trial counsel was ineffective in three particulars.
A. Failure to challenge the sexual abuse statutes as unconstitutional.
The defendant contends Iowa Code sections 702.17, 709.1, and 709.3 are unconstitutionally over-broad and vague. He argues the statutes were used to convict him of crimes not specified in the statute. Therefore, he claims trial counsel should have challenged them. We conclude the record is sufficient for us to address this claim on direct appeal. See State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994).
A statute must specify an offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited." State v. Watkins, 659 N.W.2d 526, 534 (Iowa 2003). It must not "impermissibly delegate basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers or arbitrary and discriminatory application." State v. Sylvester, 516 N.W.2d 845, 849 (Iowa 1994) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 227-28 (1972)).
A statutory term provides fair warning if the meaning of the word "is to be fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning."
State v. Hunter, 550 N.W.2d 460, 465 (Iowa 1996), overruled on other grounds by State v. Robinson, 618 N.W.2d 306, 311-12 (Iowa 2000). To show a statute is unconstitutionally vague, a party must "negate every reasonable basis upon which the statute might be sustained." Robinson, 618 N.W.2d at 314 (quoting Jim O., Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 478 (Iowa 1998)). A party challenging a statute "carries the heavy burden to rebut a strong presumption of constitutionality." State v. Sullivan, 298 N.W.2d 267, 270-71 (Iowa 1980).
In State v. Whetstine, 315 N.W.2d at 764, the supreme court upheld section 702.17 against a vagueness challenge for lack of the word "finger" as a body part that could be used in a sex act. As noted previously, other decisions interpreted the statute to include the use of a person's hand. We conclude a person of ordinary intelligence is notified that simulating intercourse by rubbing one's penis against another's buttocks is a sex act as defined in section 702.17. Taking that definition in conjunction with sections 709.1 and 709.3 provides a standard that "explicit enough to avoid the problem of arbitrary and discriminatory enforcement." See id.
Because the challenged statutes are not unconstitutionally vague or over-broad, trial counsel did not fail in an essential duty by not raising the challenge. Counsel was not ineffective on this ground. See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997) ("An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong.").
B. Failure to raise hearsay and confrontation objections.
The defendant alleges trial counsel was ineffective in not objecting to testimony by N.P. that R.M. had warned him not to go to the defendant's home because the defendant would touch him inappropriately and that the defendant had touched R.M. inappropriately previously. The record does not reveal the reason for counsel's failure to object to these questions. Because the record is inadequate to address his ineffectiveness claim on direct appeal, we preserve the defendant's right to raise it in an action for postconviction relief. See State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996).
C. Advice to waive a jury trial and confrontation of victims.
The colloquy between the court and the defendant suggests his waiver of a jury trial was knowing and voluntary. On appeal, the defendant raises claims based on what he says his attorney told him. The record is inadequate to address these claims on direct appeal, therefore we preserve the defendant's right to raise them in an action for postconviction relief. See id. Conclusion.
We affirm the defendant's convictions. We conclude trial counsel was not ineffective in not challenging the constitutionality of the statutes. We preserve the remaining ineffective assistance claims for possible postconviction proceedings.