Opinion
No. 6-087 / 05-0878
Filed April 12, 2006
Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.
Reece Bowen appeals his conviction and sentence for third degree sexual abuse. AFFIRMED.
John J. Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine O. Corken, Assistant County Attorney, for appellee-State.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Reece Bowen appeals his conviction and sentence for third degree sexual abuse. We affirm.
I. Background Facts and Proceedings.
Based upon the evidence presented at trial, a jury could have found the following facts. In the fall of 2002, S.C., who was thirteen years old and in the seventh grade, received a telephone call from Reece Bowen requesting her to babysit his infant child. After accepting the offer, S.C. went to the home of Bowen's nieces hoping that one of them would accompany her, but finding both were away, S.C. proceeded to Bowen's home alone. Upon her arrival, instead of babysitting the infant, Bowen asked S.C. to move several boxes and vacuum Bowen's bedroom on the second floor. S.C. testified that while she was performing these chores, Bowen touched her buttocks, which made her uncomfortable.
Bowen is the uncle of two girls who were friends of S.C. in the fall of 2002.
When she had finished vacuuming the bedroom, Bowen entered the room and told her that if she was just five years older, he would date her. Bowen closed and locked the door to the bedroom and proceeded to remove his clothes from the waist down. Bowen then put S.C. on the bed, removed her clothes, and penetrated her vagina with his penis. S.C. protested and cried during the act, but Bowen refused to stop. When he had finished, Bowen told S.C. that if she told anyone, he would kill her. S.C. took this threat seriously, and did not tell her mother for several weeks after the incident. S.C. was so frightened that her mother agreed not to notify authorities.
S.C. did inform two of her friends about what had happened. One friend testified that in December of 2002, S.C. told her she had been raped while babysitting for Bowen approximately two and a half months earlier, placing the incident in October of 2002. The other friend testified that S.C. informed her about the sexual abuse in 2003 when she and S.C. were in the eighth grade.
In June of 2004, while in Iowa City obtaining medical treatment, S.C. and her mother informed Dr. Julie Hanson about the sexual abuse. Dr. Hanson testified that during S.C.'s rendition of the details of the abuse, S.C. appeared anxious and tearful, but her answers to questions flowed smoothly. As a mandatory reporter, Dr. Hanson notified police and several days later Corporal Thomas Schaefer interviewed S.C.
Evidence of a sexual assault can be obtained through the use of a rape kit if secured within seventy-two hours of the act. Due to the lengthy delay in seeking medical treatment, no physical evidence was adduced by the State.
It soon became apparent to Schaefer that although S.C. was confident about the details of the assault, her ability to identify the date of the assault was impaired. Based on his experience as a law enforcement officer, Schaefer observed that specific dates are difficult for children "unless they can relate it to some time in school or some teacher they had." Approaching the interview with this observation in mind, Schaefer was informed by S.C. that the assault occurred while she was a student of Mrs. Loeffelholz. Because Loeffelholz was S.C.'s seventh grade teacher, Schaefer concluded that the assault had occurred in October of 2002. Schaefer was able to corroborate this date with other details from S.C.'s description, including that Bowen's infant daughter could not walk at the time of the incident.
S.C.'s mother also had difficulty placing a precise date on both the assault and S.C.'s first report of the incident to her.
On cross-examination, Bowen's sister later testified that her niece was born in January of 2002, and within a year had walked for the first time. Corporal Schaefer also testified that he believed Bowen's child would have been six months old at the time of the abuse.
At the close of the State's case, Bowen's attorney moved for judgment of acquittal, claiming insufficient evidence had been adduced by the State from which a reasonable jury could convict Bowen of third-degree sexual abuse. The district court disagreed and denied Bowen's motion. Bowen then proceeded with his defense.
Bowen's motion for acquittal failed to specify those elements of the charge which he claimed were supported by insufficient evidence.
Bowen did not testify at trial, but he did call several witnesses in an effort to demonstrate several discrepancies in S.C.'s account of the assault. During the investigation, S.C. had been asked to draw a picture of Bowen's bedroom. Bowen offered that picture into evidence to contrast it with a video depicting the bedroom as it appeared shortly before trial. Bowen's family members and friends then testified as to the layout of the bedroom, which differed in several aspects from the layout S.C. had described. Specifically, S.C.'s drawing showed a bird cage with several birds inside, while each of the witnesses for Bowen could not recall Bowen ever owning any birds. The witnesses also testified that the bed could not have been situated as shown in S.C.'s drawing because it would obstruct access to a closet. Additionally, Bowen's sister and the mother of two of S.C.'s former friends testified that S.C. had developed an animus toward her daughters, and their friendship had devolved precipitously into derogatory name-calling and hurtful pranks.
We note that none of Bowen's witnesses testified that Bowen could not have assaulted S.C. within the timeframe alleged by the State.
After receiving instructions, the jury deliberated and returned a guilty verdict on the third-degree sexual abuse charge. On February 15, 2005, Bowen filed a motion in arrest of judgment and a motion for new trial. The motion for new trial alleged that the verdict was contrary to the weight of the evidence, and further asserted several prejudicial prosecutorial errors, namely that the prosecutor had (1) commented on Bowen's failure to testify, and (2) made arguments designed to inflame the jury's passions and prejudices against Bowen. The motion in arrest of judgment was denied on March 28, 2005, however Bowen did not obtain a ruling on his motion for new trial prior to filing his notice of appeal on June 1, 2005. The district court filed a ruling denying the motion for new trial on June 8, 2005.
On appeal, Bowen asserts (1) insufficient evidence supports his conviction for third-degree sexual abuse, and (2) the district court employed an improper standard in denying his motion for new trial. Bowen also claims he was denied a fair trial due to trial counsel's ineffective assistance in (1) failing to take depositions of State witnesses, (2) failing to make proper hearsay objections, (3) permitting Corporal Schaefer to testify to issues beyond the scope of his expertise, (4) failing to object to prosecutorial misconduct, and (5) failing to adequately argue Bowen's motion for acquittal.
II. Scope and Standards of Review.
We review Bowen's challenge to the sufficiency of the evidence supporting his conviction for errors at law, and we will uphold the jury's verdict if supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial if a rational jury could be convinced of the defendant's guilt beyond a reasonable doubt as to each essential element of the crime charged. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001). Evidence is not substantial, however, where it raises only suspicion, speculation, or conjecture. Id. And while we review the entire record, not just evidence supporting guilt, we must view the evidence presented in the light most favorable to the jury's verdict. Hopkins, 576 N.W.2d at 377.
We review the denial of a motion for new trial for abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). When considering a motion for new trial, the district court must apply the weight-of-the-evidence standard. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. at 658.
Where the ineffectiveness of counsel is alleged as the basis for the denial of a fair trial, we perform de novo review of the entire record in order to assess both the reasonableness of counsel's conduct and any prejudice suffered thereby. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for post-conviction proceedings. Iowa Code § 814.7 (2005). If such a claim is raised on direct appeal, and the record is adequate to permit us to assess trial counsel's effectiveness, or the record is sufficient to determine whether prejudice resulted from counsel's alleged unprofessional error, we may decide the ineffectiveness claim on direct appeal. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). In all other cases, we will preserve the claim for possible postconviction proceedings to allow counsel the opportunity to defend his actions. Atley, 564 N.W.2d at 833. In order to prevail on his claims of ineffective assistance of counsel, Bowen must demonstrate that but for counsel's failure to perform an essential duty there is a reasonable probability he would have been acquitted. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999).
III. Discussion.
A. Sufficiency of the Evidence.
Bowen contends on appeal that the evidence in the record is insufficient to support the jury's verdict. In order to convict Bowen for third-degree sexual abuse, the State was required to prove that he performed a sex act with S.C. as defined by Iowa Code section 702.17 (2003), by force or against S.C.'s will, or while S.C. was under the age of fourteen. Iowa Code § 709.4. A rational fact finder could on this record find that S.C. was age thirteen at the time when the sex act she described occurred; and that the sex act was performed against her will. Viewing the evidence in the light most favorable to the jury's verdict, we conclude substantial evidence supports Bowen's conviction. Hopkins, 576 N.W.2d at 377.
Bowen, citing State v. Smith, 508 N.W.2d 101 (Iowa Ct.App. 1993), urges that we should disregard entirely S.C.'s testimony concerning the sexual abuse. He notes that while our review of the sufficiency of the evidence does not ordinarily contemplate a review of the credibility of the witnesses, we may reject as a matter of law evidence from a particular witness whose testimony is "so impossible and absurd and self-contradictory that it should be deemed a nullity by the court." Id. at 103. In remanding for judgment of acquittal, the court in Smith nullified the testimony of the alleged sexual abuse victims who gave widely divergent accounts of the details of the sex acts which the court described as "inconsistent, self-contradictory, lacking in experiential detail, and, at times, border[ing] on the absurd." Id.
By contrast, S.C. consistently recounted the details of the sex act itself to Dr. Bowen, Corporal Schaefer, and to the jury. The only deficiencies in S.C.'s testimony which Bowen claims justifies its wholesale rejection are S.C.'s inaccurate drawing of Bowen's bedroom and her inability to place a specific date on the sexual abuse alleged. Although there is some evidence that would suggest that Bowen's nieces had brought S.C. to Bowen's house on prior occasions, there is no evidence from which the jury could infer that S.C. had been in Bowen's bedroom on any occasion other than on the date she was abused, and therefore her inability to provide a detailed drawing of the room does not render her testimony incredible as a matter of law. Further, her inability to place a specific date on the abuse, while impacting her credibility, did not go to an essential element of the crime. We note that the State need not establish beyond a reasonable doubt the date on which the abuse occurred in order to secure a conviction. S.C.'s uncertainty as to the date and her inaccurate drawing were legitimate grist for cross-examination, but we conclude the jury could find her account of the sex act was credible despite these deficiencies.
B. Motion for New Trial.
We next address Bowen's claim that the district court, in denying the motion for new trial, failed to apply the weight-of-the-evidence standard. Ellis, 578 N.W.2d at 659. We note, however, that at the time the district court rendered a decision on the motion for new trial, Bowen had already filed his notice of appeal. See State v. Schiernbeck, 203 N.W.2d 546, 547 (Iowa 1973) (finding that a defendant has a duty to demand a ruling on his motion in order to preserve error on appeal). Upon filing the notice of appeal, the district court was stripped of its jurisdiction over the issue, making its ruling on the motion a nullity for purposes of our review. See State v. Williams, 285 N.W.2d 248, 266 (Iowa 1979) (stating that a ruling on a post-trial motion is appealable only when the district court "adjudicates the motion while it still has jurisdiction," and noting that Williams had waived his challenge by filing notice of appeal before obtaining a ruling on the motion).
Bowen's case is distinguished from the limited exception expressed in State v. Gatewood, 179 N.W.2d 520, 521 (Iowa 1970), where the court entertained a challenge to the district court's ruling on Gatewood's motion in arrest of judgment despite the fact he filed a notice of appeal prior to the ruling because (1) the motion raised serious due process issues, (2) the district court had already held an evidentiary hearing on the motion, and (3) the substance of the motion was already the subject of an ineffective assistance of counsel claim that would come before the court "in one way or another." Here, Bowen's challenge is limited to the application of the proper standard, and as such does not implicate weighty constitutional issues. Further, there is no indication on the record that an evidentiary hearing on the new trial motion, though scheduled, actually took place. Finally, Bowen has not made trial counsel's conduct with regard to the new trial motion the subject of an ineffective assistance claim. As such, we are not inclined to overlook the district court's lack of jurisdiction over the case at the time it rendered its ruling, and therefore deem this issue waived. Williams, 285 N.W.2d at 266.
C. Ineffective Assistance of Counsel.
As we have previously found that substantial evidence supports Bowen's conviction for third-degree sexual abuse, we conclude trial counsel breached no duty in the manner in which he argued the motion for acquittal, and thus this particular ineffective assistance claim is without merit.
We find that the four remaining claims of ineffective assistance of trial counsel are not so completely devoid of merit such that we can, on the present record, dispose of them without first giving trial counsel the opportunity to defend his actions. See State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981) (noting that ordinarily we reserve claims of ineffective assistance of counsel for postconviction proceedings so the defendant's trial counsel can defend against the charge). We note that despite our ruling that the record, when viewed in the light most favorable to the guilty verdict, supports the conviction, we believe an objective review of the entire record does not reveal overwhelming evidence of Bowen's guilt. Rather, we conclude the State's case against Bowen turned entirely on the credibility of S.C., and as such we cannot so easily dismiss the effect of trial counsel's alleged abdication of essential duties had in obtaining the conviction. See, e.g., State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003) (noting that where the difference between conviction and acquittal hangs on the testimony of a single witness, the effect of counsel's failure to object to clear prosecutorial misconduct cannot be minimized); Bowman v. State, ___ N.W.2d ___ (Iowa 2006) (finding that "the jury was required to determine Bowman's guilt or innocence by determining whether they believed the State's witnesses' version or Bowman's version of the facts," and concluding that prejudice resulted from the failure to object to clear prosecutorial misconduct); and cf. State v. Carey, ___ N.W.2d ___ (Iowa 2006) (concluding no prejudice could be shown despite failure to object to prosecutorial misconduct where the evidence against Carey was overwhelming). We therefore preserve Bowen's remaining claims for possible postconviction relief.
IV. Conclusion.
Based on the foregoing, we affirm Bowen's conviction and sentence for third-degree sexual abuse. Bowen's claim alleging that the district court applied an improper standard in dismissing his motion for new trial is deemed waived. With the exception of his unmeritorious claim that counsel was ineffective with regard to counsel's conduct in advancing his motion for acquittal, we preserve Bowen's claims of ineffective assistance of counsel for possible postconviction relief proceedings.