Opinion
No. 3-276 / 02-0355
Filed July 10, 2003
Appeal from the Iowa District Court for Lee (South)County, Mary Ann Brown, Judge.
Defendant appeals from his convictions of and sentences for multiple counts of sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Michael Short, County Attorney, and Bruce McDonald, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Craig Davis appeals from his convictions of and sentences for seven counts of sexual abuse in the second degree, in violation of Iowa Code sections 709.1(3) and 709.3(2), and five counts of sexual abuse in the third degree, in violation of Iowa Code sections 709.1(3) and 709.4(2)(b). He argues the verdicts were not supported by sufficient evidence, and were against the weight of the evidence. He also makes numerous claims of ineffective assistance of counsel. We affirm his convictions and sentences, and preserve four of his ineffective assistance claims for possible postconviction proceedings.
The second-degree sexual abuse was in violation of the 1991, 1993 and 1995 Iowa Code, while the third-degree sexual abuse was in violation of the 1995, 1997 and 1999 Iowa Code.
Background Facts . Davis was convicted of sexually abusing his two daughters over a number of years. His older daughter, A.D., was age seventeen at the time of trial, and his younger daughter, C.D., was age sixteen. Both girls provided detailed testimony, at trial and in statements videotaped the year before, about the abuse perpetrated by Davis. According to A.D. her abuse began when she was seven or eight years old, and lasted for approximately eight years. C.D. testified that her abuse began around age six or seven, and continued until she was eleven.
The State also presented testimony from Dr. Kathleen Opdebeeck, who had conducted colposcopic examinations of both A.D. and C.D. According to Dr. Opdebeeck the hymens of both girls were stretched and eroded, although A.D.'s hymen was more stretched and eroded than was C.D.'s. A.D.'s hymenal opening was also enlarged. In Dr. Opdebeeck's opinion, each girl had been penetrated by something larger than her hymenal opening, which would be consistent with penetration by an adult penis.
Scope of Review . Challenges to the sufficiency of the evidence are reviewed for errors at law, and a verdict is upheld if supported by substantial evidence. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). A district court's denial of a motion for a new trial is also reviewed on error, and we look to see whether the denial was an abuse of the court's discretion. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). Claims of ineffective assistance of counsel are reviewed de novo. State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000).
Sufficiency and Weight of the Evidence . Davis attacks the adequacy of the evidence to support his convictions by claiming A.D. and C.D.'s testimony was so inconsistent and self-contradictory that it cannot stand as the sole, uncorroborated basis for his convictions. He dismisses the corroborative value of Dr. Opdebeeck's testimony, because she admitted the medical evidence could be consistent with something other than adult sexual penetration.
Assessing the credibility of testimony, and determining how much weight to assign to that testimony, is normally a matter for the jury. State v. Maring, 619 N.W.2d 393, 395 (Iowa 2000). There are occasions, however, where evidence is so impossible, absurd and self-contradictory that the court should deem it a nullity. See State v. Smith, 508 N.W.2d 101, 103 (Iowa Ct.App. 1993). A jury may be deprived of its typical role in reconciling conflicting testimony, "where the only evidence in support of a controlling fact is that of a witness who so contradicts himself as to render finding of facts thereon a mere guess." Id. (citation omitted).
Victim testimony that is "inconsistent, self-contradictory, lacking in experiential detail, and at times, border[ing] on the absurd," and unsupported by physical or other corroborating evidence, would lack the probative value necessary to establish guilt. See id. at 104-05. A review of the record in this case, however, reveals victim testimony that is not only detailed and largely consistent, but corroborated by medical evidence. Cf. State v. Mitchell, 568 N.W.2d 493, 503-04 (Iowa 1997) (rejecting claim that inconsistent but corroborated victim testimony should be disregarded, and distinguishing Smith on the basis of absurdity, lack of detail, and absence of corroboration).
There are logical and plausible explanations as to why A.D. and C.D. were both unaware of the extent of the abuse perpetrated on the other, and why their mother, Gail Davis, had denied knowledge of the abuse. There are also reasonable explanations why A.D.'s abuse continued longer than C.D.'s, and why C.D. initially minimized the extent of her abuse. Moreover, given the amount and duration of abuse, it is hardly surprising that the girls' testimony would contain some minor inconsistencies. The majority of their testimony was not only detailed but consistent.
It was also supported by Dr. Opdebeeck's opinion. While Dr. Opdebeeck could not state with absolute certainty that the girls had been sexually abused, she did opine, based on her medical observations, that both girls had been penetrated by something larger than a tampon, and that the size of the penetrating object would be consistent with an adult penis. Such opinion is not "meaningless" merely because it is not diagnostic of adult sexual penetration.
Evidence is substantial when, viewing the entire record in the light most favorable to the State, a rational jury could be convinced of Davis's guilt beyond a reasonable doubt. See State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Given that the jury was free to accept or reject any of the evidence, State v. Button, 622 N.W.2d 480, 483 (Iowa 2001), and considering the weight we afford its credibility assessments, State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001), we conclude the record contains substantial evidence in support of the verdict. We similarly reject Davis's claim that the district court abused its discretion in denying his new trial motion, because the verdict was against the weight of the evidence. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998) (citation omitted) (noting that a new trial should be granted "only in exceptional cases in which the evidence preponderates heavily against the verdict").
Ineffective Assistance of Counsel . Typically, ineffective assistance of counsel claims are preserved for possible postconviction proceedings, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We depart from this preference if the record on direct appeal is sufficient to evaluate the merits of the claim. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). Davis makes six claims that his trial counsel was ineffective. We conclude that the first four of these claims should be preserved for possible postconviction proceedings. The two remaining claims, however, can be resolved in this appeal.
Davis argues that his trial counsel was ineffective in (1) eliciting testimony that Davis possessed pornography; (2) eliciting, in the front of the jury, Gail Davis's invocation of her Fifth Amendment privilege against self incrimination; (3) failing to request redaction of portions of the victims' videotaped statements and a corresponding jurisdictional jury instruction; and (4) failing to object when the prosecuting attorney questioned both victims about the assertion made by defense counsel, in opening statements, that Davis would testify and deny the abuse.
The first is Davis's claim that counsel failed to conduct an independent investigation of "certain exculpatory evidence." We find this claim too general to either address on appeal, or preserve for possible postconviction proceedings. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The second is Davis's claim that counsel was ineffective for failing to ascertain the fore person of the jury, Linda Chase, had been one of A.D.'s fifth-grade teachers. Davis argues that if this information had been discovered, Chase could have been struck for cause under Iowa Rule of Criminal Procedure 2.18(5)( e), either as (1) an employee of the entity prosecuting Davis, or (2) A.D.'s guardian during a portion of the time when the abuse occurred. We find the record adequate to address this claim on direct appeal.
To establish the ineffective assistance of counsel, Davis must prove not only that his attorney's performance fell below "an objective standard of reasonableness," but also that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Assuming counsel could have discovered that Chase was A.D.'s former teacher, and made the for-cause challenges now forwarded, Davis must still show that it would have been error for the district court to deny such challenges. See State v. Tillman, 514 N.W.2d 105, 108 (Iowa 1994). This he cannot do.
Rule 2.18(5)( e) must be interpreted in a "`sensible, workable, practical and logical' manner." State v. Deierling, 406 N.W.2d 793, 794 (Iowa 1987) (quoting Emmetsburg Ready Mix Co. v. Norris, 362 N.W.2d 498, 499 (Iowa 1985)). Its various categories, including guardian/ward and employer/employee, are derived from the presumption that people who stand in certain relationships to the defendant, victim or prosecuting entity will be biased because of those relationships. Id. We conclude bias is not found under the rule merely because Chase works for a local school district. See id. Nor do we believe that rule 2.18(5)(e) should be interpreted so broadly as to include within the definition of guardian the former teacher of a victim. See State v. Campbell, 633 N.W.2d 302, 304 (Iowa 2001) (noting that in general "guardian" denotes a person with legally-granted authority over or responsibility for the care of another).
As noted by the court in Deierling:
[W]hy should it be assumed that a juror, merely because of employment by the Government, would be biased against the accused? In criminal prosecutions the Government is acting simply as the instrument of the public in enforcing penal laws for the protection of society. In that enforcement all citizens are interested.
Deierling, 406 N.W.2d at 794 (quoting United States v. Wood, 299 U.S. 123, 149, 57 S.Ct. 177, 186, 81 L.Ed. 78, 90 (1936)).