Opinion
No. 6-091 / 05-1032
Filed March 29, 2006
Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin, Judge.
Defendant appeals his conviction for kidnapping in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Jon S. Jacobmeier, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
On August 13, 2004, Emily, a college student, was running on the Wabash Trail in Pottawattamie County. She noticed a man, later identified as Martin Dreher, in the middle of the trail. Emily decided to run past him, but he knocked her off the trail as she came by. Dreher grabbed her and started dragging her deeper into a wooded area beside the trail. He choked her with a black cord and she lost consciousness. When Emily came to, she was in a ditch about sixty feet from the trail. Dreher knocked her down, punched her in the face three times, and began sexually abusing her. Emily scratched Dreher in an attempt to get his DNA under her fingernails. Eventually, Dreher told Emily to turn over onto her abdomen, and he walked away.
Emily got back to the trail, encountering a barbed wire fence on the way. She approached two women, Julie Rens and Therese Sutton, who were walking on the trail and asked for help. The women called the police on a cell phone and helped Emily to a parking area. Rens and Sutton had noticed a strange man and a blue Geo Tracker near the trail that day. Others using the trail had noticed this man and the blue Geo Tracker. Police officers were able to trace the vehicle to Dreher.
When officers saw Dreher the next day, he had visible welts and scratches on his body. Emily's DNA was found on Dreher's right middle finger. Dreher's DNA was found on Emily's underwear, on four of her fingernail clippings, and on a rectal swab. The black cord was found in the ditch, and it contained DNA from both Emily and Dreher. Photographs of Emily demonstrated the trauma she had undergone. They showed her swollen face, abrasions, lacerations, bruises on her body, and a ligature mark from one side of her neck to the other, where the cord had been used to restrain her.
Dreher was charged with kidnapping in the first degree, in violation of Iowa Code sections 710.1 and 710.2 (2003). Dreher admitted he had sexually abused Emily, but argued that he had not confined or removed her to the extent that the crime would constitute kidnapping. A jury found Dreher guilty of first-degree kidnapping, and he was sentenced to prison for the remainder of his life. Dreher now appeals, claiming he received ineffective assistance of counsel.
II. Standard of Review
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel on direct appeal, a defendant must show as a matter of law (1) the attorney failed to perform an essential duty and (2) prejudice resulted. State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).
III. Ineffective Assistance
A. Testimony of Deputy Bennett
The crime of kidnapping occurs when "the person either confines a person or removes a person from one place to another, knowing that the person has neither the authority nor the consent of the other to do so. . . ." Iowa Code § 710.1. The supreme court has stated:
Although no minimum period of confinement or distance of removal is required for a conviction of kidnapping, the confinement or removal must definitely exceed that normally incidental to the commission of sexual abuse. Such confinement or removal must be more than slight, inconsequential, or an incident inherent in the crime of sexual abuse so that it has a significance independent from sexual abuse. Such confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detention, or significantly facilitates escape following the consummation of the offense.
State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981). See also State v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997) (noting confinement must exceed what is inherently incident in the underlying felony); State v. Davis, 584 N.W.2d 913, 916 (Iowa Ct. App. 1998) (same).
Dreher's defense was that there was no confinement or removal in this case beyond that inherently incidental to the underlying felony of sexual abuse. On this issue, deputy Leeland Bennett, of the Pottawattamie County Sheriff's Department, was questioned as follows:
Q. Now, how many years have you been a detective? A. I've been a detective for 16½ years.
Q. About — Do you know how many crime scenes you've done? A. Oh, I've done all kinds of crime scenes. Several. Multiple.
Q. Same thing with sexual assault crimes? A. Sex abuse cases.
Q. Sex abuse cases? Now, in your experience with your 16 years experience, when a rape victim's been taken from a public place to a secluded, does that lessen the chance of being seen? A. Oh, yes.
Q. Now, in your experience as an investigator, does it increase the chance that the victim will be hurt? A. Yes.
Q. And will increase the chance the defendant getting away, hoping an escape? A. Yes. Yes, it will.
DEFENSE COUNSEL: Objection; based on province of the jury.
THE COURT: Sustained. Jury is directed to disregard the last question and answer.
Dreher claims he received ineffective assistance because his trial counsel failed to object to the two questions immediately preceding the last one. He believes deputy Bennett improperly testified regarding his guilt or innocence.
Iowa Rule of Evidence 5.704 provides, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." On the other hand, a witness may not express an opinion on a defendant's guilt or innocence. State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994). "Thus, a witness cannot opine on a legal conclusion or whether the facts of the case meet a given legal standard." In re Detention of Palmer, 691 N.W.2d 413, 419 (Iowa 2005).
Testimony couched in terms of legal standards and conclusions is often inadmissible because it "`may be misunderstood by the witness and the jury if they do not know the law's definition of' the legal standards used." Id. (citations omitted). We consider "whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular." Id. at 420 (citations omitted). If there is a separate legal meaning, the testimony should be excluded; if not, then it is admissible. Id.
The first question in issue, "when a rape victim's been taken from a public place to a secluded, does that lessen the chance of being seen?", does not contain any terms that have a separate, distinct and specialized meaning in the law. The popular meaning of these words is the same as the legal meaning. See id. The same is true as to the second question, "does it increase the chance that the victim will be hurt?"
We conclude deputy Bennett did not give improper testimony regarding legal standards and conclusions. Deputy Bennett did not opine about Dreher's guilt or innocence, and he did not give testimony regarding whether the facts of this case met a specific legal standard. Defense counsel had no duty to object to these questions. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (noting that counsel is not ineffective for failing to pursue a meritless issue).
B. Testimony of Emily
During the trial, Emily gave the following testimony:
Q. Did he have your consent or authority to remove you from the trail? A. No.
. . .
Q. Did he have your consent or authority to confine you in that ditch? A. No.
Dreher also argues that Emily's testimony improperly contained legal conclusions because these questions contain the words "remove" and "confine." We again note that kidnapping occurs "when the person either confines a person or removes a person from one place to another, knowing that the person who confines or removes the other person has neither the authority nor the consent of the other to do so. . . ." Iowa Code § 710.1. Thus, in order to establish the crime of kidnapping, the State was required to prove that Emily was confined or removed without her consent or authority. The only person who could testify as to whether she had given her consent or authority was Emily, and we determine she was properly permitted to testify on this issue.
Furthermore, we determine the words "remove" and "confine" are used here in their ordinary, everyday meaning. "Remove" is defined as "to change or shift the location, position, station, or residence of (as in order to reestablish)." Webster's Third New International Dictionary 1921 (2002). "Confine" is defined as "to keep in narrow quarters: IMPRISON." Id. at 476. For legal purposes, the term "removal" is defined in Black's Law Dictionary 1322 (8th ed. 2004), as "[t]he transfer or moving of a person or thing from one location, position, or residence to another." The term "confinement" is defined as "[t]he act of imprisoning or restraining someone; the state of being imprisoned or restrained." Black's Law Dictionary at 318. Clearly, the words have no different meaning for legal purposes than they do in the vernacular. We conclude defense counsel had no obligation to object to Emily's testimony. See Hochmuth, 585 N.W.2d at 238.
We conclude Dreher has failed to show defense counsel did not perform an essential duty.
C. Prejudice
Even if defense counsel had breached an essential duty by failing to object to the testimony of deputy Bennett and Emily, we determine Dreher was not prejudiced. This requires Dreher to show that, absent counsel's alleged dereliction, the outcome would probably have been different. Taylor, 689 N.W.2d at 134. Viewed without reference to the challenged testimony, the record shows Dreher choked Emily with a cord until she lost consciousness. He dragged her about sixty feet through a wooded area and down into a ditch, where his actions would not be visible from the trail. There is substantial evidence Dreher's actions substantially increased the risk of harm to the victim, significantly lessened the risk of detection, or significantly facilitated his escape (or all three) following the commission of the offense of sexual abuse. See Griffin, 564 N.W.2d at 373. There is no reasonable probability the result would have changed had the testimony not have entered the record.
It is not clear from the record whether Dreher also dragged Emily to the other side of a barbed wire fence. Emily testified she had to go past a barbed wire fence to get back to the trail.
Furthermore, there was overwhelming evidence of the forcible, non-consensual nature of the incident. The testimony of Emily regarding her consent was superfluous.
We affirm Dreher's conviction for first-degree kidnapping.