Opinion
No. 2-996 / 02-0339.
Filed February 28, 2003.
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
Defendant appeals from his convictions, following jury trial, for one count of sexual abuse in the second degree and two counts of sexual abuse in the third degree. CONVICTIONS AFFIRMED; SENTENCE ON COUNT I VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Chris Alan Fevold appeals from his convictions, following jury trial, for one count of sexual abuse in the second degree and two counts of sexual abuse in the third degree. He contends (1) the court erred in applying Iowa Code section 902.12(3) (2001) to his sentence for sexual abuse in the second degree, (2) the court erred in overruling his objection to his improper cross-examination by the State, and (3) his counsel was ineffective for failing to object to inadmissible hearsay testimony. We affirm the convictions, vacate the sentence for sexual abuse in the second degree and remand for resentencing on that conviction, and preserve the claim of ineffective assistance for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS
Chris Alan Fevold married K.D.'s mother in 1993 when K.D. was five years old. He and K.D.'s mother subsequently had two sons together. On June 21, 2001 K.D.'s mother received a telephone call from J.T., one of K.D.'s friends. J.T. told K.D.'s mother that Fevold had been sexually abusing K.D. for years and had also touched J.T. inappropriately. K.D.'s mother then moved out of the home with the children and contacted the police.
At trial, Fevold admitted sexually abusing both K.D. and J.T. He testified that his involvement with K.D. began when she was almost eleven years old, or the end of her fourth grade year, with inappropriate kissing. He testified that his actions toward K.D. progressed over time to the point where he attempted to have sex with K.D. in the spring of 2001. Fevold testified that his activities eventually would have progressed to sexual intercourse. Fevold also admitted on cross-examination that he had fondled J.T. on two separate occasions.
K.D. told a child protective assessment worker she was in the second or third grade at about eight or nine years of age when Fevold's abuse started in the form of touching her chest and fondling her. K.D. stated the contact became worse as she got older, and when she was in the seventh grade Fevold was inserting his finger in her vagina. She testified he had touched her in her "crotch area" both on top of her clothes and under her clothes when she was in the fourth grade and subsequently, and although she wasn't sure it had occurred in the third grade it had gone on pretty much as long as she could remember. K.D.'s grandfather testified that when he confronted Fevold about the "terrible things" he had done to K.D. Fevold admitted he had done them, that it had been going on for a long time, that he couldn't help himself, and that he had also done it to K.D.'s friend.
On July 30, 2001, the State charged Fevold with one count of sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3 (2001) (Count I) for engaging in sex acts with K.D. It also charged him with two counts of sexual abuse in the third degree, in violation of sections 709.1 and 709.4 for engaging in a sex acts with K.D. (Count II) and J.T. (Count III). A jury found Fevold guilty on all counts.
The separate charges stem from the fact it was alleged the abuse of K.D. began before she was age twelve and continued on when she was twelve and thirteen. A person commits sexual abuse in the second degree when the other person is under the age of twelve, and commits sexual abuse in the third degree when the other person is twelve or thirteen years of age. See Iowa Code §§ 709.3(2), 709.4(2)(b).
The district court sentenced Fevold to be imprisoned for a term not to exceed twenty-five years on Count I (second-degree sexual abuse) and for a period not to exceed ten years each on Counts II and III (third-degree sexual abuse). The court ordered the sentences for Counts I and II to be served concurrently and the sentence for Count III to be served consecutively to the sentences for Counts I and II. Prior to sentencing Fevold filed an objection to the application of section 902.12 to Count I in imposing sentence, claiming its application would be in violation of the Ex Post Facto Clauses of the state and federal constitutions. The court denied Fevold's motion and applied section 902.12 (the 85% rule) to his sentence on Count I.
Fevold appeals, contending the trial court erred in overruling his objection to the application of section 902.12 and in overruling his objection to improper questions by the State during his cross-examination. He further alleges his trial counsel was ineffective for failing to object to improper hearsay testimony. We will address these issues separately.
II. SCOPE OF REVIEW
Because Fevold's challenge to the court's sentencing determination regarding the applicability of section 902.12 raises a constitutional question, our review is de novo. State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000). Our review of claims of ineffective assistance of counsel is also de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Whether the examination of a witness has exceeded the proper scope of cross-examination is a matter of sound trial court discretion. State v. Freie, 335 N.W.2d 169, 172 (Iowa 1983). We will reverse only for an abuse of discretion, and then only if it appears prejudice resulted. Id.
III. MERITS A. Application of Section 902.12.
Iowa Code section 902.12 went into effect on July 1, 1996. Section 902.12 requires that defendants convicted of certain forcible felonies, including sexual abuse in the second degree, serve 100% of the maximum sentence, except as otherwise provided in section 903A.2. Iowa Code § 902.12(3). Section 903A.2 allows felons convicted of a section 902.12 offense to reduce their sentences by no more than 15% for good conduct. Iowa Code § 903A.2(1)( b); State v. Iowa Dist. Court, 616 N.W.2d 575, 577 (Iowa 2000). These statutes in combination require persons convicted of the specified forcible felonies to serve 85% of their sentence before they are eligible for parole or work release. Iowa Dist. Court, 616 N.W.2d at 577. These provisions are commonly known as the 85% rule.
See Iowa Const. art. III; Iowa Code § 3.7(1) (1995); 1996 Iowa Acts ch. 1151, § 3.
The trial information charged Fevold with committing sexual abuse in the second degree by engaging in a sex act with K.D. between November 5, 1995 and November 4, 1999. Jury Instruction No. 15 instructed that the jury could find Fevold guilty of sexual abuse in the second degree if the State had proved he performed a sex act with K.D. between November 5, 1995 and November 4, 1999 and that he performed the sex act while K.D. was under twelve years of age. The jury found Fevold guilty of sexual abuse in the second degree. At no time was the jury asked to complete a special interrogatory specifying or limiting the dates when the acts it was relying upon for conviction occurred.
K.D. turned twelve on November 5, 1999.
Prior to sentencing, Fevold filed an "Objection to Imposition of Sentence Under 902.12." He argued that the imposition of the eighty-five percent mandatory minimum sentence required by 902.12(3) would violate the Ex Post Facto Clauses of the federal and state constitutions because the jury could have found he committed the offense prior to the July 1, 1996 effective date of section 902.12.
Prior to July 1, 1996 there was no section 902.12 or a mandatory minimum sentence for a conviction of sexual abuse in the second degree such as is found in that section. See Iowa Code § 709.3 (1995); Iowa Code ch. 902 (1995); 1996 Iowa Acts ch. 1151, § 3.
On February 15, 2002 the court heard argument on Fevold's objection prior to sentencing. At the hearing the district court found it could be assumed that, because there was no interrogatory submitted to the jurors asking them to find when the acts upon which they based their verdict on Count I occurred, the jurors may have concluded that Fevold committed the sexual abuse prior to the effective date of section 902.12. The court overruled Fevold's motion, however, concluding that section 902.12 did not make the punishment for the offense more severe than it was prior to the effective date of the statute, but rather merely affected Fevold's eligibility for parole. The court stated it did "not view Section 902.12 as enhancing the punishment for the offense but rather merely regulating the actions of the parole board and the circumstances under which the defendant would be eligible for parole. . . ." The sentencing court applied the mandatory minimum requirement under section 902.12 to Fevold's indeterminate twenty-five year sentence on the second-degree sexual abuse conviction (Count I).
Our supreme court had previously determined, contrary to the district court's view, that sections 902.12 and 903A.2 in fact operate as a mandatory minimum sentence rather than a restriction on the power of the parole board. Iowa Dist. Ct., 616 N.W.2d at 579. Accordingly, it is the trial court's obligation to determine the statutes' applicability to a particular defendant, in part because "the factual predicate for application of these statutes — the commission of one of the specified forcible felonies — is necessarily adjudicated in the criminal proceeding." Id.
We agree with the district court that because the jury did not determine when any sex act upon which it based its determination of guilt under Count I occurred we must presume the jurors may have concluded Fevold committed any such act prior to the effective date of section 902.12. See State v. Pilcher, 242 N.W.2d 348, 355-56 (Iowa 1976) (holding conviction must be reversed where general nature of verdict did not specify which sodomy alternative the conviction rested on and one of the alternatives was unconstitutional).
Both the United States and the Iowa Constitutions protect defendants from ex post facto legislation. U.S. Const. art. 1, § 10; Iowa Const. art. 1, § 21. "`[L]aws that impose punishment for an act that was not punishable when committed or that increase the quantum of punishment provided for the crime when it was committed' are forbidden by the Ex Post Facto Clause." State v. Flam, 587 N.W.2d 767, 768 (Iowa 1998) (quoting State v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997)); see also Corwin, 616 N.W.2d at 601 (stating Federal and state Ex Post Facto Clauses forbid application of a new punitive measure to conduct already committed).
The ex post facto clause . . . forbids application of a new punitive measure to conduct already consummated where it operates to the detriment or material disadvantage of the accused. . . . It is also ex post facto if it increases the malignity of or possible penalty for past conduct which was criminal when it occurred.State v. Smith, 291 N.W.2d 25, 28 (Iowa 1980) (quoting State v. Quanrude, 227 N.W.2d 467, 469-70 (Iowa 1974)).
Prior to July 1, 1996, one convicted of sexual abuse in the second degree was not subject to the mandatory minimum sentence thereafter required by sections 902.12 and 903A.2. Here, the court's application of the 85% rule "operates to defendant's `detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the [prior law].'" Smith, 291 N.W.2d at 29 (quoting Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182, 1186 (1937)). The court's application of the 85% rule to Count I effectively changed the applicable sentencing range and lengthened the time Fevold was required to spend in prison.
Based on the general nature of the jury's verdict, application of the 85% rule to Count I is an unconstitutional increase in the malignity of or possible penalty for past conduct which was criminal when it occurred, in violation of the Ex Post Facto Clause. Smith, 291 N.W.2d at 29. Accordingly, we find the district court erred in overruling Fevold's motion and in applying the 85% rule to Fevold's second-degree sexual abuse conviction. Application of the statute was a violation of Fevold's constitutional protection against ex post facto laws. Fevold's sentence on Count I must be vacated and the case remanded for resentencing on this count without application of the 85% rule.
B. Scope of Cross-Examination.
Fevold next argues the trial court erred in overruling his objection to the State's cross-examination of him as beyond the scope of his direct examination. Fevold testified on direct examination about his abuse of K.D. He did not testify about any of his actions toward or relationship with J.T. The State began its cross-examination of Fevold by asking if he had fondled J.T. when she was spending the night at his house. Defense counsel objected to the question as outside the scope of direct examination under Iowa Rule of Criminal Procedure 2.20(1). The objection was overruled by the court and the State continued to question Fevold about his involvement with J.T. The court later stated on the record its reason for overruling the objection.
The court believed that the tone and inferences that could have been drawn from the testimony of the defendant included reasons for the contact and it was fair for the state to get into whether there was contact with another individual as it related to this entire issue.
Mr. Brown is correct that that particular incident with [J.T.] was not asked by him during the direct examination, but that's the reason for the court's ruling.
Cross-examination by the State of the accused in a criminal case is strictly confined to the matters testified to on direct examination. Iowa R.Crim.P. 2.20(1). Cross-examination may, however, "deal with matters inquired into on direct, and questions fairly within the area of those matters constitute proper cross-examination." State v. Holmes, 325 N.W.2d 114, 117 (Iowa 1982). Generally speaking, "when the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts which constitute a unity, or to the specific facts developed by the direct examination." State v. Damme, 522 N.W.2d 321, 325 (Iowa Ct.App. 1994). "It is proper for a defendant to be subjected, during cross-examination by the State, to questions covering an area in which he has been interrogated by his own counsel on direct examination." Gibb v. Hansen, 286 N.W.2d 180, 186 (Iowa 1979) (citing State v. Jackson, 195 N.W.2d 687, 691 (Iowa 1972)).
We note Damme deals with cross-examination of a witness other than the defendant himself. It nevertheless correctly states the principle that cross-examination is not limited to specific facts about which inquiry was made on direct examination, but rather extends to any phase of the general subject(s) of direct examination.
We believe the cross-examination was arguably within the area of the matters inquired into on direct examination, which included the history, scope and extent of Fevold's sexual deviancy, and any reasons for being attracted to females such as his young stepdaughter. The district court could arguably conclude that whether Fevold had inappropriate sexual contact with another minor female dealt with matters inquired into on direct, his asserted reason for being sexually attracted to his stepdaughter. If so, the trial court did not abuse its discretion in overruling Fevold's objection to the scope of his cross-examination.
More importantly, however, we will reverse a trial court's ruling on the proper scope of cross-examination only if it appears that prejudice resulted, Freie, 335 N.W.2d at 172, and we can find no such prejudice here. No prejudice arises from admission of evidence when substantially the same evidence is elsewhere in the record without objection. State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989); State v. Hood, 346 N.W.2d 481, 484 (Iowa 1984). Evidence of Fevold's sexual contact with J.T. was in the record through the testimony of J.T. herself as well K.D.'s grandfather, who testified that Fevold admitted to him he had sexual contact with one of K.D.'s friends. Accordingly, the record elsewhere contains substantially the same evidence as contained in Fevold's cross-examination and thus we find he was not prejudiced by the admission of his testimony in question.
C. Ineffective Assistance.
Finally, Fevold argues his trial counsel was ineffective for failing to object to hearsay testimony by K.D.'s mother regarding statements made to her by K.D.'s school counselor. K.D.'s mother testified she had a discussion with the school counselor during which the counselor told her she remembered showing K.D. the video about which K.D. testified, having to do with "good and bad touches," when K.D. was in fourth grade and that K.D. had approached the counselor about it. Fevold argues this was inadmissible hearsay under Iowa Rule of Evidence 5.801( c) and was offered to bolster and corroborate K.D.'s testimony regarding the video and thus the time frame of the abuse.
The inference apparently described by the State was that K.D., ten years of age at the time of the video was shown, had already been subjected to sexual abuse by Fevold. Fevold in his testimony insisted that his sexual abuse of K.D. had not occurred until K.D. became twelve years of age.
Ordinarily, we prefer to leave ineffective assistance of counsel claims for postconviction relief proceedings. Hischke, 639 N.W.2d at 8. We do so to allow a record on the performance of trial counsel to be developed, Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999), and give the allegedly ineffective attorney the opportunity to defend the charge. State v. Pearson, 547 N.W.2d 236, 241-42 (Iowa Ct.App. 1996). We conclude the record in this case is insufficient for us to address Fevold's claim on direct appeal. We preserve this claim for a possible postconviction relief proceeding.
IV. CONCLUSION
For all of the reasons set forth above, we conclude the trial court erred in applying the 85% rule, pursuant to Iowa Code sections 902.12 and 903A.2, to Fevold's sentence for sexual abuse in the second degree. Based on the general nature of the jury's verdict we must presume the jury could have found Fevold guilty based on an act or acts which occurred prior to July 1, 1996, the effective date of section 902.12. Accordingly, the application of this statute to the defendant, under this record, violates the Ex Post Facto Clauses of the state and federal constitutions. We conclude Fevold was not prejudiced by the trial court overruling Fevold's objection that his cross-examination exceeded the scope of direct examination, as substantially the same evidence was in the record from the testimony of two other witnesses without objection. Finally, we find the record is insufficient to allow us to address Fevold's claim of ineffective assistance on direct appeal and we thus preserve the claim for a possible postconviction proceeding.
We affirm the convictions, vacate the sentence on Count I, remand for resentencing on Count I consistent with this opinion, and preserve Fevold's claim of ineffective assistance.