Opinion
No. 1-1040 / 01-0256.
Filed May 15, 2002.
Appeal from the Iowa District Court for Black Hawk County, STEPHEN C. CLARKE, Judge.
Dustin McCully appeals the district court's judgment and sentence, following a jury trial, for second-degree sexual abuse in violation of Iowa Code section 709.3 (1999). AFFIRMED.
Jane Rosien, Winterset, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Dustin McCully appeals the district court's judgment and sentence, following a jury trial, for second-degree sexual abuse in violation of Iowa Code section 709.3 (1999). On appeal, he contends the district court erred in (1) failing to grant his motion for judgment of acquittal, (2) denying his motion for new trial, (3) granting the State's motion to amend trial information, and (4) excluding certain evidence regarding the victim's exposure to sexually explicit materials. McCully further alleges his trial counsel was ineffective in a number of respects. We affirm.
I. FACTUAL BACKGROUND AND PROCEEDINGS.
L.M., born September 3, 1989, is the daughter of Joe McCully and Dee Patterson. Since April 1995, she has resided with Darrell and Paula McCully, her paternal grandparents. On occasion, she spent the night at the mobile home of her uncle, Dustin McCully, in Cedar Falls.
In August 2000, L.M. informed her grandmother that McCully had licked her vagina on several occasions, both at her grandparents' residence and at McCully's mobile home. On August 11, 2000, L.M. informed authorities McCully had sexually assaulted her on five or six occasions by licking her vagina. While staying at his home, L.M. stated McCully would come into the bedroom, pull down her underwear, and lick her vagina for approximately five minutes. L.M. further described an incident at her grandparents' house during a family gathering. L.M. stated she went upstairs to retrieve a toy, McCully followed her upstairs, pulled down her shorts, and licked her vagina. L.M. repeated her accusations in a videotaped interview with a social worker from the Department of Human Services (DHS).
On August 28, 2000, McCully was charged with two counts of second-degree sexual abuse, the first count alleging assaults which occurred at L.M.'s grandparents' residence, and the second count alleging assaults which occurred at McCully's trailer. At trial, L.M. testified consistently with her previous statements. The jury found McCully not guilty on count I and guilty as charged on count II.
II. SUFFICIENCY OF the EVIDENCE.
McCully contends the district court erred in failing to grant his motion for judgment of acquittal because there was insufficient evidence to support the jury verdict. We review challenges to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. Substantial evidence is evidence upon which a rational trier of fact could find a defendant guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State, but consider all of the evidence, not just the evidence that supports the verdict. State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). Circumstantial and direct evidence are equally probative. State v. Boley, 456 N.W.2d 674, 679 (Iowa 1990).
In particular, McCully argues L.M.'s testimony lacked sufficient certainty and specificity to constitute guilt beyond a reasonable doubt, citing State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993). In Smith, our court reversed the defendant's convictions for sexual abuse and assault of his three minor stepdaughters because of insufficient evidence. Id. at 105. The court disregarded the testimony of the three girls, finding:
In the present case the only evidence against appellant is the statements and testimony of the three girls. When read separately or together, the accounts of alleged abuse are inconsistent, self-contradictory, lacking in experiential detail, and, at times, border on the absurd.Id. at 103.
We find the case at hand distinguishable from Smith. L.M.'s statements and testimony regarding count II were detailed, consistent, and not self-contradictory. L.M. testified McCully had licked her vagina on five occasions while she was staying overnight at this residence. She testified McCully would enter the bedroom where she was sleeping on the floor, remove her underpants, and lick her vagina for approximately four to five minutes. This testimony was consistent with her previous statements to her grandmother, police, and the DHS. Based on L.M.'s testimony, a jury could reasonably conclude McCully sexually assaulted L.M. while she was staying in his trailer. Accordingly, we conclude McCully's conviction is supported by substantial evidence and affirm.
III. Motion for New Trial.
McCully argues the district court erred by failing to grant his motion for new trial for the following reasons: (1) the jury reached an inconsistent verdict and (2) the verdict was contrary to the weight of the evidence. The review of a motion for new trial is for corrections of error at law. Iowa R. App. P. 6.4. The district court has broad, but not unlimited discretion in ruling on new trial requests, and its decision will be reversed only for a demonstrated abuse of discretion. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct. App. 2001). The district court must apply the "weight of the evidence" test in its ruling on motions for new trial. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).
A. Inconsistent Jury Verdict.
McCully argues he is entitled to a new trial because the jury reached an inconsistent verdict. In particular, McCully contends the jurors could not reasonably find him guilty on one charge and not guilty on the other because both charges depended on the credibility of L.M.'s testimony. Moreover, he contends the verdicts were the result of a jury compromise due to inclement weather conditions.
A criminal defendant cannot "challenge a conviction on one count of a multiple count indictment solely because it may be inconsistent with an acquittal by the jury on another count." State v. Hernandez, 538 N.W.2d 884, 889 (Iowa Ct. App. 1995) (citations omitted). "Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." Id. (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358-59 (1932)). Furthermore, we do not find evidence in the record to suggest the jury reached a compromise because of the weather. We conclude the district court did not abuse its discretion by denying McCully's motion for new trial on this ground.
B. Contrary to the Weight of the Evidence.
McCully next contends the verdict was against the weight of the evidence presented at trial. We disagree. We find the district court did not abuse its discretion by determining the greater weight of the credible evidence supports McCully's conviction. L.M. testified McCully entered the bedroom, removed her underpants, and licked her vagina for approximately four to five minutes. She testified this happened on five occasions while she was staying overnight at McCully's residence. Moreover, her testimony was consistent with her previous statements. We affirm the district court on this issue.
IV. Amendment of Trial Information.
McCully argues the district court erred in granting the State's amendment to the trial information. At the close of the State's case, the prosecutor moved to amend the trial information to charge that the assaults occurred after April 15, 1997 and before August 5, 2000, in conformity with L.M.'s testimony at trial. McCully contends he was prejudiced by the amendment because it required his defense to cover a longer time period than required in the original trial information. He further alleges the timing of the amendment caused him prejudice.
The original trial information alleged the offense occurred between August 5, 1999 and August 5, 2000.
Iowa Rule of Criminal Procedure 2.4(8) governs amendments to trial information. Our supreme court has interpreted rule 2.4(8)(a) to require a two-part test:
A trial information, like an indictment, may be amended to correct errors or omissions of form or substance, so long as a two-pronged test is satisfied: (1) substantial rights of the defendant are not prejudiced thereby, and (2) a wholly new or different offense is not charged.State v. Berney, 378 N.W.2d 915, 919 (Iowa 1985).
We conclude the district court properly allowed the State to amend the trial information to conform to the evidence. McCully was not charged with a wholly new or different offense, nor can he demonstrate the requisite prejudice. The State correctly notes McCully did not assert an alibi or similar defense which depended on proof that he could not have committed the alleged assaults on specific dates or within a specific period of time. Furthermore, we are not persuaded the timing of the amendment prejudiced his defense. Accordingly, we affirm on this issue.
V. Exclusion of Testimony regarding Exposure to Sexually explicit Materials.
Prior to trial, McCully filed a notice of intent to present evidence L.M. had been exposed to materials depicting sexually explicit acts. In particular, McCully sought to offer evidence that Paula McCully, L.M.'s grandmother, had discovered L.M.'s sibling and one of the defendant's children engaging in inappropriate sexual behavior. The sibling informed Paula that all of the children, including L.M., had been playing with a deck of cards which depicted acts of oral sex. McCully also sought to offer evidence that L.M.'s mother, Dee Patterson, worked in an adult bookstore and that her boyfriend had been convicted of two counts of indecent exposure. McCully argued this evidence tended to show L.M. could have acquired her knowledge regarding sexual behavior from a source other than the acts allegedly committed by McCully.
The district court ruled Paula's testimony concerning L.M.'s alleged exposure to sexually explicit playing cards constituted inadmissible hearsay because Paula did not have personal knowledge L.M. had ever seen the cards. However, the court agreed to allow a formal offer of proof at the time Paula testified. The court ruled the evidence regarding Patterson's boyfriend as irrelevant and more confusing than probative.
In a mid-trial offer of proof, Paula testified that about five years ago she had found L.M.'s sister, Traci, and McCully's son with their pants down. According to Paula, Traci told her that they were "licking crotches" and that "we saw it on some cards at mommy's house." When asked, Patterson informed Paula that she owned such cards. Paula further testified that Patterson worked in an adult bookstore from 1994 or 1995 to 1997, and that L.M. had regular visitation with Patterson and her boyfriend, who had been convicted of indecent exposure. The court ruled it was "not inclined to go there . . . without some substantial showing and there has been none at this point." McCully next sought to call Patterson as a witness, who was not listed or deposed prior to trial. The court refused to allow her testimony, characterizing counsel's offer of proof as an attempt to conduct discovery.
A. Paula McCully's Testimony.
McCully contends the district court erred in excluding Paula McCully's proferred testimony that, about five years before the trial, she found McCully's son and L.M.'s sister with their pants down, that L.M.'s sister said they were "licking crotches," and that "we saw the cards at mommy's house." The standard of review for evidentiary matters is for correction of errors of law. Iowa R. App. P. 6.4. On appellate review of evidentiary rulings, the district court is granted wide latitude regarding admissibility and its ruling will be disturbed only upon a finding of an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998).
We find the district court did not abuse its discretion in excluding Paula's testimony. We are not persuaded that L.M.'s sister's general statement that "we saw the cards" necessarily includes L.M. Absent a showing that L.M. had personally seen the sexually explicit playing cards, the testimony was not relevant to her prior knowledge of sexual matters. See Iowa R. Evid. 5.402 ("Evidence which is not relevant is not admissible."). Furthermore, we conclude Paula's testimony constituted inadmissible hearsay. See Iowa. R. Evid. 5.801(c) ("Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). Accordingly, we affirm on this issue.
B. Dee Patterson's Offer of Proof.
McCully argues the district court erred in refusing to allow him to complete his offer of proof by presenting Patterson's testimony concerning "the playing cards, their location in her home, the access to them by the children and other related issues." We disagree. We can find no evidence in the record to suggest Patterson would have testified L.M. had seen the playing cards. Trial counsel did not list Patterson as a witness or depose her prior to trial. We conclude the court acted within its discretion in refusing to allow McCully to conduct belated discovery on this issue. See Iowa R. Crim. P. 2.14(6) ("the court may limit or deny discovery . . . if the court determines . . . that the motion is intended only as a fishing expedition").
VI. INEFFECTIVE ASSISTANCE OF COUNSEL.
McCully makes several claims of ineffective assistance of counsel. He asserts his trial counsel was ineffective in failing to: (1) present an expert witness to testify about the dynamics of sexual abuse allegations and motive for false allegations, (2) produce evidence regarding the victim's past counseling and psychiatric issues which impact her credibility and motive, (3) pass along to McCully inquiries by the prosecuting attorney during and throughout the trial about various plea agreements, (4) call witnesses to testify regarding McCully's character and truthfulness, (5) produce testimony from L.M.'s sisters and mother, and (6) request a continuance after the trial court granted the State's amendment to the trial information.
Because an ineffective assistance of counsel claim implicates constitutional rights, our scope of review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). A defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (citation omitted). We find the record before us is insufficient to decide them, and therefore preserve them for possible postconviction relief proceedings. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
AFFIRMED.
MAHAN, P.J., concurs; MILLER, J., concurs in part, dissents in part.
McCully's six claims of ineffective assistance of counsel contain no more information than the mere assertions of the claims as set forth in the majority opinion. The first claim does not suggest what the expert testimony would have been. The second does not indicate what evidence exists. The third does not state what the inquiries by the prosecuting attorney were. The fourth and fifth do not indicate what testimony would have been presented. The sixth does not suggest what purpose would have been served by a continuance. In addition, none of the six claims suggests how different action by counsel would have affected the result below. McCully's claims are thus too general in nature to allow us to preserve them for a possible postconviction proceeding. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (holding that claims of ineffective assistance of counsel are too general to allow preservation for a postconviction proceeding where the claims do not suggest what the result of different action by counsel would have been or how such different action would have affected the result obtained below). I therefore respectfully dissent from the majority's preservation of the claims of ineffective assistance. In all other respects I fully concur in the majority opinion and the result.