Opinion
No. 5-318 / 04-0754
Filed May 25, 2005
Appeal from the Iowa District Court for Tama County, David M. Remley, Judge.
Joshua Wages appeals from his conviction and sentence for second-degree sexual abuse, and child endangerment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Brent D. Heeren, County Attorney, and Richard Vandermey, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Joshua Wages appeals from his conviction and sentence for second-degree sexual abuse, and child endangerment. We now affirm.
I. Background Facts and Proceedings.
Joshua Wages was convicted of second-degree sexual abuse, and child endangerment for the infliction of injuries to a minor child then twenty-two months of age. At 12:35 a.m. on October 30, 2003, the child's mother placed an emergency 911 call to the Tama county dispatcher indicating that her child was bleeding. The dispatcher testified Wages could be heard in the background yelling "[d]on't tell them there's blood all over. They'll think we did it."
Tama police officer Joe Quant was the first to arrive at the defendant's residence. Officer Quant observed the child was bleeding from her vaginal area. As the officer questioned the child's mother, he also observed what he described as Wages' "very nervous" behavior. Officer John Carr, who also arrived at the scene, observed an unused diaper on the child's bed that appeared to have been placed under the child to contain the bleeding. A urine soaked diaper that contained no trace of blood was found under the child's bed.
Two blood and semen soaked tissues were discovered in the trash in the kitchen. Testing confirmed the child was the source of the blood. Although a conclusive DNA profile on the semen could not be developed, Wages was confirmed as a possible source. The child's treating physicians testified that their examination of the child ruled out an accidental or self-inflicted injury. In their opinion the injuries to the child's vaginal area were consistent with those caused by the partial penetration by a penis or finger, and that the injuries were "acute" — meaning they occurred within the twenty-four hours prior to the examination.
Linda Sawer of the Division of Criminal Investigations Laboratory testified there was a one in four thousand chance Wages contributed the semen sample tested.
The record reveals Wages and the child's mother had the previous night briefly taken the child to a party at a friend's home before returning home, and had last changed the child's diaper at approximately 10:00 p.m. No blood was found during that diaper change and the child appeared to be acting normally throughout the night. The child was never out of her mother's sight for any significant period of time during the night except when she left home shortly after midnight to go to a nearby supermarket. While she was away, she asked Wages to get the child ready for bed. Wages indicated to Officer Quant that he was the only person present in the residence while the child's mother was away. He also indicated that when he changed the child's diaper, he found blood and was about to leave to try and locate the child's mother, when she returned and placed the emergency call.
Wages waived his speedy trial rights and a jury trial began on March 22, 2004. Wages' made a generalized motion for acquittal that was denied by the district court. The jury returned verdicts of guilt on both the sexual abuse and child endangerment charges, for which Wages received consecutive indeterminate sentences of twenty-five years and five years respectively and fines. Wages now appeals contending insufficient evidence exists on the record from which a reasonable jury could find all the elements of the crimes alleged beyond a reasonable doubt. He further asserts he received ineffective assistance from trial counsel who failed to object to certain prejudicial hearsay testimony that denied him a fair trial.
II. Scope and Standard of Review.
We review the sufficiency of the evidence supporting Wages' convictions for correction of errors at law, and we will uphold the jury's verdict if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial where a rational jury could be convinced of the defendant's guilt beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). Evidence is not substantial, however, where it raises only suspicion, speculation or conjecture. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001). While direct and circumstantial evidence are equally probative of guilt, the evidence when viewed in totality must allow the fact-finder to draw "a fair inference of guilt as to each essential element of the crime." Id. (citations omitted). 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 State. Hopkins, 576 N.W.2d at 377.
When an appellant claims his Sixth Amendment right to the effective assistance of counsel has been violated, our review is de novo. Ledezma v. State, 626 N.W.2d. 134, 141 (Iowa 2001). Claims of ineffective assistance of counsel need not be raised on direct appeal in order to preserve the claim for post-conviction relief. Iowa Code § 814.7 (2005). However, where the appellant does raise the claim on direct appeal, and where the record is sufficient to fairly dispose of the claim, we will do so. State v. Ueding, 400 N.W.2d 550, 553 (Iowa 1987).
III. Discussion. A. Sufficiency of the Evidence.
Wages makes a generalized claim that the evidence presented by the State was insufficient to allow the jury to find him guilty of all elements of the crimes charged. We disagree. When the record as a whole is viewed in the light most favorable to the jury's verdict, we find all elements of the crimes alleged could be found by a reasonable jury beyond a reasonable doubt. Despite the State's inability to conclusively match the semen found together with the child's blood with the DNA sample obtained from Wages, we find overwhelming circumstantial evidence proving Wages in fact caused the injuries inflicted upon the child, and that those injuries were consistent with those inflicted during an act of sexual abuse. Iowa Code § 709.1 (2003). The evidence establishes the injury was committed sometime after 10:00 p.m. the previous evening, when the child's diaper was changed and no blood or injury was observed. A reasonable person could find on this record that the defendant was alone with the child during the only period of time during which the injuries could have occurred. Wages' nervous, "out of control" behavior during both the 911 call and Officer Quant's investigation is not inconsistent with guilt. Finding substantial evidence in support of the both guilty verdicts returned by the jury, we affirm Wages' convictions and sentence.
B. Ineffective Assistance of Counsel.
Wages claims his trial counsel provided ineffective assistance in failing to object to what he claims are inadmissible, highly prejudicial hearsay statements. It is now well settled that to prevail on this claim, Wages must prove both (1) counsel's performance deviated from the normal range of competency to which he was entitled; and (2) counsel's substandard performance resulted in such prejudice as to raise the reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d. 674, 693 (1984); Dunbar v. State, 515 N.W.2d. 12, 15 (Iowa 1994). A failure to prove prejudice, even in light of proven counsel error, will vitiate Wages' ineffective assistance claim.
Emergency room nurse Ronda Moore testified without objection that the child's mother had informed her that the child was in Wages' exclusive care during a portion of the evening. Wages contends he was prejudiced by trial counsel's breach of a duty to object to this evidence on hearsay grounds. The State counters that a hearsay objection would have been meritless because the child's mother made the statement to a medical professional who was obtaining a medical history essential to treatment of the injury. See Iowa R. Evid. 5.803(4); State v. Mann, 512 N.W.2d 528, 536 (Iowa 1994). Whether or not the evidence was a statement made for medical treatment or diagnosis, however, we conclude the admission of the evidence did not result in Strickland prejudice. The evidence in question was cumulative of Wages' own admission that he was alone with the child during the relevant period of time. See Iowa R. Evid. 5.801(d)(2)(A). Having found Wages cannot establish prejudice as a consequence of the admission of the hearsay evidence, we reject this portion of Wages' ineffective assistance claim.
Wages further contends his trial counsel was ineffective in failing to object to inadmissible hearsay testimony given by Officer Quant, who testified the child's mother told him Wages was the only person who could have inflicted the injuries upon the child. The State argues this hearsay statement would be admissible because it was offered to show why the police focused their attention on Wages. State v. Reynolds, 250 N.W.2d 434, 440 (Iowa 1977). Wages contends that regardless of what purpose the State claims for the introduction of the hearsay evidence, if the relevance of the statement depends entirely on the truth of the matter asserted, the hearsay is inadmissible. State v. Hollins, 397 N.W.2d 701, 706 (Iowa 1986); see also State v. Doughty, 359 N.W.2d 439, 441-42 (Iowa 1984) (holding that the proper way by which an officer is to explain subsequent actions taken is to indicate that "upon the information received" the action taken was believed appropriate).
We need not decide whether a duty existed on the part of trial counsel to object to the hearsay testimony by Officer Quant because we believe the evidence suggestive of Wages' guilt is so overwhelming that the jury's verdict did not depend on the introduction of the child's mother's belief as to who could have inflicted the injuries sustained by the child. Despite an arguable duty to object to Quant's testimony, Wages has failed to sustain his burden of proving a reasonable probability of a different result had counsel voiced and the district court sustained a hearsay objection. Dunbar, 515 N.W.2d. at 15.
Having found no prejudice resulted from trial counsel's failure to make hearsay objections to testimony recounting statements by the child's mother, we reject Wages' ineffective assistance claims and affirm his convictions.