Opinion
No. 3-533 / 02-1681
Filed November 17, 2003
Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell, Judge.
Duane Yates appeals from his conviction, following jury trial, for sexual abuse in the second degree in violation of Iowa Code section 709.3(2) (2001). AFFIRMED.
J. Keith Rigg, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Terry Ganzel, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Duane Yates appeals from his conviction, following jury trial, for sexual abuse in the second degree in violation of Iowa Code section 709.3(2) (2001). He contends his trial counsel was ineffective for failing to conduct any meaningful cross-examination of the alleged victim and for failing to request a mistrial or to strike testimony after the court granted judgment of acquittal on the other counts charged. He further argues the trial court committed error in allowing the State to use a prior criminal conviction to attempt to impeach him. We affirm the conviction and preserve the specified claims of ineffective assistance for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS.
Duane and Martha Yates were married from November 1999 to April 2001. Martha's daughter, Amanda, often visited Duane and Martha at their home with her two sons, J.R. and A.D. The boys would often spend the night at the Yates' home and J.R. even resided with them for a period of time. This case arose from allegations by A.D. and J.R. that Duane Yates (Yates) had "molested" them. A.D. was eleven years old at the time of trial and J.R. was thirteen.
The State initially filed a trial information charging Yates with three counts of sexual abuse in the second degree and one count of lascivious acts with a child concerning A.D., and two counts of lascivious acts with a child concerning J.R. The State later amended the trial information to charge one count of sexual abuse in the second degree in violation of Iowa Code sections 709.1 and 709.3(2) concerning A.D. (Count I), one count of lascivious acts with a child in violation of section 709.8 concerning A.D. (Count II), and one count of lascivious acts with a child in violation of section 709.8 concerning J.R. (Count III). Each count alleged Yates had a prior conviction for a sexually predatory offense and sought sentencing enhancement pursuant to sections 901A.1(1)(a), 901A.1(2), and 901A.2(3).
Prior to trial Yates filed a motion in limine concerning his conviction in November of 1992 for sexual abuse in the third degree. The court ruled that the State was not to mention the previous conviction in its case in chief, but reserved ruling as to whether such conviction could be inquired into under Iowa Rule of Evidence 5.609 for impeachment purposes until after any direct testimony by Yates.
At the close of the State's case in chief Yates moved for a judgment of acquittal. The trial court granted the motion as to the two counts of lascivious acts with a child (Counts II and III) and denied it as to the sexual abuse charge (Count I).
During presentation of the defense Yates called Maurice Rawe, the chief deputy city attorney for the city of Sioux City, as a character witness. Rawe testified that in his opinion Yates was a truthful person, and that Yates had a reputation of being a truthful person. During cross-examination the State requested that it be allowed to question Rawe about his knowledge of Yates's prior conviction. The court made a detailed ruling on the record. It noted that Yates had presented evidence of his character for truthfulness despite the fact his character for truthfulness had not been attacked, a violation of Iowa Rule of Evidence 608. It nevertheless denied the State's request and sustained Yates's objection to any such inquiry by the State at that time.
Yates later testified on his own behalf. He testified that both Martha and Amanda worked for his company and had misappropriated funds from his business. He further testified that he had "sued and won" monetary damages from Amanda and Martha for their misappropriation of funds. He also stated that his divorce from Martha was acrimonious and there were several legal proceedings pending between the two, including a child in need of assistance proceeding and a contempt charge against Martha for failing to comply with the divorce decree. After Yates's direct testimony the State requested that the court allow it to cross-examine Yates about his prior felony conviction for impeachment purposes.
After another detailed analysis of the issue on the record, the court found that the probative value of admitting evidence of the conviction did not outweigh its prejudicial effect if the jury was allowed to know what the conviction was for. However, the court reasoned further that it was not right that this defendant take the stand and appear as a well-respected citizen in this community who is vouched for by the city attorney, got all these business dealings and got an insurance man on the stand for him and making a lot of critical statements about his former wife and making statements enhancing his credibility about how he got a judgment over in federal court against somebody. I just think that it's probably necessary for this jury, if they're going to truly, correctly and, hopefully, in the best manner evaluate [Yates's] credibility that they do know that he's got a felony conviction.
The court therefore allowed the prosecutor to ask Yates whether he had a prior felony conviction, but prohibited the State from presenting evidence of what the conviction was for. The State asked Yates whether he had been convicted of a felony. He answered, "Yes." Neither the State nor Yates presented any evidence as to the nature of the conviction or when it had occurred.
The jury found Yates guilty of sexual abuse in the second degree against A.D. The court sentenced Yates to a term of imprisonment required by law.
Yates appeals his conviction contending his trial counsel was ineffective for failing to conduct any meaningful cross-examination of A.D. and for failing to request a mistrial or to strike the testimony of J.R. after the court granted his motion for judgment of acquittal on the lascivious acts counts. He further argues the trial court committed error in allowing the State to use a prior criminal conviction to impeach him.
II. MERITS.
A. Admissibility of Evidence of Prior Conviction.
We generally review the trial court's rulings on the admissibility of evidence for abuse of discretion. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997). Reversal is warranted only upon a showing that the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. Trial courts are given considerable discretion in most evidentiary rulings. State v. Daly, 623 N.W.2d 799, 802 (Iowa 2001).
Iowa Rule of Evidence 5.609 covers impeachment of a witness by evidence of a prior conviction. The rule provides in relevant part that for purposes of attacking the credibility of the accused, evidence the accused has been convicted of a crime punishable by death or imprisonment in excess of one year pursuant to the law under which he or she was convicted "shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Iowa R.Evid. 5.609( a)(1). In determining whether the probative value of evidence of a prior conviction outweighs its prejudicial effect, the trial court should consider such factors as: (1) the nature of the conviction; (2) the conviction's bearing on veracity; (3) the age of the conviction; and (4) its tendency to improperly influence the jury. Daly, 623 N.W.2d at 802; Axiotis, 569 N.W.2d at 816.
The rule further provides that evidence any witness has been convicted of a crime shall be admitted if the crime involved dishonesty or false statement, regardless of the punishment. However, the prior conviction here is not such a crime and thus this portion of the rule is irrelevant for purposes of this appeal. Furthermore, there is no dispute that Yates's prior conviction was a felony offense and thus is a type of conviction admissible under the rule.
Yates contends on appeal that the court abused its discretion in allowing the State to impeach him through the use of his prior felony conviction. He argues that by admitting the evidence of his prior felony conviction but not specifying what the conviction was for, the court circumvented the test for admissibility set forth in rule 5.609 and allowed the jury to speculate as to the nature of the conviction. Thus, Yates asserts the probative value of such evidence was not outweighed by its prejudicial effect.
Rule 5.609 does not explicitly prohibit or condone what has been called the "unspecified felony" approach used by the trial court here. See State v. Dickson, 329 N.W.2d 630, 633 (S.D. 1983). Yates asserts in his brief: "The evidence in this case was solely a matter of credibility between the victim and [Yates]." Yates presented witnesses who testified to his good character generally and to his character for truthfulness specifically. He attempted both to bolster his own credibility and to discredit his former wife and the victim's mother by attributing to them a motive to make false accusations against him. Yates's defense relied heavily on evidence of his good character, including character for truthfulness.
Accordingly, under the particular and specific facts and circumstances of the case at hand we agree with the trial judge that it was important for the jury to know Yates had been convicted of a felony in order to produce a fair and fully informed verdict. "The jury was entitled to know about defendant's felony conviction in judging his credibility. . . ." State v. Bucklin, 304 N.W.2d 452, 454 (Iowa Ct.App. 1981). In addition, the information regarding the prior conviction was supplied in a very brief and non-inflammatory fashion so as to decrease the likelihood of any potentially prejudicial effect to Yates. See id.
Furthermore, we find no abuse of discretion in the court's solution to the quandary presented by the particular and specific facts and circumstances of a case such as this where the defendant relies so heavily on evidence of his good character but in fact has been convicted of a prior felony. This "unspecified felony" approach allows the defendant to avoid the undesirable and prejudicial effects, noted in Daly, 623 N.W.2d at 802, of allowing evidence of a prior conviction for the same type of crime, and yet also avoids misleading the jury regarding significant facts pertaining to the defendant's character. See Dickson, 329 N.W.2d at 633-34.
Yates argues the trial court's solution allows the jury to speculate as to the nature of his prior conviction. However, the trial court's ruling precluded only the State, and not Yates, from presenting evidence of the nature of the conviction, its age, the fact it did not involve dishonesty or false statement, or any combination of these matters. See id. at 634 (noting, in approving of trial court action such as that in this case, that the trial court's ruling did not preclude the defendant from testifying as to the nature of his prior conviction). Yates was able to avoid the potential for speculation of which he now complains, but apparently chose not do so.
We conclude the trial court did not abuse its discretion in allowing the State to attempt to impeach Yates by presenting evidence of his prior felony conviction.
B. Ineffective Assistance of Counsel.
Yates also contends his trial counsel was ineffective for failing to conduct any meaningful cross-examination of A.D. and for failing to request a mistrial or to strike J.R.'s testimony after the court granted his motion for judgment of acquittal on the lascivious acts counts. When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we review the totality of the circumstances in the record de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 102 (Iowa 1997)). "Rather, we preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Id.
Yates can only succeed on his ineffectiveness claims by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on these issues. Trial counsel has not been given an opportunity to explain his actions and the trial court has not considered and ruled on the ineffectiveness claims. Under these circumstances, we pass the issues in this direct appeal and preserve them for a possible postconviction proceeding. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION.
We conclude the trial court did not abuse its discretion in allowing the State to attempt to impeach Yates through the use of his prior felony conviction. The court's "unspecified felony" approach is neither explicitly condoned nor prohibited by rule 5.609 and based on the particular facts and circumstances of the case at hand the jury was entitled to know about the prior conviction in judging credibility in order to ensure a fair and informed verdict. We preserve Yates's specified claims of ineffective assistance of counsel for a possible postconviction proceeding.