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holding "the videotaped interview provided some responses that could not be successfully elicited from [the child] during trial, and served to clarify and place in context other answers"
Summary of this case from State v. SkahillOpinion
No. 5-312 / 04-0339
Filed July 13, 2005
Appeal from the Iowa District Court for Linn County, Michael J. Newmeister, District Associate Judge.
A defendant appeals following his conviction and sentence for indecent contact with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Harold Denton, County Attorney, and Angeline M. Wilson, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
David Green appeals following his conviction and sentence for indecent contact with a child, in violation of Iowa Code section 709.12 (2003). We affirm.
I. Background Facts and Proceedings.
In August 2003 a trial information was filed alleging that Green had committed indecent contact with a child. The victim, D.C., was eight years old at the time of the alleged incident. The contact allegedly occurred while Green was residing in the same house with D.C., her mother, and her siblings.
Green filed pre-trial motions in limine seeking to exclude (1) a videotaped interview of D.C. conducted by a social worker at the Child Protection Center (CPC), (2) evidence, contained within the videotape, that Green had corporally punished D.C., and (3) Green's delinquency adjudication for two counts of sexual abuse in the second degree. Before the start of trial the district court ruled the evidence of corporal punishment and the delinquency adjudication were admissible, but reserved ruling on the admissibility of the CPC interview.
During trial D.C. testified that Green had touched her in her "privates" while she and Green were in a bedroom toy closet. D.C. testified that Green used his hand to touch her over her clothes, then said, "Don't tell." D.C. stated she was scared, and that she told her aunt what had happened. When asked to identify her privates D.C. pointed to her genital area. When asked to identify the person who had touched her, she pointed to Green. On cross-examination D.C. seemed to become confused, was unable to recall certain events or statements, and failed to answer some questions.
The State sought to introduce the CPC videotaped interview under the residual exception to the hearsay rule, asserting:
[T]he necessity [is] . . . obvious from the victim's testimony that, especially at cross-examination, and really, honestly, towards the end of my examination of her, her face was dead. She was looking up. She was just basically I think in a defensive shut down mode and unable to answer a lot of [defense counsel's] questions which . . . were, "What did you tell the CPC? What did you say in your interview?" And for us not to put that in front of the jury I think is a disservice to the jury.
The court admitted the videotape over Green's objections that D.C. had adequately testified, and that the statements in the tape were cumulative and prejudicial. The court stated,
I viewed the tape last week . . . and I believe it's appropriate in light of the fact that [D.C.'s] testimony was very abbreviated today, and I think she was under extreme pressure during the course of her testimony and I think it would enhance the jury's understanding of a lot of circumstances affecting this case.
The court also allowed Green to introduce, over the State's objection, a videotaped deposition of D.C. that had been conducted by Green's counsel.
Following trial Green was convicted of one count of indecent contact with a child, and sentenced accordingly. He filed a motion for new trial and judgment notwithstanding the verdict, which was denied by the court. Green then filed this appeal. He contends the district court erred when it admitted the CPC videotaped interview, the evidence of corporal punishment on the videotape, and his juvenile delinquency adjudication. He asserts the district court further erred by applying the wrong standard when assessing his request for a new trial. In the alternative, Green contends trial counsel was ineffective for failing to articulate and request the court apply the proper standard. Finally, he contends trial counsel was ineffective for not making an offer of proof when the court sustained the State's objection to testimony regarding any prior false allegations by the victim.
Green was sentenced to serve a year in jail and pay a $500 fine, plus applicable surcharges and court costs. However, Green was also given credit for time served, the remainder of his sentence was suspended, and he was placed on formal probation.
II. Scopes and Standards of Review.
Challenges to evidentiary rulings are reviewed for correction of errors at law. Iowa R. App. P. 6.4. A court has wide discretion in making such rulings, and its decisions in this regard are reversed only for a demonstrated abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). Abuse is found where a district court exercised its discretion on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996).
A district court's ruling on a motion for a new trial, and challenges to the sufficiency of the evidence, are also reviewed for an abuse of discretion. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001) (sufficiency of the evidence); State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998) (new trial). However, claims of ineffective assistance of counsel are constitutional challenges, requiring us to conduct a de novo review. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. CPC Videotaped Interview.
Green contends the district court erred when it admitted the CPC videotaped interview under the residual hearsay exception. See Iowa Rs. Evid. 5.803(4) (availability of declarant immaterial), 5.804( b)(5) (declarant unavailable); see also Iowa Code § 915.38(3) (clarifying that residual exception to the hearsay rule may be used to admit statements made by a child sex abuse victim when the requirements of the exception are met). Having reviewed the record, we cannot agree that the district court abused its discretion in admitting this evidence.
Before it could admit the CPC videotaped interview under the residual exception to the hearsay rule, the court must determine that (1) the statement has guarantees of trustworthiness, (2) it is offered as evidence of a material fact, (3) it is necessary, in that it is "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts," (4) admission serves both the general purpose of the rules and the interests of justice, and (5) Green was provided sufficient notice of the State's intent to use the evidence. See Iowa Rs. of Evid. 5.803(24), 5.804( b)(5); State v. Rojas, 524 N.W.2d 659, 662 (Iowa 1994). Green does not challenge the trustworthiness or materiality of the videotape, or the adequacy of his notice, and the existence of those requirements is in fact borne out by the record. He does assert, however, that admission of the videotape was unnecessary, arguing D.C.'s testimony was explicit and complete, and that the interests of justice were not served, arguing the videotape was cumulative of D.C.'s own testimony and prejudicial.
The interviewer's non-leading questions, the nature of D.C.'s responses, and the fact that the jury could view the interview and judge D.C.'s demeanor, all indicate the trustworthiness of the interview statements. See Rojas, 524 N.W.2d at 663. Given that the videotape contains statements regarding the alleged abuse, materiality is also present. See id. In addition, the State provided Green with advance, pre-trial notice of its intent to introduce the CPC interview.
We conclude that, under the circumstances, the district court did not abuse its discretion in determining there was a necessity to admit the CPC videotaped interview. While D.C. was able to answer most of the State's questions on direct examination, her answers were brief and provided only the basic details of the alleged abuse. D.C. was unable to answer or clearly answer more specific and detailed questions, particularly those advanced during cross-examination. The district court, which was in the best position to observe D.C.'s demeanor, concluded the child was under "extreme pressure" during her testimony. Having viewed the videotape, we agree with the district court's assessment that the videotaped interview provided some responses that could not be successfully elicited from D.C. during trial, and served to clarify and place in context other answers.
As the videotape had sufficient indicia of trustworthiness, and as necessity for admission was shown, admitting the evidence also serves the interest of justice — it advances the truth-seeking goal expressed in Iowa Rule of Evidence 5.102. Rojas, 524 N.W.2d at 663. Moreover, as the State notes, any unfairness which might have resulted from admission of the videotape was blunted by the court sustaining Green's request to responsively admit the videotaped deposition of D.C. that was conducted by defense counsel, a videotape that contained inconsistent statements and lapses of memory by D.C. In light of the foregoing, the district court did not act unreasonably in admitting the CPC videotaped interview.
Alternately, Green asserts the district court failed to make specific findings on the five requirements for admissibility under the residual hearsay exception, and that this matter must be remanded so that the court can make such findings. See State v. Kone, 557 N.W.2d 97, 100 (Iowa Ct.App. 1996) (noting district court's obligation to make specific findings on the record regarding requisite elements, and ordering limited remand in the absence of such findings). However, the purpose behind requiring specific findings by the district is to assure the trustworthiness of the evidence and to enable this court to fairly assess whether the district court abused its discretion. Id. at 101. Here, the court's comments adequately address both necessity and the interests of justice, the only two requirements at issue on appeal. Thus, we are able to assess the court's exercise of discretion, and see no need to remand this matter for more specific findings.
IV. Corporal Punishment.
During the CPC videotaped interview, D.C. stated that Green had struck her on the bottom with a stick, and that her mother threatened to call the police. The district court declined Green's request to redact these statements from the videotape, concluding the evidence was "part of the res gestae." It is unclear precisely what was meant by the district court, as the res gestae exception to the hearsay rule, an "inexact anachronism" with "myriad applications," State v. Ogilvie, 310 N.W.2d 192, 196 (Iowa 1981), is no longer a part of our evidentiary rules, State v. Nance, 533 N.W.2d 557, 559 (Iowa 1995). Admission of this evidence is more properly analyzed, as was urged below, under Iowa Rules of Evidence 5.403 and 5.404( b). See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002) (allowing this court to uphold evidentiary ruling on any basis); see also State v. Henderson, 696 N.W.2d 5, 11 (Iowa 2005) (undertaking rule 5.403 analysis even in absence of district court analysis).
For evidence of other acts to be admissible, it must be probative of a disputed fact or issue other than the defendant's criminal disposition, and the probative value cannot be substantially outweighed by the danger of unfair prejudice. State v. Taylor, 689 N.W.2d 116, 123-24 (Iowa 2004); see also Iowa Rs. Evid. 5.403, 5.404( b). In determining the latter question, the court looks to the need for the evidence, whether the other act is shown by clear proof, the strength or weakness of the evidence, and the degree to which the fact finder will be prompted to decide the case on an improper basis. Taylor, 689 N.W.2d at 124.
Although Green asserts the fact that he corporally punished D.C. is wholly irrelevant to the allegation of indecent contact, "the defendant's prior conduct directed to the victim of a crime, whether loving or violent, reveals the emotional relationship between the defendant and the victim and is highly probative of the defendant's probable motivation and intent in subsequent situations." Taylor, 689 N.W.2d at 125. It is also relevant to explain D.C.'s delay in reporting the incident, and her seeming reluctance to testify against Green at trial.
Looking to the evidence's prejudicial nature, and whether that prejudice substantially outweighs the evidence's probative value, we note a certain level of prejudice is inherent in prior-bad-acts evidence, but that this type of prejudice will not substantially outweigh the evidence's probative value. See Taylor, 689 N.W.2d at 130. The danger that can be sufficient to exclude otherwise relevant evidence is a danger that the evidence is likely to prompt the jury to find the defendant guilty based upon an emotional response. See id. In balancing the four previously-noted considerations, we conclude the district court did not abuse its discretion in admitting the evidence.
The evidence was established by clear proof and suggested the motivations of both Green and D.C. Although we cannot conclude the need for the evidence was great, this is not the type of evidence that will tend to unduly inflame the jury's passion. When the totality of the record is examined it reveals that Green physically disciplined D.C. and her siblings by spanking them with a stick or belt when the children disobeyed one of Green's rules, such as keeping their room tidy. Rules 5.403 and 5.404( b) do not require exclusion of this evidence.
V. Delinquency Adjudications.
The State was allowed to present evidence that, when Green was a juvenile, he was adjudicated delinquent for two counts of sexual abuse in the second degree. In ruling the prior adjudication admissible, the court appeared to rely on both rules 5.403 and 5.404( b), as well as Iowa Code section 701.11(1) (2003), which provides:
In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant's commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the commission of the prior act of sexual abuse.
Section 701.11(3) defines "sexual abuse" as any offense defined in chapter 709. This includes indecent contact with a child. See Iowa Code § 709.12.
Pursuant to section 701.11, the delinquency adjudication, which was shown by clear proof through the admission of the adjudication order as well as witness testimony, was relevant and admissible unless the adjudication's probative value was substantially outweighed by the danger of unfair prejudice. Given the similarity of this language to that found in rule 5.403, we conclude the same analysis should apply.
We have already concluded the adjudication was demonstrated by clear proof, and evidence of the prior adjudication is obviously strong evidence on the issue of absence of accident. We also conclude that the need for the evidence was significant. The State's case rested almost entirely on the testimony of an eight-year-old child, testimony that was contradicted by not only Green, but by D.C.'s mother. Undeniably, the admission of the prior adjudication had the potential for prejudicial effect. However, in light of the clear proof of the prior incident of sexual abuse, the strength of the evidence, and the State's need for the evidence, we cannot conclude the evidence's probative value was substantially outweighed by the danger of unfair prejudice. The district court did not abuse its discretion in admitting evidence of Green's delinquency adjudication.
In testimony at trial Green acknowledged that the alleged physical contact may have occurred, but asserted that if it occurred it had been accidental.
VI. Motion for a New Trial.
Green asserts that the district court erred in denying his "Motion for New Trial and Judgment Notwithstanding the Jury's Verdict," because the court employed the wrong standard. Green correctly notes that, pursuant to State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998), the standard to be applied in ruling on a motion for a new trial is whether the jury's verdict is contrary to the clear weight of the evidence, which requires the court to make a determination of whether "a greater amount of credible evidence supports one side of an issue or cause than the other." It is also clear that, in finding "sufficient facts to generate a jury issue," the court was employing the sufficiency-of-the-evidence standard applicable to a motion for judgment of acquittal. Ellis, 578 N.W.2d at 658. We nevertheless conclude the district court did not err in ruling on the motion.
Although Green's motion was styled as one seeking a new trial, counsel specifically articulated the claim before the district court as an assertion that "there was not sufficient evidence to sustain the conviction." Thus, the district court was not presented with the question of whether the verdict was contrary to the clear weight of the evidence, or given an opportunity to rule on the same. Under such circumstances, the issue is not preserved for our review. See Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995).
Anticipating this conclusion, Green asserts trial counsel was ineffective for not specifically asserting that the verdict was clearly against the weight of the evidence. To succeed on this claim Green must show both that a reasonably competent counsel would have raised such a claim, and that failure to make the claim prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). However, Green makes no effort to demonstrate prejudice, beyond a bare assertion that, if the counsel had correctly articulated the new trial standard, "the correct result would have likely occurred." Such a claim is too general to address on direct appeal. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding a defendant must state the specific ways in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome).
We note that claims of ineffective assistance of counsel no longer need be raised on direct appeal in order to preserve the claim for post-conviction relief. Iowa Code § 814.7 (2005).
VII. Offer of Proof.
Finally, Green asserts trial counsel was ineffective for not making an offer of proof regarding any prior false allegations of sexual abuse. During trial D.C.'s mother testified on behalf of Green. Trial counsel asked D.C.'s mother whether D.C. had ever made allegations similar to those she made against Green. The State objected and its objection was sustained. Green asserts a reasonably competent trial counsel would have made an offer of proof on the matter, and that this failure was "possibly prejudicial" because further inquiry might have uncovered admissible prior false accusations. The State contends this issue should be preserved for possible postconviction proceedings.
As a general matter, where a record on appeal is inadequate to assess the performance of trial counsel, we preserve the ineffective assistance claim for possible postconviction review. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). This allows for a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We agree with the State that the current record is inadequate to address this claim. Accordingly, we preserve this claim for a possible postconviction proceeding.
VIII. Conclusion.
We have considered Green's claims, and conclude his conviction and sentence should be affirmed. We preserve for a possible postconviction proceeding his claim that trial counsel was ineffective for failing to make an offer of proof regarding prior false allegations of sexual abuse.