Opinion
No. 6-059 / 04-1871
Filed March 29, 2006
Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.
Dale Jackson appeals his conviction of one count of sexual abuse in the third degree. AFFIRMED.
Sara L. Smith and Clemens A. Erdahl of Nidey, Peterson, Erdahl Tindal, P.L.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Dale Jackson appeals his conviction of one count of sexual abuse in the third degree. He argues that the district court (1) erred when it denied his motion for new trial based on the sufficiency of the evidence; (2) violated his right to due process by relying on improper evidence; and (3) violated his right to due process through actual bias. He also argues his attorney rendered ineffective assistance of counsel by providing Jackson's polygraph report to the State. We affirm.
I. Background Facts and Proceedings
Dale Jackson is a seventy-three-year-old retired art teacher. He has helped run the Potter's Wheel, an art activity for children at the Iowa State Fair, for several years. During one of his engagements at the Potter's Wheel, he met James Gayther and his mother, Maarie.
Gayther, who was 19 years old at the time of the incident, is described as having high-functioning autism or Asberger's syndrome. He verbalizes at a twelve-year-old level, but comprehends at only a nine-year-old level. He can carry on a conversation, but is very literal in his understanding. As a result, he is likely to miss hidden meaning or subtleties. He lives with his mother and had accompanied her to the State Fair many times. He made a pot at the Potter's Wheel nearly every year.
Gayther and Jackson first became formally acquainted at the 2001 Fair. At that time, Maarie Gayther explained to Jackson that her son was autistic. Jackson invited Gayther to spend the night with him at the Fair. Due to scheduling conflicts, the Gaythers declined. The two exchanged email addresses however. An overnight was again discussed at a later time, but plans were never finalized.
In 2003, Gayther again came to the Potter's Wheel with his mother. Jackson invited him to stay overnight, and Maarie Gayther agreed. Jackson and Gayther met in the afternoon and enjoyed the Fair's festivities until evening. When they retired to Jackson's tent, Jackson told Gayther he might want to take off his clothes so he would not get them sweaty for the next day. Gayther agreed and disrobed to his underclothing. The men then gave one another massages on the back and chest. According to Jackson, whenever he moved his hands toward Gayther's underwear, Gayther would move them away. When Jackson traced the outline of Gayther's penis through his underwear, Gayther told Jackson he did not want to be tickled. Jackson then went to bed. He woke to find Gayther fully dressed and leaving the tent in the middle of the night.
According to Gayther, he fell asleep while Jackson was massaging him. He woke to find his underwear pulled down to his knees and Jackson nude. Jackson had his hand on Gayther's penis and had put Gayther's hand on his own penis. Gayther told Jackson to get away from him but Jackson continued touching him for twenty to thirty minutes. When Jackson was distracted by a headlight outside, Gayther pushed him away, gathered his belongings and left the tent.
The State charged Jackson with sex abuse in the third degree in violation of Iowa Code section 709.4(1) (2003), a class C felony. Before trial, the State and Jackson's defense attorney began plea negotiations. Jackson, in hopes that it would persuade the prosecutor to agree to a lesser charge, submitted to a polygraph. His attorney sent the polygraph results, including the questions and Jackson's answers, to the State. Ultimately, no plea was made.
At the bench trial, Jackson testified on his own behalf. On cross-examination, the following exchange occurred:
Q. But you're the one that went down and put your hand on his penis; right? A. I did not put my hand on his penis. I traced his outline with my finger. There is a difference.
Q. You're the one that touched his penis; right? A. I did not touch his penis. I traced the outline of his penis.
Q. With your finger, according to your direct examination; right? A. Yes, sir.
Q. And you also placed your hand over his genital area, didn't you? A. No, sir.
Q. Did you touch his scrotum at all? A. No, sir.
Q. Do you remember speaking to a Mike Hanna [the polygraph examiner]? A. Yes, sir.
Q. Do you remember telling him —
At that time, Jackson's attorney lodged a standing objection that any of Jackson's discussions with Hanna were inadmissible for two reasons: first, they were part of the polygraph exam and second, they were part of his plea negotiations. The court decided to rule on the objection in the ultimate ruling, and allowed the State to continue. Questioning resumed as follows:
Q. Mr. Jackson, did you have a discussion with Mike Hanna around January 5th, 2004, where you told Mr. Hanna that you placed your hand on Gayther's genital area briefly? A. Yes, sir.
Q. And did you also tell Mr. Hanna that you cupped his balls, in quotes, for a moment? A. I don't think I used those terms.
Q. Did you use other terms and tell him something similar? A. I just cupped his genitals in general. I didn't cup his balls, as you put it.
Q. Did you put your hand over his genitals? A. Just, (indicating), yeah.
Q. That's what you're telling us today; right? A. I'm sorry?
Q. That's what you're telling us today; right? A. Yes, sir.
. . . .
Q. And your testimony today is that you put your hand — or your hand over his genitals; right? A. I touched his crotch, yes. Yes, sir.
Q. And by touched his crotch you mean placed your hand on his penis and his scrotum? A. I don't know what I touched. I just touched between his legs.
Q. Between his legs on the genital area? A. Genital, yes, sir.
. . . .
A. Yes. I touched — I cupped his genitals. His shorts were on. They were not off.
Q. And you did that for a sexual purpose; right? A. I did that while I was massaging and kissing his nipples.
The court ultimately ruled that the statements Jackson made during the polygraph were inadmissible because they were supplied to the State through plea negotiations. It excluded the statements under Iowa Rule of Criminal Procedure 2.10(5) and Iowa Rule of Evidence 5.408. However, it found Jackson was not credible because he was not forthcoming in his description of the events until cross-examination. The court wrote:
The fact that, until pressed in cross examination, Jackson was not forthcoming about the fact that he didn't just massage James' chest but also kissed James' nipples and that he didn't just trace James' penis but actually cupped James' genitals in his hand, convinces the court that Jackson is not a credible witness.
(Emphasis in original.)
The court convicted Jackson of sexual abuse in the third degree. Jackson filed a motion for a new trial, which was denied. Jackson appeals.
II. Standard of Review
We review claims of insufficient evidence for correction of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). The verdict is affirmed if substantial evidence supports it. Id. We are to consider the entire record to determine whether a rational fact finder would be convinced the defendant is guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State. Id. Jackson's constitutional claims are reviewed de novo. In re Detention of Hodges, 689 N.W.2d 467, 470 (Iowa 2004). We give deference to the district court's credibility determinations, but are not bound by them. Id. III. Merits
First, Jackson argues that, because the State failed to introduce substantial evidence to support each element of the crime and the court relied on inadmissible evidence in rendering its verdict, the evidence against him was insufficient to support a guilty verdict. Second, Jackson argues that he was denied due process because the district court relied on an inadmissible polygraph report. Third, he argues that he was denied due process because the verdict was tainted by actual bias. Finally, he argues he received ineffective assistance of counsel because his attorney provided the State with his polygraph report. We review each of his claims in turn.
A. Insufficiency of the Evidence
1. Evidence Supporting Each Element Was Presented
In order to prove Jackson guilty under section 709.4(1), the State had to present evidence that he, beyond a reasonable doubt, committed a sex act by force or against Gayther's will. See Iowa Code § 709.4(1). A "sex act" is defined, among other ways, as sexual "contact between the finger or hand of one person and the genitalia or anus of another person." Id.
As in many sex abuse cases, the State's case relied on the victim's recollection of the events. Gayther testified he woke to find Jackson's hand on his penis and his own hand on Jackson's penis. Jackson continued even after Gayther asked him to stop.
Gayther, as his mother testified, is extremely prone to suggestibility. Before being asked questions about the incident, however, he left Jackson's tent, called his mother, found an officer, and reported he had been sexually assaulted. His mother also testified that he was detail-oriented and very exact about what he says and writes. She related specific occasions when Gayther observed events and was able to accurately describe them later. On this occasion, Gayther's and Jackson's recollections of the events coincide until the two began massaging one another.
Jackson points out that the police investigation was essentially limited to talking to Gayther and Jackson. Officers neither examined Gayther for physical injuries, nor canvassed neighboring campers. One of the officers testified Jackson told him he masturbated while he touched Gayther's genitals. Though he recounted what Jackson had said in relative detail at trial, he did not include the information in his report.
Much of the evidence in this case, however, also came from Jackson. At the very least, he testified to touching Gayther's penis through his underwear, even after Gayther had moved Jackson's hands away. Though he also testified he stopped when Gayther told him to, he had already inappropriately touched Gayther. Further, the court found the State's witnesses more credible. Because we review the evidence in the light most favorable to the State and give deference to the district court's credibility determinations, we conclude there was sufficient evidence to convict Jackson of third-degree sex abuse.
2. The Court Did Not Rely on Inadmissible Evidence
Jackson points to the court's language noting that Jackson "didn't just massage James' chest but also kissed James' nipples and that he didn't just trace James' penis but actually cupped James' genitals in his hand" to argue the court relied on inadmissible evidence. According to Jackson, the court would not have been aware of the term "cupping" had the State not been allowed to rely on the polygraph report.
In its written verdict, the court disclaimed any reliance on the inadmissible evidence: "The Court also wishes to make clear that, in making its findings and arriving at its conclusions, it does not rely in any way on any statements made by Jackson in the courts of any polygraph test taken by him." In its oral ruling on Jackson's motion for new trial, the court reiterated its decision to exclude the polygraph statements as statements made during plea negotiations. It also explained its use of the same terminology used in Jackson's excluded statements:
[I]n response to the State's question, the defendant denied telling the polygraph examiner that "I cupped his balls." Defendant went on to say, "I don't think I used those terms." The State then asked, "Did you use other terms and tell him something similar?" The defendant responded, "I just cupped his genitals in general. I didn't cup his balls, as you put it."
And this is my comment with respect to that testimony. The defendant did not answer the question. He didn't say, yes, I did use other terms or no, I didn't use those terms. And this is reflected — my interpretation of that testimony is reflected by the subsequent questioning and responses.
[Court reiterates testimony quoted above.]
The point of these passages and me reciting them in the record is that it was clear from the record that whereas the State sought to get Mr. Jackson to admit that he had made certain statements to the polygraph examiner, the fact of the matter is that Mr. Jackson denied making those statements and that was the only response he ever made to that exact question. He then of his own accord began to describe what he had actually done on the occasion in question, not for purposes of explaining any statement that he made to the polygraph examiner, but apparently for purposes of making it clear just exactly what he had done on the occasion in question. And that is clear to the Court because [the prosecutor] continued to say words to the effect of, this is what you are telling us today, sir? And Mr. Jackson acknowledged that that was his testimony today.
We are less likely to reverse when inadmissible evidence is introduced in a bench trial than in a jury trial. State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004). This is generally true because legal training assists the fact finder in a bench trial "to remain unaffected by matters that should not influence the determination." Id. It is clear the court got the term "cupping" from the inadmissible evidence. However, the court explicitly denied relying on the inadmissible evidence. Compare id. at 244-45 (noting trial court did not make it clear the offending evidence was not considered and as a result, reversing and remanding for resentencing) with Jasper v. State, 477 N.W.2d 852, 857 (Iowa 1991) (noting the trial court specifically stated it would not consider the inadmissible evidence and affirming denial of postconviction relief). In any case, Jackson cannot show he was prejudiced by the evidence; as we discussed above, his testimony that he "traced" Gayther's penis is damning enough. See State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998). Any error with regard to the "cupping" language is harmless. See State v. Traywick, 468 N.W.2d 452, 454-55 (Iowa 1991). Therefore, we conclude the district court did not rely on inadmissible evidence in rendering its verdict.
B. Polygraph Report
In arguing the court relied on inadmissible evidence, Jackson argues the evidence relied on was inadmissible because it was part of a polygraph report. At trial, he also argued the evidence was inadmissible because it was supplied to the State as part of a plea negotiation. The court ultimately ruled the evidence inadmissible based on the latter argument. In its brief, the State does not contend the evidence should have been admitted, just that the court did not rely upon it. Since the evidence Jackson seeks to have excluded was excluded, and we conclude the district court did not rely upon it, any musings on whether the evidence should have been excluded on the grounds that it was a polygraph report would be purely academic. We therefore decline to address this issue.
C. Actual Bias
Jackson points to various statements in the court's written verdict to argue he did not receive a fair trial due to the court's bias against homosexuality. Because he failed to raise the issue of actual bias in the district court, however, we cannot review it directly. State v. McCright, 569 N.W.2d 605, 608 (Iowa 1997). In the alternative, he asks that we review his claim under ineffective assistance of counsel. State v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (noting ineffective assistance of counsel is an exception to our preservation rules).
In order to show ineffectiveness of counsel, Jackson must show not only that his counsel breached an essential duty, but also that the breach prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In reviewing Jackson's claim, we are to consider the totality of the evidence. Id. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. The test we employ for the first element is objective: whether counsel's performance was outside the range of normal competency. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1997). We start with a strong presumption that counsel's conduct was within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2052, 80 L. Ed. 2d at 694. The test for the second element is whether there is a reasonable probability that, without counsel's errors, the outcome of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Id.; Kone, 557 N.W.2d at 102. We only presume prejudice if counsel completely fails to subject the prosecution's case to meaningful adversarial testing. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003).
Generally, we decline to decide ineffective assistance of counsel claims on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Instead, we preserve them for post-conviction relief proceedings. Id. This practice ensures both that an adequate record of the claim may be developed and that the attorney charged with ineffectiveness may have an opportunity to respond. Id. We will only decide an ineffectiveness claim on direct appeal in limited situations. First, if the record shows that the claimant cannot prevail as a matter of law, we will affirm the conviction without preserving the ineffective assistance claim. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). Second, "if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial." Id. For example, we may decide the claim if counsel's performance was so glaringly incompetent we are able to determine so based on the record before us. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We have also decided the claim where the trial court has already addressed the issue. See State v. Poyner, 306 N.W.2d 716, 719-20 (Iowa 1981).
We must conclude Jackson's claim fails as a matter of law. Jackson takes the court's statements out of context. At trial, Maarie Gayther testified to her son's lack of interest in heterosexual sex and his opposition to homosexual sex. The court's findings that Gayther would not have consented to Jackson's conduct were written from Gayther's perspective and understanding. The wording of the findings was perhaps unclear and unfortunate, but taken in context do not constitute any statement by the court concerning homosexuality. Because Jackson points to no other evidence that shows the court was biased, we conclude Jackson's due process rights were not violated.
D. Ineffective Assistance of Trial Counsel
Finally, Jackson alleges his trial counsel rendered ineffective assistance when he sent Jackson's polygraph report to the State. We resolve this claim rather than preserving it for postconviction relief because an adequate record has been made and the district court has already addressed the issue. See Poyner, 306 N.W.2d at 719-20. After hearing testimony from the trial counsel, the district court ruled Jackson could not show he was prejudiced by his counsel's actions. Again, we agree with the court's conclusion. Because the court did not rely on any of the polygraph statements in making its decision, Jackson could not have been prejudiced by the evidence.
IV. Conclusion
We conclude there was substantial evidence to convict Jackson of sexual abuse in the third degree. In rendering its verdict, the court did not rely on the inadmissible statements made during plea negotiations. The court also did not exhibit actual bias toward Jackson. Finally, Jackson has failed to show he was prejudiced when his trial counsel sent the results of his polygraph exam to the State. For these reasons, the district court's ruling is affirmed.