Opinion
No. 4-392 / 03-0890
Filed February 9, 2005
Appeal from the Iowa District Court for Muscatine County, David E. Schoenthaler, Judge.
Gary Jasperson appeals from his conviction for domestic assault, third offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Gary Allison, County Attorney, and Dana Christiansen, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Gary Jasperson appeals from his conviction for domestic assault, third offense. We affirm.
I. Background Facts and Proceedings.
On the evening of December 22, 2002, Ed Zemen received three e-mail messages from "Raylene." In the messages, Raylene asked Ed to call 911 and told him she was at 204 East Locust in Wilton, Iowa. On his way to work, Ed passed the message along to state highway patrol officers he encountered at a gas station. The state troopers obtained the assistance of Wilton police officer John Sperstad and proceeded to 204 East Locust. Officer Sperstad recognized the house as the residence of Raylene Buck and Gary Jasperson.
Raylene Buck answered the door, red-eyed, shaking, and clearly upset. The officers asked her what was going on, and she indicated that she and Jasperson were fighting again. Without further prompting, she told the officers that Jasperson had pushed her, "smacked" her in the mouth, scratched her, and choked her twice. The officers noticed she had a cut lip and what appeared to be fresh marks on her chest.
Jasperson was seated on the couch in his underwear. When officers asked him what happened, he said, "It's like she said." Officers handcuffed, dressed, and arrested Jasperson. Buck's injuries were photographed the next day.
Jasperson was charged with and convicted of domestic assault causing injury. Jasperson appeals, contending the evidence of cohabitation was insufficient to support his conviction and his trial counsel was ineffective.
II. Sufficiency of the Evidence.
A conviction for domestic assault requires that an assault occur between "family or household members who resided together at the time of the assault." Iowa Code § 236.2(2)(a) (2001). The definition of family or household members in section 236.2(4)(a) includes "persons cohabiting." The jury was instructed that cohabiting does not require a sexual relationship, but does require more than dwelling or living together in the same place. To determine if the defendant and Raylene Buck were cohabiting at the time of the alleged offense, you may consider whether they had sexual relations while sharing the same living quarters; they shared income or expenses; they jointly used or owned property together; they held themselves out as husband and wife; the continuity and length of their relationship, and any other facts shown by the evidence bearing on their relationship with each other.
Jasperson concedes this jury instruction is an accurate statement of the current law regarding the establishment of cohabitation for purposes of section 236.2. See State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996). However, Jasperson contends the State presented insufficient evidence to support a jury finding that Jasperson and Buck were cohabiting at the time of the offense.
We review sufficiency-of-the-evidence claims for errors at law. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). If a guilty verdict is supported by substantial evidence, we will uphold a finding of guilt. Id. "Substantial evidence" is that which could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. at668-69. We consider all the evidence, not just the evidence supporting the verdict. Id. at 669. We view the evidence in the light most favorable to the State and make all inferences that may fairly be drawn from the evidence. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998).
Wilton is a small town with a population of approximately 2000 people. Officer Sperstad testified that he had lived in Wilton since 1987 and had been a local police officer for two and a half years. He testified that he recognized the house at 204 East Locust as the residence of Jasperson and Buck, that he knew them to be in a boyfriend/girlfriend type relationship, and that he had seen them together "many times." When the officers arrived at the house, Buck answered the door and told them that she and Jasperson were fighting again. Jasperson was found sitting on the couch wearing only his underwear. Viewing the evidence in the light most favorable to the State, we conclude this evidence is sufficient to support an inference by the jury that Jasperson and Buck were not only residing in the same house, but were cohabiting as contemplated by Iowa Code section 236.2. Accordingly, we affirm.
III. Ineffective Assistance of Counsel.
To succeed on a claim of ineffective assistance of counsel, Jasperson must prove both that his trial counsel breached an essential duty and that prejudice resulted. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). In order to satisfy the first prong, Jasperson must overcome the presumption that his trial counsel's actions were reasonable and within the normal range of competency. Id. To satisfy the prejudice prong, he must prove a reasonable probability that but for his counsel's deficient performance, the result of the proceeding would have been different. Id.
Because Jasperson is claiming a violation of a constitutional right, we review his claim de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). Claims of ineffective assistance of counsel are normally not decided on direct appeal, but are preserved for postconviction relief proceedings. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). When the record is adequate, however, we will resolve ineffective assistance claims on direct appeal. Id.
Raylene Buck did not testify at Jasperson's trial. However, Officer Sperstad testified that when officers arrived at 204 East Locust, Buck told them Jasperson had pushed, choked, scratched, and "smacked" her. Although Jasperson's counsel objected to Buck's statements as hearsay, Jasperson contends his trial counsel was ineffective for failing to object on the ground that the statements violated Jasperson's Sixth Amendment right to confront witnesses against him. Jasperson concedes the statements fall within the hearsay exception for excited utterances, see Iowa R. Evid. 5.803(2), but he argues that the Sixth Amendment requires a showing that the witness is unavailable to testify before statements may be admitted, even statements that fall within long-established hearsay exceptions.
In White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed. 848 (1992), the United States Supreme Court concluded that because statements falling within the excited utterance hearsay exception have sufficient indicia of reliability, the State need not demonstrate the witness' unavailability to satisfy the Sixth Amendment. White, 502 U.S. at 357-58, 112 S. Ct. at 743-44, 116 L. Ed. at 860-61. The Iowa Court of Appeals followed White in concluding that the Confrontation Clause did not require the State to produce a hearsay declarant as a witness or prove his unavailability as a condition of admission of excited utterances and statements made for the purposes of medical diagnosis or treatment. State v. Campbell, 539 N.W.2d 491, 495 (Iowa Ct.App. 1995).
The definition of Illinois' spontaneous declaration exception to hearsay at issue in White v. Illinois, 502 U.S. at 357-58, 112 S. Ct. at 743-44, 116 L. Ed. at 860-61, is identical to Iowa's exception for excited utterances.
Jasperson makes no claim that his trial counsel should have objected on state constitutional grounds because the Iowa constitution provides more protection than the federal constitution. We note that the Iowa Supreme Court has not yet addressed the issue raised by Jasperson, but the Court of Appeals concluded the Iowa constitution does not require an unavailability showing when out-of-court statements fall within the excited utterance exception. State v. Campbell, 539 N.W.2d 491, 495 (Iowa Ct.App. 1995).
A recent decision of the U.S. Supreme Court explicitly "casts doubt on [the] holding" in White. Crawford v. Washington, 541 U.S. 36, 58, 124 S. Ct. 1354, 1370, 158 L. Ed. 177, 198-99 (2004). However, we conclude trial counsel did not breach a duty when he failed to object on Confrontation Clause grounds to admission of Buck's statements through the law enforcement officers' testimony. The law prevailing at the time of Jasperson's trial would not have led the district court to sustain a Confrontation Clause challenge had one been made. Trial counsel is not held to standard of a "crystal gazer" who must predict future changes in established rules of law in order to provide effective assistance to a criminal defendant. State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982). The standard instead required Jasperson's counsel to exercise reasonable diligence in deciding whether the confrontation issue was "worth raising." State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999). We conclude Jasperson's trial counsel was not ineffective for failing to anticipate the Supreme Court's decision in Crawford. AFFIRMED.