Opinion
No. 5-658 / 04-0910
Filed October 26, 2005
Appeal from the Iowa District Court for Linn County, Denver D. Dillard, Judge.
Defendant appeals his convictions and sentences for two counts of sexual abuse in the second degree. AFFIRMED.
Clemens A. Erdahl, Scott C. Peterson, and Sara L. Smith of Nidey, Peterson, Erdahl Tindal, P.L.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.
Considered by Miller, P.J., Hecht and Vaitheswaran, JJ.
Richard M. O'Toole appeals his convictions and sentences for two counts of sexual abuse in the second degree in violation of Iowa Code sections 709.1 and 709.3(2) (2003). He contends there is insufficient evidence to support his convictions. He further contends the district court abused its discretion by imposing consecutive sentences of imprisonment.
In 1998, O'Toole began cohabitating with his girlfriend of several months and her three children, a boy and two girls. O'Toole had three daughters from a previous marriage that stayed with them every other weekend and a few weeks during the summer.
In June 2003, the girlfriend's two daughters visited their biological father in another state. While staying with their father, the children told their paternal aunt that O'Toole had sexually abused them. Authorities became involved and began investigating the charges.
On June 24, 2003, a search warrant was executed at O'Toole's home. Items described by the girls as being used by O'Toole in their abuse were discovered in the home and confiscated by the Linn County Sheriff's Department. On August 7, 2003, O'Toole was charged with two counts of sexual abuse in the second degree as a sexual predator, in violation of Iowa Code sections 709.1, 709.3(2) and 901A.2(3). He entered a plea of not guilty to both counts. Following trial in March 2004, a jury found O'Toole guilty on both counts.
The parties and the court agreed that subjecting O'Toole to enhanced sentencing as a sexual predator under section 901A.2(3) would raise a serious question of ex post facto application of the law. The court therefore sentenced O'Toole on two counts of sexual abuse in the second degree, without enhancement.
O'Toole first contends the court erred in denying his motion for judgment of acquittal, arguing there is insufficient evidence of his guilt. We review his claim for a correction of errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id.
We conclude there is substantial evidence by which a reasonable jury could find O'Toole guilty beyond a reasonable doubt. The testimony of each girl was largely consistent with testimony of the other and was realistic. Although both girls alleged they were usually abused separately, their explanations of O'Toole's methods of abuse were consistent. O'Toole claims their testimony was too consistent, as if it were rehearsed. He then argues inconsistencies in the girls' testimony are proof they were lying. To the extent that there are discrepancies in the girls' testimony, this alone is not sufficient to impeach their claims. State v. Oshinbanjo, 361 N.W.2d 318, 320 (Iowa Ct.App. 1984). The largely consistent testimony of the girls was to some extent buttressed by the testimony of their mother concerning certain relevant events.
O'Toole claims the testimony of his expert witness regarding false reporting, and the testimony of the friend of one of the girls that the girl stated she would do anything to be able to live with her dad, should cast doubt on the girls' testimony. We give deference to the jury's findings of fact due to its opportunity to assess witness credibility. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). The jury heard not only this testimony but also the testimony of the girls and other witnesses. The jury observed the witnesses and found the girls' version of events to be credible. We conclude there is no reason to disturb this finding on appeal and thus affirm on this issue.
O'Toole next contends there is insufficient evidence to prove that one of the victims was under the age of twelve at the time the abuse took place. See Iowa Code § 709.3(2). O'Toole's motion for judgment of acquittal was general in nature and did not specifically identify any lack of proof regarding the victim's age. We conclude this issue has not been properly preserved for our review. Therefore, we do not consider it on appeal. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005).
O'Toole also contends the court erred in denying his motion for judgment of acquittal because the court applied the wrong standard. In ruling upon the motion made at the close of the State's evidence, the court said:
Well, it remains to be seen whether the State — whether the prosecution can prove the case by evidence beyond a reasonable doubt. The standard for whether your motion should be granted is a very low standard. It merely requires that the evidence presented be taken in the light most favorable to the State and granting every reasonable inference that can be drawn, which necessarily means that I have to assume that the jury would believe everything that the State has presented. And so subsequently the test is whether evidence has been presented on every element, and it has. So the motion is overruled.
Upon renewal of the motion at the close of the evidence, the court stated, "And the court's ruling is the same. I don't think that anything has really changed as far as that motion is concerned."
In considering a motion for judgment of acquittal, the court must view the evidence in the light most favorable to the State. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). However, the court must consider all the evidence. Id. In so doing, the court may infer that the jury found the testimony given by the State's witnesses to be more credible than that given by the witnesses for the defense. Id. at 341. Furthermore, the court must accept all legitimate inferences permitted by the evidence to support the verdict. State v. Arnold, 543 N.W.2d 600, 602 (Iowa 1996).
O'Toole disputes the accuracy of the statement by the court that "I have to assume that the jury would believe everything that the State has presented." However, as this ruling was made at the close of the State's evidence, the only evidence for the court to consider was the evidence that had been presented by the State. The State had presented evidence on all the elements of the crimes, and therefore the court did not err in then overruling O'Toole's motion.
Following the close of all the evidence O'Toole renewed the motion and the court found nothing had changed its mind and overruled the renewed motion. Implicit in this ruling is that when the evidence, including that presented by O'Toole, was viewed in the light most favorable to the State, substantial evidence supported each essential element of the two charges. We find no error in this ruling.
Finally, O'Toole contends the court abused its discretion in sentencing him. Because the crimes of which O'Toole was found guilty were forcible felonies, the court was required to impose imprisonment. See Iowa Code §§ 702.11 (defining a forcible felony to include sexual abuse) and 907.3 (stating that provisions for deferral of judgment, deferral of sentence, and suspension of sentence do not apply to a forcible felony). In sentencing O'Toole, the district court considered and stated as reasons for its sentence (1) the fact there were two victims, (2) the nature and circumstances of the offenses, including the victims' ages, the sexual nature of the offenses, and the fact the offenses continued over a substantial period of time, (3) O'Toole's record of prior convictions, (4) the impact of the crimes on the victims, and (5) O'Toole's prior sex-related crimes and resulting unsuccessful attempts at rehabilitation through suspended sentences and probation. The court imposed consecutive sentences of imprisonment.
Our review is for correction of errors at law. Iowa R. App. P. 6 .4; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). "[T]he decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of improper matters." Formaro, 638 N.W.2d at 724. Because the challenged sentence does not fall outside statutory limits, we review the court's sentencing decision for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). "In applying the abuse of discretion standard to sentencing decisions, it is important to consider the societal goals of sentencing criminal offenders, which focus on rehabilitation of the offender and the protection of the community from further offenses." Formaro, 638 N.W.2d at 724. An abuse of sentencing discretion is found only if the sentencing court's discretion has been exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).
O'Toole argues the court failed to properly consider or even comment on the fact the State, in the presentence investigation report prepared by the district department of correctional services, did not recommend consecutive sentences. The court must demonstrate its exercise of discretion by stating the reasons for the particular sentence imposed. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). However, it is generally not required to give its reasons for rejecting particular sentencing options. Id. We find no error in the court not having stated reasons for not imposing concurrent sentences.
Neither did the court comment on, or purport to consider, the fact the State, through the prosecuting attorney, did recommend consecutive sentences.
O'Toole also argues the court "wrongly interpreted [his] minimal and largely irrelevant criminal record as proof he could not be rehabilitated. . . ." In sentencing O'Toole, and in later reconsidering its sentence, the trial court did consider what it characterized as his prior "relatively minor sex offenses" of indecent exposure. It also considered the fact that O'Toole had been granted probation on the first of two convictions for those offenses, but had violated his probation by committing the second. It considered the fact that on his second conviction O'Toole was again granted probation, but had nevertheless now committed the much more serious felonies involved in this case. We find no error in the court concluding that these facts indicate O'Toole has poor prospects for rehabilitation, an appropriate sentencing factor. See, e.g., State v. August, 589 N.W.2d 740, 744 (Iowa 1999) (noting that in exercising sentencing discretion the court should consider, among other factors, the defendant's "chances of . . . reform").
O'Toole argues the court "used private legal sexual conduct between consenting adults as proof of sexual compulsion that was not amenable to treatment" within the time he would be incarcerated if granted concurrent sentences. The trial court did conclude that O'Toole had a compulsion concerning sex, and in so concluding did note and consider O'Toole's videotaping of sex acts with his girlfriend. However, in reaching its conclusion the court noted and considered various other matters that in its view were part of a pattern demonstrating such a compulsion. The court considered his prior convictions (and failed probation) for indecent exposure, his possession of a commercial pornographic videotape, his accessing pornographic internet web sites, his purchase and use of sex devices, and his current offenses. We find no error in the court considering O'Toole's videotaping of sex acts with his girlfriend as one of numerous factors leading to the court's conclusion O'Toole had a compulsion concerning sex that he had failed or refused to deal with.
O'Toole next argues that the court erred on the side of a sentence it considered too long rather than exercise its sentencing discretion. The trial court did note a concern regarding the mandatory minimum sentences required for the crimes involved in this case. It concluded, however, that the mandatory minimum sentences were a result of a decision within the purview of the legislature, and that the court's decision was limited to determining whether the sentences should be consecutive or concurrent. We agree with the court's conclusion, and find no merit to O'Toole's argument on this point.
O'Toole also argues the court "improperly considered a [domestic abuse assault] charge upon which [he] was acquitted in determining that he could not be rehabilitated." For two reasons we find no merit to this contention. First, in sentencing O'Toole the trial court made no mention of and gave no consideration to O'Toole's April 1998 acquittal on a charge of domestic abuse assault. The only mention of the acquittal is in the court's ruling, some ten months later, denying O'Toole's motion to reconsider his sentence. Second, in its reconsideration ruling the court considered O'Toole's acquittal only as indicating he was thus well aware that such a charge could be filed when he was subsequently charged with and convicted of domestic abuse assault later in 1998. The court expressly noted that it could not and should not use the first domestic abuse assault charge as a consideration in sentencing O'Toole on his convictions for sexual abuse in the second degree. We are unwilling to assume the court did what it expressly stated it could not and should not do.
O'Toole finally argues that the trial court "declined to exercise its traditional ameliorative role in the face of its perception that the legislature had provided a `draconian' sentence." He apparently refers to the mandatory minimum sentences required by statute, the court's statement at sentencing that it might have some disagreement personally with the severity of the mandatory minimum punishments, and the court's statement in its much-later ruling denying reconsideration of sentence that such "Draconian sentences . . . may or may not fairly address [defendants'] criminal acts." For the reason previously stated herein we conclude the trial court properly separated its concern over the legislature's decision to subject the crimes in question to certain mandatory minimum sentences from the court's proper role in determining whether the sentences should be consecutive or concurrent.