Opinion
No. 1-890 / 00-1904
Filed September 11, 2002
Appeal from the Iowa District Court for Poweshiek County, Richard J. Vogel, Judge.
The defendant appeals his conviction and sentence for third-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Karen Doland, Assistant Attorney General, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Carl Skaggs appeals his guilty verdict, judgment and sentence for third-degree sexual abuse, in violation of Iowa Code sections 709.1(2) and 709.4(2)(a) (1999). He challenges: (1) the sufficiency of the evidence to support the verdict, (2) various evidentiary rulings, and (3) his trial counsel's performance. We affirm.
I. Background Facts and Proceedings
Amanda, a twenty-four-year-old woman with a borderline IQ, left an assisted living unit and began living on her own in an apartment. About two months after she moved into the apartment, she complained to her mother that Skaggs, who was the husband of her former caseworker and an individual who worked with mentally handicapped individuals, had come to her apartment and engaged in non-consensual sex.
The State filed charges against Skaggs. A jury returned a guilty verdict on the single sexual abuse charge that was submitted to it. Following entry of judgment and sentence, Skaggs appealed
The district court granted Skaggs's motion for judgment of acquittal on a charge of sexual exploitation by a counselor or therapist.
II. Sufficiency of the Evidence
Skaggs contends the evidence was insufficient to support the guilty verdict. Our review of this issue is on error. Iowa R. App. P. 6.4. We will uphold the verdict if it is supported by substantial evidence. State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998).
The jury was instructed that the State would need to prove the following elements to establish third-degree sexual abuse:
1. On or about the 7th day of October, 1999, the defendant performed a sex act with [Amanda].
2. The sex act was performed while [Amanda] was suffering from a mental defect which precludes giving consent, or lacked the mental capacity to know the right and wrong of conduct in sexual matters.
3. The defendant knew or reasonably should have known that [Amanda] was suffering from a mental defect which precludes giving consent, or lacked the mental capacity to know the right and wrong of conduct in sexual matters.
There was substantial evidence to support each of these elements. Amanda testified Skaggs inserted his penis into her while she was lying on her stomach. Various mental health professionals noted Amanda's limited intellectual abilities and opined she would have been unable to consent to the sex act. One treating psychologist specifically asked Amanda if she said "no" to Skaggs. Amanda responded, "you taught me to say no when asked but he didn't ask me if it was okay. I didn't know what to do." Finally, a jury reasonably could have found Skaggs knew of Amanda's inability to consent, based on his wife's role as Amanda's caseworker and his prior interaction with her. Based on this evidence, we reject Skaggs' sufficiency-of-the-evidence challenge.
III. Evidentiary Rulings
Skaggs next takes issue with various evidentiary rulings. Our scope of review on evidentiary rulings is generally for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). However, we review hearsay rulings on error. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998).
A. Independent Living Assessment. Skaggs challenges the district court's refusal to admit an independent living assessment of Amanda which purported to show high functioning in various aspects of her life. The court declined to admit the document because the author was unknown and there was no indication "that whoever conducted the evaluation was qualified to conduct that type of evaluation and to make those type of assessments." We find no abuse of discretion in this ruling.
The State claims Skaggs did not preserve error on this claim because he did not offer the document until closing argument. Skaggs, however, subpoenaed similar documents before trial and filed a request to expand the scope of the subpoena on the first day of trial, after learning of this particular document. We believe error was preserved under these circumstances, even though the court did not consider the parties' arguments concerning the admissibility of the document until after the close of evidence.
B. Prior Bad Act . Skaggs argues that the court should not have admitted evidence of an overnight excursion he made with Amanda to Rock Creek State Park. He argues the incident was remote in time, of limited relevance, and was unduly prejudicial.
Iowa Rule of Evidence 5.404(b) governs the admission of evidence concerning "other crimes, wrongs, or acts." It states that such evidence "is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." Iowa R. Evid. 5.404(b). The evidence may, however, "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. In deciding whether to admit such evidence, a district court must determine whether the evidence is relevant for a legitimate purpose and, if relevant, whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Mitchell, 633 N.W.2d 295, 288-89 (Iowa 2001). Additionally, the court must determine whether there is clear proof the defendant committed the prior acts. State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001).
This incident occurred less than a month before the incident giving rise to the charges. After the incident, Skaggs called Amanda's mother, admitted he had been with Amanda all night, and indicated he had spoken to his wife about Amanda. These admissions were relevant to explain Skaggs's knowledge of Amanda's limited intellectual functioning and her ability to consent to sex.
The probative value of this evidence is not outweighed by the danger of unfair prejudice. The test of prejudice is whether "the jury will probably be roused by the evidence to overmastering hostility." Rodriquez, 636 N.W.2d at 240. In response to the State's questioning, Amanda's mother testified only that her daughter had stayed out all night and had told her she was out with Skaggs. She offered no further testimony on what may have happened that night. We cannot conclude this limited reference to the incident as a means of laying a foundation for the telephone conversation she had with Skaggs would have roused the jury to overmastering hostility.
Finally, with respect to the clear proof requirement, we note that Skaggs himself conceded he took Amanda to Rock Creek Park. Therefore, there is no question that the incident occurred.
We conclude the district court did not abuse its discretion in admitting this evidence.
C. Contents of Personnel File . Skaggs next takes issue with a police officer's testimony that he reviewed the contents of Skaggs's personnel file and determined from those files that Skaggs resigned on the day of the incident. The district court overruled Skaggs's hearsay objection to this testimony. Skaggs now maintains the admission of this evidence amounted to prejudicial error. We are not persuaded. Skaggs himself introduced evidence of his resignation letter and his reasons for resigning. Therefore, the evidence was cumulative. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).
IV. Ineffective Assistance of Counsel Claims
Skaggs contends his trial counsel was ineffective in failing to: (A) object to the police officer's testimony concerning his personnel records on additional grounds, (B) object to the testimony provided by two witnesses, (C) object to questions implicating his exercise of his Fifth Amendment right against self-incrimination, (D) challenge the constitutionality of the statute under which he was found guilty on overbreadth and vagueness grounds; and (E) object to a jury instruction.
Our scope of review of this constitutional claim is de novo. State v. O'Donnell, 533 N.W.2d 576, 578 (Iowa Ct. App. 1995). To prevail, Skaggs must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
A. Testimony Concerning Personnel Records . Skaggs contends that, although counsel objected to the police officer's testimony concerning his personnel records on hearsay grounds, he failed to challenge the testimony based on lack of foundation, relevance, and prejudicial effect. The police officer testified that he reviewed Skaggs's personnel records and determined Skaggs resigned on the day of the incident. Assuming without deciding that counsel should have objected to this testimony on the grounds suggested by Skaggs, Skaggs has not shown how he was prejudiced by counsel's omission of these objections, as Skaggs himself introduced his resignation letter. Accordingly, we reject this argument.
B. Witness Statements . Skaggs contends trial counsel should have objected on hearsay grounds to the testimony of a woman named Dorris Talbot. Talbot stated that Amanda's mother told her Amanda was not mentally retarded and whatever happened was Amanda's fault. Counsel breached no essential duty in failing to object to this testimony, as it supported his theory that Amanda was capable of giving consent.
Skaggs also contends counsel should have objected to the testimony of one of Amanda's former caseworkers, Amy Sleeuwenhoek, on hearsay, relevancy, and prejudice grounds. Sleeuwenhoek opined that Skaggs acted inappropriately in staying out all night with Amanda. She also referred to statements Skaggs's wife had made about his nightly absences, drinking, and infidelity. We can discern no basis for an objection to the caseworker's testimony that Skaggs acted inappropriately in keeping Amanda out all night; Sleeuwenhoek was a caseworker who had knowledge of the type of actions that would have been appropriate for people who worked with mentally handicapped people. We do believe, however, that the remaining testimony, elicited by the State on cross-examination, was irrelevant. Although defense counsel did not object to this testimony on relevancy grounds, he did elicit an admission from Sleeuwenhoek that she lacked personal knowledge of many of the rumors to which she was testifying. On this record, we cannot conclude there was a reasonable probability that, had counsel objected to the testimony of Skaggs's carousing, the outcome of the trial would have changed. See State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App. 1999). Accordingly, we reject this ineffective-assistance-of-counsel claim.
C. Right Against Self-Incrimination . Skaggs next argues trial counsel should have objected to the State's questioning of Skaggs on the ground that the State's reference to his failure to tell the police his side of the story infringed on the exercise of his right against self-incrimination. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We preserve this issue for postconviction relief to give trial counsel an opportunity to address it. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998).
D. Constitutionality of Iowa Code section 709.4(2) . Iowa Code section 709.4(2)(a) (1999) provides that a person commits third-degree sexual abuse when the victim "is suffering from a mental defect or incapacity which precludes giving consent." Skaggs argues that counsel should have challenged the constitutionality of the provision on the ground that the term "mental defect" was vague and overbroad. This issue was resolved in State v. Sullivan, 298 N.W.2d 267, 273 (Iowa 1980) (upholding constitutionality of truncated version of statute making it a crime for a person to engage in a sex act when the other participant is suffering from a mental defect or incapacity that precludes giving consent). In light of Sullivan, trial counsel was not obligated to raise a constitutional challenge to section 709.4(2).
E. Jury Instruction . Skaggs contends trial counsel was ineffective in failing to seek a definition of "incapacity" in one of the jury instructions. The State responds that the jury instruction at issue did not contain the term "incapacity", making a definition of the term unnecessary.
The jury instruction stated:
In order to prove the defendant guilty of Sexual abuse in the Third Degree, as charged in the Trial Information, as amended, the State must prove all of the following elements:
2. The sex act was performed while Amanda Benson was suffering from a mental defect which precludes giving consent, or lacked the mental capacity to know the right and wrong of conduct in sexual matters.
A 1999 amendment to Iowa Code Chapter 709 adds a definition of "incapacitated." "Mentally incapacitated" is defined as a person who is "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance." Iowa Code § 709.1A.(Supp. 1999). This definition is inapplicable as there is no evidence Amanda was using a narcotic, anesthetic, or intoxicating substance. Trial counsel was not required to request an instruction that was not supported by substantial evidence. See State v. Walker, 600 N.W.2d 606, 608 (Iowa 1999). Accordingly, we reject this ineffective-assistance-of-counsel claim.
V. DISPOSITION
We affirm Skaggs's judgment and sentence and preserve his allegation of a Doyle violation for postconviction relief.
AFFIRMED.