Opinion
No. 4-296 / 03-0561
July 14, 2004
Appeal from the Iowa District Court for Page County, J.C. Irvin, Judge.
Defendant James Junior Whited II appeals following his conviction and sentence to three counts of lascivious acts with a child, in violation of Iowa Code section 709.8 (1997), and two counts of sexual abuse in the third degree, in violation of section 709.4(2). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines and Doug Hammerand, Assistant Attorneys General, and Richard Davidson, County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Defendant-appellant, James Junior Whited II, appeals following his conviction and sentence to three counts of lascivious acts with a child, in violation of Iowa Code section 709.8 (1997), and two counts of sexual abuse in the third degree, in violation of section 709.4(2). He contends the district court applied the wrong standard in denying his motion for a new trial, and his trial attorney was ineffective in a number of instances. We affirm.
Defendant was charged for abusing T.R., a female child born on January 13, 1985. Defendant had a relationship with and lived with the child's mother, Lisa. T.R. testified that when her mother was admitted to the hospital on January 13, 1998, T.R.'s thirteenth birthday, T.R. stayed with defendant. T.R. further testified defendant asked her to sleep with him, told her to take off her clothes, and threatened to kill her or her mother. T.R. said she took off her clothes and, per defendant's instruction, lay on her stomach on a towel on the bed while defendant put baby oil on her buttocks and thighs and on his penis. She said he put his penis on her buttocks and thighs and said he wanted to "slick-leg" her. She said he rubbed his penis on her for some time and then tried to insert it in her vagina but it did not happen. She testified she went to the hospital the next day but did not tell her mother what happened. She said that night defendant repeated the events of the earlier evening and though he tried to put his penis in her vagina, he did not penetrate her. T.R. further testified the same ritual happened for all ten days her mother was in the hospital. She also testified defendant put his thumb in her vaginal area at some time but she didn't feel his thumb enter her vagina. She said even after her mother returned home the "slick leg" procedure continued. T.R. said she did not tell her mother because she was scared. A physical examination indicated there was no evidence of abrasions, laceration, or bruising and T.R.'s hymen was normal. The doctor conducting the examination testified that if there were forced penetration or full penetration the hymen which is located about one and a half to two inches in the vaginal opening, would tear. The doctor said if there is penetration to the level of the hymen but not past it the hymen may be intact. The doctor could not confirm or deny the allegations of sexual abuse.
Defendant moved out of the house where he had lived with T.R.'s mother Lisa in October of 1998. T.R. said nothing about her relationship with the defendant until April of 1999. The school nurse found a note T.R. had written to a friend where the child reported that the defendant touched her and tired to pull her closer and she ran from the room. T.R.'s note said it was in the middle of the night when her mother was asleep and she still felt his hands on her. The Department of Human Services questioned T.R. and investigated the incident. Charges were filed against defendant in August of that year. Defendant was tried, convicted, and sentenced on three counts of lascivious acts with a child and two counts of third-degree sexual abuse in violation of Iowa Code sections 709.8 and 709.4(2) (1997). The defendant appealed that conviction, and we reversed and remanded for a new trial because of jury misconduct. State v. Whited, No. 00-1333 (Iowa Ct.App. Feb. 6, 2002). Defendant was tried again and convicted of the same charges. This appeal is from the second trial.
The State proved its case through the testimony of T.R. While she testified to incidents that supported the convictions, her testimony in part was not consistent. She was confused about some dates and was impeached on occasion.
We first address defendant's contention the district court applied the wrong standard in ruling on his motion for new trial in that the district court failed to apply the weight-of-the evidence standard set forth in State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1988). We agreed with defendant that the district court did not apply the weight-of-the-evidence standard when considering his motion for new trial. We remanded to the district court to reconsider defendant's motion and apply the Ellis standard. The district court complied with our order, considered the weight of the evidence, and again overruled the motion for new trial. Consequently there is no reason to reverse on this issue.
We next address the defendant's claims of ineffective assistance of counsel. We review claims of ineffective assistance of counsel de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002); State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001). Ordinarily, ineffective-assistance-of-counsel claims are left for postconviction relief proceedings. Hischke, 639 N.W. 2d at 8; State v. Lopez, 633 N.W.2d 774, 785 (Iowa 2001). Ineffective assistance of counsel claims will be decided on direct appeal only if the record is clear and trial counsel's actions cannot be explained by plausible strategic or tactical considerations. See id. To prevail on a claim of ineffective assistance of counsel, defendant must prove by a preponderance of evidence both that his trial attorney failed in an essential duty and that he suffered prejudice as a result. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). If a claim lacks either of the elements, it is not necessary for us to address the other element. Id.
Defendant first contends his trial attorney should have objected to T.R.'s testimony that he got in an argument with her mother Lisa, he pushed Lisa, and she slid across the yard. He also contends his trial attorney should not have then asked T.R. if she thought defendant pushed Lisa, which elicited T.R.'s response that she saw defendant push Lisa. Defendant contends the evidence was inadmissible because it was evidence of prior bad acts. The State advances the evidence was relevant because it showed T.R. was afraid of the defendant and for that reason did not report the abuse when it happened. The State also argues that even if the testimony was objectionable, defendant cannot show he was prejudiced by its admission because the outcome would not have changed if the evidence had not been admitted.
Iowa Rule of Evidence 5.404(b) addresses the admissibility of evidence of prior bad acts. It says:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 5.404(b) is a codification of the common-law rule that one crime cannot be proved by proof of another. See State v. Castaneda, 621 N.W.2d 435, 439 (Iowa 2001). The purpose of the rule is to exclude evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer he or she committed the crime in question. See id. at 439-40. For evidence of past bad acts of a defendant to be admissible, the evidence must be relevant to prove a fact or element in issue other than the defendant's criminal disposition. See id. at 440.
If the evidence is relevant for a legitimate purpose, the court must then assess whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403. Probative value gauges the strength and force of the evidence to make a consequential fact more or less probable. See State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Evidence is unfairly prejudicial if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or may be such as would trigger a jury to base its decision on something other than the established propositions in the case. See State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001).
In weighing the probative value of evidence against its unfair prejudice, the court needs to consider:
on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991) (quoting McCormick on Evidence § 190, at 453 (E. Cleary 2d ed. 1972)). There also must be clear proof defendant committed the prior bad acts. State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997).
The State contends the evidence was admissible because it was relevant to a legitimate issue in the case in that it showed T.R.'s fear of defendant and consequently explains her delayed reporting. The alleged acts happened in 1997. Defendant moved from T.R.'s mother's home in late 1998 and yet it was not until the spring of 1999 that the alleged incident came to light. The defendant argues that any fear T.R. had of defendant that may have generated her delayed reporting would no longer exist after he left her mother's home. We are inclined to agree with the defendant and do not find the evidence relevant for any of the purposes set forth in the rule. The State also contends defendant cannot show prejudice because the result of the proceedings would not have changed had the evidence not been admitted, and the testimony in question was a small part of T.R.'s testimony. The State's case depended on T.R.'s testimony and the jury's assessment of her credibility; consequently we cannot say the evidence did not prejudice the defendant. That said, we recognize defendant's trial attorney may have had a legitimate reason for not objecting and should be allowed an opportunity to explain. Under such circumstance we preserve this ineffective assistance of counsel claim for possible postconviction relief proceedings. See Lopez, 633 N.W.2d at 785.
Defendant next contends that he wished to testify at trial and his trial attorney did not allow him to do so. The State concedes the record is not adequate to address this claim and agrees it should be preserved. We preserve it for possible postconviction proceedings.
Defendant also claims his trial attorney was ineffective for failing to investigate and call as a witness Orville Templeton, who was on defendant's list of expected witnesses. Defendant contends that Templeton, if called, could testify T.R.'s knowledge of sexual behavior could have come from sources other than her alleged experience with defendant. Lisa testified that T.R. never observed her while she had sexual relations with defendant. Templeton, according to his affidavit, could have testified that he saw T.R. peek into the couple's bedroom while they were making love and she also tried to observe her mother and defendant in a van outside the house.
The State contends Templeton's affidavit does not describe what T.R. saw and therefore he could not testify the activity was "slick legging," nor could Templeton state what he saw T.R. attempting to see the two couples doing. Therefore the State contends it would not impeach T.R.'s statement that she had not heard of "slick legging" prior to her experience with the defendant. Defendant has failed to show the required prejudice necessary to proceed on this claim.
Defendant contends his trial counsel breached an essential duty in failing to object to the presentence investigation report. His specific claim is that an objection should have been made to an attached report prepared by Shahe Zenian, a staff psychologist with the Fourth Judicial District Department of Correctional Services. Clearly the report contains conclusions that are damaging to the defendant. The district court judge said he considered the sentence he imposed appropriate from the review of defendant's record, the presentence investigation report, and the trial.
Defendant contends counsel should have objected to the report because (1) he declined to participate in the evaluation, (2) Zenian utilized collateral information, despite the fact there were no psychological evaluations or an examination of the defendant, (3) Zenian gave specific opinions of the defendant which the defendant claims were unsupported and were highly prejudicial of defendant, and (4) the report considered matters that had not been proven or admitted. Zenian diagnosed defendant as "an untreated sexual psychopath who is in abject denial and must be considered to be a dangerous sexual predator."
The State contends that in compiling the report, Zenian properly considered the trial information, the amended trial information, a discharge summary from the Clarinda Correctional Facility, a discharge summary from the Iowa State Penitentiary, a discharge summary from the Iowa Medical Classification Center, various documents from the Iowa Department of Corrections, and signed notes of a psychologist not based upon standardized procedures. The record is not sufficient for us to address this issue and we preserve it for postconviction proceedings.
We have considered also the claims raised by defendant in his pro se brief and find no reason to reverse on any of his claims.