Summary
explaining "[t]he provision concerning artificial sexual organs or substitutes is a separate category [in section 702.17 (2001) ], separated by a semicolon, from the provision concerning hand to genital contact"
Summary of this case from State v. ThedeOpinion
No. 4-491 / 03-1343.
August 26, 2004.
Appeal from the Iowa District Court for Johnson County, William L. Thomas, Judge.
Frederick Williams appeals his convictions for third-degree sexual abuse and indecent exposure. AFFIRMED.
Jon Kinnamon, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
I. Background Facts Proceedings
On December 3, 2002, Lexi, a student at the University of Iowa, had a meeting with a teaching assistant, Frederick Williams, at his office. Lexi asked Williams if she could do extra work in the class and stated she would do anything to bring up her grade. Williams stated he would allow Lexi to retake the quizzes in his class. He then stated that if they cheated on her grade, she would need to do something to prove herself to him. He started asking Lexi questions of a personal nature.
Eventually, Williams nudged Lexi to a back room, where he dropped his pants and underwear and began to masturbate. He asked Lexi to watch. Williams then handed Lexi a white handkerchief and placed her hand, holding the handkerchief, on his penis until he ejaculated. Lexi told Williams the incident was disgusting. She then returned to her dormitory, where she broke down crying and told two friends, Morgan and Jamie, what had happened.
Williams was charged with sexual abuse in the third degree, in violation of Iowa Code section 709.4(1) (2001), and indecent exposure, in violation of section 709.9. A jury found Williams guilty of these crimes. He was sentenced to a term of imprisonment not to exceed ten years on the third-degree sexual abuse charge, and to time served on the indecent exposure charge. Williams now appeals.
II. Ineffective Assistance
Williams contends he received ineffective assistance of trial counsel in several respects. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
A.
Williams claims he received ineffective assistance due to his trial counsel's failure to object to the marshaling instruction for third-degree sexual abuse because it did not require the jury to find that he had the specific intent to perform a sex act by force or against the will of the other person. We note, however, that third-degree sexual abuse is a general intent crime. State v. Lamphere, 348 N.W.2d 212, 217 (Iowa 1984); State v. Christensen, 414 N.W.2d 843, 847 (Iowa Ct.App. 1987). Defense counsel did not have a duty to object on this ground. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (noting defense counsel does not have a duty to make a meritless or frivolous motion).
B.
Williams asserts his trial counsel should have objected to the definition of "sex act" in the jury instructions because the instruction did not provide that to be a "sex act" contact between the hand of one person and the genitals of another must be "sexual contact." Williams believes that if the jury had been properly instructed it could have found the contact between Lexi's hand and his penis was only to prevent a mess and that the contact was not sexual in nature.
The State agrees that to constitute a "sex act" contact must be sexual in nature. See Iowa Code § 702.17; State v. Monk, 514 N.W.2d 448, 450 (Iowa 1994). The State goes on to point out that Williams was not prejudiced by the instruction because the jury could not possibly have been confused in this case as the evidence clearly shows the "sex act" was also "sexual contact." Lexi testified that as Williams began masturbating, he handed her a handkerchief —
Q. Then what happened? A. And then he told me that he was about ready to come, that it was going to make a big mess and so he told me to hand him the white handkerchief.
Q. Did you start to hand him the handkerchief? A. Yes.
Q. What happened then? A. Then he flipped my hand on to his penis and told me to squeeze.
Q. Did you try to pull your hand away? A. Yes.
Q. Were you able to do so? A. No.
Q. Why not? A. His hand was firmly placed over mine.
Q. Did he keep his hand on yours until he was finished? A. Yes.
Williams kept Lexi's hand on his penis until he ejaculated. We find Williams was not prejudiced because the very nature of his act shows its sexual nature.
C.
Williams also claims his due process rights were violated because the definition of "sex act" in the jury instructions should have specified that when the act is based on contact between a finger or hand and genitals, the finger or hand should have been used as the equivalent of or substitute for a sexual organ. He asserts the instruction improperly encompassed all contact between a finger or hand and genitals, no matter how the finger or hand was used.
The term "sex act" is defined in section 702.17 as follows:
The term " sex act" or " sexual activity" means any sexual contact between two or more persons by: penetration of the penis into the vagina or anus; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to chapter 148, 148C, 150, 150A, 151, or 152; or by use of artificial sexual organs or substitutes therefore in contact with the genitalia or anus.
If the language of a statute is clear and unambiguous, we apply a plain and rational meaning to the statute, consistent with its subject matter. State v. Tague, 676 N.W.2d 197, 202 (Iowa 2004). The language of section 702.17 clearly does not require that a finger or hand be used as an artificial or substitute sex organ in order for contact between a finger or hand and genitals to be considered a "sex act." The provision concerning artificial sexual organs or substitutes is a separate category, separated by a semicolon, from the provision concerning hand to genital contact. The jury instruction followed the definition of "sex act" in section 702.17. Defense counsel was not ineffective for failing to object on this issue. See State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987) (finding defense counsel is under no obligation to engage in an obviously useless act).
D.
Williams contends defense counsel should have objected on due process grounds to the instructions setting forth the elements of the lesser-included offenses of assault with intent to commit sexual abuse and assault because the instructions did not instruct the jury on all the possible means of committing assault.
When a defendant is charged with third-degree sexual abuse in the alternative of force or against the will of the victim, then assault with intent to commit sexual abuse and assault are lesser-included offenses. State v. Anderson, 636 N.W.2d 26, 38 (Iowa 2001). In giving instructions on lesser-included offenses, the supreme court has stated:
When the statute defines an offense alternatively, as here, the relevant definition is the one for the offense involved in the particular prosecution. In other words, where an offense is defined alternatively, a trial court need not instruct the jury based upon all of the lesser offense alternatives simply because one of the lesser offense alternatives is included in the greater offense. The court must look to whether the specific alternative definition upon which a proposed instruction is based is itself a lesser-included offense.
State v. Waller, 450 N.W.2d 864, 865 (Iowa 1990) (citations omitted).
The trial information alleged Williams "forced a female subject to touch his penis against her will." Assault is defined in the following ways: (1) an act intended to cause pain or injury, or intended to result in contact which will be insulting or offensive; (2) an act intended to place another in fear of immediate physical contact which will be painful or offensive; or (3) the intentional pointing of a firearm at another. Iowa Code § 708.1. The district court properly instructed the jury only on the alternative of assault which was relevant to the act alleged in the trial information. See Waller, 450 N.W.2d at 865. The instructions provided, "An assault is committed when a person does an act that is meant to result in physical contact that will be insulting or offensive to another person." Williams has failed to show defense counsel was ineffective for failing to object on this issue. See Rice, 543 N.W.2d at 888 (finding defense counsel has no duty to make a meritless objection).
E.
Williams claims defense counsel should have obtained a declaratory judgment or objected to the State's theory of the case because the State improperly interpreted the definition of a "sex act" in section 702.17. Also, while defense counsel made a motion for judgment of acquittal, Williams claims the wrong grounds were raised in the motion. He raises his earlier arguments, that the contact in this case was not sexual in nature, and that the finger or hand was not used as an artificial or substitute sex organ. We have already rejected these arguments. Defense counsel had no duty to argue these theories, which are clearly meritless. See id. F.
In regard to the charge of indecent exposure, Williams contends defense counsel should have objected on due process grounds because the jury was improperly instructed that it needed to find "[t]he defendant knew or reasonably should have known that the act was offensive to Lexi." He asserts this is an erroneous legal standard, and there should be no requirement that a defendant reasonably know what another is thinking.
Williams relies on two cases, State v. Hutt, 330 N.W.2d 788, 790 (Iowa 1983), and State v. Ogle, 367 N.W.2d 289, 292-93 (Iowa Ct.App. 1985), which held a defendant should not be convicted of theft on proof that he should have known property he received was stolen. Those cases, however, are applicable only to theft by exercising control over stolen properly, section 714.1(4), and do not invalidate the "should have known" standard under all circumstances.
In State v. Bauer, 337 N.W.2d 209, 211-12 (Iowa 1983), the supreme court analyzed section 709.9(2), which requires that for a person to be found guilty of indecent exposure, there must be a showing the "person knows or reasonably should know that the act is offensive to the viewer." The court determined:
The offensiveness standard is the third element of the crime and requires the State to show the state of mind of both the actor and the victim-viewer. It must be shown that the viewer was offended by the conduct. It must also be shown that the actor knew, or under the circumstances, should know the viewer would be offended.
Contrary to defendant's contentions, we find no uncertainties in the burden placed on the State by the statute. It is up to the State to show the offensiveness in the conduct, a requirement the legislature deliberately placed beyond the State's reach in situations involving willing viewers. In cases, unlike the present one, where the State might encounter difficulty in establishing the offensiveness element, the difficulty must be borne by the State and does no harm to the accused.
Bauer, 337 N.W.2d at 212 (footnote omitted).
We conclude defense counsel had no duty to object to the jury instructions for indecent exposure based on the "should have known" standard.
G.
Finally, Williams claims he received ineffective assistance because defense counsel failed to object to alleged improper inferences made by the prosecutor during closing arguments. The parties agree the record on appeal is not sufficient to address this issue. We conclude it should be preserved for possible postconviction proceedings. See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (noting that where there is an incomplete record, ineffective assistance claims are best resolved by postconviction proceedings).
III. Hearsay Statements
Williams contends the district court should not have permitted Lexi's two friends, Morgan and Jamie, to testify as to Lexi's statements to them. The court overruled defense counsel's hearsay objections to the statements. We review a challenge to ruling on a hearsay objection for correction of errors at law. State v. Dullard, 668 N.W.2d N.W.2d 585, 589 (Iowa 2003); State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998).
Under Iowa Rule of Evidence 5.803(2), a hearsay statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible. To be considered an excited utterance, the statement must have been made under the influence of the excitement of the incident, rather than upon reflection or deliberation. State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004); State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001).
We find no error in the district court's ruling admitting the testimony of Morgan and Jamie. Lexi's statements to them were made soon after the incident, when she returned to her dormitory. Morgan and Jamie testified Lexi "immediately started crying," she "broke down," she was "bawling," and she was "really, really upset," while she was telling them what happened. We determine the statements were properly admitted as excited utterances.
We affirm Williams's convictions for third-degree sexual abuse and indecent exposure.