Opinion
No. 4-269 / 03-1457.
September 29, 2004.
Appeal from the Iowa District Court for Linn County, L. Vern Robinson, Judge.
John Richmond seeks postconviction relief from his conviction for sexual abuse in the second degree. AFFIRMED.
Jon M. Kinnamon, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Harold Denton, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, and Vaitheswaran, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
I. Background Facts Proceedings
John Richmond was charged with sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3 (1995), based on allegations that he forced his former girlfriend to commit a sex act at knifepoint. Prior to trial, Richmond moved to suppress incriminating statements made to an Episcopal priest concerning his relationship with the complaining witness. The trial court denied Richmond's motion, finding the priest-penitent provision did not apply in this instance.
Richmond was subsequently convicted of second-degree sexual abuse and sentenced to an indeterminate twenty-five-year term of incarceration. The provisions of Iowa Code section 902.12 in effect at that time required Richmond to serve one hundred percent of his sentence.
On direct appeal Richmond challenged the trial court's ruling admitting the priest's testimony over his objection. The supreme court affirmed, holding that the priest-penitent privilege did not apply because Richmond did not seek advice from the priest in the priest's professional capacity. State v. Richmond, 590 N.W.2d 33, 35 (Iowa 1999).
In his application for postconviction relief, Richmond claimed he was denied effective assistance of trial and appellate counsel in several respects. He cited counsel's failure to challenge the constitutionality of Iowa Code section 902.12. He also claimed trial counsel should have requested that the jury be instructed that sexual abuse in the second degree is a specific intent crime, and that appellate counsel was ineffective for failing to raise that issue on direct appeal. Richmond additionally cited trial and appellate counsel's failure to raise any issue concerning the trial court's jury instructions regarding Richmond's display of a dangerous weapon. Lastly, Richmond claimed appellate counsel failed to challenge the constitutionality of the priest-penitent privilege as applied by the trial court.
The district court found Richmond's claims regarding the priest's testimony were already rejected by the supreme court in Richmond, 590 N.W.2d at 35. The court also found Richmond failed to show he received ineffective assistance of counsel. In particular, the court found section 902.12 was not unconstitutional. The court also determined there was no error in the trial court's jury instructions and Richmond failed to show he was prejudiced by these instructions. The court denied Richmond's Iowa Rule of Civil Procedure 1.904(2) motion. Richmond's petition for postconviction relief was dismissed, resulting in this appeal.
At oral argument Richmond abandoned any claims concerning the constitutionality of section 902.12.
II. Standard of Review.
Postconviction proceedings are law actions ordinarily reviewed for errors of law. Carter v. State, 537 N.W.2d 715, 716 (Iowa 1995). However, when there is an allegation of constitutional error, our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
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, an application must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied applicant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
III. Priest-Penitent Privilege.
We assume, without deciding, that Richmond has preserved the following issues for our review. In Richmond, 590 N.W.2d at 35, the court stated:
We have said that in order to determine whether a communication to a member of the clergy falls within the purview of section 622.10, the communication must be: (1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge for the function of the person's office. State v. Alspach, 524 N.W.2d 665, 668 (Iowa 1994) (citing State v. Deases, 518 N.W.2d 784, 787 (Iowa 1994)). . . .
. . . The record strongly supports the trial court's finding that Richmond did not consult Fr. Osing in his priestly capacity. Richmond himself concedes that it was not for any spiritual reasons but for advice on his relationship with [the complaining witness]. Fr. Osing testified he was under the same impression. The claim of priest-penitent privilege thus fails.
Richmond claims that the supreme court's decision rejecting his priest-penitent privilege arguments violated several constitutional protections guaranteed by both the Iowa and United States Constitutions. More specifically, Richmond argues the court's ruling violated the establishment of religion clauses in both constitutions. U.S. Const. amend. I; Iowa Const. art. I, § 3. He also claims he was denied his right to due process of law under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article I, section 9 of the Iowa Constitution. His arguments are summarized in this way:
Consequently, the principle effect of [section] 622.10 is now to advance an expressly religious communication if the penitent seeks the protection of [section] 622.10(1). The Supreme Court's decision fosters an excessive and continuous government entanglement with religion by requiring each Iowa court to define whether a specific communication is "spiritual."
. . . .
The Iowa Supreme Court's opinion in the Petitioner's direct appeal clearly altered the legal rules of evidence in effect at the time of the commission of the offense with which Mr. Richmond was charged and did so in such a way as to violate the Due Process protection of Amendment 14 [of the United State Constitution], and Article 1, Section 9 [of the Iowa Constitution]. These constitutional provisions guard against a judicial construction which deprives a defendant of fair notice that a rule of evidence will be altered. Only the objective criteria of Section 622.10 should be applied to the Petitioner's claim of clergy privilege.
Richmond's constitutional claims are premised entirely on the notion that the Richmond opinion added a new spirituality dimension to invocation of the priest-penitent privilege. We disagree. Under our reading of the Richmond opinion, the court simply determined that Richmond did not consult Fr. Osing in his professional capacity as a priest and the privilege was therefore inapplicable. Because none of the constitutional protections cited were implicated, no attorney representing Richmond in any capacity at any stage of any related proceeding was duty bound to raise the constitutional issues he now relies upon. Moreover, and for the same reasons, the trial court did not err in rejecting Richmond's claims that the supreme court's decision in Richmond was unconstitutional. We affirm on this issue.
IV. Jury Instructions/Ineffective Assistance of Counsel.
Richmond claims trial counsel was ineffective in failing to object to the court's marshaling instruction on second-degree sexual abuse because the instruction did not define that offense as a specific intent crime. He faults appellate counsel for failing to argue on direct appeal that trial counsel was ineffective for that reason. "Second-degree sexual abuse is a general intent crime." Foster v. State, 478 N.W.2d 884, 886 (Iowa Ct.App. 1991). Specific intent is not a required element of sexual abuse. See State v. Riles-el, 453 N.W.2d 538, 539-40 (Iowa Ct.App. 1990). 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).
Finally, Richmond contends he received ineffective assistance because counsel did not object to the submission to the jury of the issue of whether he displayed a dangerous weapon. The trial information alleged Richmond "did unlawfully and willfully force Robyn . . . at knife point to commit a sex act." Richmond claims that because the trial information did not specifically allege that he displayed a dangerous weapon, the issue should not have been submitted to the jury.
The district court did not address this issue, but did find the jury was adequately instructed on the issue of intent as it pertained to a dangerous weapon. Richmond did not raise the issue regarding the trial information in his rule 1.904(2) motion. We conclude this issue has not been preserved for our review. See State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997) (noting that issues must be preserved to and passed upon by the district court before they can be raised on appeal). We may not consider an issue raised for the first time on appeal, even if it is of constitutional dimension. State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994).
We have considered all of the issues Richmond raised on appeal, and they are either without merit or resolved by the foregoing. The decision of the district court is affirmed in its entirety.