Opinion
No. 2-795 / 01-1502.
Filed December 11, 2002.
Appeal from the Iowa District Court for Pottawattamie County, KEITH BURGETT, Judge.
Appeal following convictions of second- and third-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Richard Crowl, County Attorney, and Daniel McGinn and Marti Heinicke, Assistant County Attorneys, for appellee.
Considered by HABHAB, HARRIS, and SNELL, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant Michael Leroy Berry assigns three errors in his appeal following convictions of both second and third-degree sexual abuse in violation of Iowa Code sections 709.1(3), 709.3(2) and 709.4(2)(b). The charges involve conduct with Berry's stepdaughter between the years 1993 and 1998 when the victim was seven to thirteen years of age. The assignments challenge evidentiary rulings and a claim of ineffective assistance of counsel. We affirm.
I. Berry offered evidence intended to impugn the truth and veracity of the victim. His witnesses included three of his own children, all of whom would testify of family discussions revealing that the victim's reputation within the family for truth and veracity was bad. On appeal, the State defends the trial court's refusal to admit this evidence on a number of grounds, but we can and do limit our discussion to just one.
Evidence relating to a witness's truth and veracity is governed by Iowa Rule of Evidence 5.608. A crucial foundational requirement for such testimony is that the reputation must be not among a limited group such as a family, but that of a general cross-section of the community where the witness lives or works. State v. Caldwell, 529 N.W.2d 282, 286 (Iowa 1995). Because the testimony proffered here had only to do with the witness's reputation within the Berry family, it was correctly rejected.
II. Berry also challenges an evidentiary ruling relating to a letter signed by the victim requesting dismissal of the charges. The letter was written before the present trial, but after a prior trial on the same charges which resulted in a hung jury and mistrial. Also challenged is a ruling admitting photographs taken where the abuse occurred. These ruling were discretionary. State v. Howard, 509 N.W.2d 764, 768 (Iowa 1993). We find no abuse.
III. In another assignment Berry asserts he was denied effective assistance of counsel. One complaint is addressed to trial counsel's failure to object to imposition of sentence according to Iowa Code section 902.12. The effect of the provision was explained in State v. Iowa District Court for Black Hawk County, 616 N.W.2d 575, 579 (Iowa 2000). This mandatory minimum sentence provision was enacted in 1996 and became effective July 1, 1996. It is a punitive measure which must operate prospectively only; to operate retrospectively would violate the constitutional prohibition against ex post facto laws. State v. Bean, 474 N.W.2d 116, 119 (Iowa Ct.App. 1991). Berry's abuse began in 1993 when the victim was seven years old and continued until 1999 when she was thirteen, so the effective date of Code section 902.12 fell within the period.
Berry was guilty of second-degree abuse for any act committed when the victim was less than twelve years of age, but section 902.12 would apply only to acts committed after its effective date. The jury was not asked to make separate findings as to the dates of the many acts of abuse. But there was ample evidence to support acts occurring within the period when the statute was applicable. So imposition of the mandatory minimum sentence, on this record, was correct. Berry was not prejudiced by failure of his counsel to object.
A second ineffectiveness complaint challenges trial counsel's failure to challenge the prosecutor's final argument. The prosecutor mistakenly characterized a statement drawn from Berry during cross-examination. The prosecutor argued to the jury that the young victim knew of Berry's impotence, but the transcript shows that Berry merely conceded that the victim's testimony concerning the time frame of his impotence was correct.
In view of the strong evidence against Berry, we are convinced the prosecutor's error did not affect the verdict, and thus Berry was not prejudiced by his counsel's failure to object. See State v. Schupert, 554 N.W.2d 250, 254 (Iowa 1996) (prejudice must appear to establish ineffectiveness claim).
AFFIRMED.