Opinion
No. 5-352 / 04-0943
Filed June 29, 2005
Appeal from the Iowa District Court for Humboldt County, Joel E. Swanson, Judge.
David Hanse appeals from his convictions and sentence for second-degree sexual abuse and child endangerment. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Ann E. Brenden and Denise Timmins, Assistant Attorneys General, and Derk Schwieger, County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
David Hanse appeals from his convictions and sentence for second-degree sexual abuse and child endangerment. We affirm.
I. Background Facts and Proceedings.
In January of 2000, the Department of Human Services (DHS) became involved with Hanse's family in response to concerns of possible physical abuse of Hanse's daughter, K.M. Hanse was then living with Dawn Koebel and their two daughters, K.M. and B.M. DHS case manager Michelle Feaster made a number of unannounced visits to Hanse's home in Humboldt. During one such visit, Feaster observed pornographic magazines in plain sight, and also questioned Hanse about reports that registered sex offenders were permitted in the home. Hanse refused DHS access to his computer-use history, something Feaster viewed as a "red flag." DHS continued to monitor the family throughout the year.
On April 2, 2001, social workers made another unannounced visit to the home and observed through a window in the home that Hanse was viewing a pornographic movie in the presence of his two daughters. Hanse belatedly answered the door and appeared to be very nervous. The social workers observed Hanse had "a very obvious erection." Hanse admitted he had been watching adult movies. K.M., age four at the time, nervously informed the social workers that her panties were on "funny" because they were pulled up on one leg. Based on the obvious concerns raised by this unannounced visit, the social workers moved K.M. to a "safe house" designed to provide protective services to children.
At the safe house, K.M. informed the social workers that she had been "making sex with her dad," and that the reason it had taken so long to answer the door was because they all had to put their pants on. K.M. then reported various sexual activities that had occurred involving Hanse and co-defendant Koebel, as well as various other persons Hanse would invite to the home. K.M. expressed concern about her little sister who had not been removed from the home. B.M., who was age two at the time, had been left in Hanse's care while K.M. was at the safe house, and K.M. voiced concern that Hanse would "make sex" with B.M., and that B.M. was too small. Based on this information, the social workers decided to remove both K.M. and B.M. from the home.
A sexual assault examination was conducted on both girls. The examination of K.M. revealed a torn hymen and a hymenal opening of the size expected in a twelve-year-old child. The nature of K.M.'s injuries was consistent with insertion of an adult finger or attempted penetration with a penis. K.M.'s injuries were not considered "acute" in that they were not believed to have occurred within the previous twenty-four hours. B.M.'s examination revealed she had an enlarged clitoris consistent with her history of masturbation. K.M. and B.M. were placed in foster care on April 3, 2001, and were later adopted by their foster care parents after the parental rights of Hanse and Kobel were terminated. K.M. was later diagnosed with genital warts, exhibited problematic social behaviors, and suffered from frequent nightmares consistent with a diagnosis of posttraumatic stress disorder. B.M. initially engaged in frequent masturbation and exhibited aberrant sexual behavior with the foster/adoptive family's dogs.
K.M. disclosed to social workers that Hanse had included a dog in the sexual activity to which she was exposed.
The State charged Hanse with one count of second-degree sexual abuse, and two counts of child endangerment. A jury trial commenced on March 31, 2004, at which K.M. detailed the various sex acts inflicted upon her and her sister at the hands of both Hanse and other adults he invited to the home.
K.M. testified that a grandfather, and at least two other persons named "Scott" and "Rocky" were permitted by Hanse to touch her sexually. Koebel, Hanse's co-defendant, was alleged to have watched the sexual abuse while playing on the computer.
The case was submitted to jurors who were asked in part to decide if a sex act had occurred between K.M. and Hanse. The jury instruction defining "sex act" read as follows:
Concerning element number 1 of Instruction No. 14, "sex act" means:
1. Penetration of the penis into the vagina or anus.
2. Contact between the mouth of one person and the genitals of another.
3. Contact between the genitals of one person and the genitals or anus of another person.
4. Contact between the finger or hand of one person and the genitals or anus of another person.
5. A person's use of an artificial sex organ or a substitute for a sexual organ in contact with the genitals or anus of another.
You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.
(emphasis supplied). The jury returned a verdict of guilt in all three counts alleged.
Hanse and the State entered into a pre-trial stipulation that Hanse's prior bad acts would not be disclosed to the jury. Feaster nonetheless testified at trial that when Hanse was confronted by police officers during the removal of his children, he stated "I can't go back to prison, I don't want to go back to prison." Trial counsel did not object to this testimony when it was given by Feaster, but he later claimed it justified a new trial. The district court denied Hanse's motion for new trial, however, because the State did not solicit Feaster's solitary remark which, the court concluded, had no effect on the trial's outcome.
Hanse was convicted and sentenced to prison. He now appeals, alleging the ineffectiveness of trial counsel denied him a fair trial. Specifically, Hanse contends trial counsel rendered ineffective assistance by (1) failing to object to the jury instruction defining sex act, and (2) failing to object to Feaster's testimony referencing Hanse's history of imprisonment, request a curative instruction, or move for a mistrial.
Uniform Jury Instruction 900.8 defines a "sex act" as follows:
"[S]ex act" means any sexual contact:
1. By penetration of the penis into the vagina or anus.
2. Between the mouth of one person and the genitals of another.
3. Between the genitals of one person and the genitals of another.
4. Between the finger or hand of one person and the genitals or anus of another person.
5. By a person's use of an artificial sex organ or a substitute for a sexual organ in contact with the genitals or anus of another.
You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.
(emphasis supplied).
II. Scope and Standard of Review.
Where the ineffectiveness of counsel is alleged as the basis for the denial of a fair trial, we perform de novo review of the entire record in order to assess both the reasonableness of counsel's conduct and any prejudice suffered thereby. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of counsel raised on direct appeal are generally preserved for post-conviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). Claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for post-conviction proceedings. Iowa Code § 814.7 (2005). If such a claim is raised on direct appeal, and the record is adequate to permit us to assess trial counsel's effectiveness, or the record is sufficient to determine whether prejudice resulted from counsel's alleged unprofessional error, we may decide the ineffectiveness claim on direct appeal. Allen, 348 N.W.2d at 248. In order to prevail on his claims of ineffective assistance of counsel, Hanse must demonstrate counsel's failure to perform an essential duty resulted in prejudice. We find prejudice if there is a reasonable probability that but for counsel's failure, the result of the trial would have been different. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999); Gering v. State, 382 N.W.2d 151, 153-54 (Iowa 1986).
III. Discussion.
A. Jury Instruction.
Hanse claims trial counsel breached an essential duty when he failed to object to the definition of "sex act" included in the jury instructions. Hanse notes the definitional instruction given in this case deviated from the uniform instruction which expressly provides that a sex act involves "sexual contact." Moreover, Hanse contends the definition of "sex act" given to the jury was prejudicial because it allowed a finding he committed a sex act without first determining the act was sexual in nature
In making this claim, Hanse relies on State v. Monk, 514 N.W.2d 448, 450 (Iowa 1994), for the proposition that an act is not a "sex act" unless the contact constituting the act is sexual in nature. In Monk, the defendant and a confederate inserted a broomstick in a victim's anus. Evidence was presented tending to prove that Monk, the victim and others commonly engaged in rather rough horseplay. Monk challenged his conviction for sexual abuse, claiming the jury instructions failed to inform the jury that he could not be convicted of the offense unless the State proved his conduct involved sexual contact. Our supreme court concluded the jury could have found the assault committed by Monk was not sexual in nature. Id. The court further concluded the jury instruction on "sex act" presented in that case was prejudicial under the circumstances of that case because the instruction did not require the jury to conclude the particular contact alleged, while fitting within the categories of acts constituting a "sex act," was in fact sexual in nature. Id.
However, the court in Monk also noted "[i]n most cases the sexual nature of the contact is undisputed." Monk, 514 N.W.2d at 451. We are convinced no rational juror could conclude from the evidence adduced at trial that Hanse's contact with K.M. was non-sexual. We therefore conclude the acts for which Hanse was charged and convicted were sexual in nature and constituted sexual contact as a matter of law. Thus, trial counsel had no duty to object to the instruction. Furthermore, although the instruction given in this case did not employ the phrase "sexual contact" when itemizing the acts constituting a "sex act" for purposes of the second-degree sexual abuse statute, we conclude Hanse suffered no prejudice as a consequence of the district court's deviation from the uniform instruction.
B. Prior Crimes and Bad Acts.
Hanse further claims he was prejudiced by trial counsel's failure to object or seek a mistrial based upon the testimony of DHS case manager, Michelle Feaster. As noted above, trial counsel failed to object when Feaster testified that Hanse had stated he could not go back to jail. Hanse contends Feaster's testimony allowed the jury to infer Hanse had previously committed an offense repugnant enough to warrant imprisonment, and to make the further inference that Hanse was more likely to have committed the crime alleged in this case. Despite the State's pre-trial stipulation not to present evidence of Hanse's prior bad acts, the district court denied a motion for new trial based on Feaster's testimony, finding the State had not elicited the testimony nor expounded upon it once given.
We conclude this claim must be rejected because Hanse cannot establish prejudice resulting from trial counsel's failure to object to Feaster's testimony. Although no evidence of an "acute" injury was noted during the medical examination conducted immediately following K.M.'s removal, we find the other evidence of Hanse's guilt was overwhelming. The State proved through medical evidence that K.M. had previously suffered sexual injury. K.M. provided compelling and graphic details of the frequent sexual abuse suffered at the hands of Hanse and his guests. The details of the abuse provided by K.M. were consistent with the results of her medical examination. DHS representatives observed pornographic materials in Hanse's home both prior to and at the time K.M. and B.M. were removed from Hanse's care. After carefully reviewing the record, we conclude the isolated comment, unsolicited by the State and de-emphasized by both parties, could not have tipped the balance in favor of conviction. Hanse has failed to meet his burden of showing a reasonable probability of a different outcome if the challenged testimony had been objected to by trial counsel and either excluded or addressed by an appropriate curative instruction.
We therefore reject Hanse's ineffective assistance claims. His convictions and sentence are affirmed.