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holding that the police did not violate the Fourth Amendment when they entered the defendant's front porch, in part because the fact no doorbell was posted outside of the porch was an indication that the defendant did not have a legitimate expectation of privacy in the porch
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No. 2-004 / 00-2058.
Filed May 15, 2002.
Appeal from the Iowa District Court for Webster County, JOEL E. SWANSON, Judge.
Larry Kennedy appeals from the judgment and sentence entered upon jury verdicts finding him guilty of first-degree sexual abuse and second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Ron Robertson, County Attorney, and Stephen S. Lickiss, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Larry Kennedy appeals from the judgment and sentence entered upon jury verdicts finding him guilty of first-degree sexual abuse and second-degree sexual abuse. He contends (1) the trial court erred in overruling his motion to suppress evidence, (2) his trial counsel was ineffective in failing to move for a mistrial due to the prosecutor's prejudicial remarks in closing argument, (3) there is insufficient evidence to support his conviction for second-degree sexual abuse, and (4) the trial court erred in failing to grant his motion for testing and motion for new trial in regard to newly-discovered evidence. We affirm.
I. BACKGROUND FACTS.
The nine-year-old female victim, S.G., was outside playing on July 21, 2000. The victim's mother realized the victim was missing at around 9:30 p.m. The mother contacted family and friends, including Larry Kennedy, in an effort to find the victim. Kennedy agreed to help search for the victim. The child with whom the victim had been riding scooters stated that she left the victim with "Uncle Larry," Larry Kennedy. The mother telephoned Kennedy's home repeatedly, but no one answered the phone. She also knocked on Kennedy's door. No one answered.
Police also knocked on the door to Kennedy's enclosed front porch, and then also on the side and back doors to Kennedy's home. The police returned to the victim's home, and subsequently made a return trip to Kennedy's home. The officer knocked on the door to the front porch. The door was unlocked, so the officer entered Kennedy's porch and knocked on the door inside the porch leading into the home. An officer peered through a window on the porch with a flashlight and saw a scooter inside the house. The police officer opened the screen door and looked through the windows on the wooden door to see the scooter better. The scooter matched that belonging to the victim. When an officer again looked in the home, the scooter had been moved. Police knocked on the door again. At that point, the police called the County Attorney's Office, and the decision was made to enter the home.
The officers forcibly entered Kennedy's home. They were in the kitchen when Kennedy entered through a curtain from a bedroom. The officers found the victim, bloody and injured, lying naked in Kennedy's bed. The victim told an emergency room nurse that her uncle used his penis to penetrate her. The victim also testified that she was playing video games with Kennedy when he grabbed her, put her in a bedroom, and told her to take all her clothes off. She said that he told her if she did not do as he said, she would never see her mother again. She later denied being able to remember that he told her to disrobe. She testified that she thought she got hurt while she was in the bedroom, although she could not remember what happened in there. Kennedy claimed that he found the victim in his backyard, holding what appeared to be clothing. She was injured at that time. He took her to his bedroom because it had the closest phone so he could call her mother.
The victim sustained injuries that were life-threatening. Because of the sex acts perpetrated on her, in the future intercourse may be painful for her, and she may not be able to carry children to term when she is pregnant.
Kennedy was charged with two counts of first-degree sexual abuse in violation of Iowa Code sections 709.1 (Supp. 1999) and 709.2 (1999) and one count of first-degree kidnapping in violation of sections 710.1 and 710.2. One count of sexual abuse was based on vaginal intercourse, and one count was based on anal intercourse. Kennedy filed a motion to suppress, which was granted in part and denied in part. Following jury trial, the jury convicted Kennedy of first-degree sexual abuse (vaginal intercourse) and second-degree sexual abuse (anal intercourse). The kidnapping charge was dismissed. Kennedy filed an unsuccessful motion for new trial, which relied in part on his allegation that blood stains were found after trial on the back door of his house and other areas which if tested for DNA and if found to be the victim's blood would be consistent with his version of events. The court sentenced Kennedy to life imprisonment for first-degree sexual abuse, and to an indeterminate, twenty-five year term of imprisonment for second-degree sexual abuse, to be served concurrently. Kennedy appeals.
II. MOTION TO SUPPRESS.
Kennedy contends the trial court erred in overruling his motion to suppress due to violations of the United States and Iowa Constitutions. He alleges the officers' entry onto his porch was illegal, the entry into his home was not warranted by exigent circumstances, and search warrants for his person and home were issued illegally.
A. Scope of review. Because this is a constitutional issue, we conduct a de novo review, making an independent review of the totality of the circumstances as shown by the entire record. State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989).
B. Entry onto porch. The Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution protect persons from unreasonable searches and seizures. See U.S. Const. amend. IV; Iowa Const. art. I, § 8. A search occurs under the Fourth Amendment any time the government intrudes upon a person's legitimate expectation of privacy. State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). The Fourth Amendment guarantee against unreasonable searches is applicable to the states via the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). Because the search and seizure provisions of article I, section 8 of the Iowa Constitution and the Fourth Amendment contain identical language, the two provisions are generally "deemed to be identical in scope, import, and purpose." State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986) (quoting State v. Groff, 323 N.W.2d 204, 207 (Iowa 1982)). Therefore, while our discussion focuses on the Fourth Amendment, it is equally applicable to its complimentary provision in the Iowa Constitution.
An individual challenging a warrantless search must demonstrate he possessed a legitimate expectation of privacy in the particular area searched. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). Specifically, he must show both a subjective and objective expectation of privacy. Id. The issue presented is whether Kennedy had a legitimate expectation of privacy in his enclosed front porch.
We conclude Kennedy did not have a legitimate expectation of privacy in his enclosed front porch. The width of his front porch was smaller than the width of the remainder of his house. There was no doorbell outside the door to the front porch. The door was not locked when the officers entered the porch after 11 p.m. The door to the front porch was a storm door with large, uncovered windows. There was a welcome mat on the front porch in front of the doors leading into the house. The doors leading into the house consisted of a glass storm door and a wooden door. There were miscellaneous boards and a few toys on the front porch, but there was no furniture and nothing of great value. In contrast, the back porch contained more valuable items, and it was locked. Most importantly, the victim's mother testified that she had been to the house several times and she always went inside the porch to knock on the interior door. Kennedy had neither a subjective nor an objective expectation of privacy in his front porch. We find Kennedy's front porch distinguishable from that in State v. Reinier, 628 N.W.2d 460 (Iowa 2001).
C. Probable Cause and Exigent Circumstances. We next consider whether the officer's warrantless entry into Kennedy's home violated the United States and Iowa Constitutions. The Fourth Amendment to the United States Constitution offers citizens broad protection against warrantless searches and seizures. State v. Carlson, 548 N.W.2d 138, 140 (Iowa 1996). The purpose of this protection is to safeguard the privacy and security of individuals against arbitrary intrusion by government officials. Id. It has long been settled, however, that warrantless searches and seizures are permitted if they fall within one of the limited exceptions to the warrant requirement. Vincik, 436 N.W.2d at 353. The exceptions include (1) search by consent, (2) probable cause coupled with exigent circumstances, or (3) plain view. Id. The State carries the burden of proving by a preponderance of the evidence that officers acted reasonably under one of the exceptions. State v. Brecunier, 564 N.W.2d 365, 367 (Iowa 1997).
The issue before us is whether reasonable exigent circumstances existed to justify the officers' entry into Kennedy's home. In determining whether reasonable exigent circumstances exist, we consider proof of (1) a grave offense, (2) a suspect reasonably believed to be armed, (3) probable cause to believe the suspect committed the crime, (4) strong reason to believe the suspect is on the premises, (5) strong likelihood of the suspect's escape if not apprehended, and (6) peaceable (if not consensual) entry. Id. These factors are not all inclusive, nor must each one be satisfied for a finding of exigency. Id.
The ultimate issue . . . is whether an emergency or urgent need for the warrantless entry existed. A warrant will be required unless an immediate major crisis in the performance of duty afforded neither time nor opportunity to apply to a magistrate. We have found that exigent circumstances usually exist where there is danger of violence and injury to the officers or others; risk of the subject's escape; or the probability that, unless taken on the spot, evidence will be concealed or destroyed.
State v. Hatter, 342 N.W.2d 851, 855 (Iowa 1983) (citations omitted). The standard for probable cause is whether a person of reasonable prudence would believe a crime has been committed or that evidence of a crime might be located in the particular area to be searched. Naujoks, 637 N.W.2d at 108.
We conclude that the facts known to the officers at the time of their entry into the home give rise to probable cause plus exigent circumstances. The officers knew that a little girl was missing, and she had last been seen with Kennedy. Two automobiles were in Kennedy's driveway, yet no one answered the door or telephone. An officer saw the victim's scooter through a window from the front porch with the aid of a flashlight, which was lawful, State v. Lamp, 322 N.W.2d 48, 52 (Iowa 1982) (stating that the fact that artificial light is used to illuminate articles that would be readily visible in daylight does not affect the validity of the observation), overruled on other grounds by State v. Heminover, 619 N.W.2d 353 (Iowa 2000), and then later another officer noticed it had been moved from its original location. This evidence suggests that Kennedy was in his house trying to evade law enforcement, the little girl was in serious danger, and that Kennedy knew something about her disappearance. We conclude probable cause coupled with exigent circumstances justified the warrantless entry into Kennedy's home.
D. Search warrants. Kennedy asserts that the only untainted evidence in the search warrant affidavits was that the victim had last been seen in the company of Kennedy. We disagree. The evidence used in the affidavits was obtained lawfully, because the entry onto the porch was legal, and the warrantless entry into the home was justified under the exigent circumstances exception to the warrant requirement. We affirm the trial court's ruling on the motion to suppress.
III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Kennedy contends his trial counsel was ineffective in failing to move for a mistrial due to the prosecutor's allegedly prejudicial remarks in closing argument.
A. Scope of review. Kennedy is entitled to the effective assistance of counsel under the Sixth Amendment of the United States Constitution and article I, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
B. Merits. To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The prosecutor stated as follows:
Let's talk about the possible outcomes that could have come up for this poor child. Outcome No. 1: This is from the defense — from the Defendant's perspective, we're going to try to peek into his mind a little bit. He rapes [S.G.], now what's he going to do? What are the possible outcomes that could happen for him? One, he kills her. All right.
Kennedy's attorney objected to this statement, arguing that it was inflammatory and was improper argument on a sexual abuse case. The district court did not rule on the objection, but stated, "Continue."
We conclude Kennedy is unable to show the requisite prejudice from his counsel's failure to object to the prosecutor's allegedly prejudicial remarks, because there is overwhelming evidence of his guilt of first- and second-degree sexual abuse. The victim was sexually abused. She was found naked, bloody, and injured in Kennedy's bed. Kennedy did not answer his telephone or his door while the victim was in his house. The victim's DNA and blood was on Kennedy, and Kennedy's DNA was on the victim. The victim was last seen with Kennedy. She told an emergency room nurse Kennedy abused her. She also testified Kennedy grabbed her, put her in a bedroom, and told her to take all her clothes off. She also testified that she thought she got hurt in that bedroom.
IV. SUFFICIENCY OF EVIDENCE FOR SECOND-DEGREE SEXUAL ABUSE.
Kennedy contends the record contains insufficient evidence to support his conviction for second-degree sexual abuse. This count involved his alleged anal intercourse with the victim.
A. Scope and standard of review. Because a jury verdict is binding on this court when supported by substantial evidence, appellate review of Kennedy's sufficiency-of-the-evidence argument is for the correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). Evidence is substantial if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). The jury was entitled "to give as much weight to the evidence as, in its judgment, such evidence should receive." State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). "Direct and circumstantial evidence are equally probative." Iowa R. App. P. 6.14(6)(p). This court reviews the evidence in a light most favorable to the State. Casady, 597 N.W.2d at 804. This includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. Id. We consider all the evidence, not just the evidence supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998).
B. Merits. We find sufficient evidence to support the jury verdict finding Kennedy engaged in anal intercourse with the victim. The victim told a paramedic that she hurt in both her vagina and anus. She also told the emergency room nurse that she had been vaginally and rectally penetrated. She suffered superficial tears to the rectum itself, and there was a tear from the vagina to an area between the cervix and rectum. There was testimony indicating the injury was close to the vagina and rectum. A doctor testified that it was possible that the injury could have been caused by anal penetration. We affirm on this issue.
V. MOTION FOR TESTING AND MOTION FOR NEW TRIAL.
Kennedy contends the district court erred in failing to grant his motion for testing and motion for new trial in regard to newly discovered evidence.
A. Scope of review. We review a district court's ruling on a motion for new trial on the basis of newly-discovered evidence for abuse of discretion. State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996). "We find an abuse of discretion only when discretion is exercised on grounds clearly untenable or to an extent clearly unreasonable." Preferred Mktg. Assocs. Co. v. Hawkeye Nat'l Life Ins. Co., 452 N.W.2d 389, 393 (Iowa 1990).
B. Merits. To prevail on a claim of newly-discovered evidence, a defendant must show: (1) that the evidence was discovered after the verdict, (2) that it could not have been discovered earlier in the exercise of due diligence, (3) that the evidence is material to the issues in the case and not merely cumulative or impeaching, and (4) that the evidence probably would have changed the result of the trial. State v. Beeson, 569 N.W.2d 107, 112 (Iowa 1997). A motion for new trial based on newly-discovered evidence is looked upon with disfavor and granted sparingly. Id. The evidence that was allegedly newly-discovered was stains that Kennedy claimed might be blood around the back door area and in the adjacent kitchen of Kennedy's home. He believes that if the stains were tested and found to be the victim's blood, it would support his theory that he was trying to help the victim by carrying her into the house after he found her bleeding in the back yard. He argues that the evidence could not have been discovered earlier in the exercise of due diligence because, although an attorney from the office of his defense attorney and an investigator walked through the home looking for evidence, not much time was spent at the back door.
We agree with the trial court that this evidence could have been discovered earlier in the exercise of due diligence, as Kennedy had ample opportunity to discover it prior to trial. As noted by the defendant, an attorney from the office of his defense attorney and an investigator searched the home looking for evidence. The stains could have easily been discovered at that time, if they existed at that time. We affirm on this issue.
VI. CONCLUSION.
We conclude that the trial court properly overruled portions of Kennedy's motion to suppress evidence because the entry onto his porch was lawful, the entry into his home came within an exception to the warrant requirement, and the search warrants were properly granted. We determine that trial counsel was not ineffective in failing to move for a mistrial based on the prosecutor's allegedly prejudicial remarks in closing argument. We find sufficient evidence to support the jury's verdict finding Kennedy guilty of second-degree sexual abuse based on his anal penetration of the victim. We conclude the trial court correctly denied Kennedy's motion for testing and motion for new trial. We affirm Kennedy's judgment and sentence.
AFFIRMED.