Opinion
No. 5-136 / 04-0201
Filed April 13, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall and Robert B. Hanson, Judges.
Beau Jackson Morris appeals the judgments and sentences entered following his convictions for first-degree robbery and second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Beau Jackson Morris appeals the judgments and sentences entered following his convictions for first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (2003), and second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.3(1). We affirm.
I. Background Facts Proceedings.
On July 5, 2003, at approximately 11 p.m., Morris went to Roslyn Gunnink's condominium. Roslyn had become acquainted with Morris while he and his wife lived in the same condominium complex. Morris asked Roslyn if he could use her computer. Roslyn, who had let Morris use her computer on prior occasions, informed him he could use the computer only for a few minutes. Once Morris gained access to Roslyn's home, he displayed a knife and informed Roslyn he was going to take all of her money. Roslyn told Morris she would give him her ATM card if he would agree to leave. While Roslyn was attempting to retrieve her ATM card, Morris ordered her to take off her shirt. Roslyn resisted, but eventually complied with the request after Morris indicated he would not hurt her if she did everything she was told. Roslyn suggested they sit down and talk. Morris agreed and gave Roslyn a pillow to cover up with. While Morris and Roslyn were talking, Morris became agitated and began making swiping motions with the knife. Eventually, he told Roslyn to take off her shorts. Roslyn, now in only her underwear, attempted to continue talking with Morris. He became angry and told her to "lay down on the floor with your arms out like Jesus Christ did on the cross." Roslyn complied. Morris then leaned over and cut her underwear off with the knife. Morris commented that Roslyn had a "beautiful booty" and ran his hand along the crack of her buttocks. While he was touching her, he made groaning noises. As Morris's hand came close to Roslyn's anus, she moved away. Morris told her to roll over. He took the knife and ran it down her body through her pubic hair. Morris forced Roslyn to stand up and again ran the knife along her body. He circled her breasts with the knife and stated "maybe I'll cut these off," but then laughed and said he would not do that because they were "too pretty."
After this incident, Roslyn and Morris sat on the couch while Morris smoked a cigarette. Morris suggested they go look at pornography on the computer. Roslyn asked if she could get dressed, which Morris permitted as long he could watch. Upon her request, Morris allowed Roslyn to utilize the bathroom. When she returned, Morris was in the kitchen. Roslyn tried to dial 911 on her cordless phone, but was unable to get through because the computer was on-line. She then ran out of her home and yelled, "Call 911. He has a knife." Some of Roslyn's neighbors were sitting outside and phoned the police. Shortly after, Morris exited the condominium and proceeded to drive away in his car. The police apprehended Morris that morning at his apartment.
The State charged Morris by trial information with robbery in the first degree and sexual abuse in the second degree. Prior to trial, the State filed a motion in limine seeking to exclude any evidence of Roslyn's psychiatric problems. The district court sustained the State's motion. A jury trial commenced on December 1, 2003. The jury returned a verdict of guilty on both counts. The district court sentenced Morris to two consecutive prison terms not to exceed twenty-five years. Morris appeals.
II. Ineffective Assistance of Counsel.
Morris contends he received ineffective assistance of 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 the defendant a fair trial. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). 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 proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
A.
Morris asserts his trial counsel should have objected to the definition of "sex act" in the jury instructions. He argues the instruction allowed the jury to convict him without first determining the contact was sexual in nature. Morris contends with proper instruction, the jury could have concluded touching Roslyn with the knife was not sexual in nature. We conclude trial counsel did not breach an essential duty by failing to object to the jury instruction. The last line of the instruction clearly conveyed to the jury the contact had to be sexual in nature. Furthermore, assuming arguendo, the instruction was an incorrect statement of the law, Morris is unable to establish the requisite prejudice. "In most cases the sexual nature of the contact is undisputed." State v. Monk, 514 N.W.2d 448, 451 (Iowa 1994). At trial, Roslyn testified Morris forced her to undress in front of him, made sexual comments about her breasts and buttocks, made groaning noises as he touched her, and suggested looking at pornography on the computer. Therefore, even if we were to conclude the jury instruction contained an incorrect statement of law, Morris cannot demonstrate the requisite prejudice because the sexual nature of these contacts cannot be disputed.
Jury Instruction No. 29 provided in pertinent part: "Concerning the term `sex act,' `sex act' includes . . . [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."
B.
Morris next argues his trial counsel should have lodged an objection to the jury instruction defining "dangerous weapon." The jury instruction at issue informed the jury "[a] knife is a dangerous weapon." Morris points out that Iowa Code section 702.7 indicates a knife is not a per se dangerous weapon unless the blade exceeds five inches in length. Thus, he argues the instruction was improper because the jury could have found the knife's blade was less than five inches in length. However, the comment to Iowa Uniform Jury Instruction 200.21 indicates "[w]here enumerated dangerous weapons are alleged and supported by the evidence, a substituted instruction would state: `You are instructed that (weapon) is, by law, a dangerous weapon.'" Roslyn testified at trial the blade of the knife was between five and six inches long. This was the only evidence presented during trial establishing the length of the knife's blade. Roslyn's unchallenged testimony established the knife was a "dangerous weapon" within the meaning of the statute and the substituted instruction was appropriate. Counsel did not breach an essential duty in failing to object to the instruction. Further, for the reasons set forth below, Morris is unable to show prejudice.
The police never recovered the knife.
Morris also contends counsel was ineffective for asking Roslyn on cross-examination to estimate the length of the blade of the knife. Without Roslyn's testimony, Morris asserts the jury could not have found he possessed a dangerous weapon. We disagree. In addition to the per se dangerous weapons enumerated in section 702.7, a "dangerous weapon" can also be any instrument that is used in such a manner to indicate the intent to inflict death or serious injury upon another person and is capable of such. Iowa Code § 702.7. Consequently, even if defense counsel had not elicited the testimony from Roslyn establishing the length of the blade, the evidence introduced at trial overwhelmingly established Morris used the knife in such a way so as to indicate his intent to inflict serious injury and that the knife was capable of such. Thus, Morris has failed to establish the prejudice required to succeed in this claim of ineffective assistance.
C.
Morris next avers counsel was ineffective for failing to object to evidence that he resisted arrest. Morris contends this evidence was inadmissible under Iowa Rule of Evidence 5.404( b) as evidence of other crimes, wrongs or acts. Evidence of prior bad acts is not admissible to show a general propensity to commit wrongful acts. State v. Haskins, 573 N.W.2d 39, 45 (Iowa Ct.App. 1997). Evidence of prior bad acts may be admitted, however, for one or more of the nonexclusive purposes listed in rule 5.404( b). Id. The list of admissible "other purposes" in rule 5.404( b) is not exclusive. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). Instead, the key to determining admissibility depends upon "whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit a wrongful act." Id. (quoting State v. Uthe, 542 N.W.2d 810, 814 (Iowa 1996)). Evidence immediately surrounding the offense is admissible in order to show the complete story of a crime, even when it shows commission of another crime. State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997). Here, Morris was apprehended shortly after he fled Rosalyn's home. This evidence was relevant and admissible to complete the story of the crime. See State v. Lockheart, 410 N.W.2d 688, 696 (Iowa Ct.App. 1987). This evidence was also probative of Morris's guilt. See John Henry Wigmore, Evidence in Trials at Common Law § 276, at 122 (James H. Chadbourn rev. ed. 1979) ("It is universally conceded today that the fact of an accused's . . . resistance to arrest . . . [is] admissible as evidence of consciousness of guilt, and thus of guilt itself.") (emphasis added); see also State v. Wimbush, 260 Iowa 1262, 1268, 150 N.W.2d 653, 654 (1967). We conclude counsel did not breach an essential duty by failing to raise this meritless issue. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
D.
Morris next asserts counsel was ineffective for failing to object to the trial court's ruling on his motion for a new trial. Morris asserts the district court improperly applied the "sufficiency of the evidence" standard instead of the "weight of the evidence" standard articulated in State v. Ellis, 578 N.W.2d 655 (Iowa 1996). Although defense counsel argued the correct standard during the hearing, in overruling the motion the district court stated, "there is substantial evidence to support the jury's verdict." We agree an argument could be made counsel breached an essential duty by failing to object to what appears to be the application of an improper standard. However, Morris's claim still fails because he is unable to show the requisite prejudice. A verdict is contrary to the weight of the evidence if a greater amount of credible evidence supports one side of an issue than the other. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001). During trial the State's evidence overwhelmingly established Morris's guilt. Roslyn's testimony provided a detailed account of what transpired while Morris was at her home. Her testimony was corroborated by additional evidence. Police officers discovered Roslyn's underwear lying on the living room floor, her ATM card, and the soda can Morris used as an ashtray. Three of Roslyn's neighbors testified they saw Morris come to Roslyn's home and observed her flee approximately twenty minutes later calling for help. Further, a criminalist from the Iowa Division of Criminal Investigation testified that laboratory tests revealed Roslyn's underwear had been cut with some sort of instrument. Based on the foregoing, we conclude the greater weight of credible evidence supported the jury's verdict. Consequently, because Morris cannot show a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different, this particular claim of ineffective assistance of counsel must fail.
E.
Morris next asserts he received ineffective assistance of counsel because counsel failed to properly advise him of his right to testify. He also alleges counsel was ineffective because he did not call any character witnesses to testify on Morris's behalf. When complaining about the adequacy of an attorney's representation, it is not enough to simply claim counsel should have done a better job. State v. White, 337 N.W.2d 517, 519 (Iowa 1983). The applicant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. See Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985); State v. Kendall, 167 N.W.2d 909, 911 (Iowa 1969). As previously mentioned, Morris claims his trial counsel did not fully inform him about his right to testify. However, he does not explain what information he was denied. Similarly, he claims his trial counsel failed to call character witnesses on his behalf. However, he does not suggest who could have been called, nor does he explain the substance of the proposed testimony or how it could have changed the outcome of the trial. For these reasons, we believe Morris has failed to properly raise a claim of ineffective assistance of trial counsel. See State v. Brown, 656 N.W.2d 355, 364 (Iowa 2003); see also Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
F.
In his final claim of ineffective assistance of counsel, Morris claims his counsel should have objected to testimony elicited by the prosecutor that improperly commented on his right to remain silent. We conclude the record before us is inadequate to resolve this particular claim of ineffective assistance of counsel on direct appeal. Thus, we preserve this claim of ineffective assistance of counsel for possible postconviction proceedings.
III. Sufficiency of the Evidence.
Morris next contends the State did not present sufficient evidence to support his convictions for first-degree robbery and second-degree sexual abuse. We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). In deciding whether there is substantial evidence, we view the record in a light most favorable to the State. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p). "Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence." State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994).
With respect to the first-degree robbery charge, Morris asserts the State failed to present sufficient evidence establishing his specific intent to commit a theft. With respect to the second-degree sexual abuse charge, Morris contends the evidence of a sex act was not sufficient because he lacked a sexual intent. With respect to both charges, Morris claims because the knife was not recovered and entered into evidence, the State failed to prove he was armed with a dangerous weapon. We conclude Morris's claims are without merit. Roslyn's testimony, which the jury was free to credit, sufficiently established each of the elements challenged by Morris.
In his brief, Morris asserts Roslyn's testimony "did not make sense." He cites State v. Smith, 508 N.W.2d 101, 103-05 (Iowa Ct. App. 1995), apparently suggesting that Roslyn's testimony was so absurd and self-contradictory that it should be deemed a nullity. This argument is also without merit. Roslyn gave clear and consistent testimony at trial. It was neither absurd, nor contradictory. Accordingly, we reject Morris's sufficiency of the evidence challenge.
IV. Testimony about the Victim's Mental Health.
Morris further claims the district court erred in refusing to allow him to question Roslyn about her mental health condition. Morris asserts the court's ruling was in error because such evidence was relevant to Roslyn's credibility as a witness. The State asserts Morris has failed to preserve error because he did not make an offer of proof pursuant to Iowa Rule of Evidence 5.103( a)(2). We agree. The burden of making an offer of proof to preserve error is on the party urging the evidence should have been admitted. State v. Gartin, 271 N.W.2d 902, 909 (Iowa 1978). An offer of proof serves to give the trial court a more adequate basis for its evidentiary ruling and to make a meaningful record for appellate review. See State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995). An adequate record is critical on appeal because a reviewing court cannot base error on speculation as to what testimony would have been elicited had the objection not been sustained. Strong v. Rothamel, 523 N.W.2d 597, 599 (Iowa Ct.App. 1994). At no time throughout the course of the proceedings did Morris make an offer of proof with respect to this issue. Because he failed to make an offer of proof, we lack an adequate record to review the trial court's ruling. Consequently, we conclude Morris has failed to preserve error, and we will not address the merits of his claim. See id.
This issue was raised twice during the course of the proceedings. Initially, the State filed a motion in limine seeking to exclude evidence of Roslyn's mental health condition. During the hearing, defense counsel argued generally that Roslyn's psychological condition was relevant to her credibility. However, defense counsel did not establish specifically how Roslyn's condition affected her credibility because an offer of proof was neither made during the hearing on the motion, nor after the motion was granted. Additionally, defense counsel raised this issue again before resting its case alleging the State had "opened the door" because Roslyn testified she was on disability during direct examination. Once again, an offer of proof demonstrating the relevance of the proposed testimony was not made at this time.
V. Sentencing Discretion.
Finally, Morris attacks the district court's order sentencing him to two consecutive twenty-five year terms of incarceration. He avers the district court failed to adequately state its reasons for ordering consecutive sentences and that this failure requires we remand the case for resentencing. Iowa Rule of Criminal Procedure 2.23(3)( d) requires a sentencing judge to state the reasons for a particular sentences on the record. Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). The sentencing judge must also provide reasons for the imposition of consecutive sentences. Id.
The following colloquy occurred during the sentencing hearing:
THE COURT: Sir, the Court has a number of sentencing options. It — Obviously it can confine you, it can put you on probation, can defer your sentence. In determining what is appropriate in this case, I have to consider a lot of things. I have that Presentence Investigation Report. I know your age, I know your prior record, and I've considered those two things. I believe you have at least one prior deferred sentence or judgment; is that right, Mr. Moss?
MR. MOSS: As far as the PSI is concerned, Your Honor, that is correct. And Mr. Morris didn't indicate that that was — that that was incorrect so I believe you've had one, is that right, Beau, a deferred judgment on a [sic] OWI case?
MORRIS: Yes, since I've been here.
THE COURT: What are your employment circumstances right now, Mr. Jackson — Mr. Morris? Excuse me.
MORRIS: That's okay. I was a student at DMACC. I've worked sporadically at day-labor places while I was a student, because I was a full-time student.
THE COURT: All right.
MORRIS: I don't know if you're familiar with Labor Ready, things like that. I sold items on E-bay, computer items. I've done —
THE COURT: But you didn't have full-time employment at the time this offense occurred?
MORRIS: No, sir. My wife, she was full-time.
THE COURT: I've also considered your family circumstances as reflected in the Presentence Investigation. Most importantly though, I'm considering the nature of the offense. And it is a violent offense. And it offends the Court, I'll be honest with you. I have to consider all these things in light of what I think is going to most effectively protect the community from any further offenses by you, the possibility of any further offenses by you.
I have to consider what sentence will provide the maximum opportunity for your rehabilitation, and that includes any treatment, physical or mental or drug or substance abuse or whatever else you might be able to take advantage of.
Based on this record, it is evident the district court ordered Morris to serve his sentences consecutively "as part of an overall sentencing plan, the particular reasons for which appear in the sentencing colloquy, sentencing order, and presentence investigation report referred to by the district court." State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). Accordingly, we conclude the court adequately stated its reasons for selecting the sentences imposed. Morris's challenge to his sentences is rejected.