Opinion
No. 2-349 / 01-0379
Filed January 15, 2003
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Robert Paulson appeals the judgment and sentence following his conviction for second-degree sexual abuse. AFFIRMED.
Jeffrey Mains of Benzoni Mains, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano and Craig Finch, Assistant County Attorneys, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, JJ.
Robert Paulson appeals the judgment and sentence following his conviction for second-degree sexual abuse in violation of Iowa Code sections 709.1(3) and 709.3(2) (Supp. 1999).
I. Background Facts and Proceedings.
Robert Paulson was charged with this offense based on allegations that he sexually abused his five-year-old daughter, M.P. Although the State's case included voluminous and explicit testimony interpreting M.P.'s sexual behaviors intended to implicate Paulson, the evidence essential to our consideration is limited to the following.
At trial M.P. testified that Paulson touched her in the "wrong spot" and marked an anatomical diagram identifying the spot she was referring to. She also testified that Paulson told her to keep the touching secret. M.P.'s baby-sitter testified that she saw Paulson rubbing M.P.'s pelvic area and that he stopped when he became aware of her presence.
Police officer Suzanne Laurence testified that she interviewed M.P. and concluded from M.P.'s statements that Paulson touched M.P.'s vaginal area and that Paulson told M.P. to keep the touching a secret. Laurence also testified that M.P. could distinguish a good touch from a bad touch and that M.P. stated, "I just want my dad to stop touching me in the wrong places."
Officer David McDermott testified:
Q. Did you ask him, Mr. Paulson, if he believed that the girls had actually been abused?
A. I believe I did. And I'll have to find it in my report here. Bob was asked, "Do you think these things actually happened to [M.P.]?" And he replied, "With [M.P.], from what I'm hearing, yes." So he believes these things have happened to his daughter.
Q. Did you ask him who he thought had the best opportunity to do it?
A. Yes, I did. I asked Bob, "Who do you think had the best opportunity to do these things to [M.P.]?" And he replied, "Me." I also asked him: "Why do you think someone would do something like this?" And he replied, "I would assume it turns them on."
Lori Nelson Salsbury, M.P.'s therapeutic counselor, testified:
A. . . . In the course of our therapy, [M.P.] made many statements to me about her father and about her experiences with her father.
Q. Can you tell us where on the body she indicated Mr. Paulson touched her? A. In a session that I had in May with [M.P.], she told me that she was in bed sleeping, and he crept in and touched her on the private parts. At that time she was using the anatomically correct dolls, and she demonstrated that her father touched her on the chest, the vaginal area and the butt area and stated that he got a feeling to touch her because he didn't have a wife. . . .
Paulson denied sexually abusing M.P. He claimed M.P.'s allegations were the result of encouragement by his vengeful ex-wife and suggestions or coercion by overzealous investigators. He also claimed any physical contact with M.P. forming the basis of the charges against him was innocent and without sexual intent.
Paulson's witnesses included Dr. Lopez Dawson, a clinical psychologist who evaluated him and M.P. as part of a 1997 custody evaluation incident to his divorce. She testified:
As far as a father, however, I didn't see that. I felt that as a father he was very sensitive. I felt that the girls responded to him appropriately. There was never a sign in either one of the girls' eyes or in their behavior that they were frightened of him. They would, you know, kind of monkey around with him, just treat him like a normal father/daughter relationship. There was never any signs that these kids were being abused. . . .
And I'll be honest, I didn't see any of that. I looked into the allegations of abuse because that was a concern that came up. When I contacted — there was a doctor, a physician's assistant I believe, and she was the one who made the first report to DHS to look into allegations. And when I spoke to her, she indicated to me that the reason why she had done that was because Mom was concerned about that and she wanted to be on the safe side but not necessarily because she herself was concerned about that. . . .
Lopez Dawson was also critical of Officer Laurence's interview with M.P. and opined that statements obtained from M.P. implicating Paulson were coerced and unreliable.
Lopez Dawson's criticisms of Laurence's interview were shared by Dr. Hollie A. Wakefield, another psychologist Paulson called to testify on his behalf. Wakefield also testified that it is not uncommon for young children to confuse innocent contact with sexual contact.
Paulson's motions for judgment of acquittal and directed verdict were denied. The court's jury instructions on the law of sexual abuse included the following:
The State must prove both of the following elements of Sexual Abuse in the Second Degree:
1. On or about January-May 2000, the defendant performed a sex act with [M.P.].
2. The defendant performed the sex act while the victim was under 12 years of age.
In defining "sex act" the district court instructed the jury in pertinent part that:
"sex act" means any sexual contact:
. . . .
You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature. Skin-to-skin contact is not required. The term "genitals" includes the pubic hair and the area which, after puberty, is covered by pubic hair.
Paulson was convicted as charged. His posttrial motion for a new trial was denied, and judgment was entered in accordance with the jury's verdict.
On appeal Paulson challenges the trial court's ruling on his motion for a new trial and the sufficiency of the evidence supporting his conviction. Paulson also claims he was denied effective assistance of trial counsel.
II. Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001); Iowa R.App.P. 6.4. A guilty verdict should be affirmed if substantial evidence supports the verdict. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). "`Substantial evidence' is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id. The facts are construed in the light most favorable to the State. Id. We consider all reasonable inferences that could be drawn from the evidence, not just the evidence supporting the verdict. Id. "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). Generally, juries are to determine witness credibility. State v. Smith, 508 N.W.2d 101, 102 (Iowa Ct.App. 1993). However, when the testimony is inconsistent, self-contradictory, and absurd, we have found such evidence insufficient as a matter of law to support a conviction. Id. at 103.
Sexual abuse is defined as:
Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:
. . . .
3. Such other person is a child.
Iowa Code § 709.1. Iowa Code section 702.17 (1999) provides The term sex act" or " sexual activity" means any sexual contact between two or more persons by: penetration of the penis into the vagina or anus; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to chapter 148, 148C, 150, 150A, 151, or 152; or by use of artificial sexual organs or substitutes therefore in contact with the genitalia or anus.
Iowa Code § 702.17 (1999). "Genitalia" is given a broad definition; it includes many internal and external organs associated with reproduction, including pubic hair. State v. Martens, 569 N.W.2d 482, 486 (Iowa 1997). Skin-to-skin contact is not necessary for a finding of sexual abuse. State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). "Whether certain conduct constitutes `sexual contact' is a fact question." Id. at 456. Sexual abuse of a child under the age of twelve is sexual abuse in the second degree. Iowa Code § 709.3(2).
Contrary to Paulson's claims, we find the earlier referred to evidence sufficient to establish all of the elements of sexual abuse in the second degree. Although the record includes credible evidence indicating M.P. was either coerced into making false allegations of sexual abuse or the offending contact was nonsexual, the jury was free to accept or reject that evidence. The verdict indicates the jury accepted the testimony of witnesses implicating Paulson and found his contact with M.P. was a sex act. Under our standard of review, we are bound to accept these findings and accordingly affirm on this issue.
III. Motion for New Trial.
In State v. Ellis, 578 N.W.2d 655 (Iowa 1998), the court established the legal standard applicable to motions for new trial in criminal cases. The court held:
If the trial court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted.Id. at 658-59. The court has wide discretion in deciding motions for a new trial. Id. at 659. The ruling on Paulson's motion for a new trial entered following an earlier remand on this issue indicates that the trial court expressly applied this standard and found that the jury's verdict was not against the weight of the evidence. We find no abuse of discretion and accordingly affirm on this issue.
IV. Ineffective Assistance of Trial Counsel.
To establish a claim of ineffective assistance of counsel, Paulson has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Ramirez, 616 N.W.2d 587, 593 (Iowa 2000). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). 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). When complaining about the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job. 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. State v. Dunbar, 515 N.W.2d 12, 15 (Iowa 1994).
Counsel cites numerous instances in which trial counsel was allegedly ineffective. These include failure to call witnesses, to impeach the State's witnesses by establishing their bias against Paulson, to depose M.P. prior to trial, and to file a motion in limine to exclude evidence of his failure to properly respond to M.P.'s inappropriate sexual behavior. Paulson also claims counsel failed to object to the trial court's erroneous jury instructions on the law of sexual abuse.
Counsel's duty to investigate and prepare a defense is not limitless, and counsel is not required to pursue each possible witness and delve into every line of inquiry. Heaton v. State, 420 N.W.2d 429, 431 (Iowa 1988). Additionally, a finding that counsel was ineffective is not warranted where counsel has made reasonable strategic decisions concerning trial tactics and strategy even if such judgments ultimately fail. Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
Based on our de novo review of the record, we are unable to say any of trial counsel's alleged failures constituted a breach of an essential duty. Paulson's complaints concerning counsel's investigation or choice and examination of witnesses clearly implicate counsel's strategic decisions and trial tactics. It is sufficient to note that none of the additional witnesses or lines of inquiry cited would have added anything to Paulson's defense that was not addressed by Paulson's expert witnesses or on cross-examination of the State's witnesses. Even if we were to conclude otherwise, there is no reasonable probability of a different result, particularly in view of eyewitness and victim testimony implicating Paulson.
Lastly, we reject Paulson's claims concerning counsel's failure to object to instructions seventeen and eighteen or request an expanded definition of genitalia in instruction nineteen. Because both instructions correctly state the law, counsel had no duty to raise a meritless objection or request that either instruction be modified. See State v. Martins, 569 N.W.2d 482, 486 (Iowa 1997) (definition of genitalia); see also State v. Davis, 584 N.W.2d 913, 914 (Iowa Ct.App. 1998) (counsel has no duty to request instruction listing circumstances jury may consider in determining whether offending contact was a sex act).
We have carefully considered the remainder of Paulson's ineffective assistance of counsel claims and find them either too general to consider or to be without merit on their face.
The judgment of the district court is therefore affirmed in its entirety.