Opinion
No. 3-111 / 01-2028.
Filed April 30, 2003.
Appeal from the Iowa District Court for Cedar County, GARY D. McKENRICK, Judge.
Michael Prince appeals from his convictions and sentences for first-degree and second-degree sexual abuse, in violation of Iowa Code sections 709.1(3), 709.2, and 709.3(2) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Lee W. Beine, County Attorney, for appellee.
Heard by ZIMMER, P.J., and HECHT and EISENHAUER, JJ.
Michael Prince appeals from the judgment and sentence entered upon his convictions for first-degree sexual abuse and second-degree sexual abuse, urging various claims of ineffective assistance of trial counsel and contending the district court erred in denying his motion for judgment of acquittal. We affirm, but preserve several claims of ineffective assistance for possible postconviction relief proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS.
On July 6, 2001, the State charged Prince with first-degree sexual abuse, second-degree sexual abuse, and child endangerment based on acts that occurred on June 28, 2001. The State later dismissed the child endangerment charge. The charges were based on allegations Prince had physically and sexually abused nine-year-old S.M. while in her mother's residence, causing her significant injuries which required her to undergo surgery in order to explore and repair the injuries. Following a trial, the jury found Prince guilty of first-degree sexual abuse, in violation of Iowa Code sections 709.3(1) and 709.2 (2001), and second-degree sexual abuse, in violation of sections 709.1(3) and 709.3(2). Prince appeals. We will further discuss the relevant facts where necessary in this opinion.
II. INEFFECTIVE ASSISTANCE OF COUNSEL.
Prince raises a number of claims of ineffective assistance in this direct appeal. Because Prince's ineffective assistance of counsel claims implicate his Sixth Amendment right to counsel, our review is de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and we need not repeat them all here. See 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, 142-45 (Iowa 2001). To establish an ineffective assistance of counsel claim, the defendant must show that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). While we often preserve ineffective assistance claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).
A. Constitutionality of Iowa Code section 702.18(1)(c). Prince first maintains his trial counsel was ineffective in failing to challenge the constitutionality of Iowa Code section 702.18(1)(c), the statutory alternative on which his first-degree sexual abuse conviction was based. A person is guilty of first-degree sexual abuse if in the course of the abuse that individual causes the victim "serious injury." Iowa Code § 709.2. Section 702.18(1)(c) provides: "Serious injury means . . . [a]ny injury to a child that requires surgical repair and necessitates the administration of general anesthesia." Prince claims this provision is unconstitutionally vague. Neither party suggests that we preserve this particular ineffective assistance claim for a postconviction proceeding and we find the record adequate to address it on direct appeal.
As part of our analysis of a vagueness challenge we presume the statute is constitutional and give it any reasonable construction necessary to uphold it. State v. Osmundson, 546 N.W.2d 907, 909 (Iowa 1996). Thus, "[t]he unconstitutional vagueness of a criminal statute must be demonstrated beyond a reasonable doubt." State v. Duncan, 414 N.W.2d 91, 95 (Iowa 1987). The party challenging a statute on vagueness grounds must "negate every reasonable basis upon which the statute might be sustained." Jim O. Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 478 (Iowa 1998).
As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996). A defendant charged with the violation of a statute has standing to claim the statute is unconstitutionally vague as applied to him or her. Hunter, 550 N.W.2d at 463. In considering a vague-as-applied challenge, we examine the statute on its face to determine whether the defendant's conduct clearly falls outside the statute's reach "under any construction." Id. at 465. "The fact that the statute may be vague as applied to other factual scenarios is irrelevant to this analysis." Id.
Specifically, Prince contends the definition of the phrases "surgical repair" and "necessitates the administration of general anesthesia," both of which are left undefined by the statute, are so ambiguous as to render the statute unconstitutional. We disagree. A statutory term provides fair warning if the meaning of the word "is to be fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning." State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974). Webster's Dictionary defines "surgery" as (1) a branch of medicine concerned with diseases and conditions requiring or amenable to operative or manual procedures, (2) alterations made as if by surgery, (3) the work done by a surgeon, or (4) an operation. Webster's Ninth New Collegiate Dictionary 1188 (1986). Further, "necessitates" is defined by its root word "necessary," which means (1) of an inevitable nature, (2) logically unavoidable, (3) determined or produced by the previous condition of things, and (4) required. Id. at 790.
Because Prince only has standing to challenge this statute as applied to his circumstances, s ee Hunter, 550 N.W.2d at 463, we must focus on the specific facts of this case. When S.M. was taken to the emergency room, she had a significant amount of blood in the vaginal and rectal area. Doctors administered a general anesthesia in order to investigate her injuries. They discovered and sutured an arterial bleeder behind the cervix and cauterized areas of the vaginal wall which were oozing blood. S.M.'s treating physician specifically characterized this procedure as a "surgery," and explained his reasons for performing it. When asked why he decided to administer general anesthesia, the physician responded "I thought that there was only going to be one way to look in there [her vagina] and that was to put her to sleep." His testimony that there was only "one way" to do the procedure adequately evidences the type of "necessity" contemplated in the statute. He based this conclusion on the lack of cooperation expected from a nine-year-old who had already been traumatized, the small size of the child's vagina, and his experiences while performing similar procedures on both adults and children.
We believe the procedures described above fall squarely in the commonly accepted definitions of surgery and necessity. Prince has failed to sustain his burden to show that section 702.18(1)(c) "clearly, palpably and without doubt infringes the constitution." See American Dog Owners Ass'n, 469 N.W.2d at 417. We are not convinced beyond a reasonable doubt that he has demonstrated the unconstitutional vagueness of the statute. See Duncan, 414 N.W.2d at 95. For these reasons, we reject Prince's claim that this section is vague as applied to him.
Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Because Prince's vagueness challenge lacks merit, his counsel had no duty to raise them and was not ineffective for failing to do so.
B. Failure to Investigate and Present Evidence. Prince next asserts he received ineffective assistance by virtue of counsel's failure to present evidence related to (1) a medical report showing he had sought medical assistance for an injury on June 28, the day of the alleged sexual abuse, (2) the results of an alcohol breath test, which would tend to show he was not "extremely inebriated," (3) pictures taken of him at jail which would show a lack of blood on his clothes, and (4) a pair of S.M.'s underwear in order to impeach the credibility of S.M.'s version of the events. The State counters that, even assuming counsel had a duty to present the evidence in question, Prince cannot establish any prejudice in light of the overwhelming evidence of his guilt.
The record is inadequate to permit a determination of these claims on direct appeal. We thus preserve them for a possible postconviction relief proceeding in which the facts surrounding Prince's contentions may be fully developed.
C. Failure to Call Witnesses. Prince further assails counsel's effectiveness based upon the failure call as witnesses Dr. Kathleen Opdebeeck and various neighbors from the trailer park in which the abuse allegedly occurred. Again, we find the record, which does not disclose why these witnesses were not called, inadequate to permit a determination of these claims on direct appeal. We preserve these contentions for a possible postconviction relief proceeding in which the facts surrounding Prince's contentions may be fully developed.
III. DENIAL OF MOTION FOR JUDGMENT OF ACQUITTAL.
Finally, Prince claims the district court erred in denying his motion for judgment of acquittal on the second-degree sexual abuse charge. We will uphold a trial court's denial of a motion for judgment of acquittal if there is substantial evidence to support the defendant's conviction. State v. Kirchner, 600 N.W.2d 330, 333 (Iowa Ct.App. 1999). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. at 334. Our scope of review of sufficiency-of-evidence challenges is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). In reviewing such challenges we give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998).
The State charged Prince committed a sex act through sexual contact between his genitals and the anus of S.M. See Iowa Code § 702.17. The gist of Prince's claim here is that, although the evidence may support that his penis came into contact with S.M.'s buttocks, the evidence does not support that it contacted her anus.
We conclude the testimony supports the district court's conclusion the evidence is sufficient to establish Prince's penis came in contact with S.M.'s anus. Relevant to this question, SM testified as follows:
Q. What happened then?
A. He got in there and pulled down his pants.
Q. And then what happened?
A. He was trying to stick it up in my butt.
. . .
Q. Now, where was he?
A. He was on the other side.
Q. Behind you?
A. Yes.
Q. And what did he try to stick in your butt?
A. His bad spot.
Q. Did you see his bad spot?
A. No.
Q. How did you know he was trying to stick it in your butt?
A. Because it felt like it.
Q. Is that where you go poop is where he was trying to stick it?
A. Yes.
. . .
Q. What happened when he tried to stick it in there?
A. He couldn't get it up in it.
. . .
Q. Where in your butt did it touch?
A. Just like — my butt is all it touched.
Q. It didn't go in where you go poop?
A. No.
Q. Did it touch by where you go poop?
A. Yes.
In addition, Bradley Peck, an investigating police officer testified he discovered feces on the bed sheets in the room where the abuse occurred. Also, one of S.M.'s treating physicians related S.M. had suffered a tear in the skin between her vagina and the rectum. Notwithstanding S.M.'s youthful descriptions and her lack of absolute anatomical precision, we conclude the foregoing constitutes substantial evidence supporting that Prince's genitalia contacted S.M.'s anus. We therefore reject Prince's contention the court erred in denying his motion for judgment of acquittal on the second-degree sexual abuse charge.
IV. CONCLUSION.
We reject Prince's contention his trial counsel was ineffective in failing to object to the constitutionality of Iowa Code section 702.18(1)(c); however, we preserve for possible postconviction relief proceedings his claims counsel was ineffective in failing to present additional evidence and call certain witnesses at trial. We also reject Prince's contention the district court erred in denying his motion for judgment of acquittal on the second-degree sexual abuse charge.