Opinion
No. 4-396 / 03-0992.
June 23, 2004.
Appeal from the Iowa District Court for Pottawattamie County, Gordon C. Abel, Judge.
Jesse Turner appeals the district court's judgment and sentence, entered after jury trial, convicting him of third-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Matt Wilber, County Attorney, and Martha Heinicke and Daniel McGinn, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
I. Background Facts Proceedings
Jesse Turner was charged with sexual abuse in the third degree, in violation of Iowa Code sections 709.1 and 709.4(1) (2001). Turner's former girlfriend, Jill, alleged that on March 18, 2002, Turner came to her home and had nonconsensual sex with her. Turner denied being at Jill's home on that date. He told officers the last time he had seen Jill was on March 14, 2002. Jill gave police officers her clothing and other items connected with the incident. Turner's DNA was found on Jill's underwear and shorts.
A jury found Turner guilty of third-degree sexual abuse. He was sentenced to a term of imprisonment not to exceed ten years. Turner now appeals, claiming he received ineffective assistance of counsel. Turner claims counsel was ineffective in: (1) failing to object to evidence of prior bad acts; (2) failing to object to a jury instruction; (3) failing to seek to admit letters written by Jill; and (4) failing to call him as a witness.
II. Standard of Review
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 defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
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 proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Ineffective Assistance A.
Turner first claims he received ineffective assistance because his trial counsel failed to object to evidence of prior bad acts. Jill testified Turner had consensual and nonconsensual sex with her on prior occasions. She also testified that even though Turner had never physically harmed her, she "was starting to be more afraid of him" because one time he pulled her hair and pushed her.
Generally, evidence of prior bad acts is not admissible to show the person acted in conformity with the prior acts. Iowa R. Evid. 5.404(b); State v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004). Such evidence may be admissible, however, if it is relevant to a legitimate issue in dispute, and there is clear proof the defendant committed the bad act. Sullivan, 679 N.W.2d at 25; State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001). If the evidence is relevant, we consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice. State v. Query, 594 N.W.2d 438, 443 (Iowa Ct.App. 1999).
In the present case, the evidence was relevant to the issue of consent. Turner and Jill had previously lived together and engaged in consensual sex. The evidence of prior nonconsensual sex was relevant to show the lack of consent regarding the incident at trial in this case. The evidence was also relevant to show Jill was fearful of Turner, and succumbed to sexual relations with him. We note the evidence was admitted in the present case for the issue of consent, not credibility, and involved evidence of the prior sexual abuse of the same victim, not different victims. Therefore, the evidence was not offered merely to show Turner's character or propensity to commit a crime. See Sullivan, 679 N.W.2d at 28, Mitchell, 633 N.W.2d at 299. The evidence was of the same type of act as that alleged in the present case, and would not be unduly prejudicial. See State v. Rodriguez, 636 N.W.2d 234, 243 (Iowa 2001).
Furthermore, in Iowa, there is a special exception in sex abuse cases which permits the use of prior acts to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial. State v. Spaulding, 313 N.W.2d 878, 800 (Iowa 1981); State v. Schaffer, 524 N.W.2d 453, 456 (Iowa Ct.App. 1994). We conclude the evidence was admissible, and defense counsel did not have a duty to make a meritless or frivolous objection to the evidence of prior bad acts. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996).
B.
Turner contends his trial counsel should have objected to the following jury instruction:
You have heard evidence that the defendant allegedly committed other acts with Jill . . . before March 18, 2002. If you decide the defendant committed these other acts, you may consider those acts only to determine whether the defendant has a sexual passion or desire for Jill. . . . You may not consider them as proving that the defendant actually committed the act charged in this case.
He admits the instruction is based on Uniform Jury Instruction 900.11. Turner claims the instruction permits a jury to convict a defendant based on prior bad acts, which is contrary to Iowa Rule of Evidence 5.404(b).
We are reluctant to disapprove of uniform jury instructions. State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995). We decline Turner's invitation to overturn the special exception in sex abuse cases which permits the use of prior acts to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial. Spaulding, 313 N.W.2d at 800; Schaffer, 524 N.W.2d at 456.
C.
Turner claims he received ineffective assistance due to trial counsel's failure to seek to admit certain letters that Jill had written to Turner. Turner also claims his trial counsel should have called him as a witness. There is insufficient evidence for us to address these issues on appeal. We determine the issues should be preserved for possible postconviction proceedings. See State v. Truesdell, ___ N.W.2d ___, ___ (Iowa 2004) (noting that where there is an incomplete record, ineffective assistance claims are best resolved by postconviction proceedings).
We affirm Turner's conviction.