Opinion
No. 2-197 / 01-0940
Filed April 10, 2002
Appeal from the Iowa District Court for Humboldt County, MICHAEL J. MOON, Judge.
Defendant appeals his conviction, following a jury trial, of two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David A. Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Derk Schwieger, County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Defendant-appellant David Ray Wolfe was convicted following a jury trial of two counts of sexual abuse in the third degree in violation of Iowa Code section 709.4 (1999). Defendant contends there is not substantial evidence to find him guilty beyond a reasonable doubt. We affirm.
Our review on questions of sufficiency of the evidence is to determine if there is substantial evidence to support the verdict of the jury. State v. Martens, 569 N.W.2d 482, 484 (Iowa 1997); State v. Monk, 514 N.W.2d 448, 451 (Iowa 1994); State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981).
Defendant was charged with having sexually abused a twelve or thirteen-year-old girl. Defendant lived with the victim and her mother for about three years. The focal question in this appeal is whether the testimony of the victim was sufficient to support a finding that the defendant engaged in a sex act or sexual activity.
A person commits sexual abuse in the third degree when the person performs a sex act with another who is twelve or thirteen years of age. A sex act is defined under Iowa Code section 702.17, which provides in relevant part:
The term "sex act" or "sexual activity" means any sexual contact between two or more persons by: . . . contact between the finger or hand of one person and the genitalia or anus of another person . . . .
The victim said defendant touched her in ways that made her feel uncomfortable. She said he touched her beneath her underwear. She said he touched her inappropriately above and below the waist. She said she woke up one day to find him touching her vaginal area. She said that at least one other time while the two were watching television, he put a pillow on her lap and touched her vaginal area. She also testified she knew what sexual intercourse was, but she had never participated in it. She was asked about the difference between a good touch and a bad touch. She said touching one's breast was a bad touch. When asked about bad touches from the waist down, she stated that this involved her genital area. She also identified this area as the area underneath her underwear. She said defendant made bad touches above the waist and below the waist.
After the State's evidence the defendant's attorney made a motion for a directed verdict of acquittal. Counsel argued that in describing the incident that had occurred on the couch, the victim had only said "vaginal area" without any further explanation. He contended this did not qualify as "genitalia" in the definition of "sex act" under Iowa law.
The word "genitalia" is defined as "the various external and internal organs concerned with reproduction." Martens, 569 N.W.2d at 486. The term "genitalia" broadly describes and includes many organs associated with the reproduction apparatus. Id. The fact that this child did not use exact terms is not fatal. See Martens, 569 N.W.2d at 487. There is a preference for submitting criminal cases to a jury if there is any substantial evidence tending to support the charge. Id; State v. Howard, 284 N.W.2d 201, 203 (Iowa 1979) (citations omitted). We recognize a child witness may lack the technical knowledge to accurately describe parts of his or her body. Martens, 569 N.W.2d at 487. Where the child has sufficiently communicated to the trier of fact that the touching occurred to a part of his or her body within the definition of the evidence it is sufficient to support a conviction, regardless of the unsophisticated language that the child uses. Id.
Though the victim in this case was in the ninth grade at the time of trial, her testimony was not so unspecific or confusing that a jury could not find that defendant touched her genitalia. See id. We affirm.
AFFIRMED.