Opinion
No. 1-934 / 00-1847.
Filed March 13, 2002.
Appeal from the Iowa District Court forLee County (South), R. DAVID FAHEY, HARLAN BAINTER, and CYNTHIA H. DANIELSON, Judges.
Charles Zipprich appeals his convictions and sentences on four counts of sexual abuse in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Karen Doland, Assistant Attorney General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Charles Zipprich appeals his convictions and sentences on four counts of sexual abuse in the second degree, in violation of Iowa Code sections 709.1(3) and 709.3(2) (1999). He claims the district court erred by admitting hearsay and irrelevant evidence, and that he received ineffective assistance of counsel. We affirm.
Zipprich was charged with these offenses based on allegations of sexual contact with two nine-year-olds, Michelle and Amanda, with whom he resided. The department of human services was informed of these allegations by Andi Anthony, the mother of a friend with whom Michelle confided her experiences. Amanda and Michelle repeated the allegations in a subsequent interview with Sharon Andrusyk, the child protection worker assigned to their case.
At trial Michelle and Amanda testified about their sexual experiences with Zipprich. Over Zipprich's hearsay objection, Anthony was permitted to testify concerning conversations with her daughter during which she learned of Michelle's allegations of sexual abuse. Other evidence received over Zipprich's relevancy objection included Andrusky's testimony that Zipprich's father had sexually abused other children residing in the same home.
A jury found Zipprich guilty of four counts of second-degree sexual abuse. He was sentenced to a term of imprisonment not to exceed twenty-five years on each of the charges. The sentences on counts II and III were made concurrent to the sentence on count I, and the sentence on count IV was made consecutive to the other sentences. Zipprich appealed.
I. Evidentiary Ruling . A. Scope of Review.
We generally review evidentiary rulings for an abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). We will not interfere unless the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id. A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law. Id. (citing Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)).
B. Anthony's Testimony.
Zipprich contends Anthony should not have been permitted to testify to statements her daughter told her that Michelle had told to her daughter. He states this was multiple hearsay and should have been excluded. Zipprich objected to the testimony, but the district court overruled his objection.
Iowa Rule of Evidence 5.801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Even if a statement would be inadmissible hearsay if it were offered to prove the truth of any definitive matter asserted therein, it is nevertheless admissible when offered to show merely the statement was made. State v. Shortridge, 589 N.W.2d 76, 82 (Iowa Ct.App. 1998).
This rule was formerly Iowa Rule of Evidence 801(c).
We find the evidence here was not offered for the truth of the matter asserted, but was offered to show how the sexual abuse came to the attention of authorities. Anthony's statements showed why she contacted Child Protective Services. The State wanted to show how the charges arose because Zipprich alleged his girlfriend and his son made up the allegations in order to discredit him. Furthermore, Anthony's testimony was merely cumulative to other evidence in the record detailing the sexual abuse. Zipprich cannot show he was prejudiced by Anthony's statements. See State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992).
C. Andrusyk's Testimony.
Zipprich claims the district court should not have permitted Andrusyk to testify that other children in the home had been sexually abused by Zipprich's father. He asserts this evidence was not relevant to the charges against him, and that it was prejudicial because it led to an inference that because his father was a sexual abuser, he was as well.
The evidence in question first came in through cross-examination of Andrusyk by defense counsel, who asked whether there were any founded reports on other children in the home, and who were they founded against. Andrusyk responded that there had been founded reports against Zipprich's father for sexual abuse. On re-direct, the prosecutor then asked for more information about the allegations involving Zipprich's father. The district court overruled Zipprich's relevancy objection.
The rule is well settled that one who induces a trial court to "let down the bars" to a field of inquiry cannot complain if an adversary takes advantage of the same opening. State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992) (citing McCormick on Evidence § 57, at 147 (3d ed. 1984)). A party cannot claim error with respect to the admission or exclusion of evidence where he or she invited the error. State v. Hinkle, 229 N.W.2d 744, 750 (Iowa 1975). We find Zipprich invited any error on this issue.
II. Ineffective Assistance .
Zipprich contends he received ineffective assistance of counsel. He asserts his trial counsel: (1) failed to object to inadmissible hearsay statements by Andrusyk; (2) failed to make an appropriate offer of proof regarding testimony of Dr. Opdebeeck; and (3) failed to preserve and litigate the violation of his right to confront his accusers.
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 possibility 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).
A. Hearsay Evidence.
Zipprich first claims his trial counsel should have objected on hearsay grounds to Andrusyk's testimony that Zipprich's father had sexually abused other children in the home. As noted above, Zipprich invited this testimony, apparently in an effort to show someone else, other than himself, had sexually abused the children in this case. We will not second-guess this strategic decision on appeal. See State v. Newman, 326 N.W.2d 788, 795 (Iowa 1982).
Zipprich also claims his counsel should have objected on hearsay grounds to Andrusyk's statement that Michelle told her Zipprich had been performing oral sex upon her. Even if this statement was hearsay, we find it was not prejudicial because the same evidence came in through Michelle's testimony. If substantially the same evidence is in the record, erroneously admitted evidence is not considered prejudicial. State v. Turner, 630 N.W.2d 601, 609 (Iowa 2001).
B. Offer of Proof.
During his cross-examination, defense counsel attempted to ask Dr. Opdebeeck, "What would you expect to find if a child testified that they had been through at least five episodes of full intercourse with a penile penetration?" The prosecutor objected on the ground the question did not reflect the evidence presented in the case. The district court sustained the objection. On appeal, Zipprich contends his counsel should have requested to make an offer of proof regarding Dr. Opdebeeck's answer to this question.
Zipprich has not shown how, even if Dr. Opdebeeck had answered the question, it would have changed the result of the trial. Dr. Opdebeeck testified that even if there are no objectively verifiable signs of penile penetration, that does not rule out the possibility that it happened. Furthermore, the evidence in this case did not show there had been "at least five episodes of full intercourse with a penile penetration." We determine Zipprich has failed to show he was prejudiced by counsel's actions.
C. Confrontation Clause.
Zipprich claims his trial counsel failed to preserve and litigate the issue of the violation of his right to confront his accusers. See Coy v. Iowa, 487 U.S. 1012, 1015, 108 S.Ct. 2789, 2800, 101 L.Ed.2d 857, 863 (1988). The State proposed to have the victims testify by closed-circuit television. Defense counsel objected, stating Zipprich "would prefer to have the witnesses here so he could be in the room where they are at." The district court ruled the State had a right to have the children testify by closed-circuit television. The parties then agreed to have the children testify in front of the jury, and Zipprich would watch their testimony from a video monitor. Zipprich remained able to communicate with his attorney.
Thus, defense counsel did raise a confrontation clause objection. This issue was clearly considered by the district court and objected. Zipprich has not shown he received ineffective assistance of counsel.
D. Other Issues.
Zipprich seeks to preserve for postconviction relief a claim regarding mental impairment. He states it is possible he went to trial without understanding the nature of the charges, or in a state rendering him incapable of assisting his attorney. However, he does not affirmatively assert he was suffering from a mental impairment. We determine Zipprich has not raised a sufficient claim to preserve this issue for postconviction relief.
Zipprich also asks us to preserve other unidentified claims of ineffective assistance. Because we do not know what these claims are, we do not preserve them.
We affirm Zipprich's convictions for second-degree sexual abuse.
AFFIRMED.