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preserving for PCR proceedings a claim counsel improperly predicted unlikelihood of a guilty verdict
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No. 3-373 / 02-0761
Filed October 15, 2003
Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.
Defendant appeals his conviction and sentence, following a jury trial, for sexual abuse in the second degree, in violation of Iowa Code section 709.3(2) (2001). AFFIRMED IN PART; SENTENCE VACATED IN PART AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Heard by Sackett, C.J., and Miller and Hecht, JJ.
Defendant-appellant Rion Franke appeals his conviction and sentence, following a jury trial, for sexual abuse in the second degree, in violation of Iowa Code section 709.3(2) (2001). On appeal defendant claims he received ineffective assistance of counsel in that counsel failed to (1) object to the application of a minimum sentence under Iowa Code section 902.12(3) as a violation of defendant's constitutional protection against ex post facto laws; (2) file a motion to suppress defendant's confession; (3) object to a diary page; and (4) explain to defendant the likelihood of his conviction and the advantages of a plea agreement. Defendant also claims there was insufficient evidence to support his conviction. We affirm in part, vacate in part defendant's sentence, and remand for resentencing.
I. BACKGROUND FACTS AND PROCEEDINGS
Defendant was charged on February 26, 2001 with sexually abusing his step-sister, J.J. J.J. was born April 28, 1989. In late November of 2000, J.J.'s father read a passage from J.J.'s diary dated November 10, 2000. That diary entry stated, "Dear Diary or god / I feel so bad today. / I feel like crying / looking back on my past / How ryan keep feeling / me in areas that / were private. / I'm fat ugly and stupid / . . . ." Following J.J.'s father's report of the diary entry, Sioux City Police Detective John Kayl interviewed defendant for approximately forty minutes. In that interview defendant admitted touching J.J. one time under her panties.
At trial J.J. testified that defendant touched her over her panties on more than one occasion at the home of her mother and defendant's father. Defendant testified that he admitted to touching J.J. only because he wanted to get out of the police interview. The jury was instructed that if the State proved defendant performed a sex act on J.J. "during the period of time between March 3, 1996 and the summer of 2000," while J.J. was under twelve years of age, the defendant was guilty of second-degree sexual abuse. The jury convicted defendant of second-degree sexual abuse. The court sentenced defendant to an indeterminate term of twenty-five years, with a mandatory minimum sentence of eighty-five percent of that term, or twenty-one and one-quarter years, pursuant to Iowa Code section 902.12(3).
II. MANDATORY MINIMUM SENTENCE
Defendant first argues that sentencing him to a mandatory minimum sentence under section 902.12(3), which was not enacted until July 1, 1996, violates his constitutional protection against ex post facto laws.
Scope of Review. We review defendant's constitutional challenge to his sentence de novo. State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000).
Defendant argues his sentence is illegal and his counsel erred by failing to argue that imposition of the mandatory minimum sentence law, which was enacted July 1, 1996, for sexual abuse occurring "during the period of time between March 3, 1996 and the summer of 2000," violates the ex post facto provisions of our federal and state constitutions. See U.S. Const. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . ex post facto Law. . . ."); Iowa Const. art. I, § 21 ("No . . . ex post facto law . . . shall ever be passed."). The constitutional prohibition of ex post facto laws "forbids application of a new punitive measure to conduct already consummated where it operates to the detriment or material disadvantage of the accused." State v. Walker, 506 N.W.2d 430, 433 (Iowa 1993) (quoting State v. Quanrude, 222 N.W.2d 467, 469-70 (Iowa 1974)); see also State v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985) (ex post facto clause is violated when a statute "makes more burdensome the punishment for a crime, after its commission") (quoting Beazell v. State, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217 (1925)).
The State argues that given the evidence, there was no reasonable probability the jury could have found sexual abuse occurred between March 3 and July 1, 1996. The State claims J.J. testified the abuse occurred when defendant was living in his father's and stepmother's home, and there was no evidence defendant lived there prior to July 1, 1996.
Testimony by defendant's stepmother indicated she and J.J. moved into the defendant's father's home, where the alleged abuse occurred, on March 3, 1996. Although defendant's stepmother testified he moved into the house during the summer of 1997, J.J. testified defendant was at the house when she first moved there. The jury instruction providing for a range of time dating back to March 3, 1996 accurately reflected the evidence at trial, and the jury could have found the abuse occurred between March 3 and July 1, 1996.
We conclude it is inappropriate to impose section 902.12's minimum sentence provisions, thereby enhancing the severity of defendant's punishment, when the conviction is the result of a general verdict that could have been based on acts occurring prior to the effective date of the statute. See State v. Iowa Dist. Ct., 616 N.W.2d 575, 579 (Iowa 2000) (section 902.12 operates as minimum sentence rather than reduction on power of parole board); State v. Pilcher, 242 N.W.2d 348, 354-56 (Iowa 1976) (reversal required where general verdict precludes determination of whether verdict rested on unconstitutional ground).
Accordingly, we vacate defendant's sentence for second-degree sexual abuse and remand the case for resentencing on that conviction without the imposition of the minimum sentence provisions of section 902.12.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Scope of Review. Defendant additionally raises several claims of ineffective assistance of counsel. We review ineffective assistance of counsel claims de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, defendant must demonstrate, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from that failure. State v. Smothers, 590 N.W.2d 721, 722 (Iowa 1999). We may dispose of the claim if defendant fails to demonstrate either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). To sustain his burden of proof with respect to the duty element, defendant must overcome the strong presumption that counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. Smothers, 590 N.W.2d at 722. Miscalculated trial strategies and mere mistakes in judgment generally do not rise to the level of ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). Thus, claims of ineffective assistance involving tactical or strategic decisions of counsel must be examined in light of all the circumstances to ascertain whether the actions were a product of tactics or inattention to the responsibilities of an attorney guaranteed defendant under the Sixth Amendment. Id.
The trial record is often inadequate for us to resolve claims of ineffective assistance of trial counsel raised on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Consequently, we often preserve defendant's ineffective assistance of counsel claims for postconviction relief proceedings to allow for the development of a record on trial counsel's performance. Id. Motion to suppress. Defendant claims his counsel was ineffective for failing to file a motion to suppress his confession. Defendant argues his confession was involuntary, as it was in response to leniency promises made by Officer Kayl during the interview. The State argues Officer Kayl made no improper statements, that even if he did they did not rise to the level of inducing an involuntary confession from defendant, and further, that the additional evidence against defendant was overwhelming and defendant would be unable to establish prejudice.
During an interview lasting between thirty and forty minutes, Officer Kayl began by giving defendant his Miranda warnings but in doing so referred to them as a formality. Officer Kayl reassured defendant his intention was to act in defendant's interest, stating among other things at the beginning of the interview,
I'm gonna be straight-up forward with you. Short of you telling me that you're planning on killing the President today, you're walking out of here, okay? My immediate and main concern is that if it's a situation where someone needs some help, some counseling, whatever, we can get him helped out. That's my immediate and primary objective. . . .
Throughout the interview Officer Kayl repeatedly reassured defendant that confessing would essentially bring an end to the matter:
You can confide in me, let me know what took place, and you can walk out of here and start over. . . .
We can deal with it today, and we'll be done with it, and I won't be calling you back. . . .
Officer Kayl further stated in discussing sexual abuse,
I'm talking about simple urges that maybe a guy couldn't control and needs to be able to understand how to get these kind of things under control, because nobody's alone in that area, all right? Nobody's alone in that area, speaking man to man, okay? There's specific urges that, you know, a guy gets and sometimes they get out of hand, no doubt about that. And if it's a situation where something got out of hand, that's fine, it got out of hand, dealt with it, things that we're doing now to change our life which I can see some things you're doing now to change your life. You're working at Midstep, you know? That's a profession, that's an honorable profession, okay? You've made some active changes, but I know for your own conscience and to get on with things, you need to stop it, and end, and go from there, you know what I mean? You need to finish.
Officer Kayl also told defendant that "the number of [sexual assaults] doesn't make a whole lot of difference," that it did not make "a hill of beans either way," and that it was to defendant's benefit to disclose the number of times he had sexually abused J.J. Toward the end of the interrogation, Officer Kayl again impressed upon defendant that "there ain't a better time than right now just to get this done with and get this behind you. . . .It don't get any better than right now and being over with."
In determining whether a confession is voluntary we look at the totality of the circumstances. State v. Smith, 546 N.W.2d 916, 926 (Iowa 1996); State v. Jennett, 574 N.W.2d 361, 364 (Iowa Ct.App. 1997). The following factors are relevant in determining voluntariness of a confession: defendant's age, experience, record, education and intelligence; duration of interrogation; use of physical punishment; defendant's ability to understand the questions; defendant's physical and emotional condition; whether any deceit or improper promises were used in obtaining the confession; and any mental weakness of the defendant. Jennett, 574 N.W.2d at 364 (citing State v. Davis, 446 N.W.2d 785, 789 (Iowa 1989)).
Generally, an officer can tell a suspect that it is better to tell the truth. State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982). However, "[T]he line between admissibility and exclusion seems to be crossed . . . if the officer also tells the suspect what advantage is to be gained or is likely from making a confession." Id. If a defendant's confession is induced by the hope of leniency, it cannot be said to be the product of free will. Id. The State has the burden of proving by a preponderance of the evidence that the confession is voluntary. Id. at 348.
The videotaped confession shows that the officer implicitly promised defendant if he confessed, his case would essentially be over, that the officer was only concerned about getting J.J. assistance and helping defendant clear his conscience. Nevertheless, there is not enough information in the record for us to make a determination as to whether defendant's confession, under the totality of the circumstances, was indeed involuntary and whether his counsel was ineffective for failing to seek its suppression. We preserve this issue for postconviction proceedings.
Introduction into evidence of diary entry. Defendant's third claim on appeal is that his counsel was ineffective for failing to object to the introduction of J.J.'s diary entry describing past abuse by "Ryan." The diary entry was read to the jury by J.J.'s father, who reported defendant to police after discovering the entry. The State argues that the diary entry was not offered to prove the truth of the statements in the entry, but was offered to explain why J.J.'s father reported defendant to the police. The State further argues the evidence was merely cumulative, and that defendant therefore cannot show prejudice resulted from the introduction of the evidence.
Although J.J.'s father did call police in response to the letter, the fact that he called police was not an issue in this case; at issue in this case was his reason for calling police, and that reason was contained in the diary entry. We therefore find it difficult to accept the State's argument that the entry was not hearsay because it was introduced only as evidence of J.J.'s father calling police. In order to show prejudice, however, defendant must show a reasonable probability that but for counsel's failure to perform an essential duty, the result of the proceeding would have been different. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). Given defendant's confession, we cannot determine on this record that counsel's failure to object to the diary was prejudicial such that there was a reasonable probability of a different outcome in the trial if counsel had made the proper objection. We therefore preserve this claim for possible postconviction proceedings.
As discussed above, we recognize the question of whether counsel should have sought to exclude defendant's confession is disputed by the parties.
Plea offer. Defendant's final claim of ineffective assistance is that his counsel improperly predicted a guilty verdict was unlikely and that counsel failed to explain plea offers made by the State would not be subject to the fifteen percent parole limitation in sections 902.12 and 903A.2. Defendant claims that with proper advice he would have taken a plea agreement. We have already determined that defendant's sentence is not subject to the eighty-five percent rule under sections 902.12 and 903A.2. Therefore, we do not preserve defendant's claim that his trial counsel should have explained to him that his plea bargain would not be subject to this rule. We are unable on this record to make a determination as to whether counsel was ineffective for predicting success in the trial. We preserve this claim for possible postconviction proceedings.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant's last argument on appeal is that there was insufficient evidence to support his conviction for second-degree sexual abuse. Defendant argues "sex acts" necessarily involve some sort of simulated sexual activity, such as intercourse or masturbation, and that defendant's "rubbing" acts instead qualify only as lascivious acts with a minor, a class D felony under section 709.8, rather than sexual abuse. Defendant further argues the credible evidence in his case showed there was not even skin-to-skin contact, and that even if his own confession to onetime skin-to-skin contact were believed, absent other evidence of sexual activity, such contact does not rise to the level of a "sex act" necessary for a finding of sexual abuse. In support of his position defendant refers us to State v. Capper, 539 N.W.2d 361, 365 (Iowa 1995) (finding sufficient evidence of sexual abuse where defendant rubbed the victim's vagina with his bare penis after showing her pornographic movies); State v. Pearson, 514 N.W.2d 452, 456 (Iowa 1994), (finding sufficient evidence of sexual abuse where defendant, reclined in a parked truck with a child on his lap, first exposed his penis and then covered it and masturbated by rubbing his penis under the child's clothed buttocks); and State v. Phipps, 442 N.W.2d 611, 612-13 (Iowa Ct.App. 1989) (upholding conviction for third-degree sexual abuse where defendant rubbed the victim's penis under his jeans but over his shorts and had the victim rub defendant's penis over his shorts until defendant ejaculated).
Scope of Review. We review challenges to the sufficiency of the evidence for errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). In making a judgment on the sufficiency of the evidence we consider all of the evidence, but we view it in a light most favorable to the State, making all reasonable inferences that may be drawn from the evidence. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998).
Merits. Under Iowa Code section 709.3 sexual abuse in the second degree occurs when the victim is under the age of twelve. Under section 709.1(3) any sex act between persons qualifies as sexual abuse by one of the persons when the other person is a child. The jury was instructed that "sex act" means "any sexual contact between the finger or hand of one person and the genitals of another person." See Iowa Code § 702.17. The jury was also instructed it could consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.
J.J. was under the age of twelve during the time period of March 3, 1996 to the summer of 2000, when the jury determined defendant performed sex acts on her. What we must address is whether J.J.'s allegations of multiple touchings by defendant of her vaginal area over her clothing and defendant's confession to once touching J.J. under her panties is sufficient evidence to conclude a "sex act" occurred.
J.J. testified that the touchings consisted of defendant rubbing her vagina with his hand over her pajamas and underwear while she was sleeping on the living room couch. She further testified that defendant was wearing clothes and when he finished, "he just stopped." J.J. was unable to recall how long the touchings lasted.
In State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994) the Iowa Supreme Court held that in order for person-to-person contact to qualify as "sexual contact" and therefore be deemed a "sex act" under section 702.17 for purposes of defining sexual abuse, the contact had to be between specified body parts, and sexual in nature.
Specified body parts in section 702.17 include the hand of one person and the genitalia of another.
First, in determining whether contact had occurred, the court held it was not necessary for the skin of one individual to touch the skin of another. Pearson, 514 N.W.2d at 455. Although intervening material could prevent contact, it only did so if its nature and amount prevented the parties, viewed objectively, from sensing contact. Id. Second, in determining whether the contact was sexual in nature, it was necessary to look at the nature of the contact and circumstances surrounding it. Id.
In applying that analysis to this case, we conclude there is substantial evidence to prove beyond a reasonable doubt a sex act did occur. The contact was perceivable, as both J.J. and defendant sensed the contact between his hand and her vaginal area, and there is no claim that the contact, from an objective viewpoint, would not be perceived. Furthermore, the evidence that J.J. was sleeping when the contact began, and defendant was beside her and rubbing her vaginal area with his hand for a period of time, causes us to conclude the evidence supported a finding the contact was sexual in nature. Applying Pearson, we conclude there was substantial evidence to support a finding beyond a reasonable doubt that sexual abuse occurred.
Ineffective Assistance of Counsel. Defendant argues in the alternative that his counsel was ineffective for failing to argue specifically that the facts in this case do not constitute a "sex act," and that defendant therefore could not be convicted of sexual abuse. Because we have found no merit in the claim, we conclude there was no error by counsel in failing to argue it. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).