IN THE COURT OF APPEALS OF IOWA
No. 4-009 / 12-2138
Filed March 12, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEMARRIO DESHON WRIGHT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer
and Bradley J. Harris, District Court Judges.
Appellant appeals his conviction for sexual abuse in the second degree,
sexual abuse in the third degree, and indecent contact with a child. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
2
MCDONALD, J.
Demarrio Wright appeals his conviction of sexual abuse in the second
degree, sexual abuse in the third degree, and indecent contact with a child, in
violation of Iowa Code sections 709.3, 709.4, and 709.12(1) and (2) (2011),
respectively. He contends the district court erred in allowing the jury to hear
testimony regarding an additional instance of sex abuse between Wright and the
victim, where the additional instance of sex abuse was not part of the conduct
underlying the charges in this proceeding. He also contends his trial counsel
was constitutionally ineffective for failing to move to dismiss or otherwise
challenge the trial information as being untimely filed in violation of Iowa Rule of
Criminal Procedure 2.33(2)(a).
I.
On August 15, 2011, a complaint was filed in Black Hawk County accusing
Wright of the crime of lascivious acts with a child, in violation of Iowa Code
section 709.8(2). A warrant for his arrest on that charge was issued the same
date. At the time the arrest warrant was issued, Wright was on probation in Polk
County under the supervision of the Fifth Judicial District Department of
Correctional Services (“DCS”). An investigator in the Black Hawk County case
notified DCS of the outstanding warrant. The DCS Fugitive Team executed the
warrant on August 17, 2011, arrested Wright, and placed him in the custody of
the Polk County Sheriff. After his arrest, Wright’s probation officer filed a report
of violations in Wright’s Polk County probation case. Wright remained in the
custody of the Polk County Sheriff on a no-bond hold until his Polk County
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probation violation matter was resolved on October 21, 2011. The Polk County
Sheriff then released Wright to the Black Hawk County detainer.
On October 31, 2011, the State filed its trial information in Black Hawk
County, charging Wright with the following: sexual abuse in the third degree, in
violation of Iowa Code section 709.4; lascivious acts with a child, in violation of
section 709.8(1); and indecent contact with a child, in violation of section
709.12(1). Wright’s trial counsel moved to dismiss the information on the ground
the State failed to file the trial information within forty-five days of Wright’s arrest,
in violation of Iowa Rule of Criminal Procedure 2.33(2)(a). The court granted the
motion with respect to the charge of lascivious acts with a child. The court
denied the motion with respect to the remaining charges.
On July 31, 2012, the State filed an amended trial information charging
Wright with the following: sexual abuse in the second degree, in violation of
section 709.3; sexual abuse in the third degree, in violation of section 709.4; and
indecent contact with a child, in violation of section 709.12(1) and (2). The
matter went to trial, and on October 2, 2012, a jury found Wright guilty of all three
counts.
II.
Wright was charged with committing sex abuse against and having
indecent contact with his daughter, M.W., on several occasions between 2005
and 2010. M.W. was born to Wright and Q.M. in 1997. M.W. lived with her
mother in a small house in Waterloo where M.W. shared a bedroom with her
younger brother. Wright resided at the home on an irregular basis.
4
The trial testimony showed that Wright’s abuse of M.W. began in 2005,
when M.W. was eight years old. Early one morning in 2005, Wright woke M.W.
up and asked her to come from her bedroom and lay on the couch with him, and
she did. M.W.’s mother already was at work. M.W.’s younger brother remained
sleeping in the shared bedroom. After M.W. lay on the couch with Wright, Wright
took off M.W.’s pajama bottoms, touched M.W.’s thighs with his hands, and
digitally penetrated her vagina. After about five minutes, Wright stopped and told
M.W. to go wash up and get ready for school. On another occasion, Wright
entered M.W.’s bedroom while she was sleeping. He woke M.W. up and rubbed
her thighs and vaginal area over her clothing. The testimony showed that Wright
continued to wake M.W. up and touch her inappropriately on other occasions.
The abuse stopped while M.W. was still eight years old when Wright stopped
coming to the house.
When M.W. was nine years old, her school had a “good touch/bad touch”
lesson. M.W. filled out a questionnaire and stated she had experienced a “bad
touch.” M.W. was sent to the school guidance counselor to whom M.W. revealed
the abuse. The guidance counselor called M.W.’s mother and the Iowa
Department of Human Services (“DHS”). M.W.’s mother took M.W. home and
discussed the incident with M.W. and Wright. Wright became angry at M.W.
when he heard what M.W. had told the guidance counselor. The mother did not
believe M.W.’s story. When DHS came to interview M.W., she told DHS that no
abuse had occurred. M.W. testified she did this because she did not want her
parents to be mad at her.
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When M.W. was twelve years old, Wright moved from Waterloo to Des
Moines. On occasion, he came back to Waterloo and stayed with the family. In
2010, when M.W. was thirteen years old, her uncle finished a bedroom in the
basement of the mother’s house so that M.W. would have her own bedroom. A
few weeks prior to Thanksgiving 2010, Wright came to the residence late one
evening and entered M.W.’s bedroom in the basement. Wright, appearing to
M.W. to be intoxicated, turned on the television and went to M.W.’s bed. Wright
rubbed M.W.’s thighs and vaginal area over M.W.’s clothes. Wright then
removed M.W.’s pants, and began licking M.W.’s vagina. Wright then digitally
penetrated M.W.’s vagina. He unsuccessfully attempted to insert his erect penis
into M.W.’s vagina. Wright eventually left M.W.’s room and the house. M.W. did
not tell her mother because M.W. was afraid her mother would not believe her.
At trial, Wright’s counsel attempted to exclude testimony regarding
another uncharged incident of sex abuse committed by Wright against M.W.
Prior to trial, Wright filed a motion in limine seeking to prevent testimony
regarding an incident of sexual abuse that allegedly occurred while Wright and
M.W. were visiting relatives in Mississippi. At trial, the district court overruled the
motion in limine. A mistrial was declared for other reasons. Prior to selecting a
new jury, the district court affirmed that its ruling on the motion in limine would
apply. The trial testimony showed that two weeks after the incident occurring in
M.W.’s basement bedroom, Wright brought M.W. and her brother to visit Wright’s
mother in Mississippi for Thanksgiving. While there, M.W. slept in the living room
along with her brother and another relative. On Thanksgiving, Wright became
6
intoxicated and left the house for a period of time only to return while everyone in
the house was asleep. Wright woke up M.W. and asked her to come into the
dining room with him, which was separated from the living room by a curtain.
Once there, Wright began kissing M.W.’s neck and rubbing M.W.’s vaginal area
over her clothes. Wright then took off M.W.’s pajama pants and began licking
her vagina. He then digitally penetrated her vagina and unsuccessfully
attempted to insert his erect penis into M.W.’s vagina. After Wright stopped,
M.W. went into the bathroom, called her mother, and told her what happened.
M.W.’s mother then spoke to Wright’s mother about M.W.’s report. They decided
that M.W. would ride back to Iowa with M.W.’s aunt instead of Wright.
M.W.’s maternal grandmother learned of this incident and contacted DHS.
After that meeting, DHS involved local police to investigate.
III.
A.
Wright contends the testimony regarding the incident in Mississippi should
have been disallowed. Because the charges against Wright did not encompass
this specific act of abuse, Wright contends that the incident in Mississippi
constituted a “prior bad act” that was unfairly prejudicial.1 “We review rulings on
1
Because the uncharged Mississippi incident occurred after the conduct for which
Wright was charged, the Mississippi incident is a subsequent bad act. Our analysis of
the admissibility of a “subsequent bad act” is the same as a “prior bad act.” See State v.
Munz, 355 N.W.2d 576, 581 (Iowa 1984) (stating “in sex abuse cases . . . subsequent
acts are as probative as those prior to the date of the charged offense”); State v.
Puffinbarger, No. 06-0779, 2008 WL 508404, at *2 (Iowa Ct. App. Feb. 27, 2008) (“In our
view, the fact that the acts occurred after the charged act rather than before does not
render the evidence less probative because it still bore on the nature of the relationship
7
the admission of evidence of prior bad acts for an abuse of discretion.” State v.
Reyes, 744 N.W.2d 95, 99 (Iowa 2008). “An abuse of discretion will be found
when the court exercises its discretion on grounds clearly untenable or to an
extent clearly unreasonable.” State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994).
“A court may admit evidence of prior bad acts when it determines (1) the
evidence is relevant and material to a legitimate issue in the case other than a
general propensity to commit wrongful acts, and (2) the probative value of the
evidence is not substantially outweighed by the danger of unfair prejudice to the
defendant.” State v. Cox, 781 N.W.2d 757, 761 (Iowa 2010) (citation and
quotation marks omitted) (emphasis in original). Regarding the admission of
prior acts of sexual abuse, the Iowa Code provides the following:
In a criminal prosecution in which a defendant has been charged
with sexual abuse, evidence of the defendant’s commission of
another sexual abuse is admissible and may be considered for its
bearing on any matter for which the evidence is relevant. This
evidence, though relevant, may be excluded if the probative value
of the evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. This evidence is not
admissible unless the state presents clear proof of the commission
of the prior act of sexual abuse.
Iowa Code § 701.11(1) (2011). Direct testimony from the victim of the prior
abuse is sufficient “clear proof” to meet the requirements of this section. See
Reyes, 744 N.W.2d at 101.
In the present case, there was a legitimate issue as to whether the abuse
of M.W. actually occurred. Wright testified on his own behalf and denied the
between [defendant] and [victim].”). For the sake of simplicity, we will continue to refer
to the incident as a “prior bad act.”
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allegations. He testified that M.W. dreamed the events. M.W.’s testimony and
Wright’s testimony were crucial because the physical evidence of sexual abuse
was inconclusive. Therefore, testimony of another incident of sexual abuse
corroborated by a contemporaneous report of the same was relevant to whether
the charged conduct actually occurred. See State v. Spaulding, 313 N.W.2d 878,
880 (Iowa 1981) (stating a legitimate issue in the case can include the need to
show that the defendant had “a passion or propensity for illicit sexual relations
with the particular person concerned in the crime on trial”); State v. Davis, No.
06-1496, 2007 WL 4553477, at *2 (Iowa Ct. App. Dec. 28, 2007) (“[T]he details
concerning the prior abuse were relevant to legitimate issues in dispute. Davis
completely denied the charged sexual abuse and physical evidence was
inconclusive . . . . Davis claimed [victim] fabricated the story . . . . Thus,
evidence showing Davis had a “passion or propensity” for [victim] and was
therefore motivated to engage in the charged sexual acts with her is made more
or less probable by the details of the earlier sexual abuse.”); State v. Paulson,
No. 06-0141, 2007 WL 461323, at *4 (Iowa Ct. App. Feb. 14, 2007) (“[T]he
defendant completely denied any sexual abuse of [the victim], which directly
contradicted [the victim’s] description. Therefore, the need for other evidence
was substantial.”).
It cannot be said that the probative value of the prior bad act was
substantially outweighed by the danger of unfair prejudice to Wright. The
uncharged conduct was similar in nature to the charged conduct occurring in
M.W.’s bedroom two weeks prior—both incidents involved Wright digitally
9
penetrating, licking, and attempting to insert his erect penis into M.W.’s vagina.
Thus, the nature of the prior bad act is no more egregious or inflammatory than
the charged conduct and was unlikely to unfairly inflame the passions of the jury.
See State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993) (analyzing the
“comparative enormity” of the charged offense with uncharged conduct and
concluding the uncharged crime “did not involve conduct any more sensational or
disturbing” than the charged crime so as to warrant exclusion”). Further, the
State did not spend a significant amount of time developing testimony regarding
the prior bad act during trial. See Reyes, 744 N.W.2d at 100 (holding evidence
of prior bad act admissible where testimony was “concise, direct, and
noninflamatory, and of a nature similar to that in the underlying charge” and “was
not of a nature that would have incited ‘overmastering hostility’ toward [the
defendant]”) (citation omitted); State v. White, 668 N.W.2d 850, 855 (Iowa 2003)
(holding testimony regarding prior bad act properly admitted where 1) prior act
was not the focus on the trial, 2) the evidence of the prior act was “not likely to
arouse the jury’s sense of horror,” and 3) prior act was no more brutal than
defendant’s acts at issue in the case); State v. Coleman, No. 02-0423, 2003 WL
21919175, at *2 (Iowa Ct. App. Aug. 13, 2003) (holding allowing evidence of prior
bad act was not an abuse of discretion where both acts involved “identical
individuals, the identical location, similar circumstances, and similar conduct”);
Davis, No. 06-1496, at *3 (“[T]hough the nature of Davis’s prior bad acts could
tend to raise the passion of the jury, the specific prior bad acts were not more
prejudicial than the evidence concerning the actual crime charged.”).
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Two additional factors also mitigate the potential for unfair prejudice. First,
the close temporal proximity between the Mississippi incident and the charged
conduct makes the prior bad act more probative than prejudicial. See State v.
Sullivan, 679 N.W.2d 19, 29 (Iowa 2004) (finding that an allegation of a prior bad
act which occurred three years prior to the charged crime was so remote as to
cast doubt on the weight of the evidence). Second, the trial court gave
appropriate limiting instructions:
You have heard evidence that the defendant allegedly committed
other acts with [M.W.] in Mississippi. 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
[M.W.]. You may not consider them as proving that the defendant
committed the acts charged in this case.
“We have often recognized the importance limiting instructions have in
minimizing prejudice.” State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005). “It is
only in extreme cases that such an instruction is deemed insufficient to nullify the
danger of unfair prejudice.” State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988)
(“Here, the district court, with a cautionary instruction, very carefully explained
the purpose of the challenged evidence as it related to the issue of consent and
admonished the jury that it must not convict [defendant] because of this
evidence.”).
Ultimately, “whether evidence of prior crimes should be admitted is a
judgment call on the part of the trial court.” State v. Rodriquez, 636 N.W.2d 234,
240 (Iowa 2001). As the Rodriguez court noted:
Analyzing and weighing the pertinent costs and benefits [of
admitting prior acts evidence] is no trivial task. Wise judges may
come to differing conclusions in similar situations. Even the same
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item of evidence may fare differently from one case to the next,
depending on its relationship to the other evidence in the case, the
importance of the issues on which it bears, and the likely efficacy of
cautionary instructions to the jury. Accordingly, much leeway is
given trial judges who must fairly weigh probative value against
probable dangers.
Id. (quoting 1 John W. Strong, McCormick on Evidence § 185, at 647–48 (5th ed.
1999)). Under the facts and circumstances of this case, we cannot say the
district court abused its discretion in allowing testimony regarding Wright’s
subsequent sex abuse of the same victim.
B.
Wright next contends his counsel was ineffective for “failing to continue to
challenge” the charges of sexual abuse in the trial information and amended trial
information on speedy indictment grounds. We typically resolve ineffective-
assistance-of-counsel claims after postconviction-relief proceedings. See State
v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). When such claims are presented
on direct appeal, however, the “court may decide the record is adequate to
decide the claim or may choose to preserve the claim for determination under
chapter 822.” Iowa Code § 814.7(3). Where, as here, the record is sufficient to
permit a ruling, we will address the claim on direct appeal. See Maxwell, 743
N.W.2d at 195. We review claims of ineffective assistance of counsel de novo.
See Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
To establish a claim for ineffective assistance of counsel, Wright must
show “(1) his trial counsel failed to perform an essential duty, and (2) this failure
resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Failure
to prove either element is fatal to an ineffective-assistance claim. See State v.
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Graves, 668 N.W.2d 860, 869 (Iowa 2003). With respect to the prejudice prong,
the ultimate inquiry is whether trial counsel’s allegedly deficient performance
caused a complete “breakdown in the adversary process” such that the
conviction is unreliable. See Strickland v. Washington, 466 U.S. 668, 687
(1984). This requires the defendant to establish “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Lamasters v. State, 821 N.W.2d 856,
866 (Iowa 2012) (quoting Strickland, 466 U.S. at 694).
“Iowa’s speedy indictment rule ensures the enforcement of the United
States and Iowa Constitutions’ speedy trial guarantees, which assure the prompt
administration of justice while allowing an accused to timely prepare and present
his or her defense.” State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011). Given the
procedural posture of this case, if trial counsel failed to file a meritorious motion
to dismiss the amended trial information, there can be no doubt this would
constitute prejudice. See id. at 654 (“The remedy for a violation of the speedy
indictment rule is an absolute dismissal of the charge with prejudice and a
complete bar from reindicting the defendant again on the same offense and
lesser-included offenses thereof.”). We thus address the question of whether the
challenge was meritorious and whether counsel breached an essential duty owed
Wright by failing to challenge the sexual abuse charges.
The exact nature of Wright’s claim is unclear. Wright’s trial counsel
moved to dismiss the trial information on the grounds that the trial information
was not timely filed. The district court granted the motion with respect to the
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charge of lascivious acts with a child, but the district court denied the motion with
respect to the counts of sexual abuse and indecent contact with a child. We are
not sure what more Wright believes trial counsel was constitutionally compelled
to do. To the extent that he contends counsel was required to file a motion to
reconsider or other similar motion, we conclude there is no such duty. To the
extent Wright claims counsel breached an essential duty by not resisting the
amended trial information or not moving to dismiss the amended trial information
on speedy indictment grounds, the claim is without merit.
“Our speedy indictment rule is activated when an adult is arrested for the
commission of a public offense and an indictment is not found against the person
within forty-five days.” State v. Edwards, 571 N.W.2d 497, 499 (Iowa Ct. App.
1997) (alteration omitted) (citation and quotation marks omitted). The plain
language of rule 2.33 “restricts the speedy indictment mandate to the offense or
offenses for which the defendant was arrested, and does not extend to a different
offense not charged in the complaint related to the arrest.” Edwards, 571 N.W.2d
at 499. Here, the complaint related to the warrant executed in August 2011
accused Wright only of the crime of lascivious acts with a child. The speedy
indictment rule was activated with respect to that charge, which the district court
dismissed on trial counsel’s motion. The speedy indictment rule was not
activated as to the sexual abuse charges.
Wright contends that the speedy indictment rule extends to other offenses
that are in similar in nature to the offense for which the defendant was arrested.
Wright’s argument is not supported by the plain language of rule 2.33 or case
14
law. Our cases make clear that the speedy indictment rule is offense specific:
the forty-five day period does not commence for the charged offense until such
time as the defendant is arrested for that offense. This is true even where the
defendant was arrested for a similar but distinct offense arising from the same
circumstances as the charged offense. See id.; see also State v. Lies, 566
N.W.2d 507, 509 (Iowa 1997) (“We conclude conspiracy to commit burglary is
neither the same offense as the burglary for which defendant was arrested nor a
lesser-included offense; therefore, the trial information charging defendant with
conspiracy to commit burglary was timely pursuant to rule 27(2)(a).”); State v.
Sunclades, 305 N.W.2d 491, 494 (Iowa 1981) (“Under the Burton standard the
time period applies only to the ‘public offense’ for which the defendant was
arrested, rather than to all offenses arising from the same incident or episode.”).
To determine whether the offense for which defendant was arrested is a
different offense than the offense charged, we look to the elements of the
offenses. See State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974) (using
essential elements test). Sexual abuse in the second- and third-degree, the
offenses in the amended trial information, are separate and distinct from
lascivious acts with a child, the offense for which defendant was arrested. See
State v. Capper, 539 N.W.2d 361, 367 (Iowa 1995) (holding lascivious acts was
not a lesser included offense of sexual abuse because it “requires] the defendant
act with the specific intent to arouse or satisfy sexual desires, an element not
required to prove the greater offense of sexual abuse”), abrogated on other
grounds by State v. Hawk, 616 N.W.2d 527 (Iowa 2000).
15
Accordingly, any continuing challenge to the charges of sexual abuse
would have been without merit. Trial counsel had no duty to file a meritless
resistance or motion. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)
(“We have held that counsel has no duty to raise an issue that has no merit.”).
IV.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.