IN THE COURT OF APPEALS OF IOWA
No. 15-2009
Filed November 23, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MELVIN LUCIER,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
Melvin Lucier appeals his convictions for three counts of second-degree
sexual abuse of a child. AFFIRMED.
Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.
Melvin Lucier appeals his convictions for three counts of second-degree
sexual abuse of a child. He challenges (1) the district court’s determination that
the child was competent to testify and (2) the sufficiency of the evidence
supporting the district court’s findings of guilt.
I. Competency
The child Lucier was charged with abusing was eleven years old at the
time of trial. Before she testified for the State, the district court engaged her in a
colloquy to determine whether she could differentiate between truth and lies.
See State v. Andrews, 447 N.W.2d 118, 121 (Iowa 1989) (setting forth test to
determine child’s competency). Lucier contends the colloquy was inadequate.
He concedes the court determined the child “could identify a lie” but contends the
court failed to establish “the child could identify the truth.”
The State responds that Lucier failed to preserve error. We are inclined to
agree because Lucier did not challenge the sufficiency of the colloquy in the
district court. See State v. Steltzer, 288 N.W.2d 557, 559 (Iowa 1980).
Bypassing this error-preservation concern, we are persuaded that the district
court adequately addressed the child’s ability to distinguish between truth and
lies. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (choosing to overlook
serious error preservation concerns). We conclude the district court did not
abuse its discretion in finding the child competent to testify. See State v.
Brotherton, 384 N.W.2d 375, 377 (Iowa 1986) (setting forth standard of review).
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II. Sufficiency of the Evidence
The district court set forth the elements of second-degree sexual abuse as
follows:
1. During the time frame from on or about May, 2010,
through March, 2014, the defendant performed a sex act with S.D.
2. The defendant performed the sex act while S.D. was
under the age of 12 years.
See Iowa Code §§ 709.1, 709.3(1)(b) (2015). The court defined “sex act” as
follows:
A “sex act” means any sexual contact:
1. By penetration of the penis into the vagina or anus.
2. Between the mouth of one person and the genitals of
another.
3. Between the genitals of one person and the genitals or
anus of another.
4. Between the finger or hand of one person and the genitals
or anus of another person.
5. By a person’s use of an artificial sex organ or a substitute
for a sexual organ in contact with the genitals or anus of another.
See id. § 702.17. After finding the child competent to testify, the court described
the child’s contact with Lucier and summarized diagrams in which she identified
the parts of her body he touched as well as the parts of his body he used to
touch hers. The court determined:
[T]he testimony establishes that the defendant performed a sex act
with S.D. five or more times during the period from on or about May
2010, through March 2014. Her testimony clearly puts these
incidents within the relevant timeframe and the acts described meet
the definition of a “sex act” as described above. There is no
question that she was under age 12 at the time of these acts.
On appeal, Lucier contends, “[T]he overall testimony and the line of questioning
are rather vague and confusing as to which part of [Lucier’s] body made contact
with what part of S.D.’s body and on what date and how often.” Our review of the
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district court’s fact findings is for substantial evidence. See State v. Hearn, 797
N.W.2d 577, 579 (Iowa 2011). Suffice it to say that the child’s testimony together
with her identifications of the body parts involved amounted to substantial
evidence in support of the district court’s findings. See State v. Martens, 569
N.W.2d 482, 487 (Iowa 1997) (“Although H.A. was fifteen at trial time, we do not
deem her testimony in totality as too unspecific and insufficient to identify a digital
touching of her anus by defendant.”); State v. Wolfe, No. 01-0940, 2002 WL
535177, at *2 (Iowa Ct. App. Apr. 10, 2002) (“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.”).
Notably, the court found the child’s testimony “credible.” We give weight to this
credibility finding. See State v. Dewitt, 811 N.W.2d 460, 476 (Iowa 2012)
(“[C]redibility determinations are an essential function of the fact finder.”).
Having found substantial evidence to support the district court’s detailed
findings of guilt, we affirm Lucier’s judgment and sentence for three counts of
second-degree sexual abuse.
AFFIRMED.