IN THE COURT OF APPEALS OF IOWA
No. 19-0344
Filed May 13, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROGER McGHEE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Bethany J. Currie,
Judge.
Roger McGhee appeals his convictions of third-degree sexual abuse,
lascivious acts with a child, and assault with intent to commit sexual abuse.
AFFIRMED.
Martha Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.
A jury found Roger McGhee guilty of third-degree sexual abuse, lascivious
acts with a child, and assault with intent to commit sexual abuse. The district court
sentenced McGhee to prison terms not exceeding ten years, ten years, and two
years respectively, to be served consecutively. On appeal, McGhee (1) challenges
the sufficiency of the evidence to support the findings of guilt; (2) contends the
district court abused its discretion in admitting certain exhibits that he contends
were irrelevant or unfairly prejudicial; and (3) argues the district court considered
“unproven offenses when imposing consecutive sentences.”
I. Sufficiency of the Evidence
The jury was instructed the State would have to prove the following
elements of third-degree sexual abuse:
1. On or about September 27, 2017, through February 5,
2018, Roger McGhee performed a sex act with L.M.
2. Mr. McGhee performed the sex act while L.M. was 12 or 13
years of age.
The elements of lascivious acts with a child were as follows:
1. On or about September 27, 2017, through February 5,
2018, Mr. McGhee with or without L.M.’s consent:
a. Fondled or touched the pubes or genitals of L.M.; or
b. Permitted or caused L.M. to fondle or touch Mr.
McGhee’s genitals or pubes.
2. Mr. McGhee did so with the specific intent to arouse or
satisfy the sexual desires of Mr. McGhee or L.M.
3. Mr. McGhee was 18 years of age or older.
4. L.M. was under the age of 14 years.
And the elements of assault with intent to commit sexual abuse were as follows:
1. On or about September 27, 2017, through February 5,
2018, Mr. McGhee assaulted L.M.
2. Mr. McGhee did so with the specific intent to commit a sex
act by force or against the will of L.M.
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McGhee “denies that any of the three alleged sex offenses ever took place.”
He also argues the child “lack[ed] any credibility because she continually changed
her version of events.” A reasonable juror could have found otherwise.
The child testified at trial and provided vivid and detailed descriptions of the
acts committed by McGhee. No useful purpose would be served by recounting the
acts. Suffice it to say a juror could have credited her testimony over McGhee’s
denial. See State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998) (“The credibility of
witnesses, in particular, is for the jury: ‘[t]he jury is free to believe or disbelieve any
testimony as it chooses.’” (alteration in original) (citation omitted)). The jury’s
finding of guilt is supported by substantial evidence. See State v. Folkers, __
N.W.2d ___, ___, 2020 WL 1649874, at *1 (Iowa 2020) (setting forth standard of
review).
Substantial evidence exists notwithstanding the child’s admission that when
she first spoke to a forensic interviewer about the abuse, she “kind of lied and tried
to say that [her] mind had made up the memories.” The child explained that she
downplayed the abuse to ensure the well-being of people close to her. She
affirmed that she does not make up memories and never had an issue making up
memories.
That said, many of the child’s statements during the first interview were
entirely consistent with her statements in the second interview and with her trial
testimony. And other witnesses corroborated key aspects of her testimony, as did
certain exhibits, which will be discussed next.
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II. Admission of Exhibits
McGhee challenges the court’s admission of certain sex-related evidence.
He argues the evidence “was not relevant and the probative value, if any, was
substantially outweighed by the danger of unfair prejudice.” See Iowa Rs.
Evid. 5.401 (“Evidence is relevant if: (a) It has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) The fact is of
consequence in determining the action.”), 5.403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice . . . .”). Our review of the district court’s rulings is for an abuse of
discretion. See State v. Tipton, 897 N.W.2d 653, 691 (Iowa 2017) (“The district
court rulings on relevance of evidence are reviewable for abuse of discretion, as
are challenges to the admission of evidence under Iowa Rule of Evidence 5.403.”).
In a discussion outside the presence of the jury, the prosecutor cogently
explained that the challenged evidence was offered to “corroborate [the child’s]
testimony” about “the things that she said” McGhee showed her. The district court
selectively admitted those sex-related exhibits that were referenced in the child’s
testimony. We discern no abuse of discretion in the court’s ruling.
III. Sentencing
The district court is required to state reasons for imposing consecutive
sentences. See State v. Hill, 878 N.W.2d 269, 274 (Iowa 2016). “[W]e will set
aside a sentence and remand a case to the district court for resentencing if the
sentencing court relied upon charges of an unprosecuted offense that was neither
admitted to by the defendant nor otherwise proved.” State v. Sailer, 587 N.W.2d
756, 762 (Iowa 1998) (quoting State v. Black, 324 N.W.2d 313, 315 (Iowa 1982)).
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The district court explained its reasons for imposing consecutive sentences
as follows:
The Court finds consecutive sentences to be appropriate under the
circumstances of this case because the jury found there were
separate and distinct acts committed justifying each charge, because
of the nature of the offenses and the [relationship of the defendant to
the child]. Despite what your attorney said, I believe that the child
was repeatedly abused and this sentence is designed to reflect that.
(Emphasis added.) McGhee contends the emphasized language evinces a
consideration of unproven offenses. We disagree. Although only one of the crimes
was denominated “sexual abuse,” all three involved “abuse” in the generic sense.
The three sex-related charges and the jury’s findings of guilt on all three support
the court’s reference to “repeated[] abuse[].” We conclude the court did not
consider unproven charges in imposing consecutive sentences.
We affirm McGhee’s judgment and sentence.
AFFIRMED.