IN THE COURT OF APPEALS OF IOWA
No. 13-1538 Filed August 13, 2014
IN THE INTEREST OF
C.R., Minor Child, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Alan D. Allbee,
Associate Juvenile Judge.
A juvenile appeals his adjudication for sexual abuse in the second degree
and indecent exposure. AFFIRMED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, W. Patrick Wegman, County Attorney, and Mark Huegel, Assistant
County attorney, for appellee.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
MULLINS, J.
C.R. appeals his adjudication for sexual abuse in the second degree and
indecent exposure. He claims the court erred in adjudicating him delinquent for
indecent exposure because the State failed to prove the fourteen-year-old victim
was offended. C.R. also claims his attorney rendered ineffective assistance
when counsel failed to object to several evidentiary issues—hearsay and the
State asking a witness to comment on the credibility of another witness.
I. BACKGROUND FACTS AND PROCEEDINGS
On the night of March 15, 2013, C.R. and several other children were
riding in a vehicle driven by C.R.’s aunt. They were returning home from a
school carnival. C.R., then age fourteen, was sitting in the right rear passenger
seat of the vehicle. Also in the rear seat were the victims D.C. and C.S., then
age fourteen and eight, respectively. D.C. was sitting in the left rear passenger
seat and C.S. was sitting in the middle, next to C.R. At some point during the trip
C.R. unzipped his pants and exposed his penis, which was witnessed by D.C.
She turned away and looked out the window. C.R. proceeded to cover his crotch
area with a hat, and then pulled C.S.’s hand under the hat and onto his penis.
Neither victim immediately reported the incident to the driver of the vehicle. After
being dropped off at her home, D.C. told her mother about C.R.’s actions in the
car.
Following an adjudicatory hearing and a dispositional hearing, the juvenile
court placed C.R. on probation for committing sexual abuse in the second 3
degree, in violation of Iowa Code sections 709.1 and 709.3 (2013), and indecent
exposure, in violation of section 709.9 . He filed a timely notice of appeal.
II. SCOPE AND STANDARDS OF REVIEW
Our review of delinquency proceedings is de novo. In re A.K., 825 N.W.2d
46, 49 (Iowa 2013). Delinquency proceedings differ from the criminal
prosecution of a child. Id. They are special proceedings where the best interests
of the child is the objective. Id. While we give weight to the juvenile court’s
factual findings, especially regarding the credibility of witnesses, we are not
bound by them. Id. Our review of ineffective-assistance-of-counsel claims is
also de novo. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014).
III. INDECENT EXPOSURE
C.R. argues the court erred in adjudicating him delinquent for indecent
exposure. Specifically, he alleges the State failed to prove D.C. was offended by
viewing his penis. C.R. argues there is no evidence of D.C.’s state of mind
besides her testimony. He argues her testimony alone establishes she was
“simply” scared and not offended.
Iowa Code section 709.9 provides:
A person who exposes the person’s genitals or pubes to another not the person’s spouse, or who commits a sex act in the presence of or view of a third person, commits a serious misdemeanor, if: 1. The person does so to arouse or satisfy the sexual desires of either party; and 2. The person knows or reasonably should know that the act is offensive to the viewer.
Our supreme court has broken down the crime of indecent exposure into the
following four elements: 4
“1. The exposure of genitals or pubes to someone other than a spouse . . . ; 2. That the act is done to arouse the sexual desires of either party; 3. The viewer was offended by the conduct; and 4. The actor knew, or under the circumstances should have known, the victim would be offended.”
State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008) (quoting State v. Isaac,
756 N.W.2d 817, 819 (Iowa 2008)). Here, C.R. challenges only the third element
of the crime. D.C. testified that when she saw C.R.’s penis, she turned and
looked out her window. She also testified she was “kind of a little bit scared.”
C.R. alleges this does not satisfy the third element because fear and offense are
two different emotions. He also argues D.C.’s state of mind was based purely
upon her fear of being beaten up by C.R. if she reported his conduct, as he had
earlier threatened to beat up her little brother if she reported seeing him smoking.
The intention behind section 709.9 is “to criminalize only visual sexual
assaults upon unwilling viewers.” State v. Bauer, 337 N.W.2d 209, 211 (Iowa
1983) (emphasis added). Requiring the State to show an alleged victim was
offended by an actor’s conduct is one way this intention is accomplished. See id.
at 212. Here, the record clearly shows D.C. was far from a willing viewer—she
turned and looked out her window and was frightened. After the incident, she
reported it to her mom. Based upon our de novo review of this record, we too
find the victim was offended by C.R.’s conduct. See also State v. Adams, 436
N.W.2d 49, 50 (Iowa 1989) (noting a 14-year-old girl “obviously was offended”
when she saw a man exposing himself in an apartment window). D.C.’s act of
turning away from the exposure is evidence that she was offended. Her self- 5
reported fear that she would be beaten up by C.R. for telling on him helps to
explain why she waited until later to report what she saw, but this does not
diminish the evidence of her state of mind of offense in response to C.R.’s
conduct.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
C.R. also claims on appeal his counsel rendered ineffective assistance.
He argues his attorney should have raised a hearsay objection when D.C.’s
mother testified as to what her daughter told her about the incident. C.R. also
alleges his attorney incompetently failed to object when the State questioned
C.S.’s aunt over whether she believed C.S. was being truthful when reporting
what transpired in the car. C.R. contends this testimony improperly commented
on C.S.’s credibility.
“A claimant alleging ineffective assistance of counsel must prove (1)
counsel failed to perform an essential duty and (2) prejudice resulted.” State v.
Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “To establish prejudice, a claimant
must demonstrate ‘there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Id. (quoting State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008)).
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IN THE COURT OF APPEALS OF IOWA
No. 13-1538 Filed August 13, 2014
IN THE INTEREST OF
C.R., Minor Child, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Alan D. Allbee,
Associate Juvenile Judge.
A juvenile appeals his adjudication for sexual abuse in the second degree
and indecent exposure. AFFIRMED.
David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, W. Patrick Wegman, County Attorney, and Mark Huegel, Assistant
County attorney, for appellee.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
MULLINS, J.
C.R. appeals his adjudication for sexual abuse in the second degree and
indecent exposure. He claims the court erred in adjudicating him delinquent for
indecent exposure because the State failed to prove the fourteen-year-old victim
was offended. C.R. also claims his attorney rendered ineffective assistance
when counsel failed to object to several evidentiary issues—hearsay and the
State asking a witness to comment on the credibility of another witness.
I. BACKGROUND FACTS AND PROCEEDINGS
On the night of March 15, 2013, C.R. and several other children were
riding in a vehicle driven by C.R.’s aunt. They were returning home from a
school carnival. C.R., then age fourteen, was sitting in the right rear passenger
seat of the vehicle. Also in the rear seat were the victims D.C. and C.S., then
age fourteen and eight, respectively. D.C. was sitting in the left rear passenger
seat and C.S. was sitting in the middle, next to C.R. At some point during the trip
C.R. unzipped his pants and exposed his penis, which was witnessed by D.C.
She turned away and looked out the window. C.R. proceeded to cover his crotch
area with a hat, and then pulled C.S.’s hand under the hat and onto his penis.
Neither victim immediately reported the incident to the driver of the vehicle. After
being dropped off at her home, D.C. told her mother about C.R.’s actions in the
car.
Following an adjudicatory hearing and a dispositional hearing, the juvenile
court placed C.R. on probation for committing sexual abuse in the second 3
degree, in violation of Iowa Code sections 709.1 and 709.3 (2013), and indecent
exposure, in violation of section 709.9 . He filed a timely notice of appeal.
II. SCOPE AND STANDARDS OF REVIEW
Our review of delinquency proceedings is de novo. In re A.K., 825 N.W.2d
46, 49 (Iowa 2013). Delinquency proceedings differ from the criminal
prosecution of a child. Id. They are special proceedings where the best interests
of the child is the objective. Id. While we give weight to the juvenile court’s
factual findings, especially regarding the credibility of witnesses, we are not
bound by them. Id. Our review of ineffective-assistance-of-counsel claims is
also de novo. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014).
III. INDECENT EXPOSURE
C.R. argues the court erred in adjudicating him delinquent for indecent
exposure. Specifically, he alleges the State failed to prove D.C. was offended by
viewing his penis. C.R. argues there is no evidence of D.C.’s state of mind
besides her testimony. He argues her testimony alone establishes she was
“simply” scared and not offended.
Iowa Code section 709.9 provides:
A person who exposes the person’s genitals or pubes to another not the person’s spouse, or who commits a sex act in the presence of or view of a third person, commits a serious misdemeanor, if: 1. The person does so to arouse or satisfy the sexual desires of either party; and 2. The person knows or reasonably should know that the act is offensive to the viewer.
Our supreme court has broken down the crime of indecent exposure into the
following four elements: 4
“1. The exposure of genitals or pubes to someone other than a spouse . . . ; 2. That the act is done to arouse the sexual desires of either party; 3. The viewer was offended by the conduct; and 4. The actor knew, or under the circumstances should have known, the victim would be offended.”
State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008) (quoting State v. Isaac,
756 N.W.2d 817, 819 (Iowa 2008)). Here, C.R. challenges only the third element
of the crime. D.C. testified that when she saw C.R.’s penis, she turned and
looked out her window. She also testified she was “kind of a little bit scared.”
C.R. alleges this does not satisfy the third element because fear and offense are
two different emotions. He also argues D.C.’s state of mind was based purely
upon her fear of being beaten up by C.R. if she reported his conduct, as he had
earlier threatened to beat up her little brother if she reported seeing him smoking.
The intention behind section 709.9 is “to criminalize only visual sexual
assaults upon unwilling viewers.” State v. Bauer, 337 N.W.2d 209, 211 (Iowa
1983) (emphasis added). Requiring the State to show an alleged victim was
offended by an actor’s conduct is one way this intention is accomplished. See id.
at 212. Here, the record clearly shows D.C. was far from a willing viewer—she
turned and looked out her window and was frightened. After the incident, she
reported it to her mom. Based upon our de novo review of this record, we too
find the victim was offended by C.R.’s conduct. See also State v. Adams, 436
N.W.2d 49, 50 (Iowa 1989) (noting a 14-year-old girl “obviously was offended”
when she saw a man exposing himself in an apartment window). D.C.’s act of
turning away from the exposure is evidence that she was offended. Her self- 5
reported fear that she would be beaten up by C.R. for telling on him helps to
explain why she waited until later to report what she saw, but this does not
diminish the evidence of her state of mind of offense in response to C.R.’s
conduct.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
C.R. also claims on appeal his counsel rendered ineffective assistance.
He argues his attorney should have raised a hearsay objection when D.C.’s
mother testified as to what her daughter told her about the incident. C.R. also
alleges his attorney incompetently failed to object when the State questioned
C.S.’s aunt over whether she believed C.S. was being truthful when reporting
what transpired in the car. C.R. contends this testimony improperly commented
on C.S.’s credibility.
“A claimant alleging ineffective assistance of counsel must prove (1)
counsel failed to perform an essential duty and (2) prejudice resulted.” State v.
Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “To establish prejudice, a claimant
must demonstrate ‘there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Id. (quoting State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008)).
C.R. alleges the testimony of D.C.’s mother is hearsay, when she told the
court: “[D.C.] said that [C.R.] had his penis out in the back of the car.”1 However,
our review of the record shows the court also learned this fact from the testimony
of D.C. herself. Because admissible evidence established the same matter put
1 Although we question whether in context the statement was offered to prove the matter asserted, we will analyze the issue presented. See Iowa R. Evid. 5.801. 6
forward by the alleged hearsay, we do not see—and neither has C.R. shown
us—how the admission of the alleged hearsay could have changed the result of
the proceeding. We therefore find counsel’s failure to raise a hearsay objection
did not prejudice C.R. See State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992)
(finding the admission of hearsay is not prejudicial where “substantially the same
evidence is in the record without objection”).
C.R. also claims the State inappropriately asked C.S.’s mother to
comment on the credibility of C.S. as a witness during the trial. C.R. claims “[t]he
trial counsel should have objected to this line of questioning.” However, on our
review we note the juvenile court itself interrupted and stopped the State’s line of
questioning. This record establishes that the court, the finder of fact in this
proceeding, recognized the State’s error in questioning the credibility of a
witness. Consequently, there is little doubt that when the court sua sponte
stopped the questioning that it also disregarded the objectionable testimony. It is
clear the outcome of the proceedings would not have been different had C.R.’s
counsel objected to the testimony, rather than the court itself. See State v.
Matheson, 684 N.W.2d 243, 244 (Iowa 2004) (“[A]n appellate court is less likely
to reverse when improper evidence is introduced in bench trials in which the
matter is for a judge’s determination rather than for determination by a jury.”).
Accordingly, we find C.R. was not prejudiced by counsel’s failure to object to
credibility testimony either.
AFFIRMED.