STATE OF IOWA, Plaintiff-Appellee, vs. RAYMOND REYES, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-663 / 05-1000
Filed December 13, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RAYMOND REYES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Raymond Reyes appeals his conviction and sentence for second-degree
sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann Brenden, Assistant Attorney
General, Matthew Wilber, County Attorney, and Daniel McGinn and Shelley
Sedlak, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
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MAHAN, J.
Raymond Reyes appeals his conviction and sentence for second-degree
sexual abuse in violation of Iowa Code section 709.1(3), 709.3(2), and 901A.2(3)
(2003). He argues the district court erred by admitting testimony concerning
Reyes’s alleged previous sexual abuse of the victim. He also claims he received
ineffective assistance of counsel when his attorney failed to (1) object to the
limiting instruction concerning the testimony about previous abuse and (2) object
to or request a limiting instruction for the tape of Reyes’s interview with police.
We affirm the conviction and preserve the ineffective assistance of counsel
claims for possible postconviction relief proceedings.
I. Background Facts and Proceedings
A.G. was eleven years old when she was visiting her grandparents in the
summer of 2003. During her time at her grandparents’ home, she slept with her
two-year-old brother on an air mattress in the basement family room. At the time,
Reyes was married to A.G.’s aunt. Reyes and the aunt were also staying with
A.G.’s grandparents. They normally slept in a bedroom off the basement family
room.
A.G. stayed up late one night to watch television with her grandparents.
At bedtime, she carried her already-sleeping brother downstairs. Reyes was
sleeping on the couch in the family room. A.G. laid on the mattress and went to
sleep. She awoke to find Reyes on top of her, having sexual intercourse with
her. She tried to get out from under Reyes, but he told her to hold still and be
quiet. When Reyes finished, he went into the bathroom, then went to bed inside
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the bedroom. A.G. felt a liquid on the inside of her thighs and wiped it off. She
then went back to bed.
A.G. did not tell anyone about the incident until October 30, 2004. At that
time, she told a friend, but made him promise not to tell anyone else. Later,
during a phone call in December 2004, she told her friend’s mother about the
assault. She also told a school nurse, in whom she had confided she did not
want to spend time with her family over the holidays because Reyes would be
there. Later, A.G. also alleged Reyes raped her when she was nine years old,
approximately a year before the first incident she reported.
On January 6, 2005, Reyes was charged with sexual abuse in the second
degree for the summer 2003 incident. Later, the trial information was amended
to include the sentencing enhancement section 901A.2(3). 1 Just before trial, the
defense made an oral motion in limine to exclude testimony about the incident
A.G. alleged occurred prior to the summer 2003 assault.
The district court
denied the motion.
At trial, A.G. testified about both alleged rapes.
The court gave the
following instruction about the first incident:
You have heard evidence that the defendant allegedly committed
other acts with A.G. before the summer of 2003. 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 A.G. You may not consider them as proving that the
defendant actually committed the act charged in this case.
1
Reyes had a 1986 conviction for sexual assault of a child in Lancaster County,
Nebraska, and a 1988 conviction in the same county for attempted sexual assault of a
child. Evidence of these prior convictions was used only for sentencing enhancement
and is not part of this appeal.
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The State played an audio recording of Reyes’s interview with police. In
the interview, officers told Reyes that they knew that he had sex with A.G., but
were interviewing him to find out why. They questioned why Reyes did not seem
upset. They also asked him how A.G. could describe things about his body, or
why she would know whether he was circumcised or uncircumcised.
They
repeatedly told Reyes they knew he had sex with A.G. When Reyes denied it,
they told him denying it did not change the past. Reyes then related a dream he
claimed to have had one night when A.G. was sleeping in the basement. He told
officers he woke up near the bathroom door and his dog was licking his face. He
told them he could have had “physical contact” with A.G. while sleeping. When
officers asked what “physical contact” meant, Reyes told them he could have
touched her with his finger or penis.
Eventually, when an officer asked him
whether they were all in agreement that he had sex with A.G. while he was
asleep, Reyes agreed.
No instruction was specifically requested or given relating to the interview.
However, the jury received the stock instruction on evidence. The jury convicted
Reyes of second-degree sexual abuse.
He was sentenced to a term of
incarceration not to exceed fifty years. Reyes appeals.
II. Standard of Review
We review the rulings on the admission of evidence of prior bad acts for
abuse of discretion. State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004). In doing
so, we give the district court leeway to determine the evidence’s probative value
against its danger of unfair prejudice. Id. We will disturb the district court’s
determinations only if the grounds on which they rely are clearly unreasonable or
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untenable. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). We review
claims of ineffective assistance of counsel de novo. State v. Tejeda, 677 N.W.2d
744, 754 (Iowa 2004).
III. Merits
A. Prior Acts
A.G. testified concerning the alleged prior act as follows:
Q: Now, you said that—a little bit earlier you said that this
had happened before. And who did it happen before with?
A: Raymond.
Q: And when was this? A: I don’t remember the year. It
was like a year before it happened the second time.
Q: Were you about 9 years old? A: Yes.
Q: And where was this at? A: In Lincoln.
Q: And have you told someone about that? A: No.
Q: You told someone before today, though, haven’t you?
A: Yes.
Q: What happened at that time? A: I was raped.
Q: What specifically did he do to you? A: Stuck his penis in
my vagina.
However, when cross-examined concerning the 2003 incident, she stated
as follows:
Q: Do you recall the police asking you if this was the only
time Raymond had touched you? A: Yeah.
Q: And you—do you remember telling them yes? A: Yeah.
Q: And do you remember them saying, “Are you sure just
the one time,” and you said, “Yeah”? A: Yeah.
On redirect examination, A.G. testified:
Q: Can you explain why [you told police this was the only
time Raymond touched you]? A: I had said that because I felt that
if I would have brought that up, I felt that they wouldn’t believe me,
that maybe I was just trying to add onto my story.
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Reyes argues evidence concerning A.G.’s testimony that he raped her
prior to the summer 2003 incident should not have been allowed at trial. He
claims the evidence violates Iowa Rule of Evidence 5.404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that the person acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
Iowa R. Evid. 5.404(b). He argues the prior act A.G. alleges is both not relevant
and highly prejudicial.
Reyes concedes our case law has allowed evidence of prior acts of sexual
abuse under a general exception to the exclusionary rule found in 5.404(b). See
State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981). He argues, however, that
our supreme court “revitalized” its approach to prior bad acts evidence in State v.
Sullivan, 679 N.W.2d 19 (Iowa 2004). He urges us to overrule Spaulding and its
progeny. We decline.
In State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004), our supreme court
concluded, in part:
So it is not surprising that we have required the State to
establish the following conditions before bad-acts evidence can be
considered admissible: (1) the evidence must be relevant and
material to a legitimate issue in the case other than a general
propensity to commit wrongful acts, and (2) there must be clear
proof the individual against whom the evidence is offered
committed the bad act or crime.
(Citations omitted.)
In Spaulding, the court noted that prior acts with a particular victim are
considered to be exceptions to the exclusionary rule because they tend to show
a passion or propensity for illicit sexual relations with that victim. Spaulding, 313
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N.W.2d 878, 880 (Iowa 1981).
Subsequent sex abuse cases have allowed
similar evidence. See State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988); State
v. Query, 594 N.W.2d 438, 443 (Iowa Ct. App. 1999); State v. Schaffer, 524
N.W.2d 453, 456 (Iowa Ct. App. 1994). Most recently, this exception has been
codified in Iowa Code section 701.11, which states:
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.
The exception has been modified and applied to domestic violence cases.
See State v. Taylor, 689 N.W.2d 116, 122-30 (Iowa 2004); State v. White, 668
N.W.2d 850, 853-55 (Iowa 2003); State v. Rodriquez, 636 N.W.2d 234, 239-44
(Iowa 2001). In Taylor, the court addressed virtually the same argument that
Reyes makes here.
The Taylor court allowed evidence of the defendant’s
previous violence toward his wife. It wrote:
Our conclusion that the evidence at issue here is relevant is not a
retreat from our decision in Sullivan that prior-acts evidence must
show more than the defendant’s mere propensity to criminal
conduct to be admissible on the issue of intent. As we noted in
Sullivan, [e]vidence of an unconnected prior crime is always
evidence of propensity and never evidence of a specific intent to
commit the crime charged. Importantly, we were not concerned in
that case with evidence of other crimes that are somehow
connected to the crime charged in the indictment. Instead, we were
concerned with a completely unconnected, but arguably similar,
occurrence as probative of the intent to commit the specific crime
then at issue. In contrast, in the present case, the prior misconduct
and the present crimes are connected: Domestic violence is never
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a single isolated incident. Rather, domestic violence is a pattern of
behavior, with each episode connected to the others.
Taylor, 689 N.W.2d at 129 n.6 (quotations and citations omitted) (emphasis
added). Thus, we are confident in the continuing viability of the exception for
evidence concerning previous illicit sexual acts with the same victim, especially
children.
In order to determine the admissibility of the evidence, we must then
determine (1) whether the evidence is relevant and (2) whether its probative
value outweighs the danger of unfair prejudice. First, Reyes argues the evidence
is not relevant because his defense was a straight-forward denial of the charges.
However, in his interview with police, which the jury heard, Reyes told officers
that if he touched A.G., he was asleep. Thus, evidence of a prior incident was
relevant in showing Reyes’s actions in the summer 2003 incident were neither
innocent nor accidental. See Query, 594 N.W.2d at 444; Spaulding, 313 N.W.2d
at 881. In addition, the evidence shows a “passion or propensity for illicit sexual
relations” with A.G.
Second, Reyes argues that, because there is no evidence of the abuse
beyond A.G.’s report, testimony concerning any prior incidents unfairly bolsters
her story.
In determining whether the probative value of the evidence is
outweighed by its prejudicial impact we evaluate (1) the actual need for the
evidence in light of the other issues and evidence at trial; (2) the strength of the
evidence showing the accused committed the other crime; (3) the strength or
weakness of the prior acts evidence in supporting the issue at trial; and (4) the
degree to which the jury’s hostility will be roused by the evidence. White, 668
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N.W.2d at 854-55; Rodriquez, 636 N.W.2d at 240; Query, 594 N.W.2d at 444.
The most pertinent evaluation we must make is the last: whether the evidence
will cause the jury to make a decision based on an emotional response to the
defendant. Taylor, 689 N.W.2d at 130.
Again, though Reyes’s claims his defense was a straight-forward denial of
the charges, the jury nonetheless heard him initially tell police he was asleep
when the incident occurred. Further, A.G. was cross-examined on her failure to
come forward about the sexual abuse earlier.
Evidence concerning a prior
incident, therefore, was probative in showing the absence of mistake or accident,
and Reyes’s “passion or propensity for illicit sexual relations” with A.G. See
Query, 594 N.W.2d at 444; Spaulding, 313 N.W.2d at 880-81. The doctor who
examined A.G. was thoroughly cross-examined. A.G. was also cross-examined
on her failure to report the first incident, even after she told police about the
summer 2003 abuse.
Therefore, it is unlikely A.G.’s allegations of previous
abuse would have incited the jury to “overmastering hostility.”
White, 668
N.W.2d at 855 (concluding evidence of prior bad acts not prejudicial where State
spent little time developing their details and the prior acts were not the focus of
the trial). We conclude the district court did not abuse its discretion in overruling
the motion in limine.
B. Ineffective Assistance
Reyes claims he received ineffective assistance of counsel when his
attorney (1) failed to object to the limiting instruction concerning the testimony
about previous abuse and (2) failed to object to or request a limiting instruction
for the tape of Reyes’s interview with police. In order to establish ineffective
10
assistance of counsel, Reyes must show not only that his counsel breached a
duty, but that the breach prejudiced his defense. Strickland v. Washington, 433
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). We may
resolve the claim on either prong. Id. at 697, 104 S. Ct. at 2052, 80 L. Ed. 2d at
699.
Generally, we preserve ineffective assistance of counsel claims for
postconviction relief actions. State v. Tate, 710 N.W.2d 237, 240-41 (Iowa 2006).
This practice ensures both that an adequate record of the claim may be
developed and that the attorney charged with ineffectiveness may have an
opportunity to respond. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We
conclude the record here is inadequate to address Reyes’s claims. We therefore
preserve said claims for possible postconviction relief proceedings.
IV. Summary
First, we conclude the district court correctly overruled the motion in limine
and properly admitted evidence of Reyes’s alleged previous abuse. Second, we
preserve Reyes’s ineffective assistance claims for possible postconviction relief
proceedings. The verdict and sentence against Reyes is affirmed.
AFFIRMED.
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