State v. Joss

211 N.W.2d 320 (1973)

STATE of Iowa, Appellee, v. Richard Wallace JOSS, Appellant.

No. 55260.

Supreme Court of Iowa.

October 17, 1973.

*321 Michael W. Fay and John C. Platt, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and William Faches, County Atty., for appellee.

Submitted to MOORE, C. J., and REES, REYNOLDSON, HARRIS and McCORMICK, JJ.

MOORE, Chief Justice.

Defendant appeals from conviction and sentence for the crime of assault with intent to commit rape. The record includes substantial evidence defendant furnished a 12-year-old female considerable beer and thereafter took her into his apartment bedroom where he removed her clothing. She testified he made several attempts to have sexual intercourse with her. Others in the apartment testified defendant had the child on his bed. A doctor described her injury and expressed the opinion there had been penetration.

Defendant assigns and argues two grounds for reversal, (1) the crime of statutory rape under Code section 698.1 violates due process by creating an irrational presumption of lack of consent from the fact the girl was under 16 years of age and (2) the trial court's instruction on reasonable doubt was so elaborate, equivocal and confusing as to constitute reversible error.

I. The due process assertion made in defendant's first assignment is being raised for the first time on appeal. It was not presented in the lower court.

We have repeatedly held that ordinarily matters not raised in the trial court, including constitutional questions, cannot be effectively asserted for the first time on appeal. State v. Burtlow, Iowa, 210 N.W.2d 438, filed September 19, 1973; State v. Bruno, Iowa, 204 N.W.2d 879, 884; State v. Armstrong, Iowa, 203 N.W.2d 269, 270, 271; State v. Tokatlian, Iowa, 203 N.W.2d 116, 120 and citations in each.

II. Trial counsel did not except or object to instruction 5 being the court's definition of reasonable doubt. Issues regarding instructions not raised in the trial court are not considered on appeal. Rule 196, Rules of Civil Procedure; State v. Buchanan, Iowa, 207 N.W.2d 784, 787; State v. Beer, Iowa, 193 N.W.2d 530, 532; State v. Carstens, Iowa, 182 N.W.2d 119, 120, 121; State v. Gilmore, Iowa, 181 N.W.2d 145, 146, 147; State v. Brown, Iowa, 172 N.W.2d 152, 159.

Defendant's two assigned errors present no issue for this court of review to consider.

We find no reversible error. We believe the whole record reveals defendant had a fair trial.

Affirmed.