Heard by Sackett, C.J., and Zimmer and Miller, JJ.
The opinion of the court was delivered by: Miller, J.
Appeal from the Iowa District Court for Linn County, Larry J. Conmey, William L. Thomas, and Patrick R. Grady, Judge.
The defendant appeals his conviction and sentence, following a jury trial, for second-degree sexual abuse.
Defendant Jeremy Jordan appeals his conviction after jury trial for sexual abuse in the second degree. He claims that his attorney was ineffective, the court abused its discretion in admitting certain evidence, and that there was no substantial evidence to support the jury's verdict. We affirm.
I. Factual and Procedural Background
The jury could find the following facts from the evidence presented at trial. On April 7, 1997, Shannon Bohnsack first met Jeremy Jordan at a tattoo party. At this party, he wrote poetry, his name, address, and phone number in her address book with a request to "call me." Bohnsack came under the impression at this party that Jordan could obtain drugs for her, namely marijuana and methamphetamine.
On April 22, 1997, Bohnsack called Jordan, who invited her over to his father's house. The two of them proceeded to drive to the house of a friend of Jordan's to buy some marijuana. After that transaction was completed, Jordan and Bohnsack went to the roller dam to smoke the marijuana. At some point while at the roller dam, Bohnsack got nervous and asked to leave. Bohnsack testified she became nervous because Jordan offered to show her a "shotgun." Apparently, Bohnsack took this to mean a gun, but Jordan explained that it was a method of smoking marijuana. Jordan had a black bag with him, the contents of which were unknown to Bohnsack.
Exactly where they went next is unclear from the testimony of the victim, Bohnsack. At trial, she testified that Jordan asked her to pull into the parking lot of Regis High School. In earlier statements to the police, Bohnsack had named another location. Wherever they stopped, Jordan asked Bohnsack to take off her seat belt and get comfortable. Bohnsack complied. Jordan then tried to kiss her, but Bohnsack pushed him away, explaining that she was not attracted to him and that she did not date black guys. Jordan responded by telling her that the least she could do for his procuring the marijuana that evening was to accept his advances. Bohnsack then again tried to resist, but Jordan put his hand around her throat, choking her, and held his other hand up in a fist, threatening to punch her. He then tried to kiss her again, and told her to take her pants off. Bohnsack finally took one leg out of her pants. When Jordan started to take his pants off, Bohnsack exited the vehicle, but Jordan followed her and wrestled her down to the ground, despite her screams. Jordan continued to choke her. He then threatened to get his gun out if she did not get quiet. Bohnsack complied with this request. During this struggle, Bohnsack received numerous scratches around her neck from Jordan's long fingernails, and was also cut on her leg by the rocks and gravel on the pavement.
Bohnsack then got back in the car, and Jordan followed. She let him drive, and they began to leave the area. However, Jordan stopped the car about two blocks away, and tried kissing her again. Jordan had not allowed Bohnsack to put her pants back on. He began touching her "all over." She continued to verbally protest. Bohnsack testified after he grew tired of what he was doing, "he went ahead and had sex with me." She further testified it was unprotected sex. During this act, Bohnsack testified, she had to open the door and throw up. At that point, Jordan drove her back to his house. There, Jordan got her a glass of water and a rag to clean her neck, which was bleeding. Bohnsack continued to ask to go home, but each time Jordan replied "in a minute." Bohnsack then got up to get her keys, at which point Jordan's brother woke up. Jordan and his brother went into another room, and when he returned, told her that she could leave. Jordan warned her, however, if she told anybody about what had happened, he would kill her.
Bohnsack then went home, arriving at about 4:00 a.m. After talking with a friend the next day, Bohnsack reported the incident to the police. She then went to Mercy Hospital where a rape examination was performed. Bohnsack had showered since the incident, and the results were negative. She identified Jordan as the perpetrator.
Sometime after Bohnsack reported the incident to the police, Jordan called her twice. The first time was to offer some methamphetamine to make up for what he had done. The second time was to ask whether she had turned him in to the police. Without Jordan's knowledge, Bohnsack recorded the second conversation on her answering machine. She turned this recording over to the police, who typed a transcript of the conversation.
Trial commenced January 20, 1998. After the prosecution rested, Jordan moved for acquittal. The motion was overruled. Jordan's brother then was called as a witness for the defense. He testified he did not see Bohnsack in the house that evening, as she had claimed. Melana Doolin then testified she had been with Jordan during the period in question. Judy Crouch verified the fact Jordan had spent the night with Doolin. Jordan then testified. He denied ever sexually abusing Bohnsack, or threatening her with a gun. Jordan then testified that he had spent the time in question at the residences of Doolin and Crouch. The defense then rested, and moved for acquittal. The court overruled the motion. The jury returned a guilty verdict on January 22, 1998. Jordan was sentenced to a term not to exceed twenty-five years. Other facts as they are relevant to the issues on appeal will be discussed below.
A. Ineffective Assistance of Counsel
Jordan first argues that his counsel was ineffective for not objecting to questions asked by the prosecution he feels were in violation of the court's ruling on a motion in limine, and thus not preserving the error for appellate review. Before trial, on motion of the defendant, the trial court ruled the State could not refer to any prior convictions or bad acts by the defendant in its case-in-chief. Further, the court ruled Jordan was not to be referred to as a drug dealer, nor was there to be any reference to his tattoos being gang related. The following colloquy occurred between the assistant county attorney, defense counsel, and the court:
Mr. Vander Sanden: "I'm just going to have her describe those tattoos and what they look like and where she saw them." The Court: "Does that meet your concerns, then, Mr. Jones?" Mr. Jones: "Yes, Your Honor. We just wanted to make sure that there was not a blanket reference to Mr. Jordan as being a drug dealer. . . .We are just worried about the reference to [the tattoos] being gang-related. And as long as she's been instructed not to testify to that, that is what we're looking for. The Court: The Court then, based on the record made, sustains each Division of the Motion in Limine . . ."
To prevail on a claim of ineffective assistance of counsel, Jordan must show counsel failed to perform an essential duty and that he was prejudiced by counsel's omission. State v. Wissing, 528 N.W.2d 561, 563-64 (Iowa 1995). Jordan has the burden to prove both of these elements by a preponderance of the evidence. Id. at 563. Further, rarely will failure to preserve error be found to be sufficiently egregious to deny a defendant the right to the effective assistance of counsel. State v. Halstead, 362 N.W.2d 504, 508-09 (Iowa 1985).
The test for the first element is whether the attorney's performance was outside the range of normal competency. Wissing, 528 N.W.2d at 564. To sustain his burden of proof on the first prong, Jordan must overcome the strong presumption counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). "[R]easonableness under prevailing professional norms" is the standard by which counsel's performance is measured. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L. Ed. 2d 674, 694 (1984). "Effective assistance of counsel 'means conscientious, meaningful representation.'" State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995) (quoting State v. Aldape, 307 N.W.2d 32, 41-42 (Iowa 1981)).
The test for the second element is whether there is a reasonable probability that but for trial counsel's unprofessional errors, the resulting conviction and sentence would have been different. Wissing, 528 N.W.2d at 564. In ...