Appeal from the Iowa District Court for Cedar County, Mark J. Smith (trial) and Paul L. Macek (sentencing), Judges.
The opinion of the court was delivered by: Vogel, J.
A defendant appeals his conviction for sexual abuse in the third degree and distributing marijuana to a person under the age of eighteen.
Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Tabor, J., takes no part.
Defendant, Keith Allen Noe, appeals his conviction and sentence for sexual abuse in the third degree, in violation of Iowa Code section 709.4(1)(2009), a class "C" felony; and distributing a schedule I controlled substance (marijuana) to a person under the age of eighteen, in violation of Iowa Code section 124.406(1)(a), a class "B" felony.*fn1 He claims there was insufficient evidence to support these two convictions, the State's sexual abuse expert was not qualified, and her testimony was prejudicial. He also claims his trial counsel was ineffective.
I. Background Facts and Proceedings
A reasonable juror could have found the following facts as true involving an incident which occurred on September 8, 2010.
Noe's family and M.H.'s family had known each other for several years. M.H. was sixteen years old, and Noe was thirty-nine years old. Noe lived in his parent's trailer home as did Noe's nephew. M.H. regarded Noe as a father figure and would occasionally "crash" on his bed overnight, as she felt safe in his presence. On the evening of September 8, M.H., with her mother's permission, intended to stay at a girlfriend's house overnight. Late in the evening, in the company of some friends, M.H. drank about six alcoholic drinks. At about 2:45 a.m., M.H. attempted to go to a different friend's house to sleep, but when she arrived, she could not awaken the friend to be let in the house. M.H. had no cell phone or car, and because she did not know where else to stay, she, accompanied by a male friend, decided to go to Noe's home. Upon arriving Noe welcomed M.H. and her friend into his parent's home. The friend left after a few minutes.
Noe and M.H. soon went into his bedroom and began watching videos on his computer. Noe had been drinking vodka and Mountain Dew, and M.H. asked if she could have some. Noe gave her the rest of the drink in his cup and told her to pour another one for herself. He took a bag of marijuana from inside or behind his stereo unit, looked at M.H, and said, "One-hit-and-you're-gone." Noe then fashioned a pipe from aluminum foil, used it, and handed it to M.H., who also smoked some of the marijuana.
Around 4:30 a.m., Noe lay down on his bed while M.H. remained at the computer for a few more minutes. Noe then held out his hand over the computer desk, and M.H. responded to what she thought was Noe's request for a "high five" by extending her arm to him. However, Noe grabbed her hand, pulled her onto the bed on top of him, and started kissing her. M.H. struggled to free herself and pleaded for him to get off of her. Noe grabbed her arms, pushed her over onto her back, and removed her clothes. He put his finger in M.H.'s vagina while masturbating. M.H.'s struggling finally succeeded in getting Noe off of her, and she was able to put her clothes back on. Noe told her not to tell anyone what had happened, adding that when she turned eighteen he was coming to get her and do whatever he wants with her.
M.H. then went into the bathroom, where she sobbed for about twenty minutes until she returned to Noe's bed. She testified she did not leave the trailer at that point because she was scared yet had no other place to go. At about 7:00 a.m., M.H. got up and left the trailer. When she arrived at her friend's home, she was crying, shaking, and told her friend that Noe had "touched [her] all over" and she could not get him to stop.
The following weekend, M.H. reported the incident to her boyfriend. Two weeks after the incident, M.H. told her mother what had happened. Her mother eventually took her to the sheriff's office, where she was interviewed by deputies. Several communications between Noe and M.H., including text messages, Facebook messages, Yahoo! chatting, and a phone call, were recorded and retrieved by law enforcement to assist in the investigation. Later, on law enforcement's advice, M.H. wore a wire transmitter to gather information when she met personally with Noe to discuss the incident. The jury, having the opportunity to examine this evidence, could have concluded several of Noe's comments were incriminating.
On December 10, the State filed a trial information charging Noe with sexual abuse in the third degree, distributing a schedule I controlled substance (marijuana) to a person under the age of eighteen, and providing an alcoholic beverage to a person under the legal age. On June 3, 2011, the State filed an amended and substituted trial information to charge Noe as an habitual offender as defined in Iowa Code section 902.8.*fn2
After a September 27, 2011 jury trial, Noe was found guilty on all counts. On November 4, Noe was sentenced on the sex abuse conviction to a term of imprisonment not to exceed fifteen years, lifetime registry as a sex offender, with lifetime parole. For the marijuana conviction, Noe was sentenced to no more than twenty-five years imprisonment, a minimum five years to be served. For the alcohol conviction Noe was sentenced to one year ...