Appeal from the Iowa District Court for Lee (South) County, John M. Wright, Judge.
The opinion of the court was delivered by: Eisenhauer, C.J.
Richard Korschgen appeals the ruling denying his application for post-conviction relief. AFFIRMED.
Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ. Tabor, J., takes no part.
In July 2009, Richard Korschgen was charged with two counts of sexual abuse in the second degree in Lee County: (1) a 2003 sex act with under-twelve victim S.G. and (2) a 2009 sex act with under-twelve victim J.H. After a January 2011 jury trial, he was convicted on the second count, abuse of J.H. Korschgen now appeals the denial of his application for post-conviction relief arguing his trial counsel was ineffective in: (1) failing to move to sever the two counts, (2) failing to depose the State's complaining witnesses, and (3) failing to object to testimony. We affirm.
I. Background Facts and Proceedings.
S.G. spent time at Korschgen's Keokuk residence baby-sitting for T.W. J.H., a friend and classmate of T.W., would stay overnight with T.W. at Korschgen's residence.
Immediately before trial and outside the presence of the jury, the issue of severance of the counts was discussed:
DEFENSE COUNSEL: Your Honor, we talked earlier about the fact that there was at least an arguable reason for the defense to move to sever the . . . counts . . . for trial.
And I mentioned during our conversation [severance] is something that I considered, actually, as soon as the trial information was filed . . . . I'm well familiar with [Iowa] Rule [of Evidence] [5.]404(b), I've been involved in many, many cases involving it, and the court pointed out the statute as well [Iowa Code § 701.11 (2009)]; but even [though] the statute seems to favor admissibility . . . the relevancy has to be substantially outweighed by the danger of undue prejudice and a list of other things.
And, also I talked it over with Mr. Korschgen, the fact that we may have grounds to sever this. However . . . our defenses to both cases are . . . basically the same. Of course, the allegations in both cases are basically the same.
The only factor in our favor for severance, really, is the six-year difference*fn1 and he wishes-and I think it's reasonable under the circumstances-to simply conclude everything in one trial rather than have two trials on the matter and for that reason we did not move to sever.
THE COURT: And, Mr. Korschgen . . . is that true, that you and [defense counsel] Henson have talked about that and you're comfortable with that decision?
The State called two witnesses, S.G. and J.H. Eighteen-year-old S.G. testified she turned twelve in October 2003, and she was "elevenish" when she would spend the night while baby-sitting five-year-old T.W. at Korschgen's residence. S.G. stated Korschgen touched her inappropriately on two occasions when she stayed overnight when she was "eleven or twelve. It was-pretty sure I was like eleven." Additionally, S.G. was "pretty sure" she was in Burlington when Korschgen touched her inappropriately while she, Korschgen, and T.W. were spending the night at a hotel. S.G. thought the Burlington trip probably occurred in 2003, but was not sure.
S.G. also testified Korschgen told her not to tell anyone. After S.G. twice told Korschgen to stop touching her, he stopped. Thereafter, S.G. continued to spend time with Korschgen and T.W., swimming, bowling, and going to movies, because "I didn't think it was that big of a deal and I enjoyed the things we did."
S.G. explained her delay in reporting the alleged 2003 abuse:
Q. . . . [D]id you tell anybody [Korschgen] had done this to you? A. One person.
Q. And who was that? A. My best friend. Q. And what was her reaction or her response? A. She- First, she looked at me weird and she said, yeah, right, like she didn't believe me, so-
Q. And how do you feel about that? A. I feel like if she [does not] believe me, who [is] going to.
Q. Why did you end up telling somebody about this?
A. Okay. Because . . . Stacia, she was at my house [in the summer of 2009] and I was outside filling up [the] pool.
. . . . Q. Okay. Tell us what happened. A. Okay. I was outside filling my pool and [Korschgen] drove by and he was talking to me . . . and when he drove away, my neighbor, Stacia, she said: He's a pervert . . . . And I'm like: This is important; you really need to tell me why. And she said: Because . . . he's done stuff to [J.H.].
. . . . Q. So what else did Stacia state to you? A. Okay. She said that [Korschgen] touched [J.H.'s] vagina when she was sleeping-well, trying to sleep . . . . It was really important for me for [J.H.] to tell someone because I ...