Appeal from the Iowa District Court for Clay County, Charles K. Borth, District Associate Judge.
The opinion of the court was delivered by: Vogel, P.J.
Defendant appeals his conviction for dissemination of obscene material to a minor and prostitution. AFFIRMED.
Heard by Vogel, P.J., and Potterfield and Doyle, JJ.
Donald Zieman appeals from his conviction of two counts of dissemination of obscene material to a minor, a serious misdemeanor, in violation of Iowa Code section 728.2 (2009), and three counts of prostitution, an aggravated misdemeanor, in violation of Iowa Code section 725.1. Zieman asserts on appeal (1) the district court abused its discretion in permitting the introduction of prior acts evidence, (2) his counsel rendered ineffective assistance in a number of ways, (3) the district court erred in failing to grant his motion for judgment of acquittal, and (4) the district court abused its discretion in failing to grant his motion to sever the charges. We affirm.
Because the prior acts evidence came in after an unreported discussion with the court, we have no specific objection to review. However, we find the evidence was more probative than prejudicial and was needed to clarify confusion in the testimony created on cross-examination under the doctrine of curative admissibility and Iowa Rule of Evidence 5.106(a). We preserve Zieman's ineffective-assistance-of-counsel claims for possible post-conviction relief proceedings. Sufficient evidence supports Zieman's convictions, and because each charge carried a common scheme or plan, the district court did not abuse its discretion in denying Zieman's motion to sever the charges.
I. BACKGROUND FACTS AND PROCEEDINGS.
The convictions in this case arise out of Zieman's employment of three male teenagers to perform work on his farm. Two of the victims, L.C. and J.D., were eighteen at the time of the incidents, and one victim, M.G., was seventeen. Zieman contacted M.G. at a local grocery store and asked him if he would like to make some extra money by assisting him on his farm. M.G. accepted the offer and invited L.C. and J.D. to work for Zieman too. According to the work records kept by Zieman, M.G. worked for him from April 18 through June 10, 2010, L.C. worked from May 4 through October 20, and J.D. worked from April 18 through October 20.
M.G. testified at trial that the initial working relationship was good. However, Zieman started initiating unwelcomed touching of M.G. while the two worked together. M.G. asked Zieman to stop, and Zieman did. One day Zieman asked M.G. to retrieve a box containing VHS tapes from his outbuilding. After retrieving the box, Zieman asked M.G. to "put one of the VCR tapes inside the VCR" to see if the unit still worked. M.G. grabbed a tape off the top of the box and put it in. Zieman had made popcorn, and the two ate the popcorn while watching the tape. M.G. described the tape as follows:
[A]t first it was like a sex ed video, and it was, the guy was a teacher and he was explaining to, looked like college age students, about how once you-if a penis is inserted into the butt, you can't put it back in a vagina because it would cause infection and then it cut into like a hard core porn video.
M.G. went on to describe the video as depicting "vaginal penetration between a man and a female." After observing the video, M.G. felt awkward and asked if there was more work to do. The two left and continued working.
In a second incident, M.G. described that Zieman asked him to sweep out a wooden patio at the end of the day. Zieman offered M.G. a beer and a cigar. Then Zieman plugged a black box into the television and ordered what M.G. described as "porn off pay-per-view." M.G. described the video as "a collection of different females giving oral sex to guys." M.G. again described the situation as awkward because Zieman repeatedly asked him if the video was "giving you a hard on." The prosecutor then asked M.G. if "anything else happen on that particular day." M.G. responded:
Yes, sir. He at some point asked me if, well, he told me a story, and then he asked me if I would face fuck him, which was involved with the story that he had previously said, and it was basically he wanted to have me put my package into his mouth, and he wanted to take my cum is what he said and he was willing to pay me for it.
Q. How much was he willing to pay you for that? A. A hundred dollars. And then he wanted-then he changed the deal like a hundred twenty if I did it this time and then just jacked off in front of him next time.
Q. Okay. What did you do after-this was during the same date you watch the pay-per-view? A. Yes, sir.
Q. Okay. And did you ever agree to that? A. No, sir.
Q. Okay. What happened then after this conversation with him about performing a sex act on him? A. He kept pressuring me to do it, just saying stuff like "it will feel just like a vagina," "no one would have to know." And then I said, "No, I think I am going to go now." I stood up, and then he said he was going to pay me for that day, and so we went out to the Morton building where he keeps his files for like what we have done that day, and I wrote down what I had done that day. He paid me, and then I left.
M.G. described one more incident where Zieman asked him to "just jack off in front of him." He told Zieman that the proposition bothered him, and he never worked for Zieman again. However, M.G. did attend a party at Zieman's farm later in the summer with L.C., J.D., and other friends. M.G. consumed alcohol and smoked cigars provided by Zieman. At the party they played cards, and there was also a video playing on the DVD player, but M.G. did not observe what was on the screen.
During cross-examination, defense counsel focused on M.G.'s inability to remember the dates of the incidents alleged, which M.G. attributed to his ADHD. Counsel asked M.G. why he kept returning to work for Zieman despite the behavior that M.G. found offensive and asked whether M.G. was mad Zieman had denied his request for an advance on his pay. Counsel also revisited the facts surrounding the prostitution allegation. Counsel asked:
Well, isn't it true in the statement that you gave to [Deputy] Ortiz that you said that you would perform a sex act for one hundred dollars, not Mr. Zieman. A. You are twisting my words a little bit I think in there.
Q. I'm not twisting them at all. I'm looking at your statement. I'm happy to present that to you. A. Would you?
. . . . Q. All right. Would you read the yellow portion that I've highlighted, would you read that to the jury? A. Yes, sir. (Reading) "That night I said 100 dollars, said well how about 120 then."
Q. You said that? A. If you want me to read the whole paragraph, I can do that, too.
Q. Read that part that we just- A. The whole paragraph? Q. -just talked about. A. Just the highlighted part? (Reading) "That night I said 100 dollars, said well how about 120 dollars then."
Q. Mr. Zieman didn't ask you. You said, you said you would perform a sex act for 100 dollars? A. He asked me-
Q. Just a minute. "I said 100 dollars," these are your words.
Q. (Reading) "He thought about it for a while and said alright that would be okay. I said well how about 120 then." A. You want to read the parts in between that, too?
Q. Sure. A. Maybe around it. I think there was parts you got to skip over there 'cause we are not allowed to speak about it.
Q. Well, let me ask you this. That's your statement, correct? A. Yes, sir.
Q. That's a statement that you gave to a deputy sheriff on October 29, 2010, in which you offered to perform, you stated you offered to perform a sex act for 100 dollars, correct? A. That's-
[Prosecutor]: That's not what it says. [Defense counsel]: It says-it says "I said 100 dollars." [Prosecutor]: Why don't you read the paragraph four sentences above that?
The Court: Is the exhibit going to be offered? [Defense counsel]: Where do you want me to start, Mike? [Prosecutor]: Are you going to make that as an exhibit? [Defense counsel]: No. ...