Appeal from the Iowa District Court for Clayton County, John J. Bauercamper, Judge.
The opinion of the court was delivered by: Potterfield, J.
Vincent Mummau appeals from his conviction and sentence for third-degree sexual abuse. AFFIRMED.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Vincent Mummau appeals from his conviction and sentence for third-degree sexual abuse. He contends the district court erred in two pretrial rulings: finding the sexual abuse statute, Iowa Code chapter 709, is constitutional; and denying his application for a court-ordered psychiatric evaluation of the victim. He appeals three evidentiary rulings, alleging the court erred: in not allowing his proposed character witnesses, in restricting his cross-examination of the alleged victim, and in admitting the recording of a telephone conversation he had while in jail. Mummau also claims the district court erred in denying his proposed jury instructions, motion for judgment of acquittal, and motion for a new trial. Finally, he argues his sentence is cruel and unusual punishment. We affirm.
A review of the evidence reveals a reasonable jury could have found
the facts as follows. See State v. Smith, 739 N.W.2d 289, 290 (Iowa
2007). On July 7, 2011, B.K. arrived at the home of Vincent Mummau to
fix his television and pick up eggs. After working on one television
in the lower level of the home, Mummau suggested she also see the one
upstairs and offered her a tour of his home. The two walked upstairs
to the second level of the home. Mummau asked whether she "need[ed]
some loving" to which she responded "not today." The tour continued to
Mummau's bedroom, where B.K. declined his advances again.*fn1
At some point, Mummau forced B.K. onto the bed, landing on
top of her. Mummau then instructed her to remove her clothes. B.K.
stood and complied.
Mummau performed various sex acts on B.K. and left the room. B.K. reported the incident to police several days later.
Mummau was charged August 2, 2011, with sexual abuse in the third degree. While in jail he called a friend, requesting the friend attempt to have B.K. drop the charges against him. This call was recorded by jail staff.
Before trial, Mummau filed a motion to challenge the constitutionality of the sexual abuse statute claiming it violated his due process rights, and filed a motion to compel psychiatric testing of B.K. These motions were denied. He then filed a series of motions in limine, seeking to exclude evidence of his past wrongs, the recorded phone call from the jail, opinions of police officers as to his credibility, and his interview with a detective. The court denied all but the motion regarding evidence of his past wrongs. The State also filed motions in limine, seeking to exclude any evidence of prior sexual abuse experienced by B.K., evidence of past sexual history of any witness, Mummau's video reenactment of the encounter, and any reference to Mummau's religious beliefs or opinions. The court granted these motions.
Mummau disclosed the statements of several witnesses who would testify as to his good character. In response, the State filed a motion to strike all of them, citing Iowa Rule of Evidence 5.404(a). At a hearing on the motion, the State also raised Mummau's failure to establish the proper foundation for admitting reputation and opinion testimony. The court granted the motion to strike on rule 5.404(a) grounds.
At trial, Mummau made timely objections to the evidence on the same grounds as the motion in limine. He also attempted to impeach B.K.'s testimony through her deposition testimony. The court denied the use of the transcript for impeachment purposes, finding its use violated our rape shield statute. Mummau requested certain jury instructions, which were denied. The jury found Mummau guilty of third-degree sexual abuse. Mummau made motions for judgment of acquittal and for new trial. These also were denied.
The court imposed the mandatory sentence of a term of imprisonment not to exceed ten years and ordered Mummau to pay a fine of $1000. He appeals from these proceedings.
A. Due process and Iowa Code section 709.4 (2011).
Mummau argues Iowa Code section 709.4, which defines sexual abuse, is unconstitutional for two reasons-it does not provide adequate notice of prohibited conduct, and lacks a mens rea provision. We review this argument de novo. State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005). In this review, we remember statutes are "cloaked with a presumption of constitutionality." State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002); accord Seering, 701 N.W.2d at 661.
The challenger bears a heavy burden, because it must prove the unconstitutionality beyond a reasonable doubt. Moreover, the challenger must refute every reasonable basis upon which the statute could be found to be constitutional. Furthermore, if the statute is capable of being construed in more than ...