Appeal from the Iowa District Court for Page County, Richard H. Davidson, Judge.
Defendant appeals his convictions arguing counsel rendered ineffective assistance and the court erred in admitting challenged evidence.
Mark C. Smith, State Appellate Defender, and Teresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich and Becky Goettsch, Assistant Attorneys General, and Jeremy Peterson, County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
A Page County jury convicted Charles Dean White of three counts of second-degree sexual abuse and one count of lascivious acts with a child for offenses committed against his seven-year-old granddaughter, R.A. White now questions the effectiveness of his legal representation, alleging counsel should have challenged the undifferentiated charges and identical marshalling instructions for the three sexual abuse counts. White also argues his lawyer was remiss in not objecting to the prosecutor's reference to "free molests" during closing argument. Finally, White asserts he was prejudiced by the admission of testimony from his grandson who saw him masturbating.
I. Background Facts and Proceedings
While Colleen Z. worked long days as a care coordinator at a medical clinic her sixty-five-year-old father, Charlie, babysat for her six children: thirteen-year-old S.A.; twelve-year-old T.A.; ten-year-old J.A.; seven-year-old twins, H.A. and R.A.; and six-year-old K.A. The children noticed their grandfather paid more attention to R.A. than to her siblings.
When R.A. was in first grade, she watched a video at school encouraging children to "speak up" about inappropriate touching. Armed with that information, R.A. approached her mother when she returned home from work the evening of March 23, 2011. The little girl followed her mother around the kitchen, saying: she needed to tell her "something that was bad and inappropriate." Colleen asked her: "What do you mean inappropriate?" The girl pointed at her grandfather, who was standing in an adjoining room. Colleen asked her father: "Do you know what she's talking about?" White responded by running out the back door.
After her grandfather left, R.A. told her mother "she didn't want to be Grandpa's girlfriend anymore and she didn't like sexing her grandpa boyfriend." Colleen called a therapist friend, who came over to talk to R.A. Later that night, the women called a local child welfare agency and the police. Colleen also took R.A. for a physical examination. A pediatric assault nurse examiner found an abrasion on R.A.'s right vestibular wall and a linear area of hypopigmentation in the posterior fourchette region, which is anterior to the hymen. The nurse said the girl's vaginal injuries were consistent with blunt force penetrating trauma. R.A. confided in the nurse that "Grandpa Charlie, he put it in the back and in the front."
The State charged White with three counts of sexual abuse in the second degree, class "B" felonies, in violation of Iowa Code sections 709.1 and 709.3(2) (2009), and one count of lascivious acts with a child, a class "C" felony, in violation of section 709.8.
White's trial commenced on April 10, 2012. On the witness stand, R.A. recalled her grandfather coming into her bed where she would try to "scooch away" but could not. R.A. said her grandfather would rub his "front stuff" (her word for penis) against her "back cushions" (her term for buttocks). R.A. also recounted incidents of abuse which occurred in her mother's bedroom, when her grandfather "would flop me over so my tummy was on the bed, . . . and then usually he would rub his front stuff against my back cushions." She said it felt "weird" but she could not tell him to stop because she "couldn't exactly breathe" or speak.
R.A. told the jury her grandfather also laid on top of her on the bathroom floor and "then usually would rub his front stuff against [her] front." The girl also remembered incidents on the couch when White "would flip [her] on [her] back, and rub his front stuff against her front stuff." R.A. said during these times, her grandfather "would try to tongue kiss, " but she would keep her mouth closed. She further recalled her grandfather rubbing his front part against her front part on the kitchen floor. Sometimes when she sat on the kitchen counter, her grandfather would stand between her open legs and "do this weird breathing" in her ear—"like if you just run a hundred meter dash and breathe really hard."
Her grandfather also molested her on the living room couch, according to R.A.'s testimony. She said while they were under a blanket he would "stick" his finger in her "vajayjay" (her word for vagina), which was painful. R.A. also testified her grandfather would rub her "front part" when he was helping her take a bath, which was also painful.
R.A. then told the jury about sexual contact with White in the laundry room: "[T]his is the part where my pants came off." She recalled her grandfather closing the lid on the washer, where she would sit with her legs open and knees bent "and he would start sucking on my front part. . . . He would take off my underwear, but then he would leave, like part of my clothes dangling ...