Appeal from the Iowa District Court for Dickinson County, Don E. Courtney, Judge.
Eduardo Artemio Rodriguez Lopez appeals his conviction of sexual abuse in the second degree.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney General, Jason Carlstom, County Attorney, and Douglas Hammerand, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
Eduardo Artemio Rodriguez Lopez appeals his conviction of sexual abuse in the second degree. He contends his trial counsel was ineffective for failing to contest the admissibility of various hearsay statements entered into evidence at trial. He also asserts the trial court abused its discretion in failing to grant his motion to continue. We affirm.
I. Background Facts and Proceedings.
From the evidence presented at trial, the jury could have found the following facts. On May 3, 2012, the Centers Against Abuse and Sexual Assault (CAASA) presented a program to a fourth grade class on "good and bad touches, " providing a "kid-friendly description of what a good touch and a bad touch is" and explaining to the children "what to do if [they're] in a situation where [they're] receiving some of those bad touches and how to identify the risk factors there." As part of the presentation, the class watched a video on the subject, and then the CAASA presenter asked the class questions and also answered students' questions. Although many students participated, one girl stood out to the presenter because her questions "raised flags." Ten-year-old K.C. asked questions that "were more directed towards her house, her family dynamics, " such as K.C.'s questions asking "what would happen to [her] and [her] family if [her] step-dad went away; if he wasn't there to take care of [them]?" The presenter had to leave early that day, and the school guidance counselor finished the presentation to the class. Before she left, the presenter passed on her concerns regarding K.C. to a teacher in the class, telling the teacher "someone might want to open a door for [K.C.] to be able to talk."
After the guidance counselor completed the presentation and the class was dismissed, K.C. and a classmate friend approached the counselor and asked her if they could speak to her privately. K.C.'s friend told the counselor that what the class had just talked about in the lesson was happening to K.C. The counselor dismissed K.C.'s friend for confidentiality reasons, and she then asked K.C. if she could explain what her friend was talking about. K.C. told the counselor that "this is happening to her, that [her step-father Eduardo Rodriguez Lopez] would—when everybody was gone or sleeping, he would take her to a bedroom and then he would ask her to take her pants off and he would touch her . . . in her naughty spot." The counselor asked where that was, and K.C. showed her "with her hands, sort of down here . . . [w]here her swimsuit covers up." K.C. continued talking to the counselor, telling the counselor that Rodriguez Lopez also had "her touch his naughty spot, " and after the counselor asked where that was, K.C. pointed "down there again" and described it as "his 'winky.'" K.C. told the counselor this had been going on since she was three years old.
After the guidance counselor returned K.C. to her classroom, the counselor, a mandatory reporter, contacted the Iowa Department of Human Services (DHS) and relayed K.C.'s statements. Later that day, a DHS worker came to the school with a uniformed police officer, and after talking to the counselor, requested to speak with K.C. When K.C. returned to the counselor's classroom and saw the officer and the DHS worker, she "absolutely froze, started crying, and grabbed [the counselor]." At one point, K.C. yelled to them, "You're here to take my dad." The officer and the DHS worker asked K.C. questions, but K.C. did not talk; the counselor stated that K.C. "was so afraid, really frightened."
Another DHS worker and police officer went to K.C.'s home that evening to assess K.C.'s safety. The DHS worker interviewed Rodriguez Lopez, K.C.'s mother, K.C., and K.C.'s sister. Based upon how K.C. "reacted and of what she didn't say, " the DHS worker determined, for K.C.'s safety, there was to be no contact between K.C. and Rodriguez Lopez, and the worker explained that either K.C. or Rodriguez Lopez would have to leave the home. K.C.'s mother had K.C. stay with her maternal grandmother, who lived next door.
On May 9, 2012, K.C. was examined and interviewed at the Child Advocacy Center (CAC) by a pediatric sexual assault nurse examiner. K.C. initially only answered general questions the nurse asked her, such as her age and school grade. After the nurse asked K.C. if she was afraid to tell the nurse something, K.C. nodded yes. The nurse asked K.C. "if she was afraid of getting someone in trouble, " and K.C. again nodded her head yes. The nurse asked K.C. "who she was afraid of getting in trouble, " and K.C. told the nurse, "her dad." The nurse clarified K.C.'s answer, asking if she was talking about Rodriguez Lopez, and K.C. said, "yes, " but that she calls him "Papi."
[The nurse] asked [K.C.] if Papi was doing something to her. And she nodded her head, "Yes." [The nurse] asked her if it was . . . doing something to her body. And she nodded her head, "Yes." And [the nurse] asked if she could tell [her] what part of her body she was talking about. And [K.C.] shook her head, "No." [The nurse] asked her if she would write down what part of her body she was talking about. And . . . she just said, "I don't want to."
. . . .
[The nurse asked K.C.] if what Papi was doing was something that she wanted to have happen. And she said, "No." [The nurse] asked her if that was something that she wanted to stop. And she said, "Yes."
The nurse again asked K.C. what part of her body she was talking about, and K.C. told her she did not want to talk about it, and she began crying. K.C. did not want to go any further with the exam, and the nurse returned K.C. to her mother in the waiting room. Shortly thereafter, K.C.'s mother found the nurse and informed her that K.C. would continue the exam if her mother could stay in the room with her. The nurse then performed the physical exam, and K.C.'s exam results were determined to be normal.
K.C. was then interviewed by Amy Scarmon, a CAC interviewer, and the interview was video-recorded. In the interview, K.C. told Scarmon that Rodriguez Lopez had been touching her in places she did not want to be touched. She told Scarmon that she loved Rodriguez Lopez, but she wanted "him to stop." K.C. told Scarmon that Rodriguez Lopez touched her where she goes potty and her crotch with his hands and fingers. K.C. told Scarmon that Rodriguez Lopez put his hands down her front pants and touched her crotch inside and out. She also told Scarmon that he put his hands under her shirt and touched her "boobies, " and he kissed her on her mouth with his tongue. She told Scarmon it happened on weekends when she stayed up late and her mom had gone to bed, or it happened when her mom or brother was outside. She explained sometimes Rodriguez Lopez would pick her up and touch her in the hallway while he watched out the hallway window to make sure no one was entering the home.
At one point, K.C. told Scarmon that she thought she always grew up with Rodriguez Lopez touching her, but she later stated she remembered it starting at age eight. She also told Scarmon she did not realize it was wrong until she was eight. K.C. told Scarmon that before the officer and DHS worker came to her home on May 3, 2012, Rodriguez Lopez denied touching her, and it made her cry because she knew he was lying. K.C. stated that Rodriguez Lopez and her mother told her he would go to jail if she told, and K.C. told Scarmon that she did not want Rodriguez Lopez to get deported. K.C. denied that Rodriguez Lopez had made her touch him.
On May 21, 2012, the State filed its trial information charging Rodriguez Lopez with one count of second-degree sexual abuse, in violation of Iowa Code sections 709.1 and .3 (2011). Rodriguez Lopez was arraigned on June 18, and he pled not guilty and demanded a speedy trial. His trial was set that day for August 7, 2012, and the court noted it was the only date available before the speedy trial deadline would expire. Shortly thereafter, Rodriguez Lopez filed an application for an expense voucher for him to obtain an investigator.
On July 17, less than a month before the set trial date, Rodriguez Lopez filed a motion for enlargement of time. The motion stated Rodriguez Lopez's trial counsel had been unexpectedly called to trial on July 17, and trial counsel requested the court extend its prior pretrial-ruling deadlines to permit discovery to be completed up to and including July 23, and to extend the time for filing motions. Trial counsel did not request the trial be continued.
On July 24, the district court entered its order granting Rodriguez Lopez's requests for the extension of deadlines and for an expense voucher for an investigator. The court enlarged Rodriguez Lopez's time for the filing of any pretrial motions or notices of defenses to July 27, 2012. The court's order explicitly stated that it had "discussed with counsel whether they believed this matter would be ready to proceed to trial on August 7, 2012, at the hour of 9:30 a.m. as presently scheduled. Both counsel agreed that the case would proceed as scheduled on that date."
Six days after that order was filed, Rodriguez Lopez filed a motion to continue and for enlargement of time to complete discovery and file notice of defenses, along with a waiver of a speedy trial. The motion to continue explained Rodriguez Lopez's trial counsel "was called unexpectedly to trial on one certain pending matter . . . which delayed the depositions in this case and additional discovery and execution of certain orders." The motion further stated that "the record in this pending matter reveals that there is no physical or medical evidence and that the primary issue to be presented before this court will rest upon the credibility of witnesses including . . . 'K.C.'" The motion noted "[a]t the time of her deposition, 'K.C.' made certain statements wherein she acknowledged that she had denied the allegations made which form the basis for the charge against [Rodriguez Lopez], " and it argued that her statements provided Rodriguez Lopez's trial counsel and his investigator need "for further investigation." "[S]ince the revelation of this information, " Rodriguez Lopez asserted he now had "reason to believe that additional conflicting testimony may exist." Rodriguez Lopez maintained that "without a continuance and the opportunity to explore certain investigative leads, [he would] be prejudiced." The same day, the district court entered its order granting Rodriguez Lopez's motion to continue, moving the trial to October 2012.
The next day, the State filed its motion to resist Rodriguez Lopez's motion to continue trial, arguing Rodriguez Lopez failed to show good cause for a continuance. The State noted at the prior hearing the court confirmed with both sides that the trial would proceed as scheduled on August 7. Additionally, the State pointed out that K.C. admitted in her deposition that she had made a prior inconsistent statement to a witness, and, because of her admonition, Rodriguez ...