This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer and Bradley J. Harris, District Court Judges. Appellant appeals his conviction for sexual abuse in the second degree, sexual abuse in the third degree, and indecent contact with a child.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
Demarrio Wright appeals his conviction of sexual abuse in the second degree, sexual abuse in the third degree, and indecent contact with a child, in violation of Iowa Code sections 709.3, 709.4, and 709.12(1) and (2) (2011), respectively. He contends the district court erred in allowing the jury to hear testimony regarding an additional instance of sex abuse between Wright and the victim, where the additional instance of sex abuse was not part of the conduct underlying the charges in this proceeding. He also contends his trial counsel was constitutionally ineffective for failing to move to dismiss or otherwise challenge the trial information as being untimely filed in violation of Iowa Rule of Criminal Procedure 2.33(2)(a).
On August 15, 2011, a complaint was filed in Black Hawk County accusing Wright of the crime of lascivious acts with a child, in violation of Iowa Code section 709.8(2). A warrant for his arrest on that charge was issued the same date. At the time the arrest warrant was issued, Wright was on probation in Polk County under the supervision of the Fifth Judicial District Department of Correctional Services (" DCS" ). An investigator in the Black Hawk County case notified DCS of the outstanding warrant. The DCS Fugitive Team executed the warrant on August 17, 2011, arrested Wright, and placed him in the custody of the Polk County Sheriff. After his arrest, Wright's probation officer filed a report of violations in Wright's Polk County probation case. Wright remained in the custody of the Polk County Sheriff on a no-bond hold until his Polk County probation violation matter was resolved on October 21, 2011. The Polk County Sheriff then released Wright to the Black Hawk County detainer.
On October 31, 2011, the State filed its trial information in Black Hawk County, charging Wright with the following: sexual abuse in the third degree, in violation of Iowa Code section 709.4; lascivious acts with a child, in violation of section 709.8(1); and indecent contact with a child, in violation of section 709.12(1). Wright's trial counsel moved to dismiss the information on the ground the State failed to file the trial information within forty-five days of Wright's arrest, in violation of Iowa Rule of Criminal Procedure 2.33(2)(a). The court granted the motion with respect to the charge of lascivious acts with a child. The court denied the motion with respect to the remaining charges.
On July 31, 2012, the State filed an amended trial information charging Wright with the following: sexual abuse in the second degree, in violation of section 709.3; sexual abuse in the third degree, in violation of section 709.4; and indecent contact with a child, in violation of section 709.12(1) and (2). The matter went to trial, and on October 2, 2012, a jury found Wright guilty of all three counts.
Wright was charged with committing sex abuse against and having indecent contact with his daughter, M.W., on several occasions between 2005 and 2010. M.W. was born to Wright and Q.M. in 1997. M.W. lived with her mother in a small house in Waterloo where M.W. shared a bedroom ...