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State v. Wilkins

Court of Appeals of Iowa

December 20, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DARRYL W. WILKINS, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.

         Darryl Wilkins appeals from his convictions and sentences for third-degree sexual abuse, lascivious acts with a child, and assault with intent to commit sexual abuse.

          Mark C. Smith, State Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., Tabor, J., and Carr, S.J. [*]

          CARR, SENIOR JUDGE

         Darryl Wilkins appeals from his convictions and sentences for third-degree sexual abuse, in violation of Iowa Code section 709.4(1)(b)(2) (2013); lascivious acts with a child, in violation of section 709.8(1)(a); and assault with intent to commit sexual abuse, in violation of section 709.11(3). On appeal, he argues the trial court erred in denying his motion to dismiss for failure to file the trial information within forty-five days of his arrest and also erred in failing to merge his convictions and sentences. For the following reasons, we affirm.

         I. Background Facts and Proceedings

         In May 2015, thirteen-year-old K.K. reported to her mother and to a school counselor that her step-father, Wilkins, had touched her on her vagina under her clothes. At trial, K.K. testified this happened between ten and fifteen different times. Per her testimony, the incidents often followed a pattern. K.K. would often sleep on the couch in the family's living room. Wilkins would sit on the couch with her. He would put his hands down her pants and touch her. This would continue for approximately fifteen minutes. Although K.K. was awake during these incidents, Wilkins would then "wake" her and tell her to go sleep in her bed.

         The final incident appears to have been different. The family had acquired a new bed, which had been placed in the living room. K.K.'s brother was sleeping in the bedroom the two shared, K.K. was sleeping in the room her mother and Wilkins ordinarily slept in, and Wilkins was sleeping on the bed in the living room. K.K.'s mother worked nights at the time. One night, Wilkins asked K.K. if he could lie with her, saying he could not sleep on the bed in the living room. K.K. said he could. The same pattern as above occurred. This time, K.K. was sure Wilkins knew she was awake because afterwards he talked to her and tried to get her to face him. She left the room. Wilkins told her if she did not want it to happen again he would not do it again. She did not say anything to him.

         On May 13, Wilkins texted K.K. and said, among other comments, "I left to protect myself from this, do not ever contact me again." The two did not communicate after that text. Instead, Wilkins appears to have left the house and relocated to Illinois.

         In June 2015, an arrest warrant issued from the District Court of Scott County. The warrant, however, was not executed until May 2016. On May 8, 2016, Wilkins was taken into custody in Illinois. On May 11, he was brought to Scott County and placed in the local jail. There, on the same date, the arrest warrant was executed and served upon Wilkins. On May 12, he appeared before a magistrate in Scott County. The trial information in this case was filed on June 23. Wilkins pleaded not guilty.

         On July 8, Wilkins filed a motion to dismiss the charges for failure to indict within forty-five days. The motion was denied.

         The case proceeded to a bench trial. Following trial, Wilkins was found guilty as charged. He was sentenced to concurrent prison sentences of ten years, ten years, and two years, respectively, on the three charges. Wilkins filed a motion for new trial and motion in arrest of judgment claiming ...


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