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State v. Lee

Court of Appeals of Iowa

May 2, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
SHAWN TIMOTHY LEE, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         The defendant appeals from his convictions and sentences for sexual abuse in the second degree and two counts of lascivious acts with a child.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Shawn Timothy Lee, Coralville, pro se. Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          POTTERFIELD, Judge.

         Shawn Lee appeals his convictions and sentences for sexual abuse in the second degree and two counts of lascivious acts with a child. On appeal, Lee maintains there was insufficient evidence to support his one of his convictions for lascivious acts with a child and the district court abused its discretion when it declined to permit him to question the complaining witness about her prior use of drugs and alcohol. He also maintains the district court abused its discretion when it imposed consecutive sentences and argues the imposition of the section 911.2B surcharge constituted a violation of the Ex Post Facto Clause.

         I. Background Proceedings.

         Lee was charged by trial information in October 2016. It was alleged in count I that between January 2006 and June 2013, Lee had committed a sex act upon the complaining witness, his daughter, who was under the age of twelve when the sex act occurred. It was alleged in counts II and III that Lee had fondled or touched the pubes or genitals of the complaining witness and that he had also made the witness fondle or touch his pubes or genitals.

         Lee entered a plea of not guilty, and the matter proceeded to trial in March 2017. The jury found Lee guilty as charged.

         Lee was later sentenced to twenty-five years for the sexual-abuse-in-the-second-degree conviction and ten years for each of his lascivious-acts-with-a-child convictions. The court ordered the sentences to be served consecutively, effectively sentencing Lee to a term of incarceration not to exceed forty-five years.

         Lee appeals.

         II. Discussion.

         A. Substantial Evidence.

         Lee maintains there was insufficient evidence to support the jury's verdict on count III, one of the counts of lascivious acts with a child[1] because there was no evidence he made the complaining witness touch or fondle his pubes or genitalia. More specifically, Lee maintains the evidence of the offense is insufficient because the complaining witness's testimony-which was the only evidence of the offense-did not specify what she was touching when he would put her hand in his pants; she testified, "He would grab my hand, and he would put it in his pants and make me move it up and down." He also argues, alternatively, that if his trial counsel's motion for judgment of acquittal did not preserve this argument, he received ineffective assistance of counsel.

         Although the State does not dispute that error was preserved as to count III, based on our review of the record, we determine error was not preserved. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) ("[W]hen the motion for judgment of acquittal did not make reference to the specific elements of the crime on which the evidence was claimed to be insufficient, it did not preserve the sufficiency of the evidence issue for review."); see also State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) (finding it "proper to analyze whether [an issue] was properly preserved for our review" where the State "conceded the error was preserved"). Regarding the offense in question, trial counsel argued as follows in support of the motion for judgment of acquittal:

[T]he State would have to prove that Shawn Lee caused [the complaining witness] to fondle or touch the pubes or genitals of Shawn Lee. And, again, for the same reasons, [the complaining witness] by her own admission has made allegations and recanted those. And we would ask that the ...

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