from the Iowa District Court for Polk County, Michael D.
defendant appeals from his convictions and sentences for
sexual abuse in the second degree and two counts of
lascivious acts with a child.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Timothy Lee, Coralville, pro se. Thomas J. Miller, Attorney
General, and Thomas E. Bakke, Assistant Attorney General, for
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
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.
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.
entered a plea of not guilty, and the matter proceeded to
trial in March 2017. The jury found Lee guilty as charged.
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.
maintains there was insufficient evidence to support the
jury's verdict on count III, one of the counts of
lascivious acts with a child 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
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