from the Iowa District Court for Jefferson County, Annette J.
Scieszinski (venue) and John M. Wright (trial and
Murphy appeals from the judgment and sentence entered on his
conviction of second-degree sexual abuse.
L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
by Vogel, P.J., and Doyle and Bower, JJ.
Murphy appeals the judgment and sentence entered on his
conviction following a jury trial for second-degree sexual
abuse, in violation of Iowa Code section 709.3(1)(b) (2016).
Murphy asserts the court erred in denying his motions to
change venue and to strike jurors. He also asserts his trial
counsel was ineffective in failing to object to the
court's error related to the motion to strike, in failing
to move to strike three other jurors for cause, and in
failing to object when a witness violated the motion in
limine by vouching for the child victim. Finally, Murphy
asserts there was insufficient evidence of sexual abuse.
Because Murphy failed to show a substantial likelihood a fair
and impartial jury could not be found and because Murphy did
not prove prejudice resulting from his use of peremptory
strikes, the district court did not abuse its discretion.
Also, because the record is inadequate to address
Murphy's claims of ineffective assistance, we preserve
his claims for postconviction relief. Finally, because the
jury verdict was supported by substantial evidence and was
not against the weight of the evidence, we affirm.
Background Facts and Proceedings
following facts can be gleaned from the evidence presented to
the jury. On February 20, 2016, eleven-year-old A.T. and her
older sister, M.T., spent the night at Murphy's house.
Murphy was a family friend of the girls' parents after
being engaged to A.T.'s aunt, her mother's sister.
After his fiancé passed away the families remained
close. The girls referred to Murphy as "Uncle Matt"
and they considered him as part of the family, often
scheduling sleepovers even after Murphy became engaged to
families scheduled the February 20 sleepover so A.T. and M.T.
could meet Murphy's step-daughter-to-be. On the evening
of the sleepover, A.T., M.T., and their mother arrived at
Murphy's house at approximately 6:00 p.m. A.T.'s
mother stayed for about one hour to visit with Murphy while
the girls played outside on Murphy's trampoline. When
A.T.'s mother left, the three girls went inside to end
the night watching scary movies and T.V. shows before bed.
one of the movies, A.T. approached Murphy and sat on his lap
because she was cold. While she was seated on his lap, Murphy
lifted up the waistband of her pants and touched her
"private area," inside her underpants. A.T. acted
like she had been asleep then woke up, and Murphy pulled his
hand away. A.T. was scared but still acted like she was
asleep, and Murphy went upstairs to get the bed ready while
the other two girls stayed downstairs to play cards. Murphy
returned and carried A.T. upstairs to her bedroom where he
laid her down on her stomach. Murphy left the room
momentarily. A.T. saw him reenter the room and heard his
footsteps. He approached the side of the bed and placed
A.T.'s hand on his penis. A.T. still pretended to be
asleep with her eyes "barely open." She saw and
felt Murphy move her hand around his penis until she, again,
acted like she was waking up because she was shocked and
fully awake, A.T. asked to call her mom. A.T. initially told
her mother "goodnight" because Murphy was still in
the room. A few minutes later A.T. went to the bathroom to
wash her hand. Murphy stood in the hallway and said to her,
"[Y]ou know I would never let anything happen to
you," then picked her up and gave her a hug. A.T. then
asked to use the phone again and she called her mother from
the locked downstairs bathroom. She told her mother that
Murphy "touched her inappropriately" and then told
Murphy she was sick and needed her mother to pick her up.
Once at home A.T. told her mother what had happened. They
then left for the hospital in Ottumwa. After speaking with
two police officers at the Ottumwa hospital, they drove to
the children's hospital in Des Moines to speak with
medical professionals and police and to have a sexual-assault
was charged with two counts of second-degree sexual abuse,
one stemming from this incident and one from a prior
allegation involving a different child. On July 29, 2016,
Murphy filed a motion to change venue and a motion to sever
charges. After a hearing on the motions, the court overruled
the motion to change venue but granted the motion to sever
charges. The court overruled Murphy's second motion to
change venue on March 28, 2017. On April 7, 2017, a jury
convicted Murphy of second-degree sexual abuse, related to
A.T. Murphy filed a motion for new trial, but the court found
the jury's guilty verdict was supported by substantial
evidence and not against the weight of the evidence, and it
overruled Murphy's motion.
Standard of Review
review a denial of a motion for a change of venue de novo.
State v. Evans, 671 N.W.2d 720, 726 (Iowa 2003).
"We will reverse only upon a showing the district court
abused its discretion in failing to move the trial."
Id. We review the district court's ruling on a
challenge for cause for an abuse of discretion. State v.
Hardin, 498 N.W.2d 677, 681 (Iowa 1993). Ineffective
assistance of counsel claims are reviewed de novo.
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
"Sufficiency of evidence claims are reviewed for a
correction of errors at law." State v. Sanford,
814 N.W.2d 611, 615 (Iowa 2012). Finally, we review a
district court's decision on a motion for a new trial for
abuse of discretion. State v. Nitcher, 720 N.W.2d
547, 559 (Iowa 2006).
Motions to Change Venue
contends the court abused its discretion in denying his
motions to change venue because both motions claimed a fair
and impartial jury could not be secured locally. He asserted
his position as the director of the South Iowa Area Crime
Commission (SIACC) made him prominent in the community and
nearby counties, and news reports covering his arrest used
his mugshot, in which community members would recognize him.
Further, he asserted local news outlets covered a story that
originated in Omaha, which reported that he made improper
charges on a SIACC credit card for personal items, and the
nature of the small town would increase public scrutiny and
prevent him from receiving a fair trial in Jefferson County.
shall grant a change of venue where the defendant meets the
burden of proof of showing the evidence demonstrates that
"such degree of prejudice exists in the county in which
the trial is to be held that there is a substantial
likelihood a fair and impartial trial cannot be preserved
with a jury selected from that county." Iowa R. Crim. P.
2.11(10)(b); Evans, 671 N.W.2d at 726. In the
absence of proof of actual jury prejudice, Murphy must
demonstrate that the publicity attending the trial is so
pervasive that prejudice must be presumed. Evans,
671 N.W.2d at 726. In order to determine whether publicity is
presumptively prejudicial, we consider several factors:
"the nature, tone, and accuracy of the articles; their
timing in relation to the trial; and the impact of the
publicity on the jurors as revealed through voir dire."