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State v. Cagle

Court of Appeals of Iowa

May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
NICHOLAS CAGLE, Defendant-Appellant.

          Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.

         The defendant appeals his conviction for sexual abuse in the second degree.

          William Monroe of Law Office of William Monroe, Burlington, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., Bower, J., and Blane, S.J. [*]

          BLANE, SENIOR JUDGE.

         Nicholas Cagle appeals his conviction of sexual abuse in the second degree based on error in evidentiary rulings and ineffective assistance of trial counsel. He asserts the court erroneously admitted the out-of-court forensic video interview of the child witness, J.C. Additionally, he maintains his trial counsel provided ineffective assistance when counsel failed to object to (1) the prosecutor's alleged misconduct during the trial, (2) admission into evidence of the out-of-court forensic video, and (3) claimed improper evidence of vouching for the credibility of J.C. Upon our review of the issues, we find neither error by the court nor ineffective assistance by Cagle's counsel and affirm.

         I. Factual background.

         "Viewing the trial evidence in the light most favorable to the jury's guilty verdict[], the jury could have found the following facts." State v. Romer, 832 N.W.2d 169, 172-73 (Iowa 2013). Four-year-old J.C. was on Cagle's bed and wearing his "Batman jammies." Defendant Cagle showed him a cellphone video depicting a "big kid" in the rain who took off a girl's shirt, started "licking her booboos, "[1] put the "big thing" in the girl's mouth, then "took it out" and "put it in her." Then Cagle and J.C. started "touching" and "wiggling" their "weewees"[2] "up and down." In J.C.'s words, Cagle "peed" on J.C.'s hand. The "pee" was "white" and came out of his Cagle's "weewee." Afterwards, Cagle was "angry" and made grunting sounds. Cagle told J.C. not to tell anyone.

         J.C.'s mother picked J.C. up from Cagle's home. She did not think anything out of the ordinary, except that J.C. "didn't have any underwear on." Cagle told her that J.C. had wet the bed. A few days later, J.C. spoke with a forensic interviewer at the Mississippi Valley Child Protection Center (CPC). The interview was recorded. J.C. recounted the above-described event in age-appropriate vocabulary: "Q. When [Cagle] peed on your hand, were you touching his weewee? A. Yeah. Q. What were you touching it with? A. My hand."

         At trial, J.C. (now five years old) said he did not remember much about the last time he stayed with Cagle. He did say that his Cagle "pee[d]" on his hand. There had been little or no discord between J.C., his mother, and Cagle. J.C.'s mother said there were no custody issues, that she and Cagle had remained friends, and she thought they were both "trying to do what's best for . . . [J.C.]." According to Cagle's wife, J.C. "looked up to [Cagle] very much; [Cagle] was his idol."

         A forensic analysis of Cagle's cell phone revealed pornographic videos, including one "out in the rain [that involved] sucking on a female's breasts and then leading into intercourse." At least one of the videos also showed oral sex.

         II. Procedural background.

         On September 8, 2016, the Des Moines county attorney filed a trial information charging Cagle with sexual abuse in the second degree in violation of Iowa Code sections 709.1(3); 709.3(1)(b); and 709.3(2) (2018), a class "B" felony. Cagle's counsel filed a written arraignment and plea of not guilty. A jury trial commenced on August 29, 2017.

          After the jury was selected and sworn and before the opening statement, the court directed the prosecutor to read to the jury the trial information and to advise the jury of Cagle's plea. The prosecutor then read the trial information, starting with the caption and including the statement "in the name of and by the authority of the State of Iowa" and, "This is a true information. Amy K. Beavers, Des Moines County Attorney, by Todd E. Chelf, senior assistant county attorney." The prosecutor then stated to the jury: "To this charge, the defendant has pled not guilty." Cagle's trial counsel did not object to these proceedings.

         During the State's case-in-chief, the prosecution offered, and the court admitted over a defense hearsay objection, the video of J.C.'s pretrial forensic interview at CPC. The State called the forensic interviewer as a witness. Cagle claims the witness gave "vouching" testimony for J.C., to which his trial counsel failed to object. During closing argument, the prosecutor made the statement to the jury that J.C. testified, "[Cagle] peed on my hand." Cagle contends this was a misstatement of the evidence and his trial counsel failed to object to prosecutorial misconduct.

         On August 30, the jury returned a guilty verdict. Cagle's counsel filed a motion for new trial, which was denied. On October 16, Cagle was sentenced to twenty-five years' confinement. He filed his notice of appeal on October 19.

         III. Discussion.

         A. Ineffective assistance of counsel.

         On appeal, Cagle concedes error was not preserved on certain claims, requiring them to be analyzed as allegations of ineffective assistance of counsel. Claims of ineffective assistance are a recognized exception to the error- preservation rule in direct appeals. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). When counsel fails to preserve error at trial, a defendant can have the matter reviewed as an ineffective-assistance-of-counsel claim. State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011). We can reach an ineffective-assistance-of-counsel claim on a direct appeal if the record is sufficient to reach it. Id. If the record is insufficient to allow for a review on direct appeal, we do not reach the issue on direct appeal and allow the defendant to raise the claim in a separate postconviction-relief action. State v. Harris, 919 N.W.2d 753 (Iowa 2018).

         The burden of proof to establish by a preponderance of evidence a claim of ineffective assistance of counsel is on the defendant. Ondayog, 722 N.W.2d at 784. Cagle must show that (1) his attorney failed to perform an essential duty, and (2) prejudice resulted to the extent that it denied him a fair trial. See id.; see also Strickland v. Washington, 466 U.S. 668, 694 (1984). To prevail on a claim of prosecutorial misconduct, the defendant must show both the misconduct and resulting prejudice. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

         B. Standard of review.

         Ineffective-assistance claims are reviewed de novo. State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017).

         C. Whether defense counsel was ineffective for not objecting to the prosecutor's reading of the trial information and the manner in which he advised the jury of Cagle's plea of not guilty.

         Cagle complains that the assistant county attorney committed not just prosecutorial error, but prosecutorial misconduct[3] by reading the entire contents of the trial information to the jury and the manner in which the jury was informed of the defendant's not-guilty plea. The contention is based on Iowa Rule of Criminal Procedure 2.19(1)(a)(1), which provides: "(1) Reading indictment and plea. The clerk or prosecuting attorney must read the accusation from the indictment or the supplemental indictment, as appropriate, and state the defendant's plea to the jury."[4] (emphasis added). The issue involves what constitutes the accusation and the manner in which the prosecutor is to advise the jury of the defendant's plea.

         Specifically, the record shows that the prosecutor read the entire trial information from the caption to the endorsement of "A True Information" and as signed by the assistant county attorney.[5] Cagle claims the reading of the entire trial information was error as it exceeds the "accusation" called for by the rule. He argues that the reference to "accusation" limits the county attorney to reading only the charge against the defendant-nothing more. Cagle also argues that the county attorney, in reading the entire trial information, stated it was a "true" information. He contends that by doing so, the county attorney impermissibly stated that the allegation of the charge was "true" and improperly influenced the jury. In addition, the county attorney stated to the jury: "To this charge, the defendant has pled not guilty." Cagle contends that the prosecutor failed to state that the not guilty plea was "certified true and correct." Because his trial counsel failed to object to the county attorney's claimed misconduct, Cagle urges that his counsel was ineffective and he is entitled to a new trial.

         Iowa Rules of Criminal Procedure 2.4 and 2.5 regarding indictment and trial information give us guidance. The trial information finds its origins in the grand jury indictment. See Iowa R. Crim. P. 2.5(5). Historically, the Iowa Code required that "an indictment, when found by the grand jury, and indorsed 'a true bill,' by the foreman, must be presented to the court by the foreman, in ...


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