Opinion
No. 2-307 / 01-0891.
Filed August 14, 2002.
Appeal from the Iowa District Court for Appanoose County, DANIEL P. WILSON, Judge.
Defendant appeals following jury convictions for multiple counts of sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, and Robert Bozwell, Jr., County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Following a jury trial Paul Welch was convicted of eight counts of sexual abuse in the second degree and eleven counts of sexual abuse in the third degree. Welch appeals, contending there was not substantial evidence to support his convictions and that his defense counsel was ineffective. We affirm.
At trial both of the victims testified to sexual acts perpetrated upon them by Welch, and Welch does not argue the evidence provided by the victims, on its face, was insufficient to support his conviction. Rather, he contends other evidence cast doubts on the veracity of their testimony. This argument is without merit. Both the assessment of witness credibility and the weighing of the evidence are within the province of the jury, not the court. State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999). It is only in rare cases where a witness's testimony is "so impossible, absurd, and self-contradictory that the court should deem it a nullity." State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997). This is not such a case. Upon a review of the record, it is clear the evidence presented in this matter was sufficient for a reasonable juror to find Welch guilty beyond a reasonable doubt. See State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001).
Welch next contends his defense counsel was ineffective for failing to object to certain testimony. To establish such a claim Welch must show that counsel's failure to object both fell below the normal range of competency and prejudiced his case. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by demonstrating a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
The State argues Welch has failed to set forth his claims with sufficient specificity. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). While we agree Welch's contentions are somewhat vague and unspecified, we find the allegations minimally sufficient to allow for review of his claims.
Relying on Iowa Rule of Evidence 5.404(b), which limits the admissibility of certain prior acts by a defendant, Welch argues he was prejudiced when his attorney failed to object to testimony from both victims that he provided alcohol and cigarettes to minors and testimony from one of the victims that a girl named Kerri had attended a party at the Welch residence, drank to the point of unconsciousness, and was sexually abused by Welch. However, to the extent Welch references statements by the victims as to their own experiences with him, such as the older victim's testimony that Welch had abused her after she became drunk at party for which Welch had purchased alcohol, and how Welch threatened her when she observed him assaulting the other girl, they were admissible to show the pattern and context of the ongoing crimes. See State v. Walters, 426 N.W.2d 136, 140-41 (Iowa 1988) ("[E]vents and circumstances which immediately surround an offense may be shown even though they may incidentally show commission of another crime. Such evidence is admissible when it is an inseparable part of the whole deed.").
Even if some of the challenged testimony can be fairly categorized as revealing prior acts subject to a rule 5.404(b) analysis, and even if we assume a competent attorney would have objected to its admission, the failure to do so was not prejudicial to Welch's case. The fact that minors drank alcohol and smoked at the Welch residence was testified to by a defense witness, and thus even if the testimony was admitted in error, any error was harmless. See State v. Turner, 630 N.W.2d 601, 609 (Iowa 2001) (noting even erroneously admitted evidence is not prejudicial if substantially the same evidence is found elsewhere in the record). More importantly, the impact of the challenged testimony is relatively minimal when contrasted with the extent of the evidence pointing to Welch's guilt.
In this case we have the very detailed and graphic testimony of two victims, ages eight and fourteen, about the sexual abuse perpetrated upon them by Welch on approximately fifty-five to seventy separate occasions. Their testimony is supported by the testimony of their parents and by evidence seized from the Welch home. The only directly contradictory evidence was Welch's testimonial denial of the acts. The remainder of Welch's defense was an attempt to cast doubt on the plausibility of the victims' testimony, implying it would be impossible for the crimes to have occurred without discovery and that both girls were fabricating their accusations. In light of the totality of the evidence, even if counsel should have objected to the limited testimony alleging Welch's abuse of the third girl and his providing or allowing the use and consumption of alcohol and cigarettes, we cannot say there was a reasonable probability its exclusion would have altered the outcome of the trial.
The abuse of both victims spanned more than a year, and the girls were nine and fifteen, respectively, by the time the abuse ended.
The trial information alleged twenty-five counts of abuse as to each victim.
Welch introduced testimony from several witnesses to the effect that the older victim had a history of untruthfulness, had threatened to "make trouble" by accusing Welch of rape, and had on occasion denied that Welch had raped her. He also presented witness testimony that implied the younger victim was fabricating her accusations, either because of her friendship with the older victim, or as a cover for the fact she was being sexually abused by her own father.
The same is true regarding counsel's failure to object to certain marital communications. Those communications revealed, at most, that Paul told Pam to have certain minors fill out statements to the effect they had spent weekends at the Welch residence. Again, the mere fact statements had been made out at the request of either Welch or his wife was introduced separately into the record, and thus was not prejudicial. See Turner, 630 N.W.2d at 609. Any negative implications that might be gleaned from the fact Welch asked his wife to gather such statements pales in light of the remainder of the evidence, and the exclusion of the challenged testimony would not create a reasonable probability of acquittal.
AFFIRMED.