State v. Allen

• Decision Date: 18 June 1997
• Docket Number: No. 96-104,96-104
• Citation: 565 N.W.2d 333
• Parties: STATE of Iowa, Appellee, v. Tex ALLEN, Appellant.
• Court: Iowa Supreme Court

Page 333

565 N.W.2d 333

STATE of Iowa, Appellee, v. Tex ALLEN, Appellant.

No. 96-104.

Supreme Court of Iowa.

June 18, 1997.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey K. Noble, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J.,

and HARRIS, LAVORATO, NEUMAN, and TERNUS, JJ.

McGIVERIN, Chief Justice.

Defendant Tex Allen challenges his conviction for sexual exploitation by a counselor in violation of Iowa Code section 709.15(2) (1993), claiming both ineffective assistance of trial counsel and error by the trial court. Because we find no basis for defendant's claims, we affirm.

I. Background facts and proceedings. The charges in this case arose out of defendant Tex Allen's treatment of Sherry Frederick in his practice as a hypnotherapist. Frederick, who was thirty-eight years old at the time of the trial, had experienced mental problems stemming from sexual and mental abuse during her childhood. Shortly after she graduated from high school, Frederick married and had two children. She suffered emotional problems during the marriage, was hospitalized in connection with those problems, and attempted suicide several times. The marriage ended in a divorce, and Frederick later remarried and had three more children. Following surgery for a tubal pregnancy, Frederick began to experience physical symptoms which did not respond to medical or psychiatric treatment. She decided to seek help from defendant Allen, a hypnotherapist whose name Frederick picked out of a telephone directory advertisement. Allen was not licensed by any state agency.

Frederick alleged that during her hypnotherapy sessions with Allen, which sometimes lasted from 4:00 in the afternoon until midnight or later, Allen engaged in inappropriate physical contact with Frederick, including kissing her on the lips, touching her breasts and genitals, and attempting sexual intercourse. According to Frederick, defendant Allen told her that such physical contact would help her to recover from the effects of the sexual abuse she had endured as a child. Allen also provided alcoholic beverages to Frederick during the sessions and conducted readings of Tarot cards. Allen did not charge Frederick for her treatment, telling her that he had sufficient income from other clients. According to Frederick, she continued the hypnotherapy sessions, which took place from May through August 1994, because she hoped that her condition would improve.

On November 22, 1994, defendant Allen was charged by trial information with sexual exploitation by a counselor in violation of Iowa Code section 709.15(2), a class "D" felony. The case proceeded to a jury trial.

At the trial, the State presented evidence concerning defendant Allen's conduct. Frederick testified about Allen's physical contact with her during the hypnotherapy sessions. Frederick's second husband, from whom she was now divorced, testified that he had made a tape of a "relaxation" audiotape recorded by Allen and given to Frederick. The tape and a typed transcript of the tape were admitted into evidence. Allen's counsel objected to admission of the transcript but not the tape. Two psychologists, Dr. Phillip Ascheman and Dr. James Thompson, testified for the State about false memories and delusions in connection with Frederick's mental condition. Allen's counsel objected to the testimony of one of the psychologists but failed to obtain a ruling on the record by the court on the objection. Another of Allen's clients, Janice Westphal, testified that Allen had kissed her and fondled her breasts during a hypnotherapy session.

Defendant Allen denied the allegations against him. He testified that he had not engaged in any inappropriate physical contact with Frederick. Allen claimed that the relaxation tape had been intended for another woman and was given to Frederick by mistake; he asserted that what sounded like "Sherry" (Frederick's first name) on the tape was actually the French term of endearment "cheri" but that he chose not to pronounce it in the French manner. Several of Allen's former clients testified that he conducted himself in a professional manner and did not make sexual advances toward them.

On rebuttal, a witness for the State, Deborah Simpson, testified that in 1985, while her divorce case was pending, defendant Allen had befriended her and had engaged in a sexual relationship with her. Although Simpson was not then aware of the fact, Allen had been hired by her husband's attorney as an investigator in the divorce case.

Both at the close of the State's evidence and at the close of all the evidence, defendant Allen moved for judgment of acquittal, see Iowa R.Crim. P. 18(8), contending that there was insufficient evidence for a conviction and that Iowa Code section 709.15 is unconstitutionally void for vagueness. The trial court overruled defendant's motions. After considering the evidence, the jury found defendant Allen guilty of the sexual exploitation by a counselor charge. The trial court entered judgment of conviction based on the verdict and sentenced Allen. See Iowa Code §§ 902.3, .9.

Defendant Allen appealed. On appeal, he contends: (1) his trial counsel rendered ineffective assistance by failing to appropriately challenge the constitutionality of Iowa Code section 709.15 and by failing to properly object to alleged commentary on Frederick's credibility by the two psychologists; (2) the trial court erred in admitting the testimony of Janice Westphal and Deborah Simpson; and (3) the trial court erred in admitting the transcript of the relaxation tape.

II. Standards of review. Evidentiary matters are generally within the trial court's discretion. State v. Hubka, 480 N.W.2d 867, 868 (Iowa 1992). Reversal is warranted only when there is a showing that the trial court abused its discretion. Id. To the extent that defendant raises a constitutional challenge, our review is de novo. Iowa R.App. P. 4; State v. Carlson, 548 N.W.2d 138, 140 (Iowa 1996). With regard to a vagueness challenge, "we presume the statute is constitutional and give it any reasonable construction necessary to uphold it." State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996).

III. Ineffective assistance of counsel claims. Although ineffective assistance of counsel claims generally should be reserved for postconviction proceedings, we may address them on defendant's direct appeal when, as here, the record is sufficient to present the claims. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). In order to establish ineffective assistance of counsel, defendant must show by a preponderance of the evidence that: (1) counsel failed to perform an essential duty; and (2) prejudice resulted. Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983). With regard to the first part of this test, defendant must "overcome the strong presumption counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency." State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). The second prong is satisfied when defendant proves there is a reasonable probability that the outcome of the proceeding would have been different if counsel had not erred. Id.

In the present case, defendant Allen contends his trial counsel's failure to timely challenge the constitutionality of Iowa Code section 709.15 and the admissibility of expert testimony concerning false memories and Frederick's mental condition constituted a failure to perform an essential duty, the first part of the test. We do not agree.

A. Constitutionality of Iowa Code section 709.15. In Allen's motions for judgment of acquittal, his trial counsel contended Iowa Code section 709.15 was void for vagueness. However, he failed to raise this issue in a pretrial motion as required under Iowa Rule of Criminal Procedure 10(2). See State v. Anderson, 308 N.W.2d 42, 46 (Iowa 1981). That omission constitutes a failure to perform an essential duty only if the underlying constitutional challenge has merit.

1. Iowa Code section 709.15 prohibits sexual exploitation by a counselor or therapist. The statute defines "counselor or therapist" as:

a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services.

Iowa Code § 709.15(1)(a). "Mental health service" is defined as

the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction, including an intrapersonal or interpersonal dysfunction.

Id. § 709.15(1)(d). Section 709.15(1)(f) provides in relevant part:

"Sexual exploitation by a counselor or therapist" occurs when any of the following are found:

(1) A pattern or practice or scheme of conduct to engage in any of the conduct described in subparagraph (2)....

(2) Any sexual conduct, with an emotionally dependent patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the emotionally dependent patient or client or emotionally dependent former patient or client, which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals....

Defendant Allen does not deny he was a counselor or therapist. In fact, he advertised that he was a therapist. Although he does not identify the specific subsection or subsections he claims to be unconstitutionally vague, Allen contends the statute is void for vagueness because it could prohibit "everyday conversation" and kissing carried out with...