State v. Berwanger, 20-0492

• Court: Court of Appeals of Iowa
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. JOHN BERWANGER, Defendant-Appellant.
• Docket Number: No. 20-0492,20-0492
• Decision Date: 16 June 2021

STATE OF IOWA, Plaintiff-Appellee,
v.
JOHN BERWANGER, Defendant-Appellant.

No. 20-0492

COURT OF APPEALS OF IOWA

June 16, 2021

Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.

John Berwanger challenges his conviction of second-degree sexual abuse. AFFIRMED.

Anne K. Wilson of Viner Law Firm, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

Considered by May, P.J., and Greer and Schumacher, JJ.

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GREER, Judge.

As a frequent visitor to his friends' home, John Berwanger crossed a line with the family's daughter, N.M.K.; she disclosed he engaged in sexual contact with her. A jury found Berwanger guilty of second-degree sexual abuse in violation of Iowa Code section 709.3(1)(b) (2018).¹ Berwanger appeals the conviction, citing several issues. First, he maintains there was insufficient evidence to support the conviction. Next, he raises errors in the submission of a jury instruction defining "sex acts." Berwanger also asserts the district court erred by allowing the State to amend the trial information after both parties rested. And as a final issue, he raises ineffective assistance of counsel. We affirm his conviction and preserve his ineffective-assistance-of-counsel claim.

I. Factual Background and Prior Proceedings.

After drinking heavily at his friends' home, Berwanger told them he was a "monster" for something he had done. Crying, Berwanger said N.W.K.'s father would "kill him if [he] found out what he did, and he did something he shouldn't have." Pressed for more information, Berwanger offered no other details. The friends chalked it up to the alcohol. After the friendship deteriorated for other reasons and Berwanger was told not to come around anymore, Berwanger messaged the ten-year-old N.M.K. on her tablet saying something to the effect of: "Sorry I'm going to miss another birthday. If you ever want to find me, you can find me at my mother's house when you're older." N.W.K.'s mother found this contact suspicious and asked her daughter if Berwanger ever did anything to her. The

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child hung her head. Because they were very close, her grandmother intervened and asked N.W.K. if anything happened. The child answered yes and an investigation began. In an interview with child-protection professionals, N.W.K. disclosed that Berwanger touched her "private" and that it had occurred more than once. The child also described an instance where Berwanger attempted to make her touch his pants in the area of his penis but she pulled her hand away. She quoted Berwanger as telling her "don't tell anybody" and "if you were ten years older I would marry you."

After concluding the investigation, Berwanger was charged with second-degree sexual abuse, enticing a minor under thirteen, and lascivious acts with a child. A jury convicted Berwanger of second-degree sexual abuse, and he was acquitted on the other charges. His motion for a new trial was denied, and he appeals his conviction.

II. Standard of Review and Error Preservation.

We review challenges to the sufficiency of evidence for correction of errors at law. State v. Alvarado, 875 N.W.2d 713, 715 (Iowa 2016). "[W]e review the evidence in the light most favorable to the State to determine if, when considered as a whole, a reasonable person could find guilt beyond a reasonable doubt." State v. Pearson, 514 N.W.2d 452, 456 (Iowa 1994). We review the district court's denial of a motion for a new trial on weight-of-the-evidence grounds for an abuse of discretion. See State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).

We review challenges to jury instructions to correct legal error. State v. Becker, 818 N.W.2d 135, 140 (Iowa 2012). The first part of Iowa Rule of Criminal Procedure 2.4(8)(a), allowing amendments to the trial information at trial, is

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discretionary. See State v. Maghee, 573 N.W.2d 1, 4 (Iowa 1997). An abuse of discretion occurs when the trial court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id. Whether the amendment prejudices the defendant's substantial rights or charges a wholly new and different offense is reviewed for errors at law. See State v. Bruce, 795 N.W.2d 1, 2 (Iowa 2011). Claims related to ineffective assistance of counsel are reviewed de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

The State concedes error was preserved on Berwanger's claims about the "sex act" jury instruction, the amendment to the trial information, and ineffective assistance of counsel. Ineffective-assistance-of-counsel claims are not bound by traditional error-preservation rules. See State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982) (stating the claim of ineffective assistance...