State v. Dicks

• Decision Date: 23 April 1991
• Docket Number: No. 90-492,90-492
• Citation: 473 N.W.2d 210
• Parties: STATE of Iowa, Appellee, v. Robert Glenn DICKS, Appellant.
• Court: Iowa Court of Appeals

Page 210

473 N.W.2d 210

STATE of Iowa, Appellee, v. Robert Glenn DICKS, Appellant.

No. 90-492.

Court of Appeals of Iowa.

April 23, 1991.

Alfredo Parrish of Parrish, Kruidenier & Exline, Des Moines, for appellant.

Bonnie J. Campbell, Atty. Gen., Ann E. Brenden, Asst. Atty. Atty., Annette Scieszinski, County Atty., and William S. Owens, Asst. County Atty., for appellee.

Heard by DONIELSON, P.J., and SCHLEGEL and HABHAB, JJ.

SCHLEGEL, Judge.

Defendant Robert G. Dicks appeals his convictions on eight charges by a court sitting without a jury. The trial court sentenced him to consecutive terms of imprisonment as follows: three twenty-five-year terms for second-degree sexual abuse, ten years for third-degree sexual abuse, five years for lascivious acts with a child, two ten-year terms for sexual exploitation of children, and five years for failure to appear. Dicks alleges numerous errors relating to the conduct of the trial and his sentencing. We affirm.

I.

The record shows that Dicks entered a relationship with D.C. in late 1984. D.C. had two children, B.C. and J.C., who were approximately eleven and ten years old, respectively, at the time. From 1984 through 1987 Dicks kept clothes at D.C.'s Monroe County home, where he stayed several nights a week.

On several occasions, Dicks fondled B.C.'s breasts and vagina, touched her with his penis, and at least once penetrated her vagina with his finger. He also fondled J.C.'s penis and on at least one occasion sought to have J.C. masturbate him while he attempted to masturbate J.C. Defendant and D.C. also frequently engaged in intercourse in the presence of the children. On other occasions Dicks fondled or, with his penis, touched D.C.'s five-year-old niece, A.K., and another one-year-old girl, E.S.

Dicks and D.C. recorded many of these activities with photographs and often had the children take photographs of them in various acts of intercourse. When police learned of Dicks' and D.C.'s activities, they interviewed B.C., who substantiated their information. Afterward, they interviewed J.C. at home and asked him whether any photographs were in the house. J.C. told police that they were usually kept in his mother's closet or in her possession. Acting on a police request, J.C. looked in the closet, but could not locate the photographs. The officers did not themselves conduct a search.

Later, police officers and a Department of Human Services employee confronted D.C. with the information gathered from their interviews. D.C. denied knowledge and exercised her constitutional right in refusing to permit a warrantless search. Police posted guards to prevent destruction of evidence. Based on the statements given by the children, police obtained a search warrant. Upon executing the warrant, D.C. surrendered two photograph albums to officers. Police discovered other evidence not specified and took the extra precaution of obtaining a second search warrant. Among the other evidence were notes demonstrating how Dicks and D.C. conspired for the opportunity of having the children alone and by means of drugs to prevent them from revealing the acts committed on them.

The district court rejected a pretrial motion to suppress the evidence seized during the searches. The court cited the separate, corroborative statements of the children as probable cause that evidence of criminal activities, such as sexual abuse, lascivious acts, and sexual exploitation, would be found on the premises to be searched. Along with the testimony by B.C. and J.C., the evidence seized constituted the primary evidence against Dicks, especially as pertained to those acts committed against the five- and one-year-olds. We address the issues in the general order in which the alleged errors arose.

II.

Dicks contends that the district court erred in finding that the appropriate venue was established for three of the counts charged. He complains that there was no evidence to show that the sexual abuse and sexual exploitation of A.K. (Counts I and V) or sexual abuse of E.S. (Count VI) occurred in Monroe County. The State argues that Dicks waived or acquiesced in the alleged error, and in any event, the evidence established venue.

Rules pertaining to venue are set out in Iowa Code chapter 803 and Iowa Rule of Criminal Procedure 10. Iowa Code section 803.2 states:

1. A criminal action shall be tried in the county in which the crime is committed, except as otherwise provided by law.

2. The court, may on its own motion or on the motion of any of the parties to the proceeding reconsider and grant a pretrial motion for change of venue whenever it appears during jury selection that sufficient grounds would exist for granting the motion under the provisions of [Iowa Rule of Criminal Procedure] 10.

3. All objections to venue are waived by a defendant unless the defendant objects thereto and secures a ruling by the trial court on a pretrial motion for change of venue. However, if venue is changed pursuant to subsection 2, all objections to venue in the county to which the action is transferred are waived by a defendant unless the defendant objects by a motion for change of venue filed within five days after entry of the order transferring the action and secures a ruling by the trial court on the motion before a jury has been impaneled and sworn.

Iowa Code section 803.3(1) makes special provision when

conduct or results which constitute elements of an offense occur in two or more counties, prosecution of the offense may be had in any of such counties. In such cases, where a dominant number of elements occur in one county, that county shall have the primary right to proceed with prosecution of the offender.

On April 22, 1988, the court sustained Dicks' motion for change of venue and transferred the case from Monroe to Mahaska County on grounds that adverse media attention might make it impossible to have a fair trial. In December 1988 the court overruled a second motion, which urged the same grounds. As discussed further below, Dicks eventually waived his jury trial. Nonetheless, the trial court apparently sat in Mahaska County pursuant to the original change of venue.

On May 13, 1988, the State applied for rulings on various preliminary questions. The State indicated that some of the elements in Count I may have occurred in Polk County and asked the court to find that Monroe County had the primary right to proceed pursuant to Iowa Code section 803.3(1). Dicks resisted, arguing that the issue had "been fully and fairly decided." The court ruled that Monroe County could properly proceed with the charge in Count I.

Section 803.3 makes special provisions for venue and supersedes section 803.2(1). Our rules of statutory construction are well known. Considering the language and objects of the statutes, we place a reasonable construction on the statutes to best effectuate their purpose. Metier v. Cooper Transport Co., Inc., 378 N.W.2d 907, 912 (Iowa 1985). Section 803.2(3) unambiguously states, "All objections to venue are waived." (Emphasis added). Examining the statutes together, we find nothing that would permit defendant to escape the waiver provision of section 803.2(3) with a late objection under section 803.3(1). Thus, if defendant fails to object to venue and fails to secure a ruling by the trial court on a pretrial motion for change of venue, he has waived his right to object to venue.

A close reading of the record in this case reveals that (a) Dicks (as opposed to the State) lodged no objection, (b) he resisted a ruling on the issue he now raises, (c) he did not raise the issue in either of his pretrial motions for change of venue, and (d) he did not obtain a pretrial ruling. Defendant failed to meet any of the requirements of the escape clause in section 803.2(3). Putting aside the fact that his appellate argument is inconsistent with that urged before trial, we hold that Dicks waived his objections to venue, and we find no constitutional violation.

III.

Dicks contends that the trial court abused its discretion in overruling his pretrial motion to permit him to voir dire prospective jurors individually. The trial court is vested with discretion in determining whether to sequester jurors for individual voir dire. State v. McDaniel, 265 N.W.2d 917, 920-21 (Iowa 1978); accord State v. Webb, 309 N.W.2d 404, 414 (Iowa 1981).

In State v. Webb, the supreme court established a two-part test for determining whether a trial court errs in refusing to allow individual voir dire. First, the defendant must demonstrate an abuse of discretion. 309 N.W.2d at 414 (citing McDaniel, 265 N.W.2d at 920-21). Second, the defendant must demonstrate that he was prejudiced by collective examination. Id. (citing State v. LeMatty, 263 N.W.2d 559, 562 (Iowa App.1977)).

It is easy to see that the trial court's refusal to allow individual voir dire may have played heavily in the defendant's choice to waive his right to a jury trial. It is, however, impossible to see how he may have been prejudiced by a collective examination, when that examination never took place. Thus, even if defendant were able to show that the court exercised its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable," State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976) (establishing abuse of discretion standard (quoting State v. Burnor, 132 Vt. 603, 326 A.2d 138, 140 (1974))), he is unable to show he was prejudiced by a collective voir dire. All that appears in the record before us are defendant's bald assertions and a few newspaper items that the district court at one time called "hardly ... 'inflammatory'." See Webb, 309 N.W.2d at 414 (prejudice not presumed from "mere publication of news stories" (citing State v. Frank, 298 N.W.2d 324, 327 (Iowa 1980))). We hold that defendant is unable to show that the trial court erred in refusing to permit individual voir dire, and we find no constitutional violation.

IV.

Dicks...