State v. Long

• Decision Date: 08 June 2012
• Docket Number: No. 11–0197.,11–0197.
• Citation: 814 N.W.2d 572
• Parties: STATE of Iowa, Appellee, v. Peter Kelly LONG, Appellant.
• Court: Iowa Supreme Court

814 N.W.2d 572

STATE of Iowa, Appellee,

v.Peter Kelly LONG, Appellant.

No. 11–0197.

Supreme Court of Iowa.

June 8, 2012.

Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, and Ricki L. Osborn, County Attorney, for appellee.

Mark C. Smith, State Appellate Defender, Emily Zerkel, Student Legal Intern, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

ZAGER, Justice.

Peter Kelly Long was convicted of third-degree sexual abuse in violation of Iowa Code sections 709.1(3) and 709.4(2)( b) (2009). Based on two 1996 convictions for lascivious acts with a child, the district court found that Long had committed a class “A” felony under section 902.14 and sentenced Long to life in prison without the possibility of parole. Long appealed, claiming the district court abused its discretion when it allowed the State to reopen the record after the State had rested and after the defense had made a motion for judgment of acquittal during the enhancement trial. We transferred the case to the court of appeals. The court of appeals vacated the judgment and remanded the case to the district court to render a verdict on the enhancement based solely on the evidence introduced prior to the reopening of the record. The State sought further review, which we granted. We conclude the district court did not abuse its discretion in reopening the record under the circumstances of this case. Accordingly, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Procedural History.

In February of 2010, A.M., who was twelve years of age, spent the weekend at the home of Peter and Tanya Long. A.M. was going to babysit the Longs' children while the couple did some work around their house. After A.M. had gone to bed, Long entered her bedroom and sexually assaulted her. A.M. called her mother who came to the house, picked A.M. up, and drove her to the hospital where police were informed of the assault.

On July 15, Long was charged by trial information with third-degree sexual abuse in violation of Iowa Code sections 709.1(3) and 709.4(2)( b). The trial information also notified Long of the potential enhancement of his sentence under section 902.14 based on Long's prior convictions for lascivious acts with a child. Long pled not guilty, and trial commenced on November 30. On December 1, the jury found Long guilty of third-degree sexual abuse.

Long waived his right to a jury trial on the sentencing enhancement under section 902.14 based on his prior convictions, and the issue was tried to the district court. In support of the enhancement, the State offered certified copies of Long's two convictions from December 30 and 31, 1996. Both of these convictions were for lascivious acts with a child in violation of Iowa Code section 709.8 (1995), a class “D” felony. The particular subsection was not indicated on the sentencing orders. The State also called three witnesses in supportof the enhancement: Jason Bahr, a detective with the Webster County Sheriff's Office who investigated the incident involving A.M.; Barbara Ann Krug, a probation/parole officer with the Department of Correctional Services who supervised Long at a residential work facility; and Russell Goebel, another probation/parole officer. All three identified Long as the person who had previously been convicted of committing lascivious acts with a child. Additionally, through Bahr, the State offered a videotaped interview of Long from 2010 where he discussed his past offenses. The State then rested.

Long immediately moved for a judgment of acquittal, claiming the State had not met its burden regarding the enhancement. Specifically, Long pointed out that Iowa Code section 902.14 (2009) only applies to a lascivious acts conviction under subsections 709.8(1) or (2), whereas convictions for violations of sections 709.8(3) or (4) do not lead to an enhanced sentence. Since the evidence provided by the State only established Long violated section 709.8, but not the particular subsection of the statute that was violated, Long argued the State had failed to prove beyond a reasonable doubt that Long was guilty of the applicable subsections subjecting him to the enhanced sentence. Therefore, the enhancement should be denied. The State responded by arguing that the only issue at the enhancement trial was the defendant's identity and not which subsection he violated. The district court took the motion for judgment of acquittal under advisement.

The next morning, on December 2, the State moved to reopen the record, and an expedited hearing on this motion was conducted later that day. The State sought to reopen the record to call the court reporter from the 1996 guilty plea proceedings. This person could lay the foundation for the transcripts from the guilty plea proceeding where Long admitted touching the genitals of two children, which would violate subsection 709.8(1), and would satisfy the enhancement requirements of section 902.14. The State pointed out that Iowa Rule of Criminal Procedure 2.19(9), which governs the trial of questions involving prior convictions, only requires the State to prove the identity of the defendant is the same as the person named in the prior conviction and that the defendant was represented by counsel at the time of the prior conviction. The rule also requires that if the defendant has any other objections to the prior conviction evidence, he must assert those objections prior to trial. Iowa R. Crim. P. 2.19(9). The State argued that by not asserting the issue of which subsection of 709.8 was violated in 1996, Long waived his right to bring the objection.

Long claimed that his defense strategy was based on the minutes of testimony the State provided at the beginning of the case. Long claimed that he knew the minutes did not include any documents that would indicate which subsection of 709.8 he violated, or any witness who had knowledge of which subsection of 709.8 he violated. There was no mention in the minutes of testimony of transcripts of his guilty plea proceedings. Long argued this would result in unfair surprise and he would be unfairly prejudiced if this information were allowed to be introduced at this late stage. Long's attorney claimed the State “just blew it. They want a second bite at the apple.”

On December 6, the district court granted the State's motion to reopen the record. In its order, the district court quoted from State v. Kukowski, 704 N.W.2d 687, 693 (Iowa 2005), and found that under rule 2.19(9), Long had not waived his right to object. However, after balancing the sevenfactors this court set forth in State v. Teeters, 487 N.W.2d 346, 348 (Iowa 1992), the court felt it was appropriate to reopen the record. The court noted that the evidence the State sought to admit was not introduced based on a mere oversight. The court also concluded that Long would not be prejudiced by this information since the enhancement had been an issue since the trial information had been filed. The court also noted that this was a bench trial, so there was no danger that a jury might accord undue weight to the newly admitted evidence. Also, the evidence was admissible and material. Finally, the court noted that the State made its motion only one day after the bench trial commenced, and the court had not yet made a ruling on the enhancement issue. Accordingly, reopening the record would not inconvenience the court or the parties. The court concluded by noting “the significance of the evidence compels an order to reopen the record.”

On December 16, the State filed a motion to amend trial information and minutes of testimony. The supplemental minutes of testimony included listing an additional witness, Tom Kierski, a court reporter who could lay the foundation to introduce the transcripts of Long's prior guilty pleas and sentencing. On December 20, over Long's objection, the court accepted Kierski's testimony and admitted the shorthand notes and transcripts from Long's 1996 guilty pleas and sentencing. In the transcript of the guilty pleas, Long admits to touching the genitals of two girls under the age of twelve. This would constitute a violation of section 709.8(1), one of the offenses which makes Long subject to an enhanced sentence under section 902.14. Following the reopened enhancement trial, the court found the enhancement was applicable, and Long was guilty of the class “A” felony under section 902.14(1)( c). Long was sentenced to life in prison without parole on February 3, 2011.

Long filed his appeal on February 4, and we transferred the case to the court of appeals. The court of appeals noted that rule 2.19(2) requires the State to give the defendant the minutes of a witness's testimony ten days before trial. The State provided Long the amended trial information and minutes for Kierski's testimony four days prior to the reopened trial on the enhancement. The court of appeals noted that if the State had notified Long that it intended to call Kierski, Long would have realized the State could prove the enhancement. The court of appeals concluded that Long lost the opportunity to attempt to plea bargain and “it is the lost opportunity that creates the undue prejudice in reopening the record and allowing an additional witness.” According to the court of appeals, by reopening the record after Long had been convicted of the instant offense, Long lost a viable trial strategy. Accordingly, the court of appeals held that “allowing Kierski's testimony violated rule 2.19(2), thereby resulting in surprise and unfair prejudice to Long, [and therefore] we find the district court abused its discretion in reopening the record.” The court remanded the case to the district court for a determination of whether the evidence offered prior to reopening the record was sufficient to support the enhancement. The State sought further review which we granted.

II. ...