State v. Maestas, 57242

• Decision Date: 18 December 1974
• Docket Number: No. 57242,57242
• Citation: 88 A.L.R.3d 1,224 N.W.2d 248
• Parties: STATE of Iowa, Appellee, v. Joseph Raymond MAESTAS, Appellant.
• Court: Iowa Supreme Court

Page 248

224 N.W.2d 248

88 A.L.R.3d 1

STATE of Iowa, Appellee, v. Joseph Raymond MAESTAS, Appellant.

No. 57242.

Supreme Court of Iowa.

Dec. 18, 1974.

Porter, Heithoff, Pratt & Reilly, Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., Des Moines, and Lyle A. Rodenburg, County Atty., Council Bluffs, for appellee.

Heard by MOORE, C.J., and LeGRAND, REES, HARRIS and McCORMICK, JJ.

REES, Justice.

Defendant was charged by county attorney's information with the crime of committing lewd and lascivious acts in the presence and upon the body of a child under 16 years of age in violation of § 725.2, The Code, 1973. He was tried twice on the charge, the first trial resulting in the jury being discharged because it was unable to reach a verdict, the second trial resulting in a verdict of guilty. Defendant was sentenced, and now appeals. We affirm.

The evidence adduced at trial concerning the specific offense with which defendant was charged consisted solely of the testimony of Vivian Maestas, defendant's 12-year old daughter. Vivian testified that on the night of October 10, 1973, defendant entered her bedroom and began to 'feel her all over', then removed his own clothing, got into bed with her and proceeded to masturbate. Following a similar incident on October 12, Vivian reported the incidents to the police. She was subsequently placed in a foster home. Defendant testified at trial and denied Vivian's testimony in its entirety.

Vivian testified at trial to other such incidents which took place over the course of several years prior to October, 1973. Two of Vivian's older sisters also testified that defendant had sexually molested them on a number of occasions when they were living in the home, the last incidents in which they were involved having occurred six and ten years before, respectively. Vivian's older sisters did not testify in the first trial.

Defendant contends the trial court committed reversible error in: (1) overruling his demurrer to the county attorney's information attacking § 725.2, The Code, 1973, as unconstitutional for vagueness and overbreadth; and (2) permitting into evidence testimony that defendant had engaged in sexual activity with the two older sisters of the complaining witness.

I. Following the dismissal of the first jury on February 22, 1974 the cause was rescheduled for trial and a jury was empaneled and sworn on March 5, 1974, but trial did not commence until March 19, 1974. In the interim between the empaneling of the second jury and the actual commencement of trial on March 15, 1974, defendant filed his demurrer attacking the county attorney's information on the grounds § 725.2, The Code, 1973 was unconstitutional due to vagueness and overbreadth.

In his demurrer defendant contended the statute violated the First and Fourteenth Amendments to the United States Constitution for the reason it was so vague and overbroad as to fail to give fair notice to the average person of what it prohibited.

Several procedural questions are raised by the State, principally the contention defendant waived his constitutional objections to § 725.2 when he failed to file his demurrer attacking the statute until ten days after the jury empaneled to try the case had been sworn, as is required by § 773.3, The Code. The constitutionality of the statute was not assailed by the defendant prior to or during the conduct of the first trial.

Under our pronouncement in State v. Ritchison, Iowa, 223 N.W.2d 207 (opinion filed November 13, 1974), it is patent defendant's demurrer was not timely. He was required to challenge the constitutionality of § 725.2 at the earliest available opportunity in the progress of the case.

We therefore conclude plaintiff's contention the constitutional question was not timely raised is correct, and therefore hold defendant failed to preserve any error for review under this assignment.

II. In his remaining assignment of error defendant contends trial court erred in permitting into evidence the testimony of Vivian's married sisters, Darlene and Virginia (surnames deleted), concerning acts of sexual misconduct and actual intercourse committed on both of them by defendant. At time of trial, Darlene was 21 years of age and Virginia was 20.

Darlene was permitted to testify that her father, the defendant, had sexual intercourse with her on many occasions, the first when she was ten or twelve years of age. She testified the incidents of intercourse continued over a period of about a year until she ran away from home and was eventually placed in a foster home. It would appear, therefore, she was testifying to matters which had occurred some ten years prior to the time of trial.

Virginia was permitted to testify her father had had intercourse with her several times (she did not recall the exact number), the last such incident having occurred six years prior to the time of trial.

In its instructions to the jury, trial court submitted a cautionary instruction informing the jury the evidence defendant engaged in other acts similar to that with which he was charged could not be considered as evidence defendant actually committed the act for which he was being tried, but such testimony was admissible only to show a lustful disposition and desire on the part of defendant.

Under this assignment several issues arise: (1) whether evidence of prior sexual misconduct on the part of defendant with persons other than the complaining witness is admissible to show a lustful disposition and desire on defendant's part in a criminal action charging him under § 725.2, The Code, with committing lascivious acts on the body or in the presence of a child; (2) whether such evidence, although not admissible for that purpose, is nonetheless admissible as evidence of 'other crimes', showing a common scheme on the part of defendant embracing the commission of several crimes so related that proof of one tends to prove the other; and (3) whether such evidence, if admissible on one or the other of the foregoing grounds, should nonetheless have been excluded in the instant case because the prior incidents occurred at a time so remote as to have no probative force or value.

We have held that in a prosecution under § 725.2, The Code, trial court may properly admit testimony as to similar acts of misconduct by defendant With prosecutrix for the purpose of showing his lascivious and lewd disposition. State v. Kinkade, 241 Iowa 1259, 1261--1262, 43 N.W.2d 736, 738; State v. Neubauer, 145 Iowa 337, 345--346, 124 N.W. 312, 315. See also State v. Rankin, 181 N.W.2d 169, 171 (Iowa 1970)...