State v. Rankin, 53527

• Court: United States State Supreme Court of Iowa
• Writing for the Court: STUART; MOORE; BECKER
• Citation: 181 N.W.2d 169
• Parties: STATE of Iowa, Appellee, v. Larry Lamon RANKIN, Appellant.
• Docket Number: No. 53527,53527
• Decision Date: 10 November 1970

Page 169

181 N.W.2d 169 STATE of Iowa, Appellee,
v.
Larry Lamon RANKIN, Appellant. No. 53527. Supreme Court of Iowa. Nov. 10, 1970.

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Joseph L. Phelan, Fort Madison, and David B. Hendrickson, Keokuk, for appellant.

Richard Turner, Atty. Gen., James W. Hughes, Asst. Atty. Gen., and Robert B. Dickey, County Atty., of Lee County, for appellee.

STUART, Justice.

A Lee County jury convicted defendant of the crime of incest in violation of section 704.1, Code of Iowa. He was sentenced to a term not to exceed 25 years in the state penitentiary at Fort Madison. He assigns four errors on appeal. We affirm.

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I. In prosecutions for adultery, incest and statutory rape evidence of similar acts is admissible and may be considered as bearing upon the disposition and inclination of defendant to commit the act with which he is charged. State v. Beltz (1938), 225 Iowa 155, 159--161, 279 N.W. 386, 388--389; State v. Terry (1925), 199 Iowa 1221, 1228, 203 N.W. 232, 234; State v. Heft (1912), 155 Iowa 21, 36, 134 N.W. 950, 956; State v. King (1902), 117 Iowa 484, 489--491, 91 N.W. 768, 770; State v. Hurd (1897), 101 Iowa 391, 400, 70 N.W. 613, 616.

Defendant concedes evidence of similar acts was admissible in this case. However, he claims the trial court erred in not requiring the state to 'elect and prove a specific incident or a date certain when the act was supposed to have occurred'.

The testimony of the prosecutrix, defendant's eight year old adopted daughter, tended to prove defendant had carnal knowledge of her three or more times between June 17 and July 24, 1968. No attempt was made to prove a particular date on which any act took place. From her testimony, however, it would have been possible to specify one particular incident.

A thorough review of the record reveals defendant requested the state to elect 'a date with reference to day and month and year when the act it alleges the defendant to have committed was committed'. The trial court's ruling on the motion for new trial states that the basis urged by defendant was 'the failure of the court to require the state to make an election or require the state to prove that the act was committed on a day certain'.

Under Iowa law the state does not have to elect or prove a date certain in order to prove incest, statutory rape or adultery as the exact time of the act is not material. State v. Beltz, supra, 225 Iowa at 159, 279 N.W. at 388; State v. Speck (1926), 202 Iowa 732, 737, 210 N.W. 913, 915; State v. Sangster (1923), 196 Iowa 495, 496, 192 N.W. 155, 156; State v. Anderson (1908), 140 Iowa 445, 448, 118 N.W. 772, 774. Therefore the trial court did not err in failing to require the state to elect a date certain.

On appeal defendant claims error in failing to require the state to elect the Specific incident upon which it relied for conviction. Nowhere in any of defendant's motions or objections is there even an intimation of such request. If defendant desired such election he should have asked for it. The trial court's ruling was based on the understanding that the request was for the election of a date certain. As the motion was not specific enough to alert the trial court to the argument defendant makes on appeal, we will not consider the court's failure to require the state to elect a particular incident as a ground for reversal. The court had no opportunity to pass on this question. As a general rule, we do not reverse for reasons not urged in the trial court. State v. Mayhew (Iowa, 1969), 170 N.W.2d 608, 611; State v. Davis (1968), 261 Iowa 1351, 1356, 157 N.W.2d 907, 910; State v. Estrella (1965), 257 Iowa 462, 467, 133 N.W.2d 97, 100; State v. Torrence (1964), 257 Iowa 182, 192--193, 131 N.W.2d 808, 814; State v. Post (1963), 255 Iowa 573, 578--579, 123 N.W.2d 11, 14; State v. Van (1942), 232 Iowa 34, 39, 2 N.W.2d 748, 750.

We therefore need not examine the questions as to whether the trial court abused its discretion in failing to require the state to elect a specific incident or whether error if committed was prejudicial under this record.

II. Even if the matter is not properly raised in the trial court, we look to the whole record to determine if under the record defendant failed to receive a fair trial and should be granted a new trial in the interest of justice. Section 793.18, Code of Iowa; State v. Post (1963), 255 Iowa 573, 578--579, 123 N.W.2d 11, 14; State v. Martin (1952), 243 Iowa 1323, 1334--1335, 55 N.W.2d 258, 260--261.

We do not believe the fact that the state was not required to specify the particular incident upon which it relied for conviction

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deprived defendant of a fair trial. The reasons frequently given for requiring an election are (1) to enable defendant to prepare his defense, (2) to protect him by individualization of the issues in case a second prosecution is...