State v. Tesch

• Decision Date: 30 September 2005
• Docket Number: No. 04-0955.,04-0955.
• Citation: 704 N.W.2d 440
• Parties: STATE of Iowa, Appellee, v. Cory Alan TESCH, Appellant.
• Court: Iowa Supreme Court

704 N.W.2d 440

STATE of Iowa, Appellee, v. Cory Alan TESCH, Appellant.

No. 04-0955.

Supreme Court of Iowa.

September 30, 2005.

Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Jeffrey H. Greve, County Attorney, for appellee.

TERNUS, Justice.

Appellant, Cory Alan Tesch, appeals following his waiver from juvenile court and subsequent conviction and sentence on the charge of criminal mischief in the second degree in violation of Iowa Code sections 716.1 and 716.4 (2001). He claims the juvenile court abused its discretion in waiving its jurisdiction over him so that he could be tried as an adult in district court. He also claims his trial counsel rendered ineffective assistance by failing to object to victim impact statements given by persons whom Tesch claims were not "victims" under Iowa Code section 915.10(3). We affirm.

I. Factual Background.

On November 25, 2002, fifteen-year-old Tesch and two friends destroyed traffic warning signs, lights and barricades protecting a recently dug ten-foot-deep and twenty-five-foot-wide trench across both lanes of a hard-surface county road in Worth County. The juveniles were methodical in their efforts to destroy all warnings that might alert motorists traveling on this high-speed road of the impending danger. The defendant and his cohorts knocked over an eight-foot wooden barricade placed a mile south of the construction site that blocked the north-bound lane. Not only did they knock down the barricade, they also used a baseball bat to break the lights on the barrier, and they removed flags from the barricade. A second barricade placed a mile north of the trench blocking south-bound traffic was also knocked over and similarly vandalized by the juveniles. Immediately north and south of the trench were additional eight-foot barricades with an orange construction fence attached at both ends to completely block both lanes of traffic. The south barricade and fence were totally removed and put into the ditch by Tesch and his buddies. The north barricade had been moved but was not completely off the road; the fence had been cut with a knife.

In the early morning hours of November 26, 2002, a thirty-eight-year-old father of two, Randy Severson, was driving north on the road in question when he came upon the unmarked construction site and hole. Unaware of the danger, he drove into the trench. A county deputy discovered Severson's vehicle at approximately 7:00 a.m. that morning. Severson was severely injured, and was transported to Rochester in critical condition. His injuries included a fracture of the spine at the base of his skull requiring surgical intervention; a dislocated hip with significant breakage in the hip socket such that hip-replacement surgery would eventually be required; and pneumonia caused by Severson's breathing in debris from the ditch. Several weeks after the accident, Severson was still on a respirator, could not talk, could not move one of his legs, had only partial movement in his other leg, and was battling blood clots in his arms and legs. The extent of his recovery is not shown in the record, but clearly Severson sustained injuries that will have a life-long impact.

II. Underlying Proceedings.

A. Charges. On December 23, 2002, the State filed a delinquency petition charging Tesch with the delinquent act of criminal mischief in the first degree. The State subsequently filed an application for waiver of juvenile court jurisdiction. After receiving evidence from the State and Tesch, the juvenile court granted the State's application. The State then filed a trial information charging Tesch with criminal mischief in the second degree and assault causing injury. The court eventually dismissed these charges without prejudice.

On August 18, 2003, the State filed a second delinquency petition alleging Tesch had committed the delinquent acts of assault causing serious injury and assault while participating in a felony. This petition was later amended to add a charge of criminal mischief in the second degree. Again, the State filed an application to waive juvenile court jurisdiction, and a second hearing was held.

B. Waiver proceeding and ruling. Evidence at the waiver hearing showed that although Tesch had never been referred to juvenile court services prior to this incident, he had been a problem in the community in the previous year. Juvenile court officer (JCO) David Carlson learned from the local police chief that the chief had "seen" Tesch for driving without a license, disruptive behavior in a restaurant, tipping over a port-a-pot, spraying stop signs, damaging a vehicle, breaking holiday lights, vandalizing a school bus, and stealing pop cans.

According to a report from a school psychologist who had worked with Tesch for many years, Tesch was not successful academically and had had ongoing behavioral problems for many years that included "oppositional behavior with teachers, lack of respect for authority, and refusal to do school work." These problems continued during the 2002-2003 school year, when Tesch was disciplined for multiple instances of class disruption, theft, and disrespect to staff, as well as smoking and shooting an air pistol at a school night light. The school psychologist made the following pertinent observations concerning Tesch's response to discipline:

[Cory] has had the attitude that he can do as he pleases in school. . . . The consequences that have been administered by the school for negative behaviors have in my opinion made no impression on Cory. . . . In my opinion, if Cory is not given a serious consequence for his suspected criminal mischief activities, he will come to believe that it was "no big deal" and his behavior and conduct problems will continue or escalate. My concern here is for the safety of the community should a minimal consequence be administered by the court.

The school psychologist also shared his observations made during a disciplinary hearing conducted by the school in connection with Tesch's school infractions. The psychologist said:

From questioning Cory, his mother, a mentor, and school personnel, it was concluded that Cory was completely aware of and understood the consequences of his actions with respect to recent criminal activity that he has admitted to and further, that he does not possess any disability that would impair his ability to control the behaviors in question. Cory was for the most part very unresponsive and expressionless during this process and made no expressions of remorse.

The JCO reported on his investigation, as well as his conclusions concerning Tesch's culpability. The JCO believed Tesch and his friends knew the barricades protected motorists traveling on this high-speed road from driving into a large trench. Moreover, "because of the time it took to do the criminal mischief," the JCO thought the "three offenders all had opportunity to consider what they were doing and change their minds." The JCO testified that although the services available to Tesch in the juvenile system and the adult criminal system were very similar, he was convinced Tesch's prospects for rehabilitation in the juvenile system were minimal due to the limited time the juvenile court would have jurisdiction before Tesch turned eighteen. According to the JCO, under adult jurisdiction, Tesch could receive lengthier supervision, and if he became noncompliant, he could be sentenced to confinement. The JCO believed Tesch's compliance would be more forthcoming if Tesch knew he faced prison rather than the consequences available through the juvenile system. For these reasons, the JCO concluded adjudication in the district court was also in the best interest of the community because it would offer a better opportunity for Tesch to make more positive choices for a longer period of time, providing more assurance to the community that Tesch would be law abiding in the future.

The defendant's current teacher was also called to testify. She informed the court that Tesch had been transferred to a learning center in January 2003. Initially, Tesch continued to do poorly academically, but since August 2003, his grades had improved. While at the learning center, the defendant's attendance had been excellent, and other than impulsiveness in the classroom, Tesch had not had any significant behavioral problems. The defendant's teacher opined that Tesch's efforts to change were sincere, and that juvenile court supervision was an appropriate option for Tesch.

The defendant also introduced a report from licensed psychologist Dr. Amy Timm, whose assessment was for the most part consistent with the State's position. Her tests revealed that Tesch had a below-average IQ, low self-worth, low aspirations, and difficulty with authority. In contrast to the observations of the State's witnesses, however, Dr. Timm reported that Tesch had engaged in the delinquent acts out of boredom, was unaware that anyone would be hurt by his actions, and now felt "really, really, bad." She also noted that since being charged as a result of the incident in question, Tesch had remained law abiding and had adjusted well to his new school environment. Her final diagnosis was oppositional defiant disorder, attention deficit hyperactivity disorder—predominate impulsive type, and borderline intellectual functioning. She concluded:

Cory has the cognitive ability to understand that his behavior was illegal and would have consequences. However, his high level of impulsiveness, compliance to deviant peers, strong need for acceptance and low self-esteem make it likely that he will continue to struggle with such behavior. This will continue to occur in new situations where delinquent peers are present unless attempts are made. Given the lack of previous interventions and Cory's presenting concerns, some

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