The defendant, Joseph F. Laffey, appeals his judgments of conviction and sentences for two counts of second-degree sexual abuse. See Iowa Code § 709.3(2) (1995). Laffey asserts that the evidence was insufficient to support the jury’s finding that he committed a sex act with the minor victims. Laffey also claims his counsel rendered ineffective assistance in failing to object to several courtroom procedures that Laffey contends violated his Sixth Anendment right of confrontation. See U.S. Const, amend. VI. Finally, Laf-fey challenges his consecutive sentences, alleging that they violate the Eighth Amendment prohibition against cruel and unusual punishment, see U.S. Const, amend. VIII, and that the court abused its discretion by making the sentences consecutive.
We affirm Laffey’s convictions, preserving for postconviction relief his claim of ineffective assistance of counsel. We find merit in Laffey’s contention that the trial court abused its discretion by relying on
I. Background Facts and Proceedings.
Laffers convictions arise from an incident allegedly occurring in early December 1996, when he engaged two young girls, ages five and six, in a sex act. Neither girl told anyone about what had happened, however, until the following March. At that time, the girls initially stated that they had seen the defendant without his pants on and that he was “playing with his crotch.” Upon further questioning by employees at the Child Protection Center (CPC), the girls revealed that Laffey had them touch and stroke his penis while he was lying on the bed.
When confronted with these allegations, Laffey related an incident that had occurred when the girls had stayed overnight at his home. He stated that the next morning after he had showered, the children entered his bedroom before he had put his pants on. He told the girls to leave and they did, according to Laffey.
The State charged Laffey with two counts of second-degree sexual abuse. At trial, the victims testified consistently with their interviews at CPC. The jury returned guilty verdicts on both charges. The judge sentenced the defendant to indeterminate, twenty-five-year terms of imprisonment for each crime, ordering that these sentences be served consecutively. Laffey subsequently filed this appeal.
II. Was the Evidence Sufficient to Support a Jury Finding that Defendant Performed a Sex Act With the Two Minor Children?
A. Description of defendant’s claim of insufficiency. To prove a charge of second-degree sexual abuse, the State was required to establish the performance of a sex act with a child under the age of twelve. . See Iowa Code §§ 709.1(3), .3(2). As there was no dispute with respect to the victims’ ages, the defendant challenges only the sufficiency of the evidence to prove the performance- of a sex act. A sex act includes “any sexual contact between two or more persons by ... contact between the finger or hand of one person and the genitalia or anus of another person.” Id. § 702.17.
Laffey claims on appeal that the district court erred in overruling his motion for judgment of acquittal. He argues that the evidence was insubstantial and the jury could not have found him guilty beyond a reasonable doubt based on several facts: (1) the inconsistency of the victims’ initial statements with their later statements at CPC and at trial; (2) the inconsistencies between the two victims’ trial testimony; (3) the leading nature of the questions posed to the victims by the CPC employees; (4) the inconsistency in the statements made by the mother of one of the victims with respect to the date of the occurrence; and (5) the inconsistent testimony from the trial witnesses with respect to the date of the occurrence.
B.
Standard of review.
We will uphold the denial of a motion for judgment of acquittal based on the insufficiency of the evidence if there is substantial evidence in the record to support the defendant’s convictions.
See State v. McPhillips,
The court considers all the evidence, not just that supporting the verdict.
See State v. Robinson,
C. Discussion of sufficiency of the evidence. Upon our review of the record, we conclude the evidence is adequate to support the jury’s finding that the defendant performed a sex act with the minor victims. It is true that the girls did not reveal the sexual abuse until their interviews at CPC and that the employees there used leading questions to elicit information from the children. Nevertheless, the jury could have reasonably believed that the later version of the incident was more believable than the initial story that the girls had merely seen the defendant without any pants on.
The girls’ descriptions of the circumstances of the sex act itself were detailed and consistent: Laffey only had on a t-shirt; he had them get on the bed with him; he had both of them stroke his penis; and he wiped himself off with a towel after he “went to the bathroom” on his stomach. Admittedly, there were also inconsistencies in their testimony: they disagreed as to whether one or both of them were also undressed, whether the defendant’s wife was home, and whether the discharge from the defendant’s penis was yellow or white. These differences, however, do not necessarily render their testimony with respect to the nature of their contact with the defendant unbelievable. Therefore, the victims’ credibility was for the jury to decide.
See State v. Romeo,
We also reject the defendant’s argument that the confusion among the witnesses as to when this incident occurred fatally undermines the jury’s finding of guilt. Although the witnesses disagreed as to the date that the children stayed at the Laffey home, no one disputed that the girls had on one occasion spent the night there. Under these circumstances, any uncertainty as to the precise date is immaterial.
See State v. Rankin,
III. Inejfective-Assistance-of-Counsel Claim.
Laffey asserts he received ineffective assistance from his trial counsel in three ways: (1) counsel agreed that the defendant would sit in a position blocking his view of not only the child witnesses, but all trial witnesses; (2) counsel did not object to the court’s failure to administer an oath to the child witnesses; and (3) counsel failed to object to the relaxation of courtroom decorum and formality when the children testified. He claims these incidents violated his Sixth Amendment right to confront the witnesses against him. See U.S. Const, amend. VI.
To succeed on his ineffective-assistance-of-counsel claim, the defendant has the burden to prove by a preponderance of the evidence that his trial counsel failed in an essential duty, and that prejudice resulted from this failure.
See McPhillips,
We think the present record is not adequate to allow the court to determine whether trial counsel failed in an essential duty. The inadequacy of the record stems from the principle that “[ijmprovident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective assistance of counsel.”
Osborn v. State,
IV. Do the Defendant’s Consecutive Sentences Constitute Cruel and Unusual Punishment Under the Eighth Amendment?
The defendant claims that the court’s decision to make his sentences run consecutively violates the Eighth Amendment’s prohibition of cruel and unusual punishment.
See
U.S. Const, amend. VIII. He points out that he will have to serve forty-two and one-half years before he can be released.
See
Iowa Code §§ 902.12, 903A.2 (1997). Because he will be eighty years old by then, he characterizes his punishment as a lifetime sentence. Laffey also argues that his punishment is significantly more severe than that imposed for other, more grievous, crimes of sexual abuse. We review this constitutional claim de novo.
See State v. Hunter,
We recently considered a similar claim in
State v. August,
In August, we held that a twenty-five-year term of imprisonment for second-degree kidnapping, to be served consecutively to a twenty-five-year term for first-degree robbery, did not violate the Eighth Amendment. Id. at 744. We stated that “[t]here is nothing cruel and unusual about punishing a person committing two crimes more severely than a person committing only one crime, which is the effect of consecutive sentencing.” Id.
The same result is mandated here. Laffey committed two serious crimes-the sexual abuse of two young children. That severe and lasting emotional harm can result to these helpless victims makes the crime especially egregious and deserving of a severe punishment. Therefore, we conclude Laffey’s consecutive sentences do not give rise to an inference of gross dis-proportionality. The fact that these sentences may mean that Laffey serves the remainder of his life in prison is not a factor in our analysis.
See id.
at 743-44 (rejecting the defendant’s request that an individualized assessment of the severity of
V. Did the Trial Court Abuse its Discretion in Sentencing the Defendant?
The defendant challenges the trial court’s exercise of discretion in imposing consecutive sentences on several grounds. Because we conclude the defendant’s sentence must be vacated based on the trial court’s consideration of an improper factor, we address only that issue.
At the sentencing hearing, the prosecutor argued that consecutive sentences were appropriate because the victims were only five and six years old and the State would have difficulty explaining to one of the victims why the crime against her did not require punishment when the crime against the other child did. In choosing to impose consecutive sentences, the trial court noted several sentencing considerations. Among the court’s considerations was the argument made by the county attorney: “also the Court considers the statements of the county attorney, which I have thought of myself, as to how do you explain to young people that the same crime is committed against them, but no punishment is given.”
We review the court’s sentencing decision for an abuse of discretion.
See State v. Privitt,
We hold that the difficulty that might be experienced in explaining the rationale of concurrent versus consecutive sentencing to young victims is an impermissible factor to consider in determining an appropriate sentence. This difficulty does not go to the nature or severity of the offense; it is unrelated to the circumstances of the crime; it does not reflect on the defendant’s character or propensities, or on his chances for reform or rehabilitation; and it has no bearing on the court’s duty to protect the community from further offenses by the defendant or others. The fact that the court also considered other, permissible factors in sentencing the defendant does not make the court’s reliance on this impermissible consideration of no consequence.
See State v. Remmers,
CONVICTIONS AFFIRMED, SENTENCES VACATED, AND CASE REMANDED FOR RESENTENCING.
