                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0344
                               Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROGER McGHEE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Bethany J. Currie,

Judge.



      Roger McGhee appeals his convictions of third-degree sexual abuse,

lascivious acts with a child, and assault with intent to commit sexual abuse.

AFFIRMED.




      Martha Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

       A jury found Roger McGhee guilty of third-degree sexual abuse, lascivious

acts with a child, and assault with intent to commit sexual abuse. The district court

sentenced McGhee to prison terms not exceeding ten years, ten years, and two

years respectively, to be served consecutively. On appeal, McGhee (1) challenges

the sufficiency of the evidence to support the findings of guilt; (2) contends the

district court abused its discretion in admitting certain exhibits that he contends

were irrelevant or unfairly prejudicial; and (3) argues the district court considered

“unproven offenses when imposing consecutive sentences.”

I.     Sufficiency of the Evidence

       The jury was instructed the State would have to prove the following

elements of third-degree sexual abuse:

              1. On or about September 27, 2017, through February 5,
       2018, Roger McGhee performed a sex act with L.M.
              2. Mr. McGhee performed the sex act while L.M. was 12 or 13
       years of age.

The elements of lascivious acts with a child were as follows:

               1. On or about September 27, 2017, through February 5,
       2018, Mr. McGhee with or without L.M.’s consent:
                      a. Fondled or touched the pubes or genitals of L.M.; or
                      b. Permitted or caused L.M. to fondle or touch Mr.
               McGhee’s genitals or pubes.
               2. Mr. McGhee did so with the specific intent to arouse or
       satisfy the sexual desires of Mr. McGhee or L.M.
               3. Mr. McGhee was 18 years of age or older.
               4. L.M. was under the age of 14 years.

And the elements of assault with intent to commit sexual abuse were as follows:

              1. On or about September 27, 2017, through February 5,
       2018, Mr. McGhee assaulted L.M.
              2. Mr. McGhee did so with the specific intent to commit a sex
       act by force or against the will of L.M.
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       McGhee “denies that any of the three alleged sex offenses ever took place.”

He also argues the child “lack[ed] any credibility because she continually changed

her version of events.” A reasonable juror could have found otherwise.

       The child testified at trial and provided vivid and detailed descriptions of the

acts committed by McGhee. No useful purpose would be served by recounting the

acts. Suffice it to say a juror could have credited her testimony over McGhee’s

denial. See State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998) (“The credibility of

witnesses, in particular, is for the jury: ‘[t]he jury is free to believe or disbelieve any

testimony as it chooses.’” (alteration in original) (citation omitted)). The jury’s

finding of guilt is supported by substantial evidence. See State v. Folkers, __

N.W.2d ___, ___, 2020 WL 1649874, at *1 (Iowa 2020) (setting forth standard of

review).

       Substantial evidence exists notwithstanding the child’s admission that when

she first spoke to a forensic interviewer about the abuse, she “kind of lied and tried

to say that [her] mind had made up the memories.” The child explained that she

downplayed the abuse to ensure the well-being of people close to her. She

affirmed that she does not make up memories and never had an issue making up

memories.

       That said, many of the child’s statements during the first interview were

entirely consistent with her statements in the second interview and with her trial

testimony. And other witnesses corroborated key aspects of her testimony, as did

certain exhibits, which will be discussed next.
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II.     Admission of Exhibits

        McGhee challenges the court’s admission of certain sex-related evidence.

He argues the evidence “was not relevant and the probative value, if any, was

substantially outweighed by the danger of unfair prejudice.”           See Iowa Rs.

Evid. 5.401 (“Evidence is relevant if: (a) It has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) The fact is of

consequence in determining the action.”), 5.403 (“The court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice . . . .”).   Our review of the district court’s rulings is for an abuse of

discretion. See State v. Tipton, 897 N.W.2d 653, 691 (Iowa 2017) (“The district

court rulings on relevance of evidence are reviewable for abuse of discretion, as

are challenges to the admission of evidence under Iowa Rule of Evidence 5.403.”).

         In a discussion outside the presence of the jury, the prosecutor cogently

explained that the challenged evidence was offered to “corroborate [the child’s]

testimony” about “the things that she said” McGhee showed her. The district court

selectively admitted those sex-related exhibits that were referenced in the child’s

testimony. We discern no abuse of discretion in the court’s ruling.

III.    Sentencing

        The district court is required to state reasons for imposing consecutive

sentences. See State v. Hill, 878 N.W.2d 269, 274 (Iowa 2016). “[W]e will set

aside a sentence and remand a case to the district court for resentencing if the

sentencing court relied upon charges of an unprosecuted offense that was neither

admitted to by the defendant nor otherwise proved.” State v. Sailer, 587 N.W.2d

756, 762 (Iowa 1998) (quoting State v. Black, 324 N.W.2d 313, 315 (Iowa 1982)).
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       The district court explained its reasons for imposing consecutive sentences

as follows:

       The Court finds consecutive sentences to be appropriate under the
       circumstances of this case because the jury found there were
       separate and distinct acts committed justifying each charge, because
       of the nature of the offenses and the [relationship of the defendant to
       the child]. Despite what your attorney said, I believe that the child
       was repeatedly abused and this sentence is designed to reflect that.

(Emphasis added.)      McGhee contends the emphasized language evinces a

consideration of unproven offenses. We disagree. Although only one of the crimes

was denominated “sexual abuse,” all three involved “abuse” in the generic sense.

The three sex-related charges and the jury’s findings of guilt on all three support

the court’s reference to “repeated[] abuse[].” We conclude the court did not

consider unproven charges in imposing consecutive sentences.

       We affirm McGhee’s judgment and sentence.

       AFFIRMED.
