                    IN THE COURT OF APPEALS OF IOWA

                                 No. 4-009 / 12-2138
                                 Filed March 12, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEMARRIO DESHON WRIGHT,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer

and Bradley J. Harris, District Court Judges.



      Appellant appeals his conviction for sexual abuse in the second degree,

sexual abuse in the third degree, and indecent contact with a child. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                         2



MCDONALD, J.

       Demarrio Wright appeals his conviction of sexual abuse in the second

degree, sexual abuse in the third degree, and indecent contact with a child, in

violation of Iowa Code sections 709.3, 709.4, and 709.12(1) and (2) (2011),

respectively. He contends the district court erred in allowing the jury to hear

testimony regarding an additional instance of sex abuse between Wright and the

victim, where the additional instance of sex abuse was not part of the conduct

underlying the charges in this proceeding. He also contends his trial counsel

was constitutionally ineffective for failing to move to dismiss or otherwise

challenge the trial information as being untimely filed in violation of Iowa Rule of

Criminal Procedure 2.33(2)(a).

                                         I.

       On August 15, 2011, a complaint was filed in Black Hawk County accusing

Wright of the crime of lascivious acts with a child, in violation of Iowa Code

section 709.8(2). A warrant for his arrest on that charge was issued the same

date. At the time the arrest warrant was issued, Wright was on probation in Polk

County under the supervision of the Fifth Judicial District Department of

Correctional Services (“DCS”). An investigator in the Black Hawk County case

notified DCS of the outstanding warrant. The DCS Fugitive Team executed the

warrant on August 17, 2011, arrested Wright, and placed him in the custody of

the Polk County Sheriff. After his arrest, Wright’s probation officer filed a report

of violations in Wright’s Polk County probation case. Wright remained in the

custody of the Polk County Sheriff on a no-bond hold until his Polk County
                                           3



probation violation matter was resolved on October 21, 2011. The Polk County

Sheriff then released Wright to the Black Hawk County detainer.

       On October 31, 2011, the State filed its trial information in Black Hawk

County, charging Wright with the following: sexual abuse in the third degree, in

violation of Iowa Code section 709.4; lascivious acts with a child, in violation of

section 709.8(1); and indecent contact with a child, in violation of section

709.12(1). Wright’s trial counsel moved to dismiss the information on the ground

the State failed to file the trial information within forty-five days of Wright’s arrest,

in violation of Iowa Rule of Criminal Procedure 2.33(2)(a). The court granted the

motion with respect to the charge of lascivious acts with a child.            The court

denied the motion with respect to the remaining charges.

       On July 31, 2012, the State filed an amended trial information charging

Wright with the following: sexual abuse in the second degree, in violation of

section 709.3; sexual abuse in the third degree, in violation of section 709.4; and

indecent contact with a child, in violation of section 709.12(1) and (2).           The

matter went to trial, and on October 2, 2012, a jury found Wright guilty of all three

counts.

                                           II.

       Wright was charged with committing sex abuse against and having

indecent contact with his daughter, M.W., on several occasions between 2005

and 2010. M.W. was born to Wright and Q.M. in 1997. M.W. lived with her

mother in a small house in Waterloo where M.W. shared a bedroom with her

younger brother. Wright resided at the home on an irregular basis.
                                        4



      The trial testimony showed that Wright’s abuse of M.W. began in 2005,

when M.W. was eight years old. Early one morning in 2005, Wright woke M.W.

up and asked her to come from her bedroom and lay on the couch with him, and

she did. M.W.’s mother already was at work. M.W.’s younger brother remained

sleeping in the shared bedroom. After M.W. lay on the couch with Wright, Wright

took off M.W.’s pajama bottoms, touched M.W.’s thighs with his hands, and

digitally penetrated her vagina. After about five minutes, Wright stopped and told

M.W. to go wash up and get ready for school. On another occasion, Wright

entered M.W.’s bedroom while she was sleeping. He woke M.W. up and rubbed

her thighs and vaginal area over her clothing. The testimony showed that Wright

continued to wake M.W. up and touch her inappropriately on other occasions.

The abuse stopped while M.W. was still eight years old when Wright stopped

coming to the house.

      When M.W. was nine years old, her school had a “good touch/bad touch”

lesson. M.W. filled out a questionnaire and stated she had experienced a “bad

touch.” M.W. was sent to the school guidance counselor to whom M.W. revealed

the abuse.    The guidance counselor called M.W.’s mother and the Iowa

Department of Human Services (“DHS”). M.W.’s mother took M.W. home and

discussed the incident with M.W. and Wright. Wright became angry at M.W.

when he heard what M.W. had told the guidance counselor. The mother did not

believe M.W.’s story. When DHS came to interview M.W., she told DHS that no

abuse had occurred. M.W. testified she did this because she did not want her

parents to be mad at her.
                                          5



       When M.W. was twelve years old, Wright moved from Waterloo to Des

Moines. On occasion, he came back to Waterloo and stayed with the family. In

2010, when M.W. was thirteen years old, her uncle finished a bedroom in the

basement of the mother’s house so that M.W. would have her own bedroom. A

few weeks prior to Thanksgiving 2010, Wright came to the residence late one

evening and entered M.W.’s bedroom in the basement. Wright, appearing to

M.W. to be intoxicated, turned on the television and went to M.W.’s bed. Wright

rubbed M.W.’s thighs and vaginal area over M.W.’s clothes.               Wright then

removed M.W.’s pants, and began licking M.W.’s vagina. Wright then digitally

penetrated M.W.’s vagina. He unsuccessfully attempted to insert his erect penis

into M.W.’s vagina. Wright eventually left M.W.’s room and the house. M.W. did

not tell her mother because M.W. was afraid her mother would not believe her.

       At trial, Wright’s counsel attempted to exclude testimony regarding

another uncharged incident of sex abuse committed by Wright against M.W.

Prior to trial, Wright filed a motion in limine seeking to prevent testimony

regarding an incident of sexual abuse that allegedly occurred while Wright and

M.W. were visiting relatives in Mississippi. At trial, the district court overruled the

motion in limine. A mistrial was declared for other reasons. Prior to selecting a

new jury, the district court affirmed that its ruling on the motion in limine would

apply. The trial testimony showed that two weeks after the incident occurring in

M.W.’s basement bedroom, Wright brought M.W. and her brother to visit Wright’s

mother in Mississippi for Thanksgiving. While there, M.W. slept in the living room

along with her brother and another relative. On Thanksgiving, Wright became
                                            6



intoxicated and left the house for a period of time only to return while everyone in

the house was asleep. Wright woke up M.W. and asked her to come into the

dining room with him, which was separated from the living room by a curtain.

Once there, Wright began kissing M.W.’s neck and rubbing M.W.’s vaginal area

over her clothes. Wright then took off M.W.’s pajama pants and began licking

her vagina.      He then digitally penetrated her vagina and unsuccessfully

attempted to insert his erect penis into M.W.’s vagina. After Wright stopped,

M.W. went into the bathroom, called her mother, and told her what happened.

M.W.’s mother then spoke to Wright’s mother about M.W.’s report. They decided

that M.W. would ride back to Iowa with M.W.’s aunt instead of Wright.

       M.W.’s maternal grandmother learned of this incident and contacted DHS.

After that meeting, DHS involved local police to investigate.

                                           III.

                                           A.

       Wright contends the testimony regarding the incident in Mississippi should

have been disallowed. Because the charges against Wright did not encompass

this specific act of abuse, Wright contends that the incident in Mississippi

constituted a “prior bad act” that was unfairly prejudicial.1 “We review rulings on




1
  Because the uncharged Mississippi incident occurred after the conduct for which
Wright was charged, the Mississippi incident is a subsequent bad act. Our analysis of
the admissibility of a “subsequent bad act” is the same as a “prior bad act.” See State v.
Munz, 355 N.W.2d 576, 581 (Iowa 1984) (stating “in sex abuse cases . . . subsequent
acts are as probative as those prior to the date of the charged offense”); State v.
Puffinbarger, No. 06-0779, 2008 WL 508404, at *2 (Iowa Ct. App. Feb. 27, 2008) (“In our
view, the fact that the acts occurred after the charged act rather than before does not
render the evidence less probative because it still bore on the nature of the relationship
                                            7



the admission of evidence of prior bad acts for an abuse of discretion.” State v.

Reyes, 744 N.W.2d 95, 99 (Iowa 2008). “An abuse of discretion will be found

when the court exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable.” State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994).

       “A court may admit evidence of prior bad acts when it determines (1) the

evidence is relevant and material to a legitimate issue in the case other than a

general propensity to commit wrongful acts, and (2) the probative value of the

evidence is not substantially outweighed by the danger of unfair prejudice to the

defendant.”    State v. Cox, 781 N.W.2d 757, 761 (Iowa 2010) (citation and

quotation marks omitted) (emphasis in original).         Regarding the admission of

prior acts of sexual abuse, the Iowa Code provides the following:

       In a criminal prosecution in which a defendant has been charged
       with sexual abuse, evidence of the defendant’s commission of
       another sexual abuse is admissible and may be considered for its
       bearing on any matter for which the evidence is relevant. This
       evidence, though relevant, may be excluded if the probative value
       of the evidence is substantially outweighed by the danger of unfair
       prejudice, confusion of the issues, or misleading the jury, or by
       considerations of undue delay, waste of time, or needless
       presentation of cumulative evidence. This evidence is not
       admissible unless the state presents clear proof of the commission
       of the prior act of sexual abuse.

Iowa Code § 701.11(1) (2011). Direct testimony from the victim of the prior

abuse is sufficient “clear proof” to meet the requirements of this section. See

Reyes, 744 N.W.2d at 101.

       In the present case, there was a legitimate issue as to whether the abuse

of M.W. actually occurred. Wright testified on his own behalf and denied the


between [defendant] and [victim].”). For the sake of simplicity, we will continue to refer
to the incident as a “prior bad act.”
                                          8



allegations. He testified that M.W. dreamed the events. M.W.’s testimony and

Wright’s testimony were crucial because the physical evidence of sexual abuse

was inconclusive.      Therefore, testimony of another incident of sexual abuse

corroborated by a contemporaneous report of the same was relevant to whether

the charged conduct actually occurred. See State v. Spaulding, 313 N.W.2d 878,

880 (Iowa 1981) (stating a legitimate issue in the case can include the need to

show that the defendant had “a passion or propensity for illicit sexual relations

with the particular person concerned in the crime on trial”); State v. Davis, No.

06-1496, 2007 WL 4553477, at *2 (Iowa Ct. App. Dec. 28, 2007) (“[T]he details

concerning the prior abuse were relevant to legitimate issues in dispute. Davis

completely denied the charged sexual abuse and physical evidence was

inconclusive . . . .    Davis claimed [victim] fabricated the story . . . .   Thus,

evidence showing Davis had a “passion or propensity” for [victim] and was

therefore motivated to engage in the charged sexual acts with her is made more

or less probable by the details of the earlier sexual abuse.”); State v. Paulson,

No. 06-0141, 2007 WL 461323, at *4 (Iowa Ct. App. Feb. 14, 2007) (“[T]he

defendant completely denied any sexual abuse of [the victim], which directly

contradicted [the victim’s] description. Therefore, the need for other evidence

was substantial.”).

       It cannot be said that the probative value of the prior bad act was

substantially outweighed by the danger of unfair prejudice to Wright.          The

uncharged conduct was similar in nature to the charged conduct occurring in

M.W.’s bedroom two weeks prior—both incidents involved Wright digitally
                                        9



penetrating, licking, and attempting to insert his erect penis into M.W.’s vagina.

Thus, the nature of the prior bad act is no more egregious or inflammatory than

the charged conduct and was unlikely to unfairly inflame the passions of the jury.

See State v. Larsen, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993) (analyzing the

“comparative enormity” of the charged offense with uncharged conduct and

concluding the uncharged crime “did not involve conduct any more sensational or

disturbing” than the charged crime so as to warrant exclusion”). Further, the

State did not spend a significant amount of time developing testimony regarding

the prior bad act during trial. See Reyes, 744 N.W.2d at 100 (holding evidence

of prior bad act admissible where testimony was “concise, direct, and

noninflamatory, and of a nature similar to that in the underlying charge” and “was

not of a nature that would have incited ‘overmastering hostility’ toward [the

defendant]”) (citation omitted); State v. White, 668 N.W.2d 850, 855 (Iowa 2003)

(holding testimony regarding prior bad act properly admitted where 1) prior act

was not the focus on the trial, 2) the evidence of the prior act was “not likely to

arouse the jury’s sense of horror,” and 3) prior act was no more brutal than

defendant’s acts at issue in the case); State v. Coleman, No. 02-0423, 2003 WL

21919175, at *2 (Iowa Ct. App. Aug. 13, 2003) (holding allowing evidence of prior

bad act was not an abuse of discretion where both acts involved “identical

individuals, the identical location, similar circumstances, and similar conduct”);

Davis, No. 06-1496, at *3 (“[T]hough the nature of Davis’s prior bad acts could

tend to raise the passion of the jury, the specific prior bad acts were not more

prejudicial than the evidence concerning the actual crime charged.”).
                                         10



       Two additional factors also mitigate the potential for unfair prejudice. First,

the close temporal proximity between the Mississippi incident and the charged

conduct makes the prior bad act more probative than prejudicial. See State v.

Sullivan, 679 N.W.2d 19, 29 (Iowa 2004) (finding that an allegation of a prior bad

act which occurred three years prior to the charged crime was so remote as to

cast doubt on the weight of the evidence).           Second, the trial court gave

appropriate limiting instructions:

       You have heard evidence that the defendant allegedly committed
       other acts with [M.W.] in Mississippi. If you decide the defendant
       committed these other acts, you may consider those acts only to
       determine whether the defendant has a sexual passion or desire for
       [M.W.]. You may not consider them as proving that the defendant
       committed the acts charged in this case.

“We have often recognized the importance limiting instructions have in

minimizing prejudice.” State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005). “It is

only in extreme cases that such an instruction is deemed insufficient to nullify the

danger of unfair prejudice.” State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988)

(“Here, the district court, with a cautionary instruction, very carefully explained

the purpose of the challenged evidence as it related to the issue of consent and

admonished the jury that it must not convict [defendant] because of this

evidence.”).

       Ultimately, “whether evidence of prior crimes should be admitted is a

judgment call on the part of the trial court.” State v. Rodriquez, 636 N.W.2d 234,

240 (Iowa 2001). As the Rodriguez court noted:

       Analyzing and weighing the pertinent costs and benefits [of
       admitting prior acts evidence] is no trivial task. Wise judges may
       come to differing conclusions in similar situations. Even the same
                                         11



       item of evidence may fare differently from one case to the next,
       depending on its relationship to the other evidence in the case, the
       importance of the issues on which it bears, and the likely efficacy of
       cautionary instructions to the jury. Accordingly, much leeway is
       given trial judges who must fairly weigh probative value against
       probable dangers.

Id. (quoting 1 John W. Strong, McCormick on Evidence § 185, at 647–48 (5th ed.

1999)).   Under the facts and circumstances of this case, we cannot say the

district court abused its discretion in allowing testimony regarding Wright’s

subsequent sex abuse of the same victim.

                                         B.

       Wright next contends his counsel was ineffective for “failing to continue to

challenge” the charges of sexual abuse in the trial information and amended trial

information on speedy indictment grounds.        We typically resolve ineffective-

assistance-of-counsel claims after postconviction-relief proceedings. See State

v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). When such claims are presented

on direct appeal, however, the “court may decide the record is adequate to

decide the claim or may choose to preserve the claim for determination under

chapter 822.” Iowa Code § 814.7(3). Where, as here, the record is sufficient to

permit a ruling, we will address the claim on direct appeal. See Maxwell, 743

N.W.2d at 195. We review claims of ineffective assistance of counsel de novo.

See Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).

       To establish a claim for ineffective assistance of counsel, Wright must

show “(1) his trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Failure

to prove either element is fatal to an ineffective-assistance claim. See State v.
                                         12



Graves, 668 N.W.2d 860, 869 (Iowa 2003). With respect to the prejudice prong,

the ultimate inquiry is whether trial counsel’s allegedly deficient performance

caused a complete “breakdown in the adversary process” such that the

conviction is unreliable.   See Strickland v. Washington, 466 U.S. 668, 687

(1984).   This requires the defendant to establish “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Lamasters v. State, 821 N.W.2d 856,

866 (Iowa 2012) (quoting Strickland, 466 U.S. at 694).

       “Iowa’s speedy indictment rule ensures the enforcement of the United

States and Iowa Constitutions’ speedy trial guarantees, which assure the prompt

administration of justice while allowing an accused to timely prepare and present

his or her defense.” State v. Utter, 803 N.W.2d 647, 652 (Iowa 2011). Given the

procedural posture of this case, if trial counsel failed to file a meritorious motion

to dismiss the amended trial information, there can be no doubt this would

constitute prejudice. See id. at 654 (“The remedy for a violation of the speedy

indictment rule is an absolute dismissal of the charge with prejudice and a

complete bar from reindicting the defendant again on the same offense and

lesser-included offenses thereof.”). We thus address the question of whether the

challenge was meritorious and whether counsel breached an essential duty owed

Wright by failing to challenge the sexual abuse charges.

       The exact nature of Wright’s claim is unclear.        Wright’s trial counsel

moved to dismiss the trial information on the grounds that the trial information

was not timely filed. The district court granted the motion with respect to the
                                         13



charge of lascivious acts with a child, but the district court denied the motion with

respect to the counts of sexual abuse and indecent contact with a child. We are

not sure what more Wright believes trial counsel was constitutionally compelled

to do. To the extent that he contends counsel was required to file a motion to

reconsider or other similar motion, we conclude there is no such duty. To the

extent Wright claims counsel breached an essential duty by not resisting the

amended trial information or not moving to dismiss the amended trial information

on speedy indictment grounds, the claim is without merit.

       “Our speedy indictment rule is activated when an adult is arrested for the

commission of a public offense and an indictment is not found against the person

within forty-five days.” State v. Edwards, 571 N.W.2d 497, 499 (Iowa Ct. App.

1997) (alteration omitted) (citation and quotation marks omitted).        The plain

language of rule 2.33 “restricts the speedy indictment mandate to the offense or

offenses for which the defendant was arrested, and does not extend to a different

offense not charged in the complaint related to the arrest.” Edwards, 571 N.W.2d

at 499. Here, the complaint related to the warrant executed in August 2011

accused Wright only of the crime of lascivious acts with a child. The speedy

indictment rule was activated with respect to that charge, which the district court

dismissed on trial counsel’s motion.        The speedy indictment rule was not

activated as to the sexual abuse charges.

       Wright contends that the speedy indictment rule extends to other offenses

that are in similar in nature to the offense for which the defendant was arrested.

Wright’s argument is not supported by the plain language of rule 2.33 or case
                                        14



law. Our cases make clear that the speedy indictment rule is offense specific:

the forty-five day period does not commence for the charged offense until such

time as the defendant is arrested for that offense. This is true even where the

defendant was arrested for a similar but distinct offense arising from the same

circumstances as the charged offense.        See id.; see also State v. Lies, 566

N.W.2d 507, 509 (Iowa 1997) (“We conclude conspiracy to commit burglary is

neither the same offense as the burglary for which defendant was arrested nor a

lesser-included offense; therefore, the trial information charging defendant with

conspiracy to commit burglary was timely pursuant to rule 27(2)(a).”); State v.

Sunclades, 305 N.W.2d 491, 494 (Iowa 1981) (“Under the Burton standard the

time period applies only to the ‘public offense’ for which the defendant was

arrested, rather than to all offenses arising from the same incident or episode.”).

       To determine whether the offense for which defendant was arrested is a

different offense than the offense charged, we look to the elements of the

offenses.   See State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974) (using

essential elements test). Sexual abuse in the second- and third-degree, the

offenses in the amended trial information, are separate and distinct from

lascivious acts with a child, the offense for which defendant was arrested. See

State v. Capper, 539 N.W.2d 361, 367 (Iowa 1995) (holding lascivious acts was

not a lesser included offense of sexual abuse because it “requires] the defendant

act with the specific intent to arouse or satisfy sexual desires, an element not

required to prove the greater offense of sexual abuse”), abrogated on other

grounds by State v. Hawk, 616 N.W.2d 527 (Iowa 2000).
                                        15



      Accordingly, any continuing challenge to the charges of sexual abuse

would have been without merit. Trial counsel had no duty to file a meritless

resistance or motion. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)

(“We have held that counsel has no duty to raise an issue that has no merit.”).

                                       IV.

      For the foregoing reasons, the judgment of the district court is affirmed.

      AFFIRMED.
