                       IN THE COURT OF APPEALS OF IOWA

                                      No. 13-1538
                                 Filed August 13, 2014

IN THE INTEREST OF

C.R., Minor Child,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Chickasaw County, Alan D. Allbee,

Associate Juvenile Judge.



       A juvenile appeals his adjudication for sexual abuse in the second degree

and indecent exposure. AFFIRMED.



       David A. Kuehner of Eggert, Erb, Mulcahy & Kuehner, P.L.L.C., Charles

City, for appellant.

       Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, W. Patrick Wegman, County Attorney, and Mark Huegel, Assistant

County attorney, for appellee.



       Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.

       C.R. appeals his adjudication for sexual abuse in the second degree and

indecent exposure. He claims the court erred in adjudicating him delinquent for

indecent exposure because the State failed to prove the fourteen-year-old victim

was offended.    C.R. also claims his attorney rendered ineffective assistance

when counsel failed to object to several evidentiary issues—hearsay and the

State asking a witness to comment on the credibility of another witness.

I. BACKGROUND FACTS AND PROCEEDINGS

       On the night of March 15, 2013, C.R. and several other children were

riding in a vehicle driven by C.R.’s aunt. They were returning home from a

school carnival. C.R., then age fourteen, was sitting in the right rear passenger

seat of the vehicle. Also in the rear seat were the victims D.C. and C.S., then

age fourteen and eight, respectively. D.C. was sitting in the left rear passenger

seat and C.S. was sitting in the middle, next to C.R. At some point during the trip

C.R. unzipped his pants and exposed his penis, which was witnessed by D.C.

She turned away and looked out the window. C.R. proceeded to cover his crotch

area with a hat, and then pulled C.S.’s hand under the hat and onto his penis.

Neither victim immediately reported the incident to the driver of the vehicle. After

being dropped off at her home, D.C. told her mother about C.R.’s actions in the

car.

       Following an adjudicatory hearing and a dispositional hearing, the juvenile

court placed C.R. on probation for committing sexual abuse in the second
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degree, in violation of Iowa Code sections 709.1 and 709.3 (2013), and indecent

exposure, in violation of section 709.9 . He filed a timely notice of appeal.

II. SCOPE AND STANDARDS OF REVIEW

       Our review of delinquency proceedings is de novo. In re A.K., 825 N.W.2d

46, 49 (Iowa 2013).         Delinquency proceedings differ from the criminal

prosecution of a child. Id. They are special proceedings where the best interests

of the child is the objective. Id. While we give weight to the juvenile court’s

factual findings, especially regarding the credibility of witnesses, we are not

bound by them. Id. Our review of ineffective-assistance-of-counsel claims is

also de novo. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014).

III. INDECENT EXPOSURE

       C.R. argues the court erred in adjudicating him delinquent for indecent

exposure. Specifically, he alleges the State failed to prove D.C. was offended by

viewing his penis. C.R. argues there is no evidence of D.C.’s state of mind

besides her testimony.     He argues her testimony alone establishes she was

“simply” scared and not offended.

       Iowa Code section 709.9 provides:

               A person who exposes the person’s genitals or pubes to
       another not the person’s spouse, or who commits a sex act in the
       presence of or view of a third person, commits a serious
       misdemeanor, if:
               1. The person does so to arouse or satisfy the sexual
       desires of either party; and
               2. The person knows or reasonably should know that the act
       is offensive to the viewer.

Our supreme court has broken down the crime of indecent exposure into the

following four elements:
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              “1. The exposure of genitals or pubes to someone other than
       a spouse . . . ;
              2. That the act is done to arouse the sexual desires of either
       party;
              3. The viewer was offended by the conduct; and
              4. The actor knew, or under the circumstances should have
       known, the victim would be offended.”

State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008) (quoting State v. Isaac,

756 N.W.2d 817, 819 (Iowa 2008)). Here, C.R. challenges only the third element

of the crime. D.C. testified that when she saw C.R.’s penis, she turned and

looked out her window. She also testified she was “kind of a little bit scared.”

C.R. alleges this does not satisfy the third element because fear and offense are

two different emotions. He also argues D.C.’s state of mind was based purely

upon her fear of being beaten up by C.R. if she reported his conduct, as he had

earlier threatened to beat up her little brother if she reported seeing him smoking.

       The intention behind section 709.9 is “to criminalize only visual sexual

assaults upon unwilling viewers.” State v. Bauer, 337 N.W.2d 209, 211 (Iowa

1983) (emphasis added). Requiring the State to show an alleged victim was

offended by an actor’s conduct is one way this intention is accomplished. See id.

at 212. Here, the record clearly shows D.C. was far from a willing viewer—she

turned and looked out her window and was frightened. After the incident, she

reported it to her mom. Based upon our de novo review of this record, we too

find the victim was offended by C.R.’s conduct. See also State v. Adams, 436

N.W.2d 49, 50 (Iowa 1989) (noting a 14-year-old girl “obviously was offended”

when she saw a man exposing himself in an apartment window). D.C.’s act of

turning away from the exposure is evidence that she was offended. Her self-
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reported fear that she would be beaten up by C.R. for telling on him helps to

explain why she waited until later to report what she saw, but this does not

diminish the evidence of her state of mind of offense in response to C.R.’s

conduct.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       C.R. also claims on appeal his counsel rendered ineffective assistance.

He argues his attorney should have raised a hearsay objection when D.C.’s

mother testified as to what her daughter told her about the incident. C.R. also

alleges his attorney incompetently failed to object when the State questioned

C.S.’s aunt over whether she believed C.S. was being truthful when reporting

what transpired in the car. C.R. contends this testimony improperly commented

on C.S.’s credibility.

       “A claimant alleging ineffective assistance of counsel must prove (1)

counsel failed to perform an essential duty and (2) prejudice resulted.” State v.

Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “To establish prejudice, a claimant

must demonstrate ‘there is a reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Id. (quoting State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008)).

       C.R. alleges the testimony of D.C.’s mother is hearsay, when she told the

court: “[D.C.] said that [C.R.] had his penis out in the back of the car.”1 However,

our review of the record shows the court also learned this fact from the testimony

of D.C. herself. Because admissible evidence established the same matter put


1
 Although we question whether in context the statement was offered to prove the matter
asserted, we will analyze the issue presented. See Iowa R. Evid. 5.801.
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forward by the alleged hearsay, we do not see—and neither has C.R. shown

us—how the admission of the alleged hearsay could have changed the result of

the proceeding. We therefore find counsel’s failure to raise a hearsay objection

did not prejudice C.R. See State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992)

(finding the admission of hearsay is not prejudicial where “substantially the same

evidence is in the record without objection”).

       C.R. also claims the State inappropriately asked C.S.’s mother to

comment on the credibility of C.S. as a witness during the trial. C.R. claims “[t]he

trial counsel should have objected to this line of questioning.” However, on our

review we note the juvenile court itself interrupted and stopped the State’s line of

questioning.   This record establishes that the court, the finder of fact in this

proceeding, recognized the State’s error in questioning the credibility of a

witness.   Consequently, there is little doubt that when the court sua sponte

stopped the questioning that it also disregarded the objectionable testimony. It is

clear the outcome of the proceedings would not have been different had C.R.’s

counsel objected to the testimony, rather than the court itself.      See State v.

Matheson, 684 N.W.2d 243, 244 (Iowa 2004) (“[A]n appellate court is less likely

to reverse when improper evidence is introduced in bench trials in which the

matter is for a judge’s determination rather than for determination by a jury.”).

Accordingly, we find C.R. was not prejudiced by counsel’s failure to object to

credibility testimony either.

       AFFIRMED.
