                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1796
                            Filed December 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEAN BELOVED,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Jean Beloved appeals his convictions for two counts of sexual abuse in

the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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VOGEL, Presiding Judge.

       Jean Beloved appeals his convictions for two counts of sexual abuse in

the second degree. He first asserts he was denied his constitutional right to be

present for all of his trial and the district court erred when it did not continue the

trial when Beloved did not appear on the second day.            He next argues his

confession to the crime was privileged, as he communicated this to the leader of

a prayer service, who he asserts is a minister within the meaning of the statute.

He also contends counsel was ineffective for failing to object to an expert’s

statement that she believed the victim needed therapy, arguing that this was an

impermissible opinion as to the victim’s credibility. His final claim asserts the

district court abused its discretion when imposing consecutive sentences.

       We conclude Beloved voluntarily absented himself from the proceedings

and therefore waived his right to be present. Moreover, we agree with the district

court the person to whom Beloved confessed was not a minister and,

consequently, the communication was not privileged. Trial counsel was also not

ineffective for failing to object to the witness’s statement that the victim should

receive counseling, as this was not an opinion as to the victim’s credibility.

Finally, the district court did not abuse its discretion when imposing consecutive

sentences. Consequently, we affirm Beloved’s convictions and sentence.

I. Factual and Procedural Background

       At trial, the jury could have found the following facts. M.H., the victim, was

between seven and nine years old at the time of the incidents. She informed

various family members that between June 2012 and January 2013, Beloved

sexually abused her. As recited in the trial information and as borne out by
                                         3


M.H.’s trial testimony, the incidents of abuse included: (1) once when M.H. was

visiting Beloved’s residence, they were in the bedroom where he told her to

remove her pants and underwear, after which he proceeded to kiss her and

touch her on the vagina with his tongue; (2) when she was in Beloved’s

daughters’ room playing hide and seek, Beloved kissed her on the lips and

rubbed his hand on her vaginal area while both were clothed; (3) in a parking lot

in the back seat of his vehicle, Beloved used his hands to touch M.H.’s vaginal

area and his mouth to touch her breasts; and (4) when M.H. was at her

grandmother’s house, Beloved rubbed his penis against her pubic bone and

vaginal area.

      On March 21, 2013, the State charged Beloved with four counts of sexual

abuse in the second degree, class “B” felonies in violation of Iowa Code sections

709.1 and 709.3(2) (2011). Trial on the matter commenced at 9:00 a.m. on June

9, 2014, and proceeded until 4:00 p.m. On June 10, Beloved was not present in

the courtroom at 9:00 a.m., when trial was scheduled to resume. Trial counsel

left Beloved a voicemail. Beloved responded by email, stating his father—who

resides in New York—was terminally ill and would likely die within a few hours,

and therefore, Beloved needed to attend to him. Trial was continued until 1:00

p.m., at which time Beloved still had not appeared. Trial counsel moved for a

two-week continuance and, alternatively, a mistrial. The district court denied

both motions, as it doubted Beloved’s credibility, and also found he had

voluntarily absented himself from the proceedings as a stall tactic after the bulk

of the State’s evidence had been presented. The court concluded Beloved had

therefore waived his right to be present; thus, the trial resumed without Beloved.
                                         4


       On the previous day of trial, several witnesses testified.         Quovadis

Marshall stated he formerly worked as a missionary for the International House of

Prayer, a nondenominational evangelical organization that has a facility in a mall

with a prayer room, which is open to the public at all times. His role was “one of

the prayer leaders for a two-hour prayer slot.” He noted he was a “missionary,”

not a minister, as he was neither licensed nor ordained.

       Marshall further testified that in early February 2013, after a prayer

meeting he led, Beloved approached Marshall and requested to speak with him.

Marshall stated it seemed as if Beloved wanted to get something “off his chest.”

Marshall further testified that Beloved told him he had been accused of sexually

abusing M.H., and that he was in fact guilty. Marshall replied that God would

forgive Beloved but he should turn himself into the authorities. After Beloved left,

Marshall called the police and informed them of Beloved’s statements.

       Also testifying was Tamera Bibbins, a forensic interviewer who works at

Blank’s Children’s Hospital in Des Moines. She interviewed M.H. on February

13, 2013. Bibbins testified to her interactions with M.H. during the interview,

which included M.H.’s statements that Beloved had sexually assaulted her.

Bibbins also stated she had recommended that M.H. receive therapy.

       Following the close of evidence, the State dismissed one count, and the

jury found Beloved guilty on two counts and not guilty on the third.            The

sentencing hearing was held on October 13, 2014, at which time the district court

sentenced Beloved to twenty-five years on each count, to run consecutively.

Beloved appeals his convictions and sentence.
                                         5


II. Standard of Review

       We review constitutional issues, including ineffective-assistance-of-

counsel claims, de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

With regard to evidentiary matters, our review is for correction of errors at law,

though the district court’s decision on whether or not privilege exists is

discretionary.   State v. Richmond, 590 N.W.2d 33, 34 (Iowa 1999).           Claims

challenging the imposition of a sentence are reviewed for an abuse of discretion.

State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

III. Continuance

       Beloved first claims the district court erred when it allowed the trial to

proceed in his absence. He asserts he did not waive his right to be present,

given that his father was in extremely ill health—purportedly in his last hours—

which constituted a sudden emergency. Therefore, his constitutional right to be

present at his trial was violated when the trial proceeded in his absence.

       A defendant has a constitutional and statutory right to be present at his

trial. State v. Wise, 472 N.W.2d 278, 279 (Iowa 1991). However, this right can

be waived if the defendant is voluntarily absent. See Iowa R. Crim. P. 2.27(1),

(2)(a). For this absence to be deemed voluntary, the defendant “must be aware

of the processes taking place, of his right and of his obligation to be present, and

he must have no sound reason for remaining away.” Taylor v. United States, 414

U.S. 17, 19, n.3 (1973).

       The record indicates the Taylor factors are satisfied. Beloved was present

for the first day of trial and was informed it would proceed the next morning. Trial

counsel also stated he had informed Beloved that his presence at trial was
                                         6


necessary.     The State noted Beloved had previously sought several

continuances, and the circumstances further indicated Beloved did not have a

“sound reason” for his absence. See id. As the district court stated in its ruling

denying Beloved’s motions to continue and for mistrial:

              I don’t believe that this is a sudden emergency that took the
      defendant away. There is evidence that his father has been ill for a
      lengthy period of time. The defendant has had a considerable
      amount of time to deal with that, plan for it and make whatever
      arrangements need to be made to address issues that could have
      arisen with his father’s health.[1]
              The circumstances, again, call this into question as to
      whether the defendant’s father is truly on his death bed. As the
      prosecutor pointed out, he did not call the court or his attorney. We
      had to call him.
              When he was advised that the court was intending to
      resume trial at 1:00, he asked for a continuance of two weeks. I
      think the defendant is just stalling trying to avoid the inevitable
      resolution of this case.
              To me that means he is voluntarily absent.
              ....
              . . . [I]f you balance this, the defendant’s right to be present
      at the trial versus the public’s interest in the trial being completed,
      the case has been on file for more than a year. It involves alleged
      sexual abuse of a child, a very, very, very serious charge with
      someone then potentially being convicted of that being out in the
      public.

      We agree with the court that these circumstances amount to a voluntary

absence within the meaning of Iowa Rule of Criminal Procedure 2.27(2)(a), and

thus, Beloved waived his right to be present at trial. See Taylor, 414 U.S. at 19.

Furthermore, as the State notes, most of its case had been presented on the first

day of trial, including the testimony of the victim. Consequently, no constitutional

right was violated when the court proceeded with the trial in Beloved’s absence.



1
 We also note that, at the time of the sentencing hearing held on October 13, 2014,
Beloved’s father was still alive.
                                        7

See State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981) (holding no constitutional

violation occurred when the defendant voluntarily absented himself from the trial).

IV. Evidentiary Claim

      Beloved next argues the court erred in finding his confession to Marshall

was not a privileged communication. He asserts because Marshall was a prayer

leader for the International House of Prayer his statements to Marshall were

made in confidence and consequently, his communications were privileged and

should not have been admitted.

      Privileged communication is protected by statute, which states:

            A practicing attorney, counselor . . . or confidential clerk of
      any such person, who obtains information by reason of the person’s
      employment, or a member of the clergy shall not be allowed, in
      giving testimony, to disclose any confidential communication
      properly entrusted to the person in the person’s professional
      capacity, and necessary and proper to enable the person to
      discharge the function of the person’s office according to the usual
      course of practice or discipline.

Iowa Code § 622.10(1).      To fall within the statute’s purview and constitute

privileged communication, the interaction must be (1) confidential, (2) entrusted

to a person in his professional capacity, and (3) necessary and proper for the

discharge of the function of the person’s office. State v. Richmond, 590 N.W.2d

33, 35 (Iowa 1999). The burden is on the defendant to establish these elements.

Id.

      As the district court concluded, and as Beloved conceded, Marshall was

not a member of the clergy. Nonetheless, Beloved argues, “Marshall may not

consider himself to be a member of the clergy, but he does fulfill a role that is

delegated to the clergy in many other churches.” However, Marshall testified he
                                            8


was not a priest, pastor, or confessor, as he was neither ordained nor licensed.

Nor did his limited role in leading a prayer meeting render him a member of the

clergy. Also, the International House of Prayer is not a church. Rather, it is a

nondenominational mission organization, whose prayer room is never closed and

anyone is welcome at any time.          The strip mall location where Beloved met

Marshall is staffed by several people, including various musicians, singers, and

prayer leaders.

       Furthermore, the circumstances of the conversation also indicate this was

not privileged communication within the meaning of section 622.10(1). While the

State concedes Beloved’s statements to Marshall were made in confidence,

these were not made to a member of the clergy in his professional capacity. As

the district court—relying on Marshall’s testimony—found, Beloved was simply

getting something “off his chest.” Marshall’s response was to then tell Beloved

that God would forgive him, but he should nonetheless turn himself into the

authorities. Given Marshall had no clerical duties other than to participate as a

prayer leader over a two-hour time slot,2 and he did not inhabit a role that

required him to hear confessions, Marshall listening to Beloved “get something

off his chest” was not a duty or role that Marshall served.

       Because Beloved’s statements to Marshall were not a privileged

communication, the district court did not abuse its discretion in admitting




2
  Beloved’s pro se brief sets forth facts to which he does not cite in the record, nor does
the testimony support his recitation of the record. Therefore, we decline to take into
account these allegations. See State v. Weiland, 202 N.W.2d 67, 68 (Iowa 1972) (noting
appellate courts cannot consider facts that are outside the record).
                                          9


Marshall’s testimony.    Consequently, we affirm the ruling of the district court

denying Beloved’s motion to exclude Marshall’s testimony.

V. Ineffective Assistance of Counsel

       Beloved further asserts trial counsel was ineffective for failing to object to

the testimony of Bibbins, the forensic interviewer, who stated she recommended

M.H. receive therapy. Beloved claims this was an impermissible opinion that

speaks to M.H.’s credibility and, therefore, should have been excluded.

Consequently, he asserts trial counsel was ineffective for not moving to strike this

statement.

       A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. Straw, 709 N.W.2d at 133. We may

either decide the record is adequate and issue a ruling on the merits, or we may

choose to preserve the claim for postconviction proceedings. Id. To succeed on

this claim, the defendant must show, first, that counsel breached an essential

duty and, second, that he was prejudiced by counsel’s failure. Id.

       A witness is not permitted to “vouch” for a victim’s credibility. State v.

Brown, 856 N.W.2d 685, 689 (Iowa 2014).             With regard to this issue, our

supreme court has stated:

       Although we are committed to the liberal view on the admission of
       psychological evidence, we continue to hold expert testimony is not
       admissible merely to bolster credibility. Our system of justice vests
       the jury with the function of evaluating a witness’s credibility. The
       reason for not allowing this testimony is that a witness’s credibility
       is not a fact in issue subject to expert opinion. Such opinions not
       only replace the jury’s function in determining credibility, but the jury
       can employ this type of testimony as a direct comment on the
       defendant’s guilt or innocence.         Moreover, when an expert
       comments, directly or indirectly, on a witness’s credibility, the
       expert is giving his or her scientific certainty stamp of approval on
                                          10


       the testimony even though an expert cannot accurately opine when
       a witness is telling the truth. In our system of justice, it is the jury’s
       function to determine the credibility of a witness.

Id. (internal citation omitted).

       At trial, the following testimony occurred:

              Q: Is it typical in your experience that a child who is being
       sexually abused would want to spend time with the offender?
       A: The literature shows that it’s not uncommon for a child to want to
       spend time with or even have a positive relationship with someone
       who is sexually abusing them. I think we often assume that the
       child will want to have nothing to do with that person, but if there is
       a positive aspect of that relationship, a child does still get benefit
       from that. If it’s a person who gives them positive attention or even
       buys them things or does special things with them, the child still
       would like that part of it even if the abuse is happening.
              Q: As a result of your interview with [M.H.], did you make
       any recommendations? A: There was a recommendation made
       that she begin individual therapy.

       Comparing various statements by experts closely parsed in our case law,

we do not find Bibbins’s statements explicitly bolstered M.H.’s credibility. Rather,

the testimony in which she recommended M.H. receive therapy was given with

an unspecified reason for the recommendation, which, as the State points out,

could have been made for a variety of reasons.3 Bibbins’s recommendation did

not vouch for M.H.’s credibility. See id. (holding a witness impermissibly vouched

for the victim’s credibility when he stated the authorities should investigate the

victim’s allegations, which indirectly indicated the statements were true).

       Moreover, this testimony is distinguishable from Bibbins’s statements in

State v. Dudley, 856 N.W.2d 668 (Iowa 2014).4 In Dudley, Bibbins gave a two-

fold recommendation: (1) that she believed the victim should receive therapy and

3
  For instance, even if the allegations were untrue, M.H. might nonetheless benefit from
therapy simply because she stated, or perhaps just believed, Beloved abused her.
4
  Bibbins was the same expert who testified at both trials.
                                          11


(2) the victim should stay away from the defendant, basing both on her belief that

the defendant sexually abused the victim. 856 N.W.2d at 678. Therefore, our

supreme court held that her testimony crossed the line into an opinion regarding

the victim’s credibility.   Id. at 678 (noting: “This testimony crossed the line

because she testified she believed B.O. was in fact sexually abused by Dudley;

thus, indirectly vouching for her credibility”).         Here, there is only the

recommendation that M.H. receive counseling, which standing alone does not

cross the line into an opinion that M.H. was telling the truth about the sexual

assaults. See id. Consequently, counsel did not breach an essential duty when

he did not object to Bibbins’s testimony, and Beloved’s ineffective-assistance

claim is without merit. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)

(noting counsel is not ineffective if he fails to make a meritless objection).

IV. Sentence

       Beloved’s final claim argues the district court abused its discretion by

imposing consecutive sentences. We do not agree. In its colloquy, the district

court stated: “The reason for the consecutive sentences are the separate and

serious nature of the offenses, the fact that they’re offenses against children, the

fact that the defendant absconded during trial, and the fact that he is a significant

danger to the community if not incarcerated.”

       “Sentencing decisions are cloaked with a strong presumption in their

favor. A sentence will not be upset on appellate review unless the defendant

demonstrates an abuse of trial court discretion or a defect in the sentencing

procedure, such as trial court consideration of impermissible factors.” State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). The record here reflects the
                                        12


district court considered the proper factors—both during its colloquy as well as in

the sentencing order—and imposed consecutive sentences accordingly.           See

State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999) (noting the court must “determine

which sentence will provide maximum opportunity for the rehabilitation of the

defendant, and for the protection of the community from further offenses by the

defendant and others.” (internal citation omitted)). Consequently, we find no

abuse of discretion.

      For these reasons, we affirm Beloved’s convictions and sentence.

      AFFIRMED.
