                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0184
                             Filed February 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACKIE B. TAYLOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Richard H.

Davidson (motion), and James S. Heckerman (trial), Judges.



      Jackie Taylor appeals following convictions for six counts of sexual abuse

in the third degree and three counts of lascivious conduct with a minor.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                           2


MAHAN, Senior Judge.

         Jackie B. Taylor appeals following convictions for six counts of sexual

abuse in the third degree1 involving two alleged victims, S.Z. and C.W., and three

counts of lascivious conduct with a minor, S.Z. Taylor argues the court abused

its discretion in consolidating the cases involving the different minors, trial

counsel was ineffective in numerous respects, and the sentence imposed was

illegal and an abuse of discretion. Because we find no abuse of discretion in the

court allowing the cases to be tried together, the record is not adequate to

address the ineffectiveness claims, and the sentencing challenges are not ripe

for review at this time, we affirm the convictions.

I. Background Facts.

         Taylor lived in a residence with Connie and her husband, Kevin; Connie’s

daughter, Patty; and Connie’s grandchildren, S.Z., C.W., and W.N. Though S.Z.

and C.W. are biological siblings, S.Z. had lived with Connie most of her life and

was adopted by Connie prior to the events at issue here. Taylor is not related to

any of the others with whom he lived. He has lived with Connie since 2003, and

Connie views Taylor as a father figure.

         On May 17, 2016, sixteen-year-old S.Z. arrived at school tearful and

upset.    She reported to the school counselor that Taylor was touching her

inappropriately.   The department of human services was contacted and an




1
  The alleged conduct leading to the charges occurred over a period of three years
between 2013 and 2016. See Iowa Code §§ 709.1 (sex abuse), 709.4(1)(a) (defining
third degree sex abuse), 709.14 (defining lascivious conduct with a minor). Because no
substantive changes have occurred in the statutory provisions, we will refer to the 2016
Iowa Code for ease of reference.
                                         3


investigator asked S.Z. if she wanted to be taken back to Connie’s. S.Z. stated

she “didn’t want to be molested anymore.”

       When Detective Hayley Bloom spoke with Taylor about S.Z.’s allegations,

Taylor stated “maybe when I hug her possibly. Accidently maybe hit her boob or

something.”    Taylor told police he thought S.Z. might have fabricated the

accusations because she wanted to live with her father and because she did not

like her grandmother’s rules.

       A few months after S.Z.’s allegations, police received a report that Taylor

had abused S.Z.’s brother, C.W. C.W. had run away from Connie’s residence in

December 2015 when he was in ninth grade and was fifteen years old. C.W.

hitchhiked to South Dakota, where he began to live with his biological father and

stepmother.   In August 2016, C.W. took his stepmother’s vehicle and left a

suicide note behind. He was located in Wyoming later that day where the vehicle

had run out of gas. C.W. was hospitalized and while there disclosed he had

been sexually abused when at his grandmother’s house.

       In June 2016, the State charged Taylor concerning conduct related to

S.Z.—two counts of sexual abuse in the third degree and three counts of

lascivious acts with a minor. In August, the State charged Taylor concerning

conduct related to C.W.—six counts of sexual abuse in the third degree, which

was later amended to four counts.

       The State moved to consolidate the cases. Taylor objected, arguing the

cases were unrelated, had different victims, and consolidation would be highly

prejudicial to him. After a hearing, the court allowed consolidation.
                                          4


       At trial, C.W. testified Taylor had abused him throughout seventh, eighth,

and ninth grades (until C.W. left the final time). C.W. stated Taylor would use his

hand to touch C.W.’s penis, which occurred on more than one occasion. Taylor

also made C.W., on more than one occasion, use his hand to touch Taylor’s

penis. When C.W. would object, Taylor threatened to tell Connie that C.W. was

hurting the other minors in the household. C.W. testified Taylor was the main

reason he kept trying to run away.

       S.Z. testified Taylor was a grandfather figure. She testified he started

touching her breasts when she was eleven years old and continued to do so until

she was sixteen. S.Z. stated Taylor would touch her breasts with “[h]is hands

and his mouth”; he would make her “[t]ake [her] shirt off and [her] bra,” to let him

“see her breasts”; and Taylor would watch her shower at times. S.Z. testified that

on at least two occasions Taylor touched her vagina with his fingers.          She

recounted the second time occurred “[o]n his chair in the living room” when she

was “[m]aybe 15” and a freshman in high school. She stated Taylor used his

fingers to touch her vagina and “his fingernails were very long” and “it hurt.” She

testified she told him to stop but he did not. Further, S.Z. testified that when she

was thirteen or fourteen Taylor made S.Z. touch his penis with her hand. S.Z.

stated Taylor told her she should take pictures of her breasts for him and that he

wanted to “jump her bones.” S.Z. also stated Taylor showed her pornography on

his computer and offered to buy her a sex toy. Taylor told S.Z. that “he would get

in a lot of trouble” if she told anyone, and she promised not to tell. S.Z. did not

think Connie would believe her if she reported what happened. S.Z. said she

“did not feel like [she] could say no to him.”
                                          5


         S.Z. testified Patty once asked her if anything was going on because Patty

had seen Taylor touch S.Z.’s breast. S.Z. told Patty “nothing was happening”

because S.Z. did not want Patty to know she was being abused.              S.Z. had

promised Taylor she would not tell, and she testified “it’s not really right to break

your promise.”

         Patty testified she asked S.Z. about an incident when she observed Taylor

touch S.Z.’s breast. S.Z. told her mother it was an accidental touching, and Patty

did nothing more. When asked to describe what she saw, Patty stated, “[I]t was

like a clockwise turn (indicating) and then he finished the rotation.”

         Taylor testified and denied inappropriately touching either of the minors or

having them touch him. As to Patty’s observation of him touching S.Z.’s breast,

he stated, “It would be virtually impossible” to cup S.Z.’s breast as described

because S.Z. “had a pretty heavy coat on.”

         Connie testified on Taylor’s behalf, asserting C.W. and S.Z. both were “not

the most truthful children.” She testified the children both wanted to go live with

their fathers and neither wanted to follow the rules of her household.

         The jury convicted Taylor as charged, and he now appeals.

II. Scope and Standards of Review.

         “We review refusal to sever multiple charges against a single defendant

for abuse of discretion.” State v. Elston, 735 N.W.2d 196, 198 (Iowa 2007).

         Our review of constitutional issues, such as claims of ineffective

assistance of counsel, is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012).
                                          6


III. Discussion.

       A. Consolidation. Iowa Rule of Criminal Procedure 2.6(1) allows “[t]wo

or more indictable public offenses which arise from . . . two or more transactions

or occurrences constituting parts of a common scheme or plan” to be “alleged

and prosecuted as separate counts in a single complaint, information or

indictment, unless, for good cause shown, the trial court in its discretion

determines otherwise.” Our supreme court has announced “the State [has] the

right to charge multiple counts in the same offense, to achieve judicial economy.”

State v. Romer, 832 N.W.2d 169, 182 (Iowa 2013). “To prove the district court

abused its discretion in refusing to sever charges, [the defendant] bears the

burden of showing prejudice resulting from joinder outweighed the State’s

interest in judicial economy.” Id. at 181 (quoting Elston, 735 N.W.2d at 199).

       Taylor argues the allegations of C.W. and S.Z. are not legally entwined

and, thus, the cases should not have been tried together. “[T]he essential test in

determining whether a common scheme or plan exists is the requirement that all

offenses charged must be products of a single or continuing motive.”             Id.

(quoting State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986) (adopting the Missouri

test)); accord Elston, 735 N.W.2d at 198 (holding “transactions or occurrences

are part of a ‘common scheme or plan’ under [rule] 2.6(1) when they are the

‘products of a single or continuing motive’” (citations omitted)).

       Here, the trial court determined there was a common scheme:

             The two victims, S.Z. and C.W., are siblings, having the
       same mother but different fathers. Both children lived with their
       mother in the same Council Bluffs residence until approximately a
       year ago when C.W. moved to live with his father in South Dakota.
       The allegations contained in Case FECR150716 [concerning S.Z.]
                                          7


       covered a period of months from December 18, 2013, through May
       16, 2016. The allegations contained in FECR151225 [concerning
       C.W.] are alleged to have occurred over the similar time period
       dating from August 1, 2013, through May 31, 2015. The defendant
       resided in the same house in Council Bluffs, Iowa, as S.Z. and
       C.W. during the time of the respective allegations. Most, if not all of
       the allegations are alleged to have occurred in the defendant’s
       bedroom in that home where they all lived. Both children as well as
       other residents of that home are anticipated to be witnesses in both
       trials. The alleged sexual contact between the defendant and both
       children include hand to genital contact. Both cases include
       allegations that the defendant warned the victims of consequences
       if others learned of the act. Based on all these factors, the court
       concludes that the separate occurrences show a common scheme
       and plan to pervert the children’s morals and to use the children for
       his own sexual purposes.

       The trial court’s reasoning is consistent with Iowa case law. See Romer,

832 N.W.2d at 182-83 (noting the defendant had a common scheme to victimize

children to fulfill his sexual desires, the conduct was shown to be geographically

proximate, and the defendant displayed a similar modus operandi); Elston, 735

N.W.2d at 200 (finding a common scheme or plan where “[a]ll of the crimes

alleged in this case against Elston could be found to have been motivated by his

desire to satisfy sexual desires through the victimization of children” and the

transactions “occurred in close geographic proximity”).

       Taylor also argues the evidence encouraged the jury to make its findings

on the basis of propensity and that the nature of the charges weighed towards a

finding of prejudice.   In Romer, the court noted the defendant’s arguments

pertaining to “our evidentiary rule on propensity” is “distinct from an analysis

under our law dealing with joinder of offenses.” 832 N.W.2d at 183. Taylor’s

burden was to establish that “prejudice resulting from joinder outweighed the

State’s interest in judicial economy.” Id. at 181.
                                          8


       The trial court rejected Taylor’s contention:

       The court finds the defendant has not shown sufficient prejudice to
       outweigh the interest in judicial economy. Many of the same
       witnesses would be called to testify in both cases. While the
       evidence in both cases may overlap if consolidated, the trial court
       will have the opportunity to caution jurors that they must determine
       whether the defendant is guilty or not guilty separately on each
       count. Accordingly, based on the potential duplication of witnesses
       in separate trials and the trial court’s ability to caution the jurors at
       trial concerning their deliberations on each count, the court finds
       the State’s judicial economy concerns outweigh the prejudice of
       having one trial with two complaining witnesses.

(Citations omitted.)

       Taylor asserts the trial court did not give the cautionary instruction

mentioned in the trial court’s reasoning and that even if the instruction had been

given, “no limiting instruction would allow the jury to separate out the counts and

determine the verdict on an untainted basis.” The State observes Taylor did not

request the cautionary instruction and, therefore, cannot complain now that the

instruction should have been given.       We agree.      See State v. Taggart, 430

N.W.2d 423, 425 (Iowa 1988) (“We have repeatedly held that timely objection to

jury instructions in criminal prosecutions is necessary in order to preserve any

error thereon for appellate review.”); see also State v. Fountain, 786 N.W.2d 260,

262 (Iowa 2010) (“Normally, objections to giving or failing to give jury instructions

are waived on direct appeal if not raised before counsel’s closing arguments, and

the instructions submitted to the jury become the law of the case.”).

       In any event, the State points out the jury was instructed to “determine the

defendant’s guilt or innocence from the evidence, and the law in these

instructions,” the instructions set out specific criteria for assessing Taylor’s guilt

on each offense charged, and the jury was instructed on the individual elements
                                             9

of each offense.2 “We presume juries follow the court’s instructions.” State v.

Hanes, 790 N.W.2d 545, 552 (Iowa 2010).

       We find no abuse of the court’s discretion in allowing the cases to be

consolidated.

       B. Ineffective assistance of counsel. Taylor asserts his trial counsel

was ineffective in failing to object to the admission of the recorded interview of

S.Z. by April Anderson, a forensic interviewer with Project Harmony, a child




2
 For example, Instruction 16 provides:
                ln count I of Case No. FECR151225, the State must prove both of
       the following elements of sexual abuse in the third degree:
                1. On or between the 1st day of January, 2012, through the 15th
       day of November, 2014, the defendant performed a sex act with C.W.,
       whose date of birth is XXXX, by having sexual contact between the hand
       of the defendant and the genitals of the victim.
                2. The defendant performed the sex act with C.W. while he was
       under the age of fourteen.
                If the State has proved all of the elements, the defendant is guilty
       of sexual abuse in the third degree. If the State has failed to prove either
       one of the elements, the defendant is not guilty.
And Instruction 21 provides:
                In Count III of Case No. FECR150716, the State must prove all of
       the following elements of lascivious acts with a minor:
                1. On or about the 18th day of December, 2013, through the 17th
       day of December, 2014, the defendant forced, persuaded, or coerced
       S.Z., with or without her consent, to disrobe or partially disrobe.
                2. The defendant engaged in such conduct with the specific intent
       to arouse or satisfy the sexual desires of the defendant or S.Z.
                3. At the time of the conduct, the defendant was then 18 years of
       age or older.
                4. At the time of the conduct, the defendant was in a position of
       authority over S.Z.
                5. At the time of the conduct, S.Z. was under the age of 18 and
       not married.
                If the State has proved all of the elements, the defendant is guilty
       of lascivious conduct with a minor. If the State has failed to prove any
       one of the elements, the defendant is not guilty of lascivious conduct with
       a minor.
The instruction for each additional count similarly set out the date of the alleged conduct,
who was the alleged victim, and the elements of the offense.
                                        10


advocacy center, on hearsay grounds and as improper vouching3; in failing to

request the cautionary instruction that jury must determine whether Taylor was

guilty or not guilty on each count4; and due to cumulative error.

       To prevail on an ineffective-assistance-of-counsel claim, a defendant must

establish (1) counsel failed to perform an essential duty and (2) the defendant

was prejudiced as a result. State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013)

“We usually preserve claims of ineffective assistance of counsel for potential

postconviction proceedings. However, if the record is sufficient to decide such

claims, we will do so on direct appeal.” Elston, 735 N.W.2d at 200 (citations

omitted).   We conclude the record is not adequate to address all the

ineffectiveness claims here so we preserve them for possible postconviction

relief proceedings. See Clay, 824 N.W.2d at 502 (“Clay will have to bring all his

ineffective-assistance-of-counsel claims in a postconviction relief action, because

he raises multiple claims, some of which require further development of the

record.”); see also State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006)

(“[P]ostconviction proceedings are often necessary to discern the difference

between improvident trial strategy and ineffective assistance.”).

       C. Sentence. Finally, Taylor challenges the sentence entered concerning

court costs and fees as illegal and an abuse of discretion. Taylor was ordered to

pay court costs and attorney fees, which were to be certified later. Because
3
   Counsel did object on ground the exhibit was duplicative because S.Z. had already
testified.
4
  Iowa Criminal Jury Instruction No. 100.15, which provides:
                 The defendant has been charged with ___ counts. This is just a
         method for bringing each of the charges to trial. If you find the defendant
         guilty or not guilty on any one of the ___ counts, you are not to conclude
         the defendant is guilty or not guilty on the other(s). You must determine
         whether the defendant is guilty or not guilty separately on each count.
                                        11


Taylor is challenging a temporary restitution order, his current claims are not ripe

for our review. See State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999).

       We affirm.

       AFFIRMED.
