                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-2100
                             Filed December 20, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRYL W. WILKINS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



       Darryl Wilkins appeals from his convictions and sentences for third-degree

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

abuse. AFFIRMED.



       Mark C. Smith, State Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



       Considered by Vogel, P.J., Tabor, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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CARR, Senior Judge.

       Darryl Wilkins appeals from his convictions and sentences for third-degree

sexual abuse, in violation of Iowa Code section 709.4(1)(b)(2) (2013); lascivious

acts with a child, in violation of section 709.8(1)(a); and assault with intent to

commit sexual abuse, in violation of section 709.11(3). On appeal, he argues the

trial court erred in denying his motion to dismiss for failure to file the trial information

within forty-five days of his arrest and also erred in failing to merge his convictions

and sentences. For the following reasons, we affirm.

   I. Background Facts and Proceedings

       In May 2015, thirteen-year-old K.K. reported to her mother and to a school

counselor that her step-father, Wilkins, had touched her on her vagina under her

clothes. At trial, K.K. testified this happened between ten and fifteen different

times. Per her testimony, the incidents often followed a pattern. K.K. would often

sleep on the couch in the family’s living room. Wilkins would sit on the couch with

her. He would put his hands down her pants and touch her. This would continue

for approximately fifteen minutes.         Although K.K. was awake during these

incidents, Wilkins would then “wake” her and tell her to go sleep in her bed.

       The final incident appears to have been different. The family had acquired

a new bed, which had been placed in the living room. K.K.’s brother was sleeping

in the bedroom the two shared, K.K. was sleeping in the room her mother and

Wilkins ordinarily slept in, and Wilkins was sleeping on the bed in the living room.

K.K.’s mother worked nights at the time. One night, Wilkins asked K.K. if he could

lie with her, saying he could not sleep on the bed in the living room. K.K. said he

could. The same pattern as above occurred. This time, K.K. was sure Wilkins
                                         3


knew she was awake because afterwards he talked to her and tried to get her to

face him. She left the room. Wilkins told her if she did not want it to happen again

he would not do it again. She did not say anything to him.

       On May 13, Wilkins texted K.K. and said, among other comments, “I left to

protect myself from this, do not ever contact me again.”          The two did not

communicate after that text. Instead, Wilkins appears to have left the house and

relocated to Illinois.

       In June 2015, an arrest warrant issued from the District Court of Scott

County. The warrant, however, was not executed until May 2016. On May 8,

2016, Wilkins was taken into custody in Illinois. On May 11, he was brought to

Scott County and placed in the local jail. There, on the same date, the arrest

warrant was executed and served upon Wilkins. On May 12, he appeared before

a magistrate in Scott County. The trial information in this case was filed on June

23. Wilkins pleaded not guilty.

       On July 8, Wilkins filed a motion to dismiss the charges for failure to indict

within forty-five days. The motion was denied.

       The case proceeded to a bench trial. Following trial, Wilkins was found

guilty as charged. He was sentenced to concurrent prison sentences of ten years,

ten years, and two years, respectively, on the three charges. Wilkins filed a motion

for new trial and motion in arrest of judgment claiming the charges and sentences

should merge. Those motions were denied. He now appeals.



   II. Standard of Review
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       We review rulings on motions to dismiss for correction of errors at law. See

State v. Rimmer, 877 N.W.2d 652, 660 (Iowa 2016).

       Generally, we review rulings on motions for new trial or arrest of judgment

for abuse of discretion. See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008).

We review claims with constitutional dimensions, such as a double jeopardy claim,

de novo. See State v. Velez, 829 N.W.2d 572, 576 (Iowa 2013); State v. Finnel,

515 N.W.2d 41, 43 (Iowa 1994). Alleged violations of the merger statute are

reviewed for errors of law. See State v. Stewart, 858 N.W.2d 17, 19 (Iowa 2015).

   III. Discussion

       A. Motion to Dismiss

       Wilkins challenges his indictment on speedy-indictment grounds. “When an

adult is arrested . . . and an indictment is not found against the defendant within

[forty-five] days, the court must order the prosecution be dismissed.” Iowa R. Crim.

P. 2.33(2)(a). Wilkins argues he was arrested in Illinois on May 8 but not indicted

until June 23, more than forty-five days later. As a result, he argues, his case must

be dismissed.

       We disagree. An “arrest” made in another state for an Iowa offense is not

an arrest that starts the clock for speedy-indictment purposes. See State v.

Gathercole, 553 N.W.2d 569, 572 (Iowa 1996), overruled on other grounds by

State v. Williams, 895 N.W.2d 856, 863 (Iowa 2017); State v. Lyrek, 385 N.W.2d

248, 250 (Iowa 1986) (“An arrest warrant is ineffective beyond the boundaries of

the state by whose authority it was issued.”); Drake v. Keeling, 299 N.W. 919, 922

(Iowa 1941) (“Unquestionably it will be admitted that a warrant of arrest issued in

one state may not be executed in another state.”). Wilkins contends Lyrek, which
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the district court found controlling, is distinguishable from his case. In Lyrek, the

out-of-state arrest in Minnesota was accompanied by arrests on other local

charges. 385 N.W.2d at 249. Here, Wilkins was arrested in Illinois only as a

fugitive from Iowa. We think this is a difference without a distinction. The black

letter law noted above supports our conclusion that Wilkins could not have been

arrested on the Iowa warrant until he was within the State of Iowa. This rule

controls regardless of any other reasons for his detention outside of Iowa.

       Wilkins was therefore not arrested, at the earliest, until the warrant was

executed on May 11.1 Wilkins was indicted within forty-five days of May 11. His

indictment was timely.

       B. Merger / Double Jeopardy

       The Double Jeopardy Clause of the Federal Constitution “protects against

multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165

(1977). In Iowa, the merger doctrine provides “[n]o person shall be convicted of a

public offense which is necessarily included in another public offense of which the

person is convicted.” Iowa Code § 701.9; see also Iowa R. Crim. P. 2.6(2) (“Upon

prosecution for a public offense, the defendant may be convicted of either the

public offense charged or an included offense, but not both.”); State v. Bullock, 638

N.W.2d 728, 731 (Iowa 2002).




1
 A holding of our supreme court subsequent to Wilkins’ arrest makes clear the arrest,
were it to happen today, would not be complete until the appearance before the magistrate
on May 12. See Williams, 895 N.W.2d at 866. However, Wilkins does not ask us to decide
whether Williams has retroactive effect, so we take no position on that question. See
State v. Smith, No. 16-0533, 2017 WL 6033880, at *3 (Iowa Ct. App. Dec. 6, 2017). We
note the difference between May 11 and May 12 does not change our analysis.
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       The resolution of both merger and double-jeopardy claims turns on whether

the two offenses at issue “involve the same offense.” State v. Lewis, 514 N.W.2d

63, 69 (Iowa 1994). This question is easily answered here, where the district court

found at least three separate acts of physical contact, each of which would be

sufficient to sustain any of the three counts of conviction. See State v. Constable,

505 N.W.2d 473, 478 (Iowa 1993) (“[B]y engaging in five distinct and separate sex

acts, Constable committed five counts of sexual abuse.”); State v. Holderness, 301

N.W.2d 733, 740 (Iowa 1981) (holding trial court did not err in convicting defendant

on two charges where two distinct and separate offenses occurred); see also State

v. Newman, 326 N.W.2d 788, 793 (Iowa 1982) (“A defendant should not be allowed

to repeatedly assault his victim and fall back on the argument his conduct

constitutes but one crime.”).    Each separate act Wilkins committed could be

defined as third-degree sexual abuse, a lascivious act with a child, or assault with

intent to commit sexual abuse. See Iowa Code §§ 702.17(3) (defining “sex act” to

include contact between one person’s finger or hand and another person’s

genitalia); 709.4(1)(b)(2) (including as third-degree sexual abuse a sex act

committed against a twelve- or thirteen-year-old who is not the actor’s spouse);

709.8(1)(a) (defining “lascivious acts with a child” to include, among other things,

an adult’s nonconsensual fondling of a child’s genitalia for the purpose of arousing

or satisfying either person’s sexual desires); 709.11 (defining “assault with intent

to commit sexual abuse” as, among other things, an act that is both an intentional

offensive touching and a sex act, when committed against a child).

       On our de novo review for purposes of Wilkins’ double-jeopardy claim, we

find no double jeopardy. On our review for correction of legal error as to his merger
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claim, we find no error in the trial court’s finding the three charges did not merge.

Because Wilkins committed at least three separate acts that would each sustain

each of his three charges, we conclude his claim must fail.

   IV. Conclusion

       For the foregoing reasons, we affirm Wilkins’ convictions and sentences.

       AFFIRMED.
