                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2009
                           Filed November 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MELVIN LUCIER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      Melvin Lucier appeals his convictions for three counts of second-degree

sexual abuse of a child. AFFIRMED.



      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       Melvin Lucier appeals his convictions for three counts of second-degree

sexual abuse of a child. He challenges (1) the district court’s determination that

the child was competent to testify and (2) the sufficiency of the evidence

supporting the district court’s findings of guilt.

I.     Competency

       The child Lucier was charged with abusing was eleven years old at the

time of trial. Before she testified for the State, the district court engaged her in a

colloquy to determine whether she could differentiate between truth and lies.

See State v. Andrews, 447 N.W.2d 118, 121 (Iowa 1989) (setting forth test to

determine child’s competency). Lucier contends the colloquy was inadequate.

He concedes the court determined the child “could identify a lie” but contends the

court failed to establish “the child could identify the truth.”

       The State responds that Lucier failed to preserve error. We are inclined to

agree because Lucier did not challenge the sufficiency of the colloquy in the

district court.   See State v. Steltzer, 288 N.W.2d 557, 559 (Iowa 1980).

Bypassing this error-preservation concern, we are persuaded that the district

court adequately addressed the child’s ability to distinguish between truth and

lies. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (choosing to overlook

serious error preservation concerns).        We conclude the district court did not

abuse its discretion in finding the child competent to testify.        See State v.

Brotherton, 384 N.W.2d 375, 377 (Iowa 1986) (setting forth standard of review).
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II.    Sufficiency of the Evidence

       The district court set forth the elements of second-degree sexual abuse as

follows:

              1. During the time frame from on or about May, 2010,
       through March, 2014, the defendant performed a sex act with S.D.
              2. The defendant performed the sex act while S.D. was
       under the age of 12 years.

See Iowa Code §§ 709.1, 709.3(1)(b) (2015). The court defined “sex act” as

follows:

              A “sex act” means any sexual contact:
              1. By penetration of the penis into the vagina or anus.
              2. Between the mouth of one person and the genitals of
       another.
              3. Between the genitals of one person and the genitals or
       anus of another.
              4. Between the finger or hand of one person and the genitals
       or anus of another person.
              5. By a person’s use of an artificial sex organ or a substitute
       for a sexual organ in contact with the genitals or anus of another.

See id. § 702.17. After finding the child competent to testify, the court described

the child’s contact with Lucier and summarized diagrams in which she identified

the parts of her body he touched as well as the parts of his body he used to

touch hers. The court determined:

       [T]he testimony establishes that the defendant performed a sex act
       with S.D. five or more times during the period from on or about May
       2010, through March 2014. Her testimony clearly puts these
       incidents within the relevant timeframe and the acts described meet
       the definition of a “sex act” as described above. There is no
       question that she was under age 12 at the time of these acts.

On appeal, Lucier contends, “[T]he overall testimony and the line of questioning

are rather vague and confusing as to which part of [Lucier’s] body made contact

with what part of S.D.’s body and on what date and how often.” Our review of the
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district court’s fact findings is for substantial evidence. See State v. Hearn, 797

N.W.2d 577, 579 (Iowa 2011). Suffice it to say that the child’s testimony together

with her identifications of the body parts involved amounted to substantial

evidence in support of the district court’s findings. See State v. Martens, 569

N.W.2d 482, 487 (Iowa 1997) (“Although H.A. was fifteen at trial time, we do not

deem her testimony in totality as too unspecific and insufficient to identify a digital

touching of her anus by defendant.”); State v. Wolfe, No. 01-0940, 2002 WL

535177, at *2 (Iowa Ct. App. Apr. 10, 2002) (“Though the victim in this case was

in the ninth grade at the time of trial, her testimony was not so unspecific or

confusing that a jury could not find that defendant touched her genitalia.”).

Notably, the court found the child’s testimony “credible.” We give weight to this

credibility finding.   See State v. Dewitt, 811 N.W.2d 460, 476 (Iowa 2012)

(“[C]redibility determinations are an essential function of the fact finder.”).

       Having found substantial evidence to support the district court’s detailed

findings of guilt, we affirm Lucier’s judgment and sentence for three counts of

second-degree sexual abuse.

       AFFIRMED.
