State of Iowa v. Darin Earl Peterson

IN THE COURT OF APPEALS OF IOWA

No. 23-0896
Filed August 7, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DARIN EARL PETERSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling,

Judge.

The defendant appeals his convictions for sexual abuse in the second

degree. AFFIRMED.

Alfredo Parrish of Parrish Kruidenier, L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Aaron Rogers, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Greer and Schumacher, JJ.
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TABOR, Presiding Judge.

Darin Peterson appeals his convictions of two counts of second-degree

sexual assault. He raises four claims: (1) he contends the court improperly

instructed the jury on the intent element of the offenses; (2) he asserts counsel

was ineffective for failing to object to the erroneous instruction; (3) he accuses the

State of failing to disclose evidence favorable to him; and (4) he argues that

prosecutorial misconduct denied him a fair trial.

We find that the instruction did not prejudice Peterson and we lack authority

to hear the ineffective-assistance claim. For the third and fourth claims, Peterson

failed to preserve error. So, we affirm the convictions.

I. Facts and Prior Proceedings

In 2018, Peterson was charged with two counts of second-degree sexual

abuse, class “B” felonies, in violation of Iowa Code section 709.3(1)(b) (2018). The

trial information alleged that he sexually abused his stepdaughter over a period of

eighteen months. The court held Peterson’s first trial in June 2022. That

proceeding ended in mistrial, and a new trial commenced in November 2022.

After hearing all the evidence, the jury was instructed that Peterson was

guilty of second-degree sexual abuse if the State proved two elements:

(1) Peterson performed a sex act with the victim and (2) the victim was under the

age of twelve. The instructions defined a sex act as “any sexual contact,” and

permitted the jury to “consider the type of conduct and the circumstances

surrounding it in deciding whether the contact was sexual in nature.” The jury did

not receive any instructions on lesser included offenses.
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In addition, the court provided the jury with the definition of specific intent,

even though the charges did not include a specific-intent element:

“Specific intent” means not only being aware of doing an act
and doing it voluntarily, but in addition, doing it with a specific
purpose in mind.
Because determining the defendant’s specific intent requires
you to decide what he was thinking when an act was done, it is
seldom capable of direct proof. Therefore, you should consider the
facts and circumstances surrounding the act to determine the
defendant’s specific intent. You may, but are not required to,
conclude a person intends the natural results of his/her acts.

And there was no instruction describing general intent crimes.

Peterson did not object to the specific intent instruction. And in closing

arguments neither party discussed Peterson’s intent. The jury returned guilty

verdicts on both counts. After the verdicts, Peterson obtained new counsel and

filed a motion in arrest of judgment and for new trial.

With substituted counsel, Peterson raised the specific-intent issue. He also

raised claims that the State failed to produce the victim’s completed cellphone

records; the jury improperly sped up deliberations because of time constraints; the

weight of the evidence did not support the verdicts; and previous counsel was

ineffective for not objecting to the specific intent instruction. At the combined

motion and sentencing hearing, counsel for Peterson discussed the jury instruction

claim. After the court denied that claim, it asked counsel if there was more record

Peterson wished to make. Counsel only brought up the deliberation timing claim.

That issue is not renewed on appeal. And Peterson didn’t ask for an amended or

enlarged ruling on the other issues in his posttrial motion.

The court sentenced Peterson to twenty-five years imprisonment on each

count to run concurrently. Peterson appeals.
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II. Analysis

A. Jury Instruction Challenge

Peterson first contests the jury instructions. We review his challenge for the

correction of legal error. State v. Kraai, 969 N.W.2d 487, 490 (Iowa 2022). “Even

where the challenged instruction is erroneous, [we] will not reverse the jury’s

verdict unless the error was prejudicial.” State v. Schwartz, 7 N.W.3d 756, 766

(Iowa 2024). He contends the court erred by instructing the jury on specific intent

when second-degree sexual abuse is a general intent crime. Meanwhile, the court

failed to instruct the jury on general intent. So, according to Peterson, the court

did not provide the correct standard, which confused and misled the jury.

In response, the State asserts Peterson did not preserve this claim for

appellate review because he did not object to the instructional error before closing

arguments.1 See Iowa R. Civ. P. 1.924; Iowa R. Crim. P. 2.19(4)(g) (“The rules

relating to the instruction of juries in civil cases apply to criminal cases.”). Indeed,

Peterson did not raise the claim until his new trial motion. He acknowledged the

lack of a timely objection but argued it was either structural error or ineffective

assistance of counsel. But the trial prosecutor defended the instructions without

discussing the lateness of Peterson’s objection.2 And the district court also

1 The State also points out that Peterson’s brief fails to include error-preservation

statements. See Iowa R. App. P. 6.903(2)(a)(g)(1) (requiring that each appeal
issue raised be accompanied by a “statement addressing how the issue was
preserved for appellate review”). We choose to overlook that rule violation here.
2 The prosecutor did argue that “this is a question that’s better left for

postconviction relief where his defense attorney can be questioned and asked for
reasons as to why there was no objection to that.” But the prosecutor continued
to address the merits, saying: “there is nothing in the closings or statements that
creates confusion to the jury as to the marshaling instruction.”
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reached the merits of the claim. The court agreed that giving the specific intent

instruction was erroneous but

the effect of the error was to place a higher burden on the State to
establish the defendant’s guilt than it should have done, because in
a general intent instruction . . . the jury would not have had to have
found that the defendant specifically intended to commit this crime,
only that he had the general intent to commit a crime. So I don’t think
that the error was to the defendant’s disadvantage. I think it was to
the State’s disadvantage, and yet the jury was able to find sufficient
evidence to return a unanimous verdict.

Concluding the error was harmless, the court denied the motion.

Because the State did not pinpoint the untimeliness issue as a ground for

relief in the district court, we do not rely on it now. See DeVoss v. State, 648

N.W.2d 56, 63 (Iowa 2002) (“Because error preservation is based on fairness, we

think both parties should be bound by the rule.”). But we do agree with the district

court that Peterson was not prejudiced by the instructional error. The marshalling

instruction did not contain an intent element, nor did it cross-reference the specific

intent instruction. At most, the jury considered whether Peterson’s acts were

sexual in nature based on the type of conduct and circumstances. Even if the jury

believed it had to find Peterson acted with specific intent, that standard heightened

the State’s burden. See generally State v. Heard, 636 N.W.2d 227, 232 (Iowa

2001) (explaining that specific intent crimes require proof that the accused wanted

“to achieve some additional consequence”). Despite that, the jury found Peterson

guilty. So, the instruction did not harm his defense, and we affirm the denial of the

motion on that ground.
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B. Ineffective Assistance of Trial Counsel

Peterson next contends his trial attorney was ineffective for failing to object

to the jury instructions. The State counters that we cannot review ineffective-

assistance-of-counsel claims on direct appeal. See Iowa Code § 814.7

(ineffective-assistance-of-counsel claims “shall not be decided on direct appeal

from the criminal proceedings”); State v. Treptow, 960 N.W.2d 98, 103 (Iowa

2021). In his reply brief, Peterson does not respond to this point. While our

analysis for the previous issue may render the question moot, we agree that

section 814.7 bars our review of this claim.

C. Brady Violation

Peterson next contends that the State failed to turn over evidence favorable

to him in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Because Brady

protects due process rights, appellate review is de novo. State v. Cahill, 972

N.W.2d 19, 27 (Iowa 2022).

As part of their investigation, detectives downloaded information from

cellphones belonging to Peterson and his stepdaughter. But, according to

Peterson, the State failed to turn over the full records to him. Peterson also asserts

that his stepdaughter underwent a medical examination that was never disclosed

to him. Peterson raised these claims in his posttrial motion, but did not discuss

them at the hearing, and the district court did not rule on them. Because there is

no ruling, error is not preserved. See Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).
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D. Prosecutorial Misconduct

As his final claim, Peterson accuses the State of prosecutorial misconduct

during closing statements. He asserts the prosecutor went outside the record by

“alluding to the possibility” that Peterson deleted an image from his cell phone in

anticipation of trial. Again, this accusation was raised in the motion for new trial,

but not ruled on by the court. Because there is no ruling and no indication the court

considered the issue, we find Peterson failed to preserve it for appeal. See

Lamasters, 821 N.W.2d at 864.

AFFIRMED.