State of Iowa v. John Berwanger

IN THE COURT OF APPEALS OF IOWA

No. 20-0492
Filed June 16, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JOHN BERWANGER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,

Judge.

John Berwanger challenges his conviction of second-degree sexual abuse.

AFFIRMED.

Anne K. Wilson of Viner Law Firm, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by May, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

As a frequent visitor to his friends’ home, John Berwanger crossed a line

with the family’s daughter, N.M.K.; she disclosed he engaged in sexual contact

with her. A jury found Berwanger guilty of second-degree sexual abuse in violation

of Iowa Code section 709.3(1)(b) (2018).1 Berwanger appeals the conviction,

citing several issues. First, he maintains there was insufficient evidence to support

the conviction. Next, he raises errors in the submission of a jury instruction defining

“sex acts.” Berwanger also asserts the district court erred by allowing the State to

amend the trial information after both parties rested. And as a final issue, he raises

ineffective assistance of counsel. We affirm his conviction and preserve his

ineffective-assistance-of-counsel claim.

I. Factual Background and Prior Proceedings.

After drinking heavily at his friends’ home, Berwanger told them he was a

“monster” for something he had done. Crying, Berwanger said N.W.K.’s father

would “kill him if [he] found out what he did, and he did something he shouldn’t

have.” Pressed for more information, Berwanger offered no other details. The

friends chalked it up to the alcohol. After the friendship deteriorated for other

reasons and Berwanger was told not to come around anymore, Berwanger

messaged the ten-year-old N.M.K. on her tablet saying something to the effect of:

“Sorry I’m going to miss another birthday. If you ever want to find me, you can find

me at my mother’s house when you’re older.” N.W.K.’s mother found this contact

suspicious and asked her daughter if Berwanger ever did anything to her. The

1Berwanger was found not guilty of two other charged crimes: enticing a minor
under thirteen and lascivious acts with a child.
3

child hung her head. Because they were very close, her grandmother intervened

and asked N.W.K. if anything happened. The child answered yes and an

investigation began. In an interview with child-protection professionals, N.W.K.

disclosed that Berwanger touched her “private” and that it had occurred more than

once. The child also described an instance where Berwanger attempted to make

her touch his pants in the area of his penis but she pulled her hand away. She

quoted Berwanger as telling her “don’t tell anybody” and “if you were ten years

older I would marry you.”

After concluding the investigation, Berwanger was charged with second-

degree sexual abuse, enticing a minor under thirteen, and lascivious acts with a

child. A jury convicted Berwanger of second-degree sexual abuse, and he was

acquitted on the other charges. His motion for a new trial was denied, and he

appeals his conviction.

II. Standard of Review and Error Preservation.

We review challenges to the sufficiency of evidence for correction of errors

at law. State v. Alvarado, 875 N.W.2d 713, 715 (Iowa 2016). “[W]e review the

evidence in the light most favorable to the State to determine if, when considered

as a whole, a reasonable person could find guilt beyond a reasonable doubt.” State

v. Pearson, 514 N.W.2d 452, 456 (Iowa 1994). We review the district court’s denial

of a motion for a new trial on weight-of-the-evidence grounds for an abuse of

discretion. See State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).

We review challenges to jury instructions to correct legal error. State v.

Becker, 818 N.W.2d 135, 140 (Iowa 2012). The first part of Iowa Rule of Criminal

Procedure 2.4(8)(a), allowing amendments to the trial information at trial, is
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discretionary. See State v. Maghee, 573 N.W.2d 1, 4 (Iowa 1997). An abuse of

discretion occurs when the trial court exercises its discretion “on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” Id. Whether the

amendment prejudices the defendant’s substantial rights or charges a wholly new

and different offense is reviewed for errors at law. See State v. Bruce, 795 N.W.2d

1, 2 (Iowa 2011). Claims related to ineffective assistance of counsel are reviewed

de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

The State concedes error was preserved on Berwanger’s claims about the

“sex act” jury instruction, the amendment to the trial information, and ineffective

assistance of counsel. Ineffective-assistance-of-counsel claims are not bound by

traditional error-preservation rules. See State v. Lucas, 323 N.W.2d 228, 232

(Iowa 1982) (stating the claim of ineffective assistance of counsel is an exception

to the general rule of error preservation). However, the State argues Berwanger

did not preserve error on his sufficiency-of-the-evidence claims. The State points

to the record made relating to the evidence presented, arguing Berwanger’s

generic arguments when he moved for judgment of acquittal on the second-degree

sexual-abuse charge do not preserve the more specific arguments he now

postures. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (“The record

reveals [the defendant’s] attorney did not mention the ‘threat’ or ‘anything of value’

elements of the extortion charge in his motion. Accordingly, [defendant’s] motion

for judgment of acquittal did not preserve the specific arguments he is now making

for the first time on appeal.”). We start with the sufficiency of the evidence inquiry.
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III. Analysis.

A. Sufficiency of the Evidence.

We first ask if Berwanger preserved error on his sufficiency-of-the-evidence

claim. Except for his general allegation that the State presented insufficient

evidence, Berwanger failed to raise the arguments below that he now presents to

us. “To preserve error on a claim of insufficient evidence for appellate review in a

criminal case, the defendant must make a motion for judgment of acquittal at trial

that identifies the specific grounds raised on appeal.” State v. Truesdell, 679

N.W.2d 611, 615 (Iowa 2004).

At trial, Berwanger moved for judgment on acquittal by arguing:

The only evidence presented whatsoever is that [the mother] asked
[N.M.K.], “Did John do something to you?” [N.M.K.] responded, “No.”
The mother looked at her, then [N.M.K.] said, “Yes.” There’s been
no evidence regarding when this happened. The only details are
basically that [a younger sibling] was present. Whether that was—
there’s been conflicting evidence whether that was on the couch or
where exactly. [N.M.K.] said she cannot provide any further details,
any further specific circumstances. Everything else presented by the
State is essentially [N.M.K.] made this complaint and then looking
back on it after the fact in retrospect, there’s a couple things that we
thought were odd, so I don’t believe a reasonable jury has sufficient
evidence to find Mr. Berwanger guilty of either of those counts.

His trial arguments focused on witness credibility. Now on appeal, Berwanger

draws our attention to the following: (1) there were no witnesses to the acts;

(2) N.M.K. could not articulate a date when the acts occurred and was inconsistent

when describing the timeframe, her clothing, and if more than one act occurred;

(3) N.M.K.’s description of the acts did not meet the definition of a “sex act”; and

(4) Berwanger’s conduct was inconsistent with the criminal act. He also adds his

defense would be bolstered if he could have introduced evidence that N.M.K.’s
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mother also claimed to be a victim of sexual abuse when she was a child.2 But as

a general rule, we do not address issues presented on appeal for the first time.

See Goode v. State, 920 N.W.2d 520, 526 (Iowa 2018). So we review Berwanger’s

claims under his developed credibility of the witness objections.

On that subject, Berwanger urges the evidence was insufficient to convict

him of second-degree sexual abuse.3 “In reviewing challenges to the sufficiency

of evidence supporting a guilty verdict, courts consider all of the record evidence

viewed in the light most favorable to the State, including all reasonable inferences

that may be fairly drawn from the evidence.” State v. Reed, 875 N.W.2d 693, 704

(Iowa 2016) (citation omitted). “A jury verdict finding of guilt will not be disturbed if

there is substantial evidence to support the finding.” State v. Robinson, 859

N.W.2d 464, 467 (Iowa 2015). Evidence is substantial if it would “convince a

rational trier of fact that the defendant is guilty beyond a reasonable doubt.” Id.

(citation omitted).

Under Iowa Code section 709.3(1), a jury could find Berwanger guilty of

second-degree sexual abuse if the State proves these elements:

1. A person commits sexual abuse in the second degree when
the person commits sexual abuse under any of the following
circumstances:
a. During the commission of sexual abuse the person displays
in a threatening manner a dangerous weapon, or uses or threatens

2 This argument is not developed in Berwanger’s brief, so we do not consider it on
appeal. We do not consider conclusory statements unsupported by legal
argument. See, e.g., Baker v. City of Iowa City, 750 N.W.2d 93, 103 (Iowa 2008)
(holding a party waived its “conclusory contention” by failing to support it with an
argument and legal authorities).
3 Likewise, Berwanger makes a passive argument about his motion for new trial

and the verdict being contrary to the weight of the evidence. But this argument too
was not developed on appeal, so we do not consider it.
7

to use force creating a substantial risk of death or serious injury to
any person.
b. The other person is under the age of twelve.
c. The person is aided or abetted by one or more persons and
the sex act is committed by force or against the will of the other
person against whom the sex act is committed.

The evidence must be sufficient to convince a rational fact finder that the defendant

is guilty beyond a reasonable doubt. Shanahan, 712 N.W.2d at 134. A fair

inference of guilt is necessary, not merely suspicion, speculation, or conjecture.

State v. Geier, 484 N.W.2d 167, 171 (Iowa 1992). “In our system of justice, it is

the jury’s function to determine the credibility of a witness.” State v. Dudley, 856

N.W.2d 668, 677 (Iowa 2014). So in viewing the evidence in the light most

favorable to the verdict, including all reasonable inferences deduced from the trial

record, we think a jury could find the witnesses were credible and the evidence

was sufficient to support the conviction. See State v. Truesdell, 679 N.W.2d 611,

615 (Iowa 2004). While the child could not detail the exact dates or the exact

clothing worn, the trial evidence included an interview conducted shortly after

learning of the abuse. With care, the child protection professional drew information

from the child, in the child’s own words, that met the definition of a “sex act” and

the elements of the offense. The jury assessed the credibility of all witnesses,

including Berwanger, who testified. We find Berwanger’s attacks on the sufficiency

of the evidence are unwarranted.

B. Errors Involving Jury Instructions.

Under the category of errors with the jury instructions, Berwanger makes

two arguments. First, he faults the district court for instructing on all definitions of

a “sex act,” even those not supported by the record. Second, he asserts the district
8

court erred when the State was allowed to amend the trial information and expand

the dates for commission of the offenses after all parties rested.

1. Error in the Submission of Sex Act Instruction.

Berwanger structures an argument that reading the full definitional

instruction of a “sex act” inflamed the jury. The instruction read:

As used in these instructions, “sex act” means any sexual
contact between two or more persons by any of the following:
1. By penetration of the penis into the vagina or anus.
2. Contact between the mouth and genitalia or by contact
between the genitalia of one person and the genitalia or anus of
another person.
3. Contact between the finger or hand of one person and the
genitalia or anus of another person. Skin-to-skin contact is not
required. Prohibited contact occurs when the specified body parts
touch, and any intervening material would not prevent the
participants from perceiving that they have touched.
5. Ejaculation onto the person of another.
6. By use of artificial sexual organs or substitutes therefor in
contact with the genitalia or anus.
You may consider the type of contact and the circumstances
surrounding it in deciding whether the contact was sexual in nature.

Berwanger posits that the definition of “sex act” in the jury instruction was too broad

and should have been limited to the portion that fit his alleged actions. Berwanger

preserved error by objecting and the district court candidly reasoned:

I don’t disagree with you, and I do think you’re correct factually, and
I would prefer not to have to read some of those elements because
they’re kind of graphic. But it is the stock instruction, and I do think
that the jury should be informed about everything that qualifies as a
sex act just so they don’t think that somehow the touching one was
picked out of thin air and is the only thing that constitutes a sex act.
So I’m going to leave [instruction] 16 according to the stock
instruction.

Instructions can become the law of the case and so once the facts are presented,

it behooves the district court and the parties to craft instructions with legal concepts

that relate to the proven record. See State v. Schiebout, 944 N.W.2d 666, 671
9

(Iowa 2020) (“Jury instructions, when not objected to, become the law of the case

for purposes of appellate review for sufficiency-of-evidence claims.”).

The State argues that the instruction was definitional only, a correct

statement of the law, and not a marshalling instruction.4 Hence, no legal error

occurred. See Ayabarreno v. State, No. 18-1973, 2020 WL 375939, at *2–3 (Iowa

Ct. App. Jan. 23, 2020) (finding that an instruction offering definitions of what

constituted a dangerous weapon, even where there was insufficient evidence to

support both alternatives, does not result in a flawed verdict because it was not a

marshalling instruction that contained several alternative ways the crime could

have been committed). We agree. Here the definitional instruction provided

context to the jury about what constituted a “sex act.” We note the prosecutor

focused the argument on the alternative supported by the evidence.

Admittedly, there was no evidence supporting the other definitions in the

sex-act instruction, but we give the jury some credit for understanding how the

facts apply to the law. And the actual marshalling instruction did not contain

reference to any specific component of the definition. See State v. Hanes, 790

N.W.2d 545, 559 (Iowa 2010) (“We review jury instructions as a whole to determine

whether the jury instructions correctly state the law.”). Thus, the jury was not

4 In any event, because judgment was entered against Berwanger in March 2020,
Iowa Code section 814.28, effective July 1, 2019, applies:
When the prosecution relies on multiple or alternative theories
to prove the commission of a public offense, a jury may return a
general verdict. If the jury returns a general verdict, an appellate
court shall not set aside or reverse such a verdict on the basis of a
defective or insufficient theory if one or more of the theories
presented and described in the complaint, information, indictment, or
jury instruction is sufficient to sustain the verdict on at least one
count.
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instructed on any misstatement of the law. We find no error in instructing on the

full definition of “sex act.”

2.. Amending the Trial Information.

After both parties rested their cases, the State moved to amend the trial

information to conform to the evidence at trial. Rather than noting the crime

occurred between May 1, 2017 and May 24, 2018, the State asked to amend the

beginning date to May 1, 2016. Berwanger objected that the request came after

the trial ended. “[T]he phrase ‘during the trial’ means the period of time in which

the trier of fact hears evidence and makes a decision based on that evidence.”

State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013) (citation omitted) (finding

“amendment after the close of evidence but before the case went to the jury in the

main case” fell within the “before or during trial” parameters).

The parameters for amending the trial information during trial are outlined

in Iowa Rule of Criminal Procedure 2.4(8)(a):

The court may, on motion of the state, either before or during
the trial, order the indictment amended so as to correct errors or
omissions in matters of form or substance. Amendment is not
allowed if substantial rights of the defendant are prejudiced by the
amendment, or if a wholly new and different offense is charged.

Berwanger concedes his claim boils down to whether his substantial rights were

prejudiced by the amendment. “An amendment prejudices the substantial rights

of the defendant if it creates such surprise that the defendant would have to change

trial strategy to meet the charge in the amended information.” Maghee, 573

N.W.2d at 6. To show prejudice, Berwanger contends he might have changed trial

strategies or offered other evidence had he known the alleged dates for the crime.

He provided no example of how he was prejudiced to the district court. And he
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offers no examples of how his case presentation would be different or what

evidence or witness he would have called to allow us to evaluate the prejudice to

him. His strategy was to deny the crime; we do not see that defense changing

because of a change in date. See State v. Harrington, No. 03-0915, 2005 WL

723891, at *4 (Iowa Ct. App. Mar. 31, 2005) (noting where trial strategy throughout

had been not guilty, defendant failed to show prejudice by allowing amendment

related to the same offense). Thus, we find no prejudice to Berwanger in granting

the State’s motion to amend the trial information.

C. Ineffective Assistance of Counsel.

Berwangwer raises three issues5 involving his trial counsel’s performance

that he believes resulted in ineffective assistance of counsel. To prevail on a claim

of ineffective assistance of counsel, the applicant must demonstrate both deficient

performance and prejudice. See Ledezma, 626 N.W.2d at 142. But our legislature

spoke, and we now cannot decide ineffective assistance of counsel claims on

direct appeal unless “the appeal was already pending on July 1, 2019, when

Senate File 589 eliminating the ability to pursue ineffective-assistance claims on

direct appeal, took effect.” State v. Ross, 941 N.W.2d 341, 345 (Iowa 2020); see

also Iowa Code § 814.7 (Supp. 2019).6

5 The issues are: (1) his counsel failed to obtain an expert witness to dispute the
CPC questioning techniques; (2) counsel’s cross-examination of the child was too
weak; and (3) his counsel should have objected to leading questions of the
witness. All of these complaints relate to trial counsel’s strategy.
6 Iowa Code section 814.7 provides:

An ineffective assistance of counsel claim in a criminal case shall be
determined by filing an application for postconviction relief pursuant
to chapter 822. The claim need not be raised on direct appeal from
the criminal proceedings in order to preserve the claim for
12

Even if we could, the allegations of ineffective assistance of counsel relate

to trial counsel’s strategy and we cannot evaluate that performance on this record.

We preserve these claims for a PCR proceeding. See State v. Zacarias, 958

N.W.2d 573, 588 (Iowa 2021) (preserving defendant’s ineffective-assistance-of-

counsel claims for a PCR proceeding to allow an adequate record to be made and

allow the attorney the opportunity to respond to the claims).

IV. Conclusion.

As to the claims Berwanger preserved for appeal, the evidence was sufficient

for a jury to have convicted him. We hold it was not error for the district court to

instruct the jury on the full definition of a “sex act.” Likewise, we find the

amendment to the trial information did not prejudice Berwanger. And we cannot

address the ineffective-assistance-of-counsel claims on direct appeal.

AFFIRMED.

postconviction relief purposes, and the claim shall not be decided on
direct appeal from the criminal proceedings.
(Emphasis added.)