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IN THE COURT OF APPEALS OF IOWA No. 6-231 / 05-0630 Filed September 21, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. CHRISTOPHER RYAN LEE ROBY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

Christopher Roby appeals his convictions and sentence for second and third-degree sexual abuse. AFFIRMED.

Linda Del Gallo, State Appellate Defender, Theresa R. Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.

Heard by Mahan, P.J., and Hecht and Eisenhauer, JJ.

2 HECHT, J. Christopher Roby appeals his convictions and sentence for second and third-degree sexual abuse. We affirm. I. Background Facts and Proceedings. Christopher Roby, who was born in December of 1983, was a childhood friend of Nate Ebetino. When the two boys were still young, Roby became

extremely close to the Ebetino family, and a room in the Ebetinos' home was eventually allocated to Roby's use. S.M., Nate's step-sister, is approximately four and one-half years younger than Roby. She testified that she was awakened in May of 1998 at the age of nine when Roby touched her vagina beneath her underwear. 1 When S.M.

informed her parents of the touching, her mother noticed S.M.'s underwear had been torn. Roby denied the alleged touching had occurred, and although law enforcement was not notified, S.M.'s parents decided to preclude Roby's contacts with the Ebetino family for several months. Roby was eventually allowed to resume his access to the Ebetino family's home on the condition that he not be alone with S.M. The record suggests that this condition was not carefully enforced, however, and Roby soon resumed overnight stays at the home. S.M. testified that throughout her eleventh year, Roby subjected her to multiple acts of sexual abuse. She testified the incidents were so numerous that she could not relate specific dates, but that each involved Roby touching her breast or vagina, or forcing her to touch his penis until he ejaculated.
1

S.M.

S.M.'s testimony concerning the May of 1998 touching was corroborated by both her parents' and Nate's testimony at trial.

3 testified that Roby continued such behavior during her twelfth and thirteenth years, noting that some form of abuse occurred virtually every time Roby spent the night at the Ebetinos' home. While she found the conduct disgusting, S.M. did not inform her parents or her step-brother about the resumption of the sexual abuse because she was frightened by Roby and believed she was at fault for failing to prevent it. S.M. also felt conflicted because she "loved [Roby] like a brother," and "didn't want his life to be ruined." S.M. testified the regular episodes of sexual abuse ended when Roby turned eighteen and joined the Navy. She claimed Roby perpetrated a final sex act against her when he forced her to touch his penis while he was on leave during the fall of 2002. Convinced that the abuse would stop only if she told someone, S.M. revealed some of the details of the ongoing sexual abuse to her step-brother's girlfriend in late September of 2002. When a third-party informed her of the alleged abuse, S.M.'s mother inquired and S.M. disclosed the history of Roby's abusive conduct. When Roby was confronted with the accusations by S.M.'s mother, he refused to discuss them. S.M.'s mother then notified the police. Roby was charged with four counts of sexual abuse. 2 At the subsequent jury trial in December of 2004, Roby did not present a defense, and was found guilty of count one, which alleged Roby had performed a sex act with S.M.

2

Roby was charged with one count of Sexual Abuse in the Second Degree in violation of Iowa Code section 709.3(2) (2003) (sex act with a child who is under the age of twelve, a Class B felony); two counts of Sexual Abuse in the Third Degree in violation of section 709.4(2)(b) (sex acts with a person who was twelve or thirteen years of age, Class C felonies); and one count of Sexual Abuse in the Third Degree in violation of section 709.4(2)(b) (sex act with a person who was fourteen years of age and Defendant was four or more years older, a Class C felony).

4 between December 20, 1999 and July 17, 2000, while S.M. was under the age of twelve; and count two, which alleged Roby had performed a sex act with S.M. between July 18 and December 19, 2001, while S.M. was under the age of fourteen. 3 Roby's motion for new trial, which alleged the jury's verdict was

contrary to the law and the evidence, was overruled by the district court. 4 The district court then sentenced Roby to concurrent terms of (1) twenty-five years in prison on count one, and (2) ten years in prison and a suspended fine of $1000 on count two. The district court also entered a no-contact order prohibiting Roby from any contact with S.M. or with the Ebetinos' family home. 5 Roby appealed his convictions and sentence, alleging the district court erred as a matter of law in (1) applying the incorrect standard in its denial of his motion for new trial, and (2) imposing a no-contact order as part of his sentence. Roby also claimed his trial counsel provided ineffective assistance by failing to object to evidence of prior bad acts not alleged in the trial information. Following oral argument, we concluded we were unable to determine whether the district court had applied the correct standard in overruling Roby's

3

The jury returned a verdict of not guilty on counts three and four, which alleged Roby had performed a sex act with S.M. between December 20, 2001, and July 17, 2002; and between July 18 and September 21, 2002 respectively. The ruling referred to the court's earlier ruling overruling Roby's motion for a directed verdict and motion for judgment of acquittal, in which the court concluded: "Taken in the light most favorable to the State, the court does believe a fact question has been generated for the jury and will overrule the motion for directed verdict." While that was the proper standard for adjudication of a motion for directed verdict, it was not appropriate for the assessment of a motion for new trial. See State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (noting the court is not obliged to view the evidence in the light most favorable to the non-moving party when ruling on a motion for new trial). The no-contact order was first issued on September 30, 2002, but by its terms, that temporary order terminated at Roby's sentencing and was renewed by order of the district court.

4

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5 motion for new trial. We therefore remanded this case to the district court with instructions to reconsider the motion under the proper weight-of-the-evidence standard. On remand the district court concluded the weight of credible evidence was not contrary to the jury's verdict. Having retained jurisdiction over Roby's appeal, we now consider his remaining claims. II. Scope and Standard of Review. We review Roby's claim that the imposition of the no-contact order constitutes an illegal sentence for correction of errors at law. State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987). We review de novo claims asserting trial counsel's ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective

assistance of counsel raised on direct appeal are generally preserved for postconviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). Claims of ineffective assistance of counsel need not be raised on direct appeal to preserve them for postconviction proceedings. Iowa Code

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