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IN THE COURT OF APPEALS OF IOWA No. 1-744 / 10-1814 Filed December 7, 2011

STATE OF IOWA, Plaintiff-Appellee, vs. KELVIN LEE PLAIN, SR., Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.

Kelvin Plain appeals from his conviction for assault with intent to commit sexual abuse. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Dustin S. Lies, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield and Danilson, JJ.

2 VOGEL, P.J. Kelvin Plain was charged with assault with intent to commit sexual abuse under Iowa Code section 709.11 (2009), following an incident between himself and T.T. We conclude the district court did not abuse its discretion in admitting testimony regarding T.T.'s mental deficiencies, nor testimony as it pertained to Plain's roommate's demeanor when the police inquired about the incident. The record also contains sufficient evidence to uphold the jury's guilty verdict, and the district court properly refused Plain's motion for judgment of acquittal. Finally, Plain's ineffective-assistance-of-counsel claim fails because no prejudice resulted from trial counsel's failure to preserve error on the adm ission of testimonial evidence regarding the roommate's demeanor. We therefore affirm. I. Background Facts and Proceedings Based on the evidence presented at trial, a jury could have found the following facts. On April 9, 2010, T.T. was playing games at the Cedar Valley Community Services Support Club (the Club), which provides support services to adults with disabilities. Kelvin Plain, who had met T.T. a few times before when she was working at Goodwill, came to the Club and asked T.T. to go to his apartment with him for dinner and a movie. T.T. accepted the offer. Once at Plain's studio apartment, Plain gave his roommate, Steven Murphy, a check and told him to cash it, get food for them, and keep half the money. Murphy left and Plain asked T.T. what kind of movies she liked to watch. T.T. responded that she liked romance and comedy movies. Plain told her he had the perfect movie for her and began playing a pornographic film.

3 T.T. was "weirded out" by Plain's film choice and tried not to look at the television, as it was not the kind of movie she wanted to see. When she looked up again, Plain had disrobed and was completely naked. T.T. felt scared,

uncomfortable, and wanted to leave. Plain attempted to touch T.T.'s vaginal area, breasts, hair, neck, and back. He also tried kissing her neck and attempted to get his hands underneath her clothes. T.T. pushed Plain's hands away and repeatedly told him "no," but he persisted. When T.T. tried to get up and leave, Plain pushed her back down on the bed. At one point, Plain offered T.T. twentyfive dollars if she would have sex or oral sex with him. T.T. was eventually able to get around Plain and to the door--which was locked--unlock the door, and leave. Still scared, T.T. returned to the Club, and her service coordinator,

Mackenzie Flot, was contacted. T.T. spoke with Flot, and Flot contacted the police to report the incident. Flot observed that T.T. was scared and "a little shaken up." Monica Blakeman, an officer with the Waterloo Police Department, took statements from both T.T. and Flot. After the incident was reported, Waterloo police officer Edward Savage went to Plain's apartment. Plain was gone and only his roommate, Murphy, was home. Murphy was observed as being nervous and agitated when Officer

Savage was at the apartment. On May 13, 2010, Plain was charged by trial information of assault with intent to commit sexual abuse under Iowa Code section 709.11. Prior to the August 3, 2010 trial, the court sustained Plain's motion in limine that testimony as to Murphy's demeanor was not relevant and could be prejudicial. A mistrial

resulted when a witness for the State testified in a manner inconsistent with the

4 court's ruling. On August 11, Plain again moved in limine to exclude, among other things, (1) any testimony as to Murphy's1 state of mind or physical reaction or demeanor when confronted by police, and (2) the testimony of Mackenzie Flot as to T.T.'s "learning disability or inappropriate demeanor." The matter came on again for trial on October 5, 2010, after which the jury returned a guilty verdict. Prior to sentencing, the court denied Plain's motions for new trial and in arrest of judgment. Plain was sentenced to serve a term of imprisonment not to exceed two years. Plain appeals. II. Standard of Review Our review of evidentiary rulings is for an abuse of discretion. State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010). Sufficiency of the evidence

challenges are reviewed for correction of errors at law. State v. Hearn, 797 N.W.2d 577, 579 (Iowa 2011). "The district court's findings of guilt are binding on appeal if supported by substantial evidence." State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). We review ineffective-assistance-of-counsel claims de novo. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). III. Evidentiary Rulings A. Error Preservation

Plain contends the district court erred in overruling his objections to Flot's testimony regarding T.T.'s mental deficiencies and Officer Savage's testimony as to Murphy's demeanor when he went to the apartment, asserting the evidence was irrelevant and prejudicial. The State argues error was preserved only as to

1

The motion refers to Murphy as "Mr. Stevens," which was clarified as a typographical error at the hearing on the motion.

5 Flot's testimony, and not Officer Savage's as Plain did not lodge a relevancy objection to questions regarding Murphy's demeanor at trial.2 We agree with the State that the objection to the testimony of Officer Savage, which referenced Murphy's demeanor while in the presence of the police, did not preserve error. Although Plain re-asserted the motion in limine prior to the second trial, he failed to secure a ruling on the motion. The district court stated, "At this point, I'm going to delay ruling on that and take that as an objection to the evidence." Because Plain did not object to the testimony when offered during trial, the district court did not resolve whether the testimony would be admitted, and the general error preservation rule applies. See Quad City Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 89

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