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IN THE COURT OF APPEALS OF IOWA No. 1-898 / 11-0197 Filed December 21, 2011 STATE OF IOWA, Plaintiff-Appellee, vs. PETER LONG, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.

Peter Long appeals the district court's order enhancing his conviction of sexual abuse in the third degree to a class "A" felony under Iowa Code section 902.14 (2009). SENTENCE VACATED AND CASE REMANDED WITH INSTRUCTIONS.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Ricki N. Osborn, County Attorney, for appellee.

Heard by Danilson, P.J., and Tabor and Mullins, JJ.

2 TABOR, J., The question in this appeal is whether defendant Peter Long suffered prejudice by late notice of a State's witness who testified regarding his previous convictions for lascivious acts with a child for purposes of the life-sentence enhancement at Iowa Code section 902.14 (2009). Long contends the district court's decision to reopen the record and allow the State to file amended minutes of testimony at the close of the enhancement proceedings caused him surprise and undue prejudice because he relied on the State's original list of witnesses in planning his trial strategy. Without considering whether Iowa Rule of Criminal Procedure 2.19(9) required Long to object before trial on the substantive offense, we find in this case that reopening the record and allowing the State to call a late-noticed witness to prove the enhancement unfairly undermined Long's strategy and constituted an abuse of the district court's discretion . Accordingly, we vacate the sentence and remand for the district court to determine whether the State's original evidence--offered before the reopening of the record--satisfied its burden to prove beyond a reasonable doubt that the defendant previously violated subsection (1) or (2) of Iowa Code section 709.8. I. Background Facts and Procedures On December 30, 1996, Peter Long entered pleas of guilty to two counts of lascivious acts with a child, in violation of Iowa Code section 709.8. The county attorney explained, "the plea bargain in this case was that the Defendant agreed to plead to Lascivious Acts with a Child, a class `D' non-forcible felony in

3 Webster County, and also agreed to plead guilty to the same crime arising out of a crime in Hamilton County." The Hamilton County conviction related to Long's conduct with a girl under the age of twelve between May 1 and July 30 of 1993. The Webster County charge arose from Long's sexual contact with a girl under the age of twelve on or around April 5, 1996. On the same day as the plea, the district court sentenced Long to two indeterminate five-year terms of imprisonment, to run consecutively. On July 15, 2010, the State charged Long with sexual abuse in the third degree as a second or subsequent offense in violation of Iowa Code sections 709.1(3), 709.4(2)(b) and 902.14. The victim was Long's twelve-year-old

babysitter. He stood trial for the offense on November 30, 2010. During jury deliberations on the underlying offense, Long agreed to a bench trial for the enhancement phase. On December 1, 2010, the jury returned a guilty verdict. At the enhancement proceeding on the same day, the State introduced certified copies of two 1996 sentencing orders from Webster and Hamilton counties. The orders showed that Long was convicted of lascivious acts with a child under Iowa Code section 709.8. T he State established Long's identity as the person who committed the prior offenses through the testimony of three witnesses. Detective Jason Bahr of the Webster County sheriff's office testified to an interview with Long in which he discussed his two prior convictions of lascivious acts with a child. The State also offered a segment of the video-taped police interview into evidence. In further proving identity, the State offered the

4 testimony of Barbara Krug and Russ Goebel, both of whom supervised Long in their employment with the Department of Correctional Services. After the State rested, Long moved for judgment of acquittal, alleging that the prosecutor failed to prove his prior lascivious-acts convictions qualified as enhancing offenses under Iowa Code section 902.14. He pointed out that

section 902.14 applies only to convictions for lascivious acts with a child based on the first two of the four subsections listed in section 709.8. Long argued the State's failure to specify the subsection constituted insufficient evidence to prove the prior conviction for enhancement purposes. The county attorney argued that under the rules of criminal procedure, "this part of the trial is supposed to be for identity purposes only." The district court took the matter under advisement. The next morning, the State moved to reopen the record, and the court held a hearing on the motion later that day. The State argued the defendant waived the argument concerning which subsection he was previously convicted under because he did not raise it prior to the trial on the substantive offense, citing Iowa Rule of Criminal Procedure 2.19(9). See Iowa R. Crim. P. 2.19(9) ("If the offender denies being the person previously convicted, sentence shall be postponed for such time as to permit a trial before a jury on the issue of the offender's identity with the person previously convicted. Other objections shall be heard and determined by the court, and these other objections shall be asserted prior to trial of the substantive offense in the manner presented in rule 2.11."). Alternatively, the State argued the case should be reopened for

additional evidence, citing the seven-factor test set out in State v. Teeters, 487

5 N.W.2d 346 (Iowa 1992). The defendant countered: "They rested with an

incomplete record and now they want a second bite at the apple." Four days later, on December 6, 2010, the district court issued an order granting the State's motion to reopen the record. The court rejected the State's waiver argument, quoting from State v. Kukowski, 704 N.W.2d 687, 693 (Iowa 2005), "[a] defendant has the right to stand mute in a rule 2.19(9) proceeding and force the State to prove prior convictions beyond a reasonable doubt and we will not interpret the rule in a manner that could interfere with that right." The court then weighed the Teeters factors and concluded "the significance of the evidence compels an order to reopen the record." On December 16, 2010, the State filed a motion to amend the trial information and supplemented the minutes of testimony by listing Tom Kierski, the court reporter for Long's 1996 guilty plea hearing. The State anticipated witness Kierski would lay foundation for introducing the transcripts of Long's guilty pleas and sentencing for the Webster County and Hamilton County lascivious acts convictions. At a December 20, 2010 hearing, Kierski testified to being the court reporter for Long's 1996 proceedings, and read excerpts of the transcript into the record. The State entered the transcripts and Kierski's shorthand notes for both hearings into evidence. Based on evidence presented at both the December 1 and December 20 hearings, the district court enhanced Long's third-degree sexual abuse charge to a class "A" felony, and imposed a life sentence on January 3, 2011.

6 Long appeals the district court's order granting the State's motion to reopen the record. He contends the court abused its discretion in allowing the State to supplement the facts necessary to prove the section 902.14 enhancement. II. Standard of Review We review a district court's decision to reopen the record for abuse of discretion. State v. Jefferson, 545 N.W.2d 248, 251 (Iowa 1996); see Teeters, 487 N.W.2d at 349 ("[T]he discretion accorded [to the trial court] must necessarily be especially broad."). We will find an abuse occurs when "such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Jefferson, 545 N.W.2d at 251 (citations omitted). A trial court may reopen the record at any stage of the proceeding, "if it appears necessary to the due administration of justice." Bangs v. Maple Hills. Ltd., 585 N.W.2d 262, 267 (Iowa 1988) (citing 75 Am. Jur. 2d Trial

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