State v. Nims , 357 N.W.2d 608 ( 1984 )

HARRIS, Justice.

Defendant was convicted of first-degree kidnapping under Iowa Code sections 710.2 and 902.1 (1981) in connection with the abduction and sexual abuse of an eight-year old girl. On appeal he presents two assignments of error. We affirm the trial court.

The victim was walking with a friend, another eight-year old girl, to school in Waterloo when defendant pulled up beside her in a pick-up truck. Defendant got out of the truck and chased the two girls. He grabbed the screaming victim, picked her up, and forced her into his truck. He put the child on the floor of the truck’s passenger side and held her down as he drove away. Defendant then drove to an area in a park, stopped, carried the child in his arms some distance' away in a wooded area, and tore off the girl’s undergarments. He took off his own clothes and achieved some penetration of the child’s sex organ with his own.

Afterwards, according to his testimony, he was taking her to her school when he was stopped by the police.

I. The first assignment challenges a trial court evidentiary ruling which allowed a police officer to detail a statement made by the child in her home about 10:00 a.m. the same day. The abduction had begun at about 8:30 a.m.

Her statement, made following her examination by a doctor, was in the presence of the officer and the child’s mother. The officer testified the child was “noticeably shaken” and “looked like a young lady [who] was very upset.” Then, over defendant’s objection that it was hearsay, the officer related the child’s statement which detailed what had happened from the time of her abduction until she was rescued by the police.

The State responds to the assignment on three alternative grounds. It asserts the statement was not hearsay; if so it falls within the excited utterance exception to the hearsay rule; and, in any event, was harmless error. Without suggesting any views on the State’s first two responses, we pass them and rest our affirmance on the ground that any error was harmless.

It is well established that the admission of hearsay evidence over a proper objection is presumed to be prejudicial error unless the contrary is affirmatively es-' tablished. State v. Brown, 341 N.W.2d 10, 15 (Iowa 1983). The contrary is established when the record shows that the challenged evidence did not impact on the jury’s finding of guilt. We think the record here easily qualifies.

A number of factors, taken together, lead to this determination. The challenged statement was cumulative. The child recited the same facts as a witness at trial. She was cross-examined concerning the details of the sexual abuse. In spite of her youth, she was an articulate and, obviously, effective witness.

There was unusually strong corroboration. The abduction was described by the girl’s companion and by a nearby resident. The sexual abuse resulted in physical trauma which was described by an examining physician (inflammation of vaginal area consistent with recent penetration by a penis).

Defendant was examined by a psychiatrist who testified as a witness for the State. There was no objection when this witness related the medical history taken from the defendant at the time of the examination. The psychiatrist recounted defendant’s recitation of the entire episode, including the abduction, the taking of the child to the park in his truck, the sexual abuse, and an attempt to take her to school at the time he was apprehended.

A police officer testified he apprehended the defendant with the child still in his truck. There was photographic evidence of the dirt and debris on the clothes and knees of the defendant. A photograph of the girl showed that her stockings contained material that appear to be burrs picked up from the ground.

The case against defendant, even without the challenged evidence, was more than overwhelming. It was ironbound. Admission of the statement he challenges as hearsay did not hurt defendant’s chance for acquittal because, as a practical matter, he had none. His counsel could easily see this and based the defense, not on disputing the facts, but by asserting diminished responsibility.

Any error was harmless.

II. Defendant’s second assignment is a constitutional challenge to his mandatory life sentence. He argues it is cruel and unusual punishment, in violation of the eighth and fourteenth amendments to the United States Constitution and article I, section 17 of the Iowa Constitution. We answered the question adversely to defendant in Lamphere v. State, 348 N.W.2d 212, 220-21 (Iowa 1984). In seeking to elude the Lamphere holding defendant challenges the statute as it is applied to him, not facially. He relies on Solem v. Helm, 463 U.S. 277,103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). We reject the challenge and adhere to the Lamphere decision.

Solem lists three factors to be considered in such a challenge: (1) the gravity of the offense and harshness of the penalty; (2) the treatment of others in this jurisdiction who commit crimes of equal or greater severity; and (3) the treatment of persons in other jurisdictions who commit the same crime. 463 U.S. at-, 103 S.Ct. at 3010, 77 L.Ed.2d at 649-50.

In Iowa, any person convicted of first-degree kidnapping is subject to a mandatory life prison sentence. No parole is possible unless the sentence is commuted to a term of years by the governor. Iowa Code sections 710.2, 902.1, 902.2 (1981). See State v. Knupp, 310 N.W.2d 179, 183—84 (Iowa 1981).

There is a serious threshold matter which we can pass. It is questionable whether the three factors given in Solem are even applicable in this noncapital case:

Outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare. This does not mean, however, that the proportionality analysis is entirely inapplicable in non-capital cases.

463 U.S. at -, 103 S.Ct. at 3009, 77 L.Ed.2d at 649. If the factors do not apply, we are left with the principle that the length of a felon’s sentence in a state penitentiary is “purely a matter of legislative prerogative.” Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382, 391 (1980).

We can set aside the threshold question because defendant’s sentence was not cruel and unusual punishment under the Solem three-part test. Defendant’s analysis of the first two Solem factors is flawed because he grossly'understates the seriousness of his crime. He points out that only two other offenses in Iowa — murder in the first-degree and sexual abuse in the first-degree — carry a mandatory penalty of life imprisonment and argues:

The level of injury to the victim under the kidnapping statute and the facts of this case contrast markedly with that required in the first-degree murder and first-degree sexual abuse contexts.

Defendant’s point is grounded on his views concerning the seriousness of the crime. In his statement of the facts he says:

Dr. Gregorio Kazenelson, a pediatrician, testified he examined [the victim] later that morning. He observed an inflammation of her vaginal area consistent with recent penetration of one to one and one-half inches by a penis. Neither he or any witness testified that [the victim] had suffered any serious injury.

The legislature obviously took the view that this child did indeed suffer a serious injury and, to put it mildly, we are not inclined to disagree. We think the legislature was clearly entitled to believe the injury to this child was incalculable, as devastating as any imaginable. We know of no requirement that the legislature consider the kidnapping and sexual abuse of this eight-year old girl to be less serious than murder.

Defendant makes the point that, because we do not have capital punishment in Iowa, a life sentence is the most serious punishment possible. But this gives him no cause of complaint. When we did have capital punishment in Iowa a person convicted of rape (which on these facts defendant was guilty of) could receive a nonmandatory life sentence. See Iowa Code § 698.1 (1962). Surely there was no requirement that the punishment for noncapital crimes must be lessened because capital punishment is abolished.

Defendant is also wrong in his analysis of the third Solem factor. Iowa is not alone in calling for a life sentence for a crime similar to defendant’s. The State points out there are five other states with provisions similar to ours. See Mich.Comp. Laws Ann. §§ 750.349, 769.9 (1968); Nev. Rev.Stat. §§ 200.310, 200.320 (1980); S.D. Codified Laws Ann. §§ 22-6-1(2), 22-19-1, and 24-15-4 (1979 and Supp.1983); Tenn. Code Ann. §§ 39-2-301, 39-2-604, 39-1-703 (Supp.1983); W.Va. Code § 61-2-14(a) (1977). Although there are limitations in the application of the statutes in South Dakota and in Nevada, we think the third Solem factor is satisfied. Other states also call for a life .sentence for the acts of which defendant stands convicted.

We hold it was within the legislature’s prerogative to fix a mandatory life punishment for defendant’s crime.

AFFIRMED.

All Justices concur except WOLLE, J., who concurs in part and dissents in part.