Opinion
No. 1-686 / 01-0069.
Filed February 6, 2002.
Appeal from the Iowa District Court for Story County, WILLIAM J. PATTINSON, Judge.
Defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of two counts of third-degree sexual abuse in violation of Iowa Code section 709.4(2)(c)(4) (Supp. 1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Stephen Holmes, County Attorney, and Angelina Newman, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Shaphan Cheatom appeals from the judgment and sentence entered upon jury verdicts finding him guilty of two counts of third-degree sexual abuse. He contends his trial counsel was ineffective in failing to request a jury instruction on the mistake-of-law defense. We affirm.
I. BACKGROUND FACTS.
A.M. was born June 19, 1986. Shaphan Cheatom was born June 1, 1982. In May 2000, A.M. and two friends met Cheatom at a McDonald's in Ames. They exchanged phone numbers and Cheatom called A.M. the next day. A.M. told Cheatom she was only thirteen. Cheatom told A.M. he would turn eighteen on June 1, 2000. Cheatom asked A.M. for sex for his eighteenth birthday. According to A.M., she performed oral sex on Cheatom on June 5, 2000 and July 3, 2000, and they engaged in sexual intercourse on June 26, 2000. About two weeks after their first sexual encounter, Cheatom told A.M. to "keep [their sexual relationship] on the down low," because he could get into trouble since he was eighteen.
On June 23, 2000, a police officer questioned Cheatom about his involvement in another incident involving young runaway girls. The officer first told Cheatom that a thirteen- or fourteen-year-old could consent to sex so long as Cheatom was within five years of her age, but that girls younger than thirteen could not consent. The officer then stated that fourteen- and fifteen-year-olds might be able to consent if within five years of his age, but that thirteen-year-olds could not consent. The officer told Cheatom that fourteen-year-olds were probably too young for him.
The State charged Cheatom with three counts of third-degree sexual abuse based on his alleged sexual encounters with A.M. The two counts relevant to the appeal were alleged under Iowa Code section 709.4(2)(c)(4) (Supp. 1999) and pertained to the sex acts allegedly occurring June 26 and July 3. Cheatom testified in his defense at his jury trial. He stated that he had sexual contact with A.M. in May 2000, but that he had no sexual contact with anyone after he turned eighteen. He testified that he relied on the police officer's statements regarding the age of girls with whom he could have sexual contact, and he understood that he could have such contact with anyone who was within six years of his age.
Cheatom was also charged with four additional counts of third-degree sexual abuse, one count of assault with intent to commit sexual abuse, and one count of harboring a runaway. These charges are not at issue on appeal and do not involve Cheatom's alleged sex acts with A.M. We note that Cheatom admits in his appellate brief that the mistake-of-law defense would not apply to the charge of third-degree sexual abuse under section 709.4(2)(b) for the act occurring June 5, 2000.
The jury found Cheatom guilty of the two offenses relevant to this appeal. The district court sentenced him to two indeterminate, ten-year terms of imprisonment, to be served concurrently, for those offenses. Cheatom appeals.
II. SCOPE OF REVIEW.
Cheatom is entitled to the effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, section 10 of the Iowa Constitution. The right to counsel is a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Because a claim of ineffective assistance of counsel implicates constitutional rights, we review de novo the totality of the circumstances surrounding counsel's representation of the defendant. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
III. MERITS.
Cheatom contends that his trial counsel was ineffective in failing to request a jury instruction on a mistake-of-law defense. He argues that the police officer mistakenly stated the law to him. He claims that, under the officer's statement of the law, A.M. could have consented to have sex with him on the last two occasions she alleged sexual acts occurred. He argues that because of counsel's error, the jury was never given the opportunity to consider the defense, although the record at trial contained substantial evidence to support the defense.
To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance focuses on whether the performance by counsel was reasonably effective. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must show that performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. at 688, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693. A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
"Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)); s ee also Wemark, 602 N.W.2d at 814. A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). We find this record adequate to address Cheatom's claims.
An ineffective assistance claim may be disposed of if the defendant fails to prove either of the two prongs of such claim. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Therefore, we need not determine whether counsel's performance is deficient before undertaking the prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In order to prove prejudice, the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "A `reasonable probability is a probability sufficient to undermine confidence in the outcome' of the defendant's trial." State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997) (quoting State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986)).
To determine whether Cheatom's trial counsel had a duty to request an instruction on the mistake-of-law defense, we must consider whether that defense is tenable for third-degree sexual abuse as charged.
All persons are presumed to know the law. Evidence of an accused person's ignorance or mistake as to a matter of either fact or law shall be admissible in any case where it shall tend to prove the existence or nonexistence of some element of the crime with which the person is charged.
Iowa Code § 701.6 (emphasis added). To prove the offense of third-degree sexual abuse under section 709.4(2)(c)(4), the State had to show that Cheatom performed a sex act, A.M. and Cheatom were not cohabiting as husband and wife, A.M. was fourteen, and Cheatom was four or more years older than A.M. Iowa Code § 709.4(2)(c)(4). Cheatom was eighteen at the time of all the sex acts. A.M. was fourteen at the time of the two sex acts at issue in this appeal. Cheatom knew they engaged in sex acts and were not cohabiting as husband and wife. Cheatom cannot claim a mistake of law as to any element in section 709.4(2)(c)(4).
Cheatom, then, may only contend that the mistake-of-law defense is applicable because he did not know the sex acts with A.M. were illegal. It is "[o]nly in rare circumstances when the legislature has made knowledge of criminality an element of the offense charged." State v. Bellows, 596 N.W.2d 509, 513 (Iowa 1999) (quoting Saadiq v. State, 387 N.W.2d 315, 323 (Iowa 1986)). The lack of subjective awareness that conduct is unlawful is not generally a defense. State v. Clark, 346 N.W.2d 510, 513 (Iowa 1984). The legislature has not included the requirement that Cheatom know his sexual contact with A.M. was illegal as an element of the offenses at issue. Therefore, we conclude that a mistake-of-law defense was not available to Cheatom. Because his trial counsel had no duty to pursue this meritless issue, State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999), we deny his ineffective assistance claim.
IV. CONCLUSION.
We conclude Cheatom's ineffective assistance of counsel claim is without merit. We affirm the district court's judgment and sentence.