Opinion
No. 5-509 / 03-1906
Filed December 21, 2005
Appeal from the Iowa District Court for Johnson County, Denver D. Dillard, Judge.
Jordan Robert Holm appeals from his conviction and sentence for third-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, J. Patrick White, County Attorney, and M. Veronica Dominguez, Assistant County Attorney, for appellee.
Heard by Hecht, P.J., Vaitheswaran, J., and Nelson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Jordan Robert Holm appeals from his conviction and sentence for third-degree sexual abuse. He contends there is insufficient evidence to support his conviction. He further contends the trial court violated due process and that his trial counsel rendered ineffective assistance in several respects. We affirm.
I. Background Facts and Proceedings.
On Saturday, September 14, 2002, a party was held at a house on East Market Street in Iowa City. The home was the residence of Joe Bradley, Dan Gluba, and three other roommates. A very large crowd of people attended the party, including Bradley's on-and-off girlfriend of five years, Lindsay. Also in attendance was Holm, along with two friends, John Garvin and Dillon Long, with whom he had traveled to Iowa City that day from Cedar Falls.
Around 2:30 a.m., Holm became tired and decided to find a place to sleep. He was informed by someone at the house that he could sleep on one of the couches upstairs. Holm decided to try to find a place to sleep upstairs because the main floor of the house was loud, crowded with people, and awash in beer.
Upon arriving upstairs, Holm discovered three of the four bedroom doors were locked. However, the fourth bedroom door was one-quarter to one-third ajar. Holm entered the room and observed a couple in the bed. He decided to lie down on the floor at the foot of the bed. He removed his shoes and shirt and used his shirt as a pillow.
Unbeknownst to Holm, the couple in the bed was Bradley and his girlfriend, Lindsay. Although they had been arguing earlier in the evening, they had made up. Bradley and Lindsay had gone to Bradley's room, had intercourse, and fell asleep naked.
According to her testimony, Lindsay was awakened to the sensation of someone performing oral sex on her and fondling her genitals. Believing the person in question to be Bradley, Lindsay allowed the oral sex to continue. However, when she reached down to caress his hair, Lindsay realized it was not Bradley because the hair was longer and curly. She looked to her right and observed Bradley asleep next to her. She then screamed and began kicking at the intruder. Lindsay observed a man, who was not wearing pants, run from the room.
Lindsay's screams awakened Bradley and summoned several partygoers to the room. Lindsay was hysterical, screaming, and crying. She stated that she was awakened by a man she did not know performing oral sex on her.
Several people attending the party witnessed Holm running down the stairs, either putting on, pulling up, or fastening his pants. Believing that Holm was trying to leave the house, Dan Gluba, Jesse Hopkins, and Justin Peters cornered him in the kitchen to prevent him from leaving. When asked for identification, Holm first produced someone else's driver's license. He later provided his own.
When questioned about what had happened, Holm simply replied "nothing," or contended he did not know. Lindsay then came downstairs and identified Holm as the man who had been in her room because she recognized his hair. She heard Holm deny performing any sex act upon her and deny being in the bedroom. Lindsay was yelling and hit Holm.
Bradley advised Holm to leave the house. Holm walked to a gas station and attempted to call the friends with whom he had come to Iowa City. When Holm was unable to reach anyone, he slept behind the gas station.
Gluba called the police regarding Lindsay's allegations. The police arrived and took Lindsay to University Hospital at approximately 2:00 a.m. After waiting to be examined for two hours, Lindsay asked that she be taken back to the house because she was tired.
Holm returned to the house at approximately 7:00 a.m., looking for his friends or the key to the car. Bradley spoke with Holm, who stated he had been in the bedroom trying to find a place to sleep. Holm again denied having oral sex with Lindsay and offered to go to the police station to take a polygraph test.
Bradley called the police and informed them of Holm's presence in the house. Officers arrived and Holm voluntarily accompanied them to the police station. Holm waited at the police station for over an hour for an investigator to arrive. Upon the investigator's arrival, Holm decided he should not speak without counsel.
At approximately 11:00 a.m., Lindsay was again taken to University Hospital. Samples were taken from her vagina, rectum, and inner thigh. A small amount of DNA matching Holm's was found on Lindsay's inner thigh.
Holm was charged with third-degree sexual abuse, in violation of Iowa Code sections 709.1, 709.4(1), and 702.17 (2001). Holm waived his right to a jury trial. At the bench trial, Holm testified in his defense. He claimed that after he entered the room and attempted to go to sleep, he heard moaning and groaning from the bed. Holm stated he sat up and saw a naked woman who appeared to be masturbating on the bed. Holm decided to leave to avoid embarrassment. When he started to stand up, Holm testified the woman looked at him and reached up for him, grabbing his head with her hands in an attempt to pull him on to the bed. Holm resisted and stood up, asking the woman what she was doing. At that point, Holm claims she began screaming and kicking him, and he fled the room.
At trial, Dr. Robert Benjamin testified for Holm as an expert witness in the field of forensic DNA. He testified that he would expect to find Holm's DNA in the swab of Lindsay's vagina if Holm had performed oral sex on her. Dr. Benjamin opined that the small amount of Holm's DNA from the swab of Lindsay's thigh was likely the result of incidental transfer from Lindsay's hand, after touching Holm's head, to her thigh. Dr. Benjamin further testified that vaginal fluid is quite viscous and would likely be visible on Holm's face, even if dry. Because Lindsay was at the end of her menstrual cycle at the time of the incident, Dr. Benjamin felt it would have been even more apparent. No witness testified to seeing anything on Holm's face following the alleged attack.
On August 28, 2003, the district court found Holm guilty as charged. Holm filed a motion for new trial, a motion for judgment not withstanding the verdict, and a motion for judgment of acquittal. The motions were denied and Holm was sentenced to a prison term not to exceed ten years. Holm was further ordered to register as a sex offender for ten years following his release. The court recommended that the parole board consider Holm for early release.
II. Sufficiency of the Evidence.
Holm contends there is insufficient evidence to find him guilty. He first claims there is insufficient evidence to establish the victim's lack of consent. He also claims there is insufficient evidence to establish he performed a sex act on the victim.
We review claims of insufficient evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id.
Holm denies any sex act took place between him and Lindsay. However, he argues that even if we are to assume the act did take place as Lindsay describes, he cannot be guilty of third-degree sexual assault as charge because the act was consensual.
Holm was convicted of third-degree sexual assault pursuant to Iowa Code section 709.4(1). This section states a person commits third-degree sexual abuse when they perform a sex act "by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person." Iowa Code § 709.4(1). Section 709.1(1) defines acts done by force or against the will of the other.
If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.
Iowa Code § 709.1(1). Holm argues the act described by Lindsay was not performed while Lindsay was under the influence of a drug inducing sleep or was otherwise in a state of unconsciousness. Holm contends a sleeping victim is covered under the definitions of physically helpless. See Iowa Code § 709.1A(2). Sexual assault of a physically helpless victim is covered by section 709.4(4), under which he was not charged.
The mere fact that the legislature mentioned sleeping victims in their definition of helpless victims, but not in the definition of victims abused against their will, does not mean sleeping victims are not included under the definition of "against the will." See State v. Farnum, 554 N.W.2d 716, 721 (Iowa Ct.App. 1996) (holding the term "incapacity" defined in section 709.4(2)(a) (1993) could extend to a person rendered unconscious from intoxication, although unconscious victims are encompassed in section 709.4(1)). Our supreme court has recognized a person who is asleep is rendered unconscious. Kaplan v. Kaplan, 213 Iowa 646, 654, 239 N.W. 682, 685 (1931) ("His unconscious conduct while asleep, or semiconscious conduct while going to sleep. . . ."). Furthermore, the definition of "against the will" itself implies sleep is a state of unconsciousness; if a drug inducing sleep renders one unconscious, natural sleep must also render one unconscious. We reject Holm's contention that the act described by the victim does not fall under the definition of third-degree sexual abuse as defined in section 709.4(1).
Holm also argues there is insufficient evidence to establish Lindsay's lack of consent because by her own testimony she legally consented. Lindsay did testify that once she was awakened by someone performing oral sex on her, "she was into it." At the time, Lindsay believed the person performing oral sex was her boyfriend. Holm argues any fraud he used to obtain her consent was fraud in inducement, and therefore consent was legally given. See State v. Vander Esch, 662 N.W.2d 689, 693 (Iowa Ct.App. 2002) (holding consent induced by fraud is as effective as any other consent). However, no fraud was used to induce Lindsay to give consent. A sleeping person is not able to give consent, whether induced by fraud or otherwise.
Holm next contends there is insufficient evidence to establish that he performed a sex act on Lindsay. We conclude there is substantial evidence by which a reasonable trier of fact could find Holm performed oral sex on Lindsay. Numerous witnesses observed Holm going upstairs at approximately 2:30 a.m. They also heard Lindsay begin screaming approximately ten minutes later. Holm was observed coming down the stairs while pulling up his pants. Immediately thereafter, Lindsay told her boyfriend and other witnesses that she was awakened by Holm performing oral sex on her. Her version of events — that she was awakened by who she thought to be her boyfriend performing oral sex on her, that she realized it was not Bradley when she touched his hair, that she looked over and saw Bradley asleep in bed next to her, and that she began screaming and kicking at Holm — remained constant from her initial report to witnesses, her explanation to the nurse who examined her, her account to the officers who interviewed her, to her testimony at trial.
Holm testified for the first time at trial that it was Lindsay who grabbed him as he tried to leave the room. Holm did not tell this to any witnesses on the night in question. He simply denied having been in the room, knowing Lindsay, touching her, or knowing what was going on.
At trial, evidence was admitted in an attempt to bring Lindsay's credibility into question. A witness familiar with Lindsay's high school reputation testified that in high school she was called "schemin' demon." As the district court noted, "It is not credible to believe that Lindsay . . . would scheme against someone whom she had never met before and who was in her presence almost by chance." All the witnesses testified that Lindsay was very upset, screaming, shaking, and crying after her encounter with Holm.
Holm's DNA was also found following a random swab of Lindsay's thigh. Although Holm's expert opined his belief that the DNA was the result of incidental transfer, he could not rule out the possibility that oral sex was the method of transfer. As the district court stated in its decision:
The defense expert actually supported the probability that saliva was more likely the source rather than epithelial cells picked up by Lindsay . . . when she touched the Defendant's hair. The defense expert repeatedly testified to the excellent transfer capability of a viscous fluid such as saliva. The credibility instruction instructs the fact finder to consider testimony which is "reasonable and consistent with other evidence you believe." In that respect, [Lindsay's] testimony is more believable, and Defendant's version is not credible.
The district court found Lindsay to be more credible. Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate it. State v. Weaver, 608 N.W.2d 797, 804 (Iowa 2000). We give great weight to a district court's credibility findings. State v. O'Shea, 634 N.W.2d 150, 156 (Iowa Ct.App. 2001). We conclude there is no reason why that deference should not be granted in this case.
III. Due Process.
Holm next contends the district court violated his due process in its findings. We review his claim de novo. Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989).
In making its credibility determination, the district court stated:
No evidence was presented which placed serious doubt on the truthfulness of [Lindsay's] testimony. Without a firm reason to believe [Lindsay] was lying or had been dreaming, the verdict in this case cannot be not guilty.
Holm contends the court improperly shifted the burden of proof to him. We disagree. Lindsay's testimony, if believed, described the commission of third-degree sexual abuse. Her testimony was corroborated by witness testimony and physical evidence. The only evidence presented contrary to her testimony was that of Holm. The district court was then required to determine whose version of events it believed. In doing so, it considered whether there was any question as to Lindsay's truthfulness. This act did not shift the burden of proof to Holm. It was simply the court's method of thoroughly weighing the evidence before it.
Holm also argues the court violated his due process rights by improperly considering his silence. At trial, Holm was asked on cross-examination if it was contradictory that he had expressed his eagerness to cooperate with the police investigation but then told an officer he should maybe talk to a lawyer. An objection to the question was sustained. In weighing Holm's credibility, the court stated:
Most compelling in the testimony of the corroborating witnesses is that the defendant never claimed to any of them nor to his friend John Garvin that Lindsay . . . was masturbating and somehow confused that act with an oral sex act. It is reasonable to conclude he would have made the explanation offered at the trial at some point earlier in the investigation if it had been true.
We conclude the district court's reference to "the investigation" did not equate with the consideration of Holm's constitutional right to remain silent. Rather, a reading of the court's decision shows it is in reference to the period of time at the party when witnesses were trying to ascertain what had happened. Accordingly, we conclude Holm's due process was not violated.
IV. Ineffective Assistance of Counsel.
We review claims of ineffective assistance of counsel de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
To establish an ineffective assistance of counsel claim a 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 of counsel focuses on whether counsel's performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The defendant must show counsel's performance fell below an objective standard of reasonableness so that counsel failed to fulfill the adversarial role that the Sixth Amendment envisions. Id. A strong presumption exists that counsel's performance fell within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
Additionally, our courts have ruled that trial strategy, miscalculated tactics, mistake or inexperience do not constitute ineffective assistance. Id. at 143. We may dispose of the defendant's ineffective assistance claims under either prong. Id. In order to prove the prejudice prong, the defendant must show a reasonable probability that but for counsel's alleged errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 695, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Holm first contends his counsel was ineffective in failing to conduct depositions. Specifically, he argues counsel should have deposed the nurse who examined Lindsay to question her regarding the exact location of the thigh swab. Because the record is not fully developed in regard to this matter, we conclude this matter is more appropriately addressed during postconviction relief.
Holm next contends his trial counsel was ineffective in failing to further investigate why Bradley's semen was not detected in the swab on Lindsay's vagina. In the court's ruling on Holm's motion for new trial, it stated:
Dr. Benjamin's testimony was not credible in light of the facts of this case. His testimony completely ignored the undisputed evidence that Lindsay . . . and Joseph Bradley had engaged in consensual sexual intercourse within a short time before this incident. The semen found on the bedsheet was consistent with Joseph Bradley. The vaginal swabbing had no DNA other than Lindsay. . . . The swabbing from the inner thigh was a mixed sample with a major contributor being Lindsay . . . and the minor contributor being consistent with the Defendant. From that inner thigh swabbing, Joseph Bradley was eliminated as a contributor. From those findings, which Dr. Benjamin testified he did not challenge, he drew conclusions which were not credible. He concluded than an oral sex act by the Defendant would have absolutely produced a finding of the Defendant's DNA on the vaginal swabbing. Yet, Dr. Benjamin ignored the lack of Joseph Bradley's DNA on the vaginal swabbing. Dr. Benjamin concluded that a minor, incidental transfer of epithelial cells from one touch of the Defendant's hair to a brief touch of the inner thigh was the reason for the presence of Defendant's DNA on that swabbing. Yet, Dr. Benjamin ignored the lack of Joseph Bradley's DNA on the inner thigh swabbing.
Holm claims his counsel was ineffective in failing to ascertain reasons why Bradley's sperm was not detected in the vaginal swab.
We conclude no prejudice resulted in counsel's failure to question Lindsay and Bradley regarding the use of a condom or ejaculation during intercourse. Even assuming something occurred to explain the complete absence of Bradley's DNA from the vaginal swab, the absence of his DNA from the inner thigh swab is still not explained, and questions arise regarding Dr. Benjamin's theory of how Holm's DNA appeared on the inner thigh swab.
Holm also contends his counsel was ineffective in failing to properly supplement the record. Following the court's ruling on the motion for new trial, counsel filed a supplemental brief that contained an affidavit of Dr. Benjamin which opined the DNA results did not indicate Lindsay had intercourse leading to ejaculation in the twenty-four hours preceding her thigh swab. Holm argues counsel should have introduced this evidence at trial. We conclude this evidence was not relevant to the issues in this case.
Holm contends counsel was ineffective in submitting a renewed motion for new trial with attached unsigned affidavits from two witnesses. Holm argues counsel was ineffective in failing to discover and present this evidence at trial. We conclude Holm has failed to demonstrate how this evidence would have changed the outcome of the trial.
Holm next contends counsel was ineffective in failing to present evidence regarding his good character at trial. We conclude such evidence was irrelevant to the issues in this case, and therefore counsel had no duty to present such evidence.
Finally, Holm requests that this court preserve for postconviction relief the issue of whether he made a knowing and intelligent waiver of trial by jury. He claims his trial counsel practically assured him that he would receive an acquittal from a bench trial, rather than a jury trial, due to the complex nature of the scientific evidence. However, the record of Holm's waiver establishes that it was knowing and voluntary. Counsel stated on the record strategic reasons for waiving the jury trial, and indicated Holm had spent a great deal of time thinking about it and discussing it with family. He then stated, "I think we're prepared to take our chances with the judge rather than with a jury on that kind of evidence." This decision does not amount to ineffective assistance of counsel. Ledezma, 626 N.W.2d at 143.
We affirm Holm's conviction.