Opinion
No. 2-597 / 01-2003
Filed November 25, 2002
Appeal from the Iowa District Court for Story County, TIMOTHY J. FINN, Judge.
Aaron Norem appeals his conviction for sexual abuse in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Stephen Holmes, County Attorney, and Angelina Thomas, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and MILLER, JJ.
Aaron Norem appeals his conviction for sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3(1) (2001). He claims he received ineffective assistance due to his trial counsel's failure to (1) challenge the sufficiency of the evidence to show the victim suffered a substantial risk of serious injury or death; (2) object to the admission of certain evidence; and (3) investigate the case and prepare for trial. We affirm.
I. Background Facts and Proceedings
Norem was acquainted with the victim, Megan. At about 1 a.m. on May 16, 2001, Norem called Megan and asked if he could come over to talk. Megan agreed, and the two watched a movie. When the movie ended, Megan asked Norem to leave, but instead he backed her into the bedroom. Norem placed Megan in a chokehold, and she lost consciousness. Norem engaged in oral, vaginal, and anal penile penetration, and vaginal and anal digital penetration. He placed Megan in a chokehold two more times, and each time she lost consciousness. After Norem left her apartment Megan called 911.
A medical examination showed Megan had vaginal bleeding and abrasions on her cheek, chin, neck, and shoulder. She received a permanent injury to her cervical vertebrae, which caused a loss of motion in her neck. The State presented testimony from two medical professionals and two police officers that a chokehold can cause unconsciousness, paralysis, and even death. Police officers found bloodstains on the carpeting in the hall and bedroom of Megan's apartment. The bloodstain in the hall matched Norem's DNA. Testing of Norem's shorts showed a mixture of blood from Norem and Megan.
The State raises the theory that Norem received a cut on his penis from Megan's retainer when he forced her to engage in oral sex.
Norem testified he engaged in consensual sexual activities with Megan. He described their sex as "active." He denied choking her. The defense posited that Megan might have had vaginal bleeding because she was a virgin. Dr. David Stilley, a medical doctor, testified Megan's injuries were not consistent with a serious choking incident. The jury returned a verdict finding Norem guilty of second-degree sexual abuse.
Norem obtained a different attorney and filed a motion for new trial, alleging he received ineffective assistance from his previous attorney. The district court found Norem failed to show he received ineffective assistance and denied the motion for new trial. Norem was sentenced to a term of imprisonment not to exceed twenty-five years. He appeals.
II. Scope of Review
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Ineffective Assistance
A. Norem was charged with second-degree sexual abuse under section 709.3(1) on the theory he had used or threatened to use "force creating a substantial risk of death or serious injury. . . ." In motions for judgment of acquittal, defense counsel argued there was insufficient evidence Norem had used a chokehold on Megan. On appeal, Norem argues he received ineffective assistance because defense counsel failed to argue a chokehold does not create a substantial risk of death or serious injury.
The evidence in this case does not support Norem's argument. There was ample evidence that using a chokehold created a substantial risk of death or serious injury. In discussing potential injuries from a chokehold, Dr. Mark Randleman testified, "There's the compression of the airway, which when the airway is cutoff for more than a few seconds, unconsciousness is going to occur and death eventually if this maintains." Regarding a chokehold, Dr. Kari Swain testified, "It can — it can kill you. It could paralyze you. It could render you unconscious." Detective David Konopa testified that in using a chokehold, "You needed to know what you were doing because if you didn't, you could end up killing somebody." Sergeant Bryan Brayman testified a chokehold can cause "neck damage or death." Defense counsel did not have a duty to raise an argument that was not supported by the evidence. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (noting defense counsel has no duty to make a meritless motion).
B. Norem contends his defense counsel should have objected to the admission of two photographs of a bloody handprint on the floor in Megan's bedroom. He asserts these photographs were not relevant and were unduly prejudicial. The State is entitled to show the condition of the crime scene. State v. Astello, 602 N.W.2d 190, 197 (Iowa Ct.App. 1999). The fact that there was blood at the crime scene was relevant to the issue of consent. Officer Konopa was questioned whether the appearance of Megan's bedroom was consistent with consensual sexual acts and he responded, "Oh, with the blood I doubt it was consensual." Norem admits the bloody handprint was inconsistent with his version of events and argues this makes the evidence prejudicial. Evidence is not prejudicial, however, just because it points to the defendant's guilt.
Norem also contends defense counsel should have objected to Megan's testimony that she was a Mormon whose religious beliefs prevented her from engaging in premarital sex. A review of the record shows defense counsel did not object to this evidence because it assisted in the defense's theory of the case, that there was blood in Megan's bedroom because she had been a virgin. We will not second-guess reasonable trial strategy. Wissing, 528 N.W.2d at 564.
C. Norem claims defense counsel failed to properly investigate and prepare for trial. At the hearing on the motion for new trial, defendant's mother testified defense counsel did not meet with Norem before the depositions or before his trial testimony. Norem does not argue how more frequent in-person meetings with his attorney would have changed the outcome of the case. We find he has failed to show ineffective assistance of counsel on this issue.
Norem's mother also stated she received a training manual from Megan's employer which she claimed showed two defensive chokeholds. The mother asserted she gave this manual to defense counsel. Norem contends defense counsel should have used this manual to impeach Megan's testimony that she had not taken any self-defense classes or received any such training. Norem has not presented any evidence Megan actually had any self-defense training. Therefore, defense counsel was not ineffective for failing to attempt to impeach her on this subject.
Finally, Norem claims defense counsel should have spoken with Megan's roommate, Kimberly, prior to the trial. Kimberly was not present in the apartment on May 16, 2001, but she did testify to a previous incident where Norem had repeatedly called Megan on the telephone. Norem had denied this incident. Norem does not explain how communication between Kimberly and defense counsel prior to trial would have prevented the State from rebutting his testimony.
After considering all of Norem's arguments, we determine he has failed to show he received ineffective assistance of counsel. We affirm his conviction and sentence.