Opinion
No. 3-201 / 02-0022
Filed August 27, 2003
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Defendant appeals from his convictions for second-degree sexual abuse, indecent contact with a child, and assault with intent to commit sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Defendant appeals from his convictions for second-degree sexual abuse, indecent contact with a child, and assault with intent to commit sexual abuse. We affirm.
I. Background Facts and Proceedings. The State offered evidence tending to prove the following events occurred. Eleven-year-old Jessica went to her aunt and uncle's house to help her aunt with her day care business in December of 2000 or January of 2001. After lunch, when the day care children were napping, Jessica's uncle, Miguel Carrillo, approached her, reached between her legs and rubbed her vagina over her clothing. Jessica told him to stop, and he did. The next day, Carrillo again approached her while the other children were napping and fondled her breasts over her clothing. She again told him to stop. Carrillo did, but he told her that if she told anyone about the incident, he would hurt her. Jessica testified that although both touches occurred over her clothing, she could feel the touches in her private parts.
Carrillo was charged with second-degree sexual abuse, indecent contact with a child, and assault with intent to commit sexual abuse. After a jury trial, he was found guilty of all three charges. Carrillo appeals, alleging his trial counsel was ineffective for various reasons and the district court erred when it failed to merge his sentences for sexual abuse and assault.
II. Ineffective Assistance of Counsel. Carrillo asserts his trial counsel was ineffective in three respects: (1) for failing to argue in his motion for acquittal that the conduct alleged did not constitute a sex act; (2) for failing to inform Carrillo of his right to contact the Mexican consulate; and (3) for failing to strike jurors who had been victims of sexual abuse. To succeed on a claim of ineffective assistance of counsel, Carrillo must show that counsel failed to perform an essential duty and that he was prejudiced as a result. Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983). To demonstrate prejudice, Carrillo must show that there is a reasonable probability that but for counsel's error, the result of the proceeding would have been different. Gering v. State, 382 N.W.2d 151, 153-154 (Iowa 1986). Generally, claims of ineffective assistance of counsel are reserved for postconviction relief proceedings, but we will resolve the claim on direct appeal if the record is adequate. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994).
Motion for judgment of acquittal. Carrillo contends his trial counsel breached an essential duty by failing to argue specifically in her motion for judgment of acquittal that Carrillo's conduct, assuming the victim's testimony was truthful, did not constitute a sex act, and thus Carrillo could not be found guilty of sexual abuse. Carrillo contends a brief touching of the vagina covered by clothing is not a sex act. He argues that State v. Capper, 539 N.W.2d 361, 365 (Iowa 1995); State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994); and State v. Phipps, 442 N.W.2d 611, 613 (Iowa Ct.App. 1989), require his conduct to include sexual language, simulated masturbation or prolonged touching or rubbing to constitute a sex act. While we agree that the conduct of the defendants in the cases cited by Carrillo was much more egregious than that of which Carrillo is accused, we cannot determine, as a matter of law, that Carrillo's conduct does not constitute a sex act. Our understanding of these cases is that the first consideration when determining if contact occurring over clothing constitutes a sex act is whether the specified body parts have touched and any intervening material would not prevent the participants, viewed objectively, from perceiving that they have touched. Pearson, 514 N.W.2d at 454.
Next the specific circumstances of the contact must be evaluated to determine if the contact was sexual in nature.
Such circumstances certainly include whether the contact was made to arouse or satisfy the sexual desires of the defendant or the victim. However, the lack of such motivation would not preclude a finding of sexual abuse where the context in which the contact occurred showed the sexual nature of the contact. Other relevant circumstances include, but are not limited to the relationship between the defendant and the victim; whether anyone else was present; the length of the contact; the purposefulness of the contact; whether there was a legitimate, nonsexual purpose for the contact; where and when the contact took place; and the conduct of the defendant and victim before and after the contact.
Id. at 455. After considering the factors elucidated in Pearson, we find no merit in Carrillo's contention that his action did not constitute a sex act as a matter of law. Jessica testified that Carrillo sent Jessica's brother upstairs before the touching occurred; and that, although Carrillo touched her outside of her clothing, she could feel it in her "private parts." Although Carrillo did not speak while he touched Jessica, there is no evidence the adult and child were playing or engaging in any other activity which might have caused an accidental touching. Rather the evidence tends to prove that Jessica was seated on the couch, and Carillo approached her and started rubbing her vagina with his hand. Because a specific motion for acquittal challenging the State's proof of a sex act would not have had legal merit, Carrillo's attorney did not have a duty to raise the issue. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). Carrillo's counsel was therefore not ineffective in this respect.
Failure to advise Carrillo of his right to contact Mexican consulate. Carrillo contends he was denied effective assistance of counsel when his trial attorney failed to inform him of his right to contact the Mexican consulate. Neither the United States Supreme Court nor the Iowa Supreme Court has determined whether the Vienna Convention confers an enforceable, individual right upon an arrested or detained foreign national to contact their consulate. See Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529, 538 (1998); Ledezma v. State, 626 N.W.2d 134, 150 (Iowa 2001). Although the State urges us to decide this issue by determining no individual right exists, we choose not to reach this issue. Even if a private right exists, Carrillo has failed to sufficiently allege he was prejudiced. To establish prejudice, Carrillo must show that (1) he did not know of his claimed right to contact his consulate; (2) he would have availed himself of the claimed right had he known of it; and (3) the contact would likely have resulted in assistance to him. State v. Lopez, 633 N.W.2d 774, 783 (Iowa 2001). Carrillo contends prejudice is established because he was offered a plea agreement which he rejected. However, he makes no claim that contact with the Mexican consulate would have led him to accept the plea agreement. See id. at 384. Without a minimal assertion of prejudice, we cannot find Carrillo's trial counsel ineffective in this respect. See id. Failure to strike certain jurors. Carrillo contends one or two female jurors acknowledged that they had been sexually abused. Despite these admissions, Carrillo's trial counsel did not strike them from the jury. Both Carrillo and the State request that this issue be reserved for possible postconviction relief proceedings, and so we do.
III. Failure to Merge Sentences. Carrillo argues the district court erred when it failed to merge his sentences for sexual abuse and assault with intent to commit sexual abuse. Our review of a district court's interpretation of a statute is for correction of errors at law. Iowa R.App.P. 6.4. Carrillo contends that State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990), requires merger of his convictions for sexual abuse and assault with intent to commit sexual abuse. The State argues that Turecek's sentence for assault merged because he was found guilty of the "with force or against the will" alternative of sexual abuse. Carrillo's sexual abuse conviction, on the other hand, was based on the age of the victim rather than the "force or against the will" alternative. Accordingly, we conclude the district court did not err when it declined to merge Carrillo's sentences. See State v. Anderson, 636 N.W.2d 26, 38 (Iowa 2001); State v. Constable, 505 N.W.2d 473, 476-77 (Iowa 1993).