Opinion
No. 4-197 / 03-0734
April 28, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Lonzo Howard appeals from his conviction for second-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, 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.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Lonzo Howard appeals from his conviction for second-degree sexual abuse following a trial to the court. He claims his trial counsel was ineffective for failing to move for a new bench trial or for amended findings on the basis of his mistake-of-fact defense. Because we find no merit to his claims, we affirm.
I. Background Facts Proceedings
Sheila Mickens is the grandmother of nine-year-old S.C.S.C. lives with her parents, but regularly stays with her grandmother. S.C.'s grandmother suffers from arthritis so S.C. helps her with housekeeping chores. In the spring of 2002, S.C. spent the night on the couch in the family room at her grandmother's house. According to S.C., her grandmother's forty-five year old boyfriend, Lonzo Howard, awakened her that night. Howard asked S.C. if she liked him. He then began rubbing his hand over S.C.'s vaginal area, under her clothing, for about two minutes. S.C. thought the rubbing "felt terrible" and told Howard to stop several times. When Howard finally stopped, he told S.C. that he would kill her grandmother if she told anyone what he had done. Once Howard walked away, S.C. woke up her cousin, B.H., who was staying at her grandmother's house that night, and told her what happened.
In its findings of fact, the district court found that Howard touched S.C.'s vagina over her clothing. This distinction is not important to the issues presented on appeal.
Later that spring, another incident occurred. According to S.C., she was sleeping in the front room of her grandmother's home when she was awakened by Howard, who was touching her vaginal area over her clothing. Once again, S.C. told Howard to stop. Howard continued touching the child inappropriately for about a minute and then stopped. He then repeated his threat that he would kill her grandmother if she told anyone that he had touched her. A few months later, when S.C. learned that her grandmother and Howard were breaking up, she told her mother that Howard had touched her "private places."
In August 2002, Des Moines police officers interviewed Howard on two separate occasions. Initially, Howard denied ever touching S.C. or sleeping in the same room with her. However, during a second interview a few days later, Howard admitted "rubbing" S.C.'s vaginal area. He told police that he had been sleeping and thought he was touching S.C.'s grandmother, instead of S.C.
On October 3, 2002, the State charged Howard with sexual abuse in the second degree, a class "B" felony, in violation of Iowa Code section 709.3(2) (2001) (Count I); lascivious conduct with a minor, a serious misdemeanor, in violation of Iowa Code section 709.14 (Count II); assault with intent to commit sexual abuse, an aggravated misdemeanor, in violation of Iowa Code section 709.11 (Count III); and harassment in the first degree, an aggravated misdemeanor, in violation of Iowa Code section 708.7 (Count IV). Howard filed notice that he might rely on the defenses of alibi and diminished responsibility. On March 14, 2003, the State filed an amended trial information that only charged Howard with sexual abuse in the second degree.
A bench trial was held on March 26, 2003. At trial, Howard changed his story again. Howard testified, "When I woke up, you know, I rubbed her on the leg, but I didn't even intend to do that because I was asleep and I was dreaming." He claimed that when he rubbed S.C.'s leg he thought he was in bed rubbing her grandmother. Howard denied ever touching S.C.'s vaginal area. He also claimed he never told police he had rubbed her vaginal area. On March 28, 2003, the district court found Howard guilty as charged. On April 22, 2003, Howard was sentenced to twenty-five years in prison. Howard appeals.
II. Scope of Review
Our review is de novo because Howard alleges a denial of his constitutional right to effective assistance of counsel. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. The Merits
Howard claims his trial counsel was ineffective for failing to move for a new bench trial or for additional findings based on his mistake-of-fact defense. We disagree.
The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). To establish a claim of ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty and (2) prejudice resulted from this omission. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). To prove the first prong, the defendant must overcome the presumption that counsel was competent and show that counsel's performance was not within the range of normal competency. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). To prove the second prong, the defendant must show counsel's failure worked to the defendant's actual and substantial disadvantage so that a reasonable possibility exists that but for counsel's error the trial result would have been different. Id.
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to afford the defendant an evidentiary hearing and to permit the development of a more complete record. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). However, we will resolve such issues when the record on appeal is adequate. Buck, 510 N.W.2d at 853. In this appeal, we find the record adequate to address the defendant's claims.
Any sex act performed with a child is sexual abuse. Iowa Code § 709.1. A sex act is defined, among other ways, as "any sexual contact between two or more persons by . . . contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment. . . ." Iowa Code § 702.17. "Skin-to-skin contact is not required in order to establish a `sex act' under section 702.17." State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). Prohibited contact may occur even though the specified body parts are covered, as long as the specified body parts touch and any intervening material would not prevent the participants, viewed objectively, from perceiving that they have touched. Id. In order for contact to be deemed a sex act it must be `sexual in nature.'" Id.
S.C. testified that Howard rubbed her vagina on two separate occasions, once under her clothes and once over her clothes. The district court found the following:
The defendant testified at trial that he only touched the victim's leg on the one occasion he recalled that involved any physical contact between himself and S.C. This version stands in stark contrast to the version he gave to police, where he admitted "rubbing" the victim's vagina over her clothing. The court does not accept as true the defendant's eleventh-hour change in description of the events in question. In addition, his version at all times also included the fact that he thought he was touching (on the leg or otherwise) the victim's grandmother. The court rejects this version for two reasons. First, there are obvious differences in physical appearance between S.C. and [her] grandmother that would preclude a person from reasonably believing that one could be mistaken for the other. Second, the defendant does not dispute that the perceived touching of Ms. Mickens was done to arouse or satisfy the sexual desires of either himself or her.
After rejecting Howard's version of events, the district court addressed his claim of mistake of fact. The court concluded that:
A defendant's mistake of fact regarding the consensual nature of the conduct does not negate an element of sexual abuse where knowledge of lack of consent is not an element. State v. Christensen, 414 N.W.2d 843, 846 (Iowa Ct.App. 1987). In other words, the defendant's claim of mistake as to whom he was in contact with is insufficient to disprove an otherwise proven instance of sexual contact with a child.
Howard asserts that his trial counsel was ineffective for failing to move for another bench trial or additional findings pursuant to Iowa Rule of Criminal Procedure 2.24(2)( c). That rule provides that the court may "in lieu of granting a new trial, vacate the judgment if entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and enter judgment accordingly." Iowa R. Crim. P. 2.24(2)( c). Howard suggests that the result of this proceeding would have been different if his counsel had asked the trial court to amend its findings, because the district court "should have found (and should still find) that sexual abuse is not without an element of mens rea."
The State responds by contending that Howard cannot demonstrate ineffective assistance of counsel because the district court's ruling was correct.
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 second-degree sexual abuse under section 709.3(2), the State had to show that Howard performed a sex act and S.C. was under the age of twelve. Iowa Code § 709.3(2). A mistake of fact as to any circumstance surrounding the crime must negate an element of the offense. Howard's alleged mistake regarding the identity of his victim negates neither element of the offense of second-degree sexual abuse. No knowledge or particular mens rea is required to commit this crime. State v. Tague, 310 N.W.2d 209, 211 (Iowa 1981). Therefore, we agree with the district court that a mistake-of-fact defense was not available to Howard. Accordingly, trial counsel had no duty to continue to press his mistake-of-fact defense by filing a motion for a new trial.
Howard's claim of ineffective assistance of counsel also fails because he is unable to demonstrate that he was prejudiced by trial counsel's failure to further pursue the mistake-of-fact issue. Even if a mistake-of-fact defense was available for this offense, the record clearly indicates the trial court would have rejected the defense if counsel had reasserted it after trial. This is because Howard's version of the events was not believable. The record reveals that S.C.'s fifty-five year old grandmother weighed approximately 300 pounds at the time in question and stood approximately five foot, two inches in height. On the other hand, nine-year-old S.C. was approximately four feet tall and weighed approximately sixty-five to seventy pounds. The trial court considered Howard's claim that he thought he was touching S.C.'s grandmother instead of S.C. and rejected it. The court concluded that the "obvious differences in physical appearance between S.C. and her grandmother would preclude a person from reasonably believing that one could be mistaken for the other." It is clear from the record that the trial court was unconvinced by Howard's defense both factually and legally and would have remained so.
Jurisdictions which accept a mistake-of-fact defense require that the belief the defendant entertains be reasonable. See Commonwealth v. Lopez, 433 Mass. 722, 725, 745 N.E.2d 961, 964 (Mass. 2001); Jacobs v. Commonwealth, 58 S.W.3d 435, 446 (Ky. 2001).
We conclude that Howard's ineffective assistance of counsel claim is without merit. We affirm the district court's judgment and sentence.