Opinion
No. 5-025 / 04-0667
Filed January 26, 2005
Appeal from the Iowa District Court for Johnson County, Stephen C. Gerard II, District Associate Judge.
Jimmie Jordan appeals from his conviction and sentence for assault with intent to commit sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, J. Patrick White, County Attorney, and M. Victoria Dominguez, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
Jimmie Jordan appeals from his conviction and sentence for assault with intent to commit sexual abuse in violation of Iowa Code sections 708.1, 709.1(1) and 709.11 (2003). We affirm.
I. Background Facts Proceedings
On December 31, 2003, Coralville police officers Douglas Alexander and Jennifer Henderson responded to a 911 hang up call originating from the apartment of Jilshia Walton. Upon their arrival, they heard Walton inside saying, "help me, help me, he's trying to rape me." Once Walton opened the door, Officer Henderson took her outside, and Officer Alexander stayed in the apartment with Jordan to find out what had happened.
Jordan explained that he and Walton met a couple weeks earlier in Iowa City and she had asked him back to her apartment. While at the apartment, Jordan gave Walton thirty dollars to buy them some crack. When she returned three hours later without the drugs, Jordan got mad and told her she was going to do something for his money. The two then had sex. On the night in question Jordan returned to Walton's apartment to make her get him some crack. Walton refused and began placing a call before Jordan grabbed the phone and threw it to the ground. Jordan said he also grabbed Walton at one point.
Walton's explanation of events is quite different. Walton told Officer Henderson that Jordan arrived at her apartment and asked if he could come inside. She stated she only knew Jordan through someone who was staying with her and let him into her apartment because she was afraid of disturbing her neighbors. While inside, she told Jordan she was calling him a cab but instead called 911. Jordan then grabbed the phone from her hand and threw her onto a bed. The struggle continued, and Jordan threw her onto another bed. Shortly thereafter, the officers arrived. Officer Henderson described Walton as "fairly disheveled." Walton's hair was messy, she had marks that appeared to be handprints on her biceps, her shorts were torn, and she was shaking and crying. Walton would later testify that Jordan was ripping at her shorts and saying "baby, I want you" over and over.
Jordan was arrested and later charged by trial information with assault with intent to commit sexual abuse as a result of the incident on December 31, 2003. Seventeen days before trial, Jordan's first counsel withdrew from the case. His second counsel withdrew three days later. Thereafter, Jordan's third counsel filed a motion to continue the trial for one week. When Jordan would not waive his right to a speedy trial by thirty days, the court denied the motion to continue, and the case proceeded to trial as scheduled. On March 30, 2004, the jury found Jordan guilty of the aforementioned offense.
Jordan filed a motion for new trial on April 12, 2004, arguing "counsel was not properly prepared" because he was appointed only fourteen days before trial, and because the court asked Jordan to waive his right to speedy trial for thirty days instead of granting him a one week continuance. The motion was denied. On April 27, 2004, the court sentenced Jordan to serve a two-year indeterminate term of imprisonment, ordered him to pay a $500 fine, and required him to register on the sexual offender registry. Jordan appeals.
On appeal, Jordan contends he was denied effective assistance of counsel.
II. Standard of Review
We review ineffective assistance of counsel claims de novo. State v. Weatherly, 679 N.W.2d 13, 18 (Iowa 2004).
III. Ineffective Assistance of Counsel
Jordan contends he was denied his constitutional right of effective assistance of counsel when his counsel failed to fully investigate his case and uncover evidence that would have been helpful to his defense. He specifically argues counsel failed to introduce phone records, locate a witness, and contact the cab company that provided his transportation to Walton's apartment. The State believes Jordan's ineffective assistance issues concerning the phone records and the witness should be preserved for postconviction proceedings.
Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Jordan asserts that counsel was ineffective in failing to introduce phone records from Walton's apartment. He contends the records would have contradicted her testimony that he was only in her apartment for five to ten minutes a couple of weeks before the incident. Because we find the record inadequate to address this issue on direct appeal, we preserve it for possible postconviction relief.
Jordan further argues counsel was ineffective in failing to locate Walton's former roommate and call him as a witness. He asserts Walton's testimony would be further contradicted because her former roommate would not have known Jordan. We find the record inadequate to address this issue and therefore preserve this claim for possible postconviction relief.
Jordan next claims counsel was ineffective in failing to contact the cab company that drove him to Walton's apartment on the night of the incident. However, Jordan fails to explain how this contact would have helped his case. We find this allegation too general to address or preserve it for postconviction proceedings. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (stating applicant must state specific ways in which counsel was ineffective and how effective counsel probably would have changed the outcome).
Finally, Jordan asserts that he was required to choose between his right to a speedy trial and his right to effective assistance of counsel. To the extent that Jordan attempts to raise additional issues not addressed above, we find they are waived pursuant to Iowa Rule of Appellate Procedure 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."). Jordan's conviction and sentence is affirmed.