Opinion
No. 1-899 / 00-2071.
Filed January 28, 2002.
Appeal from the Iowa District Court for Taylor County, PETER A. KELLER, Judge.
Charles Larabee appeals his convictions and sentences for assault with intent to commit sexual assault, driving while barred, and driving while license suspended in violation of Iowa Code sections 709.11, 321.560, 321.561, and 321A.32 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Laura Roan, Assistant Attorney General, and Ronald D. Bonnett, County Attorney, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Charles Larabee appeals his convictions and sentences for assault with intent to commit sexual assault, driving while barred, and driving while license suspended in violation of Iowa Code sections 709.11, 321.560, 321.561, and 321A.32 (1999). We affirm.
I. Factual and Procedural Background. A reasonable fact-finder could find the following facts from the record in the case. In the early morning hours of February 9, 1999, Orene Lewis arrived at a bar in New Market, Iowa. She recognized Larabee, who she had dated for several months in 1996, and sat with him. Larabee offered to give Lewis a ride home after she informed him she was feeling intoxicated. Although Lewis initially declined the offer, she finally accepted and departed the bar in Larabee's vehicle.
As they drove out of town, Larabee turned onto a road in the opposite direction from Lewis's home and ultimately stopped his vehicle on a dirt road. Lewis exited the vehicle and started walking north. Larabee called to Lewis to return to the vehicle and said he would take her home. Lewis turned around and walked back toward Larabee. Once Lewis reached Larabee, he grabbed her, shook her, and called her a "selfish bitch." Lewis tried to get away, but Larabee grabbed her shirt, ripped it off, put her in a choke hold, and pulled out parts of her hair. Larabee then pushed Lewis's face into his crotch, rubbed his penis against her mouth, and ordered her to perform oral sex. When Lewis refused, Larabee pulled Lewis's head back and slapped her several times across the face, knocking out her dental plate. Larabee pushed Lewis to the ground, got on top of her, and tried to remove her pants. Lewis resisted and managed to get her shirt back on. Larabee grabbed Lewis by the hair and began dragging her back to the vehicle. They struggled again, and Larabee ripped Lewis's shirt and bra off. Finally, Larabee shoved Lewis into the vehicle, threw her shirt and bra at her, and drove her back to town.
On March 19, 1999, Larabee was charged with sexual abuse in the third degree in violation of Iowa Code section 709.4 (Count I), operating a motor vehicle while barred as an habitual offender in violation of Iowa Code sections 321.560 and 321.561 (Count II), and driving while license suspended in violation of Iowa Code section 321A.32 (Count III). On April 3, 2000, the State moved to amend Count I of the trial information from sexual abuse in the third degree to kidnapping in the first degree in violation of Iowa Code section 710.2. The district court approved the amendment.
On October 4, 2000, trial by jury commenced. The jury found Larabee guilty of the lesser included offense of assault with intent to commit sexual abuse, driving while barred as an habitual offender, and driving while license suspended. On appeal, Larabee contends his trial counsel was ineffective in failing to object to the State's motion to amend the trial information.
II. Discussion. Our review of constitutional issues is de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000); State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). In order to prevail upon a claim of ineffective assistance of counsel, a defendant must demonstrate (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). "Both elements must be proven by a preponderance of the evidence." Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citing State v. Ramirez, 616 N.W.2d 587, 593 (Iowa 2000); Oetken, 613 N.W.2d at 683; State v. Carrillo, 597 N.W.2d 497, 499 (Iowa 1999); State v. Wissing, 528 N.W.2d 561, 563 (Iowa 1995); State v. Tracy, 482 N.W.2d 675, 679 (Iowa 1992); State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999)).
To establish deficient performance, "[t]he test is `whether under the entire record and totality of the circumstances counsel's performance was within the normal range of competence.'" State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). "A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency." Id.
The defendant must also demonstrate the error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. To meet this burden, the defendant must prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; Carrillo, 597 N.W.2d at 500. An ineffective assistance of counsel claim will fail if the defendant is unable to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ordinarily, we preserve ineffective assistance of counsel claims for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). These claims may be resolved on direct appeal, however, when the record adequately addressed the issues. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). We deem this record sufficient.
Larabee argues his attorney was ineffective because he failed to object to the State's motion to amend the trial information to alter Count I from sexual abuse in the third degree to kidnapping in the first degree. Iowa Rule of Criminal Procedure 4(8) limits the State's ability to amend charges against the defendant. Rule 4(8) provides in pertinent part:
The court may, on motion of the state, either before or during the trial, order the indictment amended so as to correct errors or omissions in matters of form or substance. Amendment is not allowed if substantial rights of the defendant are prejudiced by the amendment, or if a wholly new or different offense is charged.
Iowa R. Crim. P. 4(8) (emphasis added).
Although the State concedes the amendment to the trial information in this case charged "a wholly new or different offense" as the elements of kidnapping in the first degree are not found in sexual abuse in the third degree, we conclude Larabee cannot prove the prejudice prong of the Strickland test. As the State correctly points out (1) Larabee was not convicted of kidnapping, but was instead convicted of a lesser included offense (assault with intent to commit sexual abuse) of the original charge (sexual abuse in the third degree); (2) the evidence of the kidnapping charge was not distinguishable from the evidence that would have been admitted on the sexual assault charge; and (3) the sexual assault charge could have been dismissed and the new kidnapping charge could have been filed in any event.
Larabee argues he suffered prejudice because the amendment altered trial tactics and the strategy of the defense. We disagree. Larabee had sufficient time between the amendment in April 2000 and the trial the following October to prepare for trial on the amended charge. Accordingly, we conclude Larabee has failed to establish the prejudice prong of his ineffective assistance of counsel claim and we affirm his convictions.
AFFIRMED.