Summary
finding merger was inappropriate when "[t]he instruction for first-degree burglary required the State to prove only that McGowan had the specific intent to commit sexual abuse" whereas "the instruction for third-degree sexual abuse required the State to prove that McGowan committed a sex act"
Summary of this case from State v. GoodsonOpinion
No. 3-024 / 02-0537
Filed March 26, 2003
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
The defendant appeals his convictions and sentences for first-degree burglary and third-degree sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant and Lavonne McGowan, Anamosa, for appellant pro se.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, William Davis, County Attorney, and Robert Cusak, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
A jury found Lavonne McGowanguilty offirst-degree burglary and third-degree sexual abuse for breaking into a woman's home and having sexual intercourse with her against her will. See Iowa Code §§ 713.3, 709.3 (2001). On appeal, McGowan contends:
1) there was insufficient evidence to establish that the sex was nonconsensual and
2) the district court should have merged his sentences for the two crimes. He also raises several ineffective assistance of counsel claims. We affirm.
I. Sufficiency of the Evidence
McGowan claims there is insufficient evidence to establish that the sexual intercourse was against the woman's will. Our review of this issue is on error. State v. Keopasaeuth, 645 N.W.2d 637, 639-40 (Iowa 2002). We are bound by a jury's finding of guilt if it is supported by substantial evidence. State v. Nickens, 644 N.W.2d 38, 40 (Iowa 2002).
A jury could have found the following facts. A woman McGowan had dated went to a bar for a birthday party. McGowan came in and saw her sitting next to a man named Billy. McGowan punched her in the eye. The woman locked herself in a bathroom until McGowan left. She then asked Billy to take her home. He did so and stayed.
Early that morning, McGowan broke into the woman's home and ordered Billy to leave. He pulled the woman's hair, told her she was going to have sex with him, punched her in the face about five times, threatened her, and then had sexual intercourse with her. This evidence constituted substantial support for the jury's finding of guilt.
II. Merger
McGowan next contends that the district court should have merged his sentences for first-degree burglary and third-degree sexual abuse on the ground the sex abuse crime was necessarily included in the crime of burglary. See Iowa Code § 701.9. Our review of this issue is on error. State v. Bullock, 638 N.W.2d 728, 731 (Iowa 2002).
To decide whether one crime is necessarily included in another, we examine the elements of each crime to determine if the greater offense can be committed without also committing the lesser offense. State v. Dittmer, 653 N.W.2d 774, 777 (Iowa Ct.App. 2002). In applying this test, we consider the manner in which the State sought to prove the elements. State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001).
The jury instruction on first-degree burglary stated:
1. On or about the 14th day of October 2001, the defendant entered a house at 2011 Dixwell Street.
2. The house was an occupied structure as defined in Instruction No. 17.
3. Persons were present in the occupied structure.
4. The defendant did not have permission or authority to enter the house; or the defendant's permission or authority to remain in the house had expired.
5. The defendant did so with the specific intent to commit a sexual abuse as set forth in Instructions Nos. 19, and 20; or an assault as set forth in Instructions Nos. 18 and 23.
6. During the burglary, the defendant intentionally inflicted bodily injury on R.A.
The jury instruction for third-degree sexual abuse stated:
1. On or about the 14th day of October, 2001, the defendant performed a sex act with R.A.
2. The defendant performed the sex act by force or against the will of R.A.
Examining the elements of each of these crimes as charged, it is clear first-degree burglary could be committed without also committing third-degree sexual abuse. The instruction for first-degree burglary required the State to prove only that McGowan had the specific intent to commit sexual abuse. The State was not required to prove he actually performed a sex act. In contrast, the instruction for third-degree sexual abuse required the State to prove that McGowan committed a sex act. Cf. Bullock, 638 N.W.2d at 732 (noting that the defendant was specifically charged with the burglary alternative requiring proof that the defendant performed an act of sexual abuse). For this reason, McGowan's merger argument must fail.
III. Ineffective Assistance of Counsel
McGowan argues trial counsel was ineffective in:
1) failing to request a jury instruction on the lesser included offense of assault,
2) failing to investigate possible witnesses,
3) advising him not to testify, and
4) failing to present a defense. We preserve these ineffective assistance of counsel claims for postconviction relief to afford trial counsel an opportunity to address them.
State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).