Opinion
No. 5-737 / 04-1247
Filed January 19, 2006
Appeal from the Iowa District Court for Webster County, Gary L. McMinimee, Judge.
A defendant appeals from his conviction for assault with the intent to commit sexual abuse causing bodily injury. CONVICTION REVERSED AND REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn and John Beaty, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Reynold Ondayog appeals from his conviction for assault with the intent to commit sexual abuse causing bodily injury, a class D felony in violation of Iowa Code section 709.11 (2003). We reverse his conviction and remand for a new trial.
I. Background Facts and Proceedings.
Ondayog was originally charged by trial information on December 4, 2003, with kidnapping in the first degree (resulting in sexual abuse), in violation of Iowa Code section 710.2 (2003), and sexual abuse in the third degree, in violation of Iowa Code section 709.4. The charge of third-degree sexual abuse was stricken from the trial information immediately before the start of the trial, per a defense motion and agreement by the State that third-degree sexual abuse is a lesser-included offense of first-degree kidnapping. At the conclusion of the trial, the district court instructed the jury that the charge of kidnapping in the first degree included these lesser offenses:
(1) Kidnapping in the third degree;
(2) Sexual abuse in the third degree;
(3) Assault with the intent to commit sexual abuse causing bodily injury;
(4) Assault with the intent to commit sexual abuse not causing bodily injury;
(5) False imprisonment; and
(6) Assault.
Ondayog's trial counsel did not object to the court's instruction. The jury returned a verdict of guilty on the offense of assault with the intent to commit sexual abuse causing bodily injury. In a motion for new trial, Ondayog's trial counsel asserted that assault with the intent to commit sexual abuse under Iowa Code section 709.11 was not a lesser included offense of first-degree kidnapping. The district court overruled the motion, as trial counsel failed to timely object and therefore the jury instructions had become the law of the case. Ondayog now appeals his conviction, asserting ineffective assistance of trial counsel.
II. Ineffective Assistance of Counsel.
Claims of ineffective assistance of trial counsel implicate constitutional rights, therefore our review is de novo. State v. Martin, 704 N.W.2d 665, 668 (Iowa 2005). To prove his claim of ineffective assistance of counsel, Ondayog must demonstrate (1) his attorney's performance fell below "an objective standard of reasonableness" and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Failure to demonstrate either element is fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). Typically, ineffective assistance of counsel claims are preserved for possible post conviction review to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). However, where the record is sufficient to reach the merits of the defendant's contentions, we will address ineffective assistance claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). We find the record in this case is sufficient to determine the defendant's claims. A. Breach of Duty.
We proceed to the merits on our conclusion that submission of this offense was not a calculated trial strategy, as trial counsel admitted his error during the hearing on the motion for new trial and the sole defense at trial was defendant's general denial of all elements of the crime charged.
Ondayog contends that his trial counsel breached an essential duty by failing to timely object to the district court's instruction to the jury that assault with intent to sexually abuse causing bodily injury is a lesser-included offense of first-degree kidnapping. To determine whether the one crime is a lesser-included offense of another, we apply the impossibility test and look to the elements of the offenses in question as an aid in this analysis. See State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990) (applying the "impossibility test" where the greater offense cannot be committed without also committing the lesser offense); State v. Turacek, 456 N.W.2d 219, 223 (Iowa 1990) (comparing elements of the greater and lesser crimes as an aid to the impossibility test); State v. Jefferies, 430 N.W.2d 728 (Iowa 1988) (rejecting the "factual test" when determining lesser-included offenses). In its brief on appeal, the State all but concedes that Onyadog's counsel breached a duty by failing to object to the inclusion of this offense:
The State is willing to accept arguendo that, under normal circumstances not presented here, assault with the intent to commit sexual abuse causing bodily injury does not qualify as a lesser-included offense of first degree kidnapping ("subjected to sexual abuse" alternative).
It appears the State's referral to "normal circumstances not presented here" pertains to its position that the jury instructions are unassailable given their status that they have become the "law of the case." See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (stating that failure to timely object to an instruction not only waives the right to assert error on appeal but also the instruction, right or wrong, becomes the law of the case). However, we may review the issue as this appeal comes to us as an ineffective assistance of counsel claim, which is an exception to normal error preservation rules and "law of the case" doctrine. See State v. Callender, 444 N.W.2d 768, 771 (Iowa Ct.App. 1989) (addressing counsel's failure to timely object to a jury instruction that had become the law of the case on a claim of ineffective assistance of counsel).
In this case, we are faced with nestling levels of lesser-included offenses — as third-degree sexual abuse (by force or against the will) is a lesser-included offense of first-degree kidnapping (subjected to sexual abuse alternative). State v. Mitchell, 450 N.W.2d 828, 831 (Iowa 1990) (holding that the reference in the kidnapping statute to sexual abuse embraces all the various degrees of sexual abuse identified in chapter 709); see also State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990) (holding third-degree sexual abuse cannot be committed without also committing assault with intent to commit sexual abuse (no injury)). When we examine what Ondayog was convicted of (assault with intent to commit sexual abuse causing bodily injury), we find none of the greater offenses, (kidnapping in the first or third degree and sexual abuse in the third degree), require proof of bodily injury that is necessary for the class D felony alternative of section 709.11. Compare State v. Clarke, 475 N.W.2d 193, 194 (Iowa 1991) (holding willful injury is not a lesser-included offense of attempted murder due to the distinguishing element of proof of serious injury, required for conviction of willful injury but not attempted murder). Utilizing the impossibility test under McNitt, one can commit first-degree and third-degree kidnapping as well as third-degree sexual abuse without also committing assault with intent to commit sexual abuse causing bodily injury. Furthermore, when comparing the elements of this assault to any of the greater offenses charged, the class D felony assault under Iowa Code section 709.11 is not a lesser-included offense of any. On the basis of this conclusion, we hold that Ondayog's trial counsel breached an essential duty by failing to timely object to the submission of the class D felony alternative of assault under section 709.11.
B. Prejudice.
In order to succeed in his ineffective assistance claim, Ondayog must also demonstrate prejudice resulting from trial counsel's failure to timely object to the instructions. Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Carillo, 597 N.W.2d 497, 500 (Iowa 1999).
Ondayog asks us to presume prejudice when a defendant is convicted of a crime for which he was not charged and that is not a lesser-included of the charged offenses. Other cases have refused to presume prejudice on the presumption that the proof was sufficient to find the defendant guilty of the greater offenses. See State v. Couser, 567 N.W.2d 657, 660 (Iowa 1997) (declining to conclude the result of including offense was prejudicial to the defendant, as the court found it a tactical decision where only intent was disputed); State v. Taylor, 452 N.W.2d 605, 607 (Iowa 1990) (noting that a defendant is not prejudiced by conviction of an erroneously submitted lesser-included offense, when the evidence did not support submission of the lesser offense but amply supported conviction on the greater offense). However, in this case, aside from the victim's testimony, there was very little evidence supporting the kidnapping charge and Ondayog's sole defense was a general denial of the charge. As the jury did not accept his defense, there were several misdemeanor offenses submitted besides the class D felony alternative of section 709.11: (1) assault with the intent to commit sexual abuse (no injury); (2) false imprisonment; and (3) simple assault. We fail to discern a trial strategy that would include submitting a charge to the jury that was not a lesser-included offense, when several lesser-included misdemeanor charges were submitted. We conclude that counsel's failure to timely object did prejudice Ondayog because there is reasonable probability that the jury would have convicted on one of the misdemeanor charges instead of the wrongfully submitted class D felony under section 709.11. Therefore, Ondayog has sufficiently proven his claim of ineffective assistance of counsel, and we reverse his conviction, vacate his judgment and sentence, and remand to the district court for a new trial.
II. Double Jeopardy Issue.
Finally, Ondayog asserts that should we reverse his conviction, double jeopardy would bar retrial on first-degree kidnapping or the "sexual abuse charges." It is well-settled that the double jeopardy clause protects defendants against multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322, 331 (1989). Thus, if one crime is a lesser-included offense of another, and a defendant is convicted of both crimes, the double jeopardy clause may be violated. Jeffries, 430 N.W.2d at 734. However, by rendering a guilty verdict on a lesser-included offense in the first trial, a jury impliedly acquits the defendant of the greater offense. State v. Belt, 505 N.W.2d 182, 184 (Iowa 1993) (citing Price v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 1761, 26 L. Ed. 2d 300, 305 (1970)). It is therefore impermissible to resubmit any of the greater offenses at the second trial because the Constitution not only protects against conviction of the greater charge on retrial, it protects against the jeopardy of facing the greater charge after an acquittal, express or implied. Price, 398 U.S. at 329, 90 S. Ct. at 1761, 26 L. Ed. 2d at 305. In this case, assault with the intent to commit sexual abuse causing bodily injury was submitted, although in error, as a lesser included offense of first degree kidnapping, and became the law of the case. Therefore, we conclude the double jeopardy clause bars retrial of the submitted greater offenses of first-degree kidnapping, third-degree kidnapping, and third-degree sexual abuse.