IN THE COURT OF APPEALS OF IOWA
No. 4-316 / 03-1165
Filed June 9, 2004
STATE OF IOWA,
DENICO LETRELL BILLINGSLY,
Appeal from the Iowa District Court for Black Hawk County, Stephen C.
Denico Billingsly appeals from his conviction, following a jury
trial, for sexual abuse in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney
General, Thomas Ferguson, County Attorney, and Linda Myers, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Denico Billingsly appeals from his conviction, following a jury
trial, for sexual abuse in the second degree. He contends there was
insufficient evidence to support his conviction. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals evidence of the following facts. On April 12,
2002 Dana left a social gathering at her friend's house in Cedar Falls at
2:00 a.m. She noticed a white Thunderbird follow her into her apartment
complex but she could not see the driver's face because the windows were
tinted. Unable to find a closer parking spot Dana parked by one of the
complex's dumpsters near a wooded area. Dana testified that when she
opened her car door "he was standing there." The man asked for directions
and then grabbed her arms and pushed her into the wooded area. He stated
that he would kill her if she did not shut up. The man shoved Dana down to
the ground and she hit her head on a chunk of asphalt. He then held her
head down and repeated his threat, again telling her to shut up or he would
kill her. When they heard voices in the parking lot the man covered Dana's
mouth with his hands.
After the voices were gone the man shoved Dana further into the woods
and started pulling on her pants as she pleaded with him, "No, please don't
do this." The man then inserted his penis into her vagina for four or five
minutes, performed oral sex on Dana, and then inserted his penis into her
vagina a second time, while Dana cried and asked him, "Why are you doing
this? Please can you just stop." Dana testified that she did not
physically fight the man because she knew he was bigger than her and she
was "scared for her life." The man told her he was "almost done" and then
began to masturbate. Dana took this opportunity to run from the wooded
area back to her apartment building and call the police from a neighbor's
apartment, because she had lost her apartment keys in the woods during the
incident. Dana later identified the defendant, Denico Billingsly, as the
man who had sexually abused her.
In addition to the obvious severe emotional trauma from such an
incident, as a result of the sexual abuse Dana also suffered a fracture of
the transverse process of one of her vertebrae, a head laceration which
required seven stitches, and significant trauma to her left kidney,
resulting in a subcapsular hematoma around her kidney and blood in her
Billingsly was charged, by trial information, with sexual abuse in the
second degree in violation of Iowa Code section 709.3 (2001). A jury trial
was held. At trial the State presented DNA evidence collected from Dana
after the rape. It implicated Billingsly as the perpetrator of the sexual
abuse. In addition, one of the nurses who examined Dana shortly after the
sexual abuse testified at trial that Dana told her the perpetrator had
threatened to kill her. The jury found Billingsly guilty as charged and
the court sentenced him to twenty-five years imprisonment. Billingsly
appeals, contending there was insufficient evidence to support his
II. SCOPE AND STANDARDS OF REVIEW.
We review challenges to the sufficiency of the evidence supporting a
guilty verdict for correction of errors at law. State v. Webb, 648 N.W.2d
72, 75 (Iowa 2002). In reviewing such challenges we give consideration to
all the evidence, not just that supporting the verdict, and view such
evidence in the light most favorable to the State. State v. Schmidt, 588
N.W.2d 416, 418 (Iowa 1998). We will uphold a verdict if substantial
record evidence supports it. Webb, 648 N.W.2d at 75. Substantial evidence
is such evidence as could convince a rational fact finder that the
defendant is guilty of the crime charged beyond a reasonable doubt. Id. at
75-76. The court's denial of Billingsly's motion for judgment of acquittal
based on insufficient evidence preserved error for our review.
Billingsly contends there was insufficient evidence to convict him of
sexual abuse in the second degree. More specifically, he argues the State
did not prove that he "used or threatened to use force creating a
substantial risk of death or serious injury" as required by section 709.3.
Billingsly contends Dana did not sustain a "serious injury" and that any
threat of death or serious injury "must be accompanied by a real hazard or
danger of death" to prove second-degree sexual abuse under the facts here.
The court instructed the jury that that in order to find Billingsly
guilty of sexual abuse in the second degree the State had to prove that (1)
Billingsly performed a sex act with Dana; (2) Billingsly performed the sex
act: (a) by force or against Dana's will, or (b) with Dana's consent or
acquiescence gained by threats of violence toward her; and (3) during the
sex act Billingsly used or threatened to use force creating a substantial
risk of death or serious injury to Dana. Again, Billingsly only challenges
the sufficiency of the evidence on the third element. The court also
correctly instructed the jury that a "serious injury" is "a bodily injury
which creates a substantial risk of death or which causes serious permanent
disfigurement or extended loss or impairment of the function of any bodily
part or organ." See Iowa Code § 702.18.
We have construed death to be the most serious of injuries and in no
way to be exclusive of a serious injury. See State v. Rhode, 503 N.W.2d
27, 40 (Iowa Ct. App. 1993). In State v. Phanhsouvanh, 494 N.W.2d 219
(Iowa 1992) our supreme court found that irrespective of whether a gun was
used during the sexual assault, the victim's corroborated testimony that
the defendant threatened to kill her during the assault was sufficient for
the jury to find the defendant "threatened to use deadly or serious force
against the victim during the incident" and thus was sufficient to support
conviction for sexual abuse in the second degree. Phanhsouvanh, 494 N.W.2d
at 223-24. Accordingly, we conclude Dana's testimony that Billingsly
threatened to kill her during the assault, corroborated by the testimony of
a nurse that Dana had so stated shortly after the sexual abuse, constitutes
sufficient evidence from which the jury could find Billingsly threatened to
use force creating a substantial risk of death or serious injury to Dana.
We note that the State argues in the alternative that Billingsly did
in fact use force causing Dana to sustain a serious injury to her kidney,
an injury which created a substantial risk of death. The State relies on
the testimony of its medical expert who testified that the type of kidney
injury sustained by Dana during the assault can lead to death if untreated.
Thus, the State argues Billingsly in fact used force creating a
substantial risk of death or serious injury. However, because we have
determined that a reasonable jury could find Billingsly's threats to kill
Dana sufficient to constitute a threat to use force creating a substantial
risk of death or serious injury, we need not address the State's
alternative argument regarding the seriousness of the kidney injury.
Viewing the evidence in the light most favorable to the State, we
conclude there is sufficient evidence in the record from which a rational
juror could find, beyond a reasonable doubt, that during the commission of
the sexual abuse Billingsly threatened to use force creating a substantial
risk of death or serious injury to Dana. Accordingly, we conclude there is
substantial evidence in the record supporting the jury verdict finding
Billingsly guilty of sexual abuse in the second degree.