STATE OF IOWA, Plaintiff-Appellee, vs. JULIO ERNESTO BONILLA, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-413 / 05-0596
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JULIO ERNESTO BONILLA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Julio Bonilla appeals from his conviction for first-degree kidnapping.
AFFIRMED.
Kevin Hobbs, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, John P. Sarcone, County Attorney, and Nan M. Horvat, Assistant
County Attorney, for appellee.
Heard by Huitink, P.J., and Vogel, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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BEEGHLY, S.J.
Julio Bonilla appeals from his conviction for first-degree kidnapping, in
violation of Iowa Code sections 710.1 and 710.2 (2003). We affirm.
I. Background Facts and Proceedings.
From the evidence introduced at trial, a reasonable juror could have found
the following.
According to Elizabeth, who was then sixteen years old and
pregnant, on the evening of December 31, 2002, she had babysat for her aunt,
who lived one and one-half blocks from her home. After her aunt returned home
at approximately 1:30 a.m. the next morning, Elizabeth began walking home
when a dark-colored car approached, and two young Hispanic males who she
did now know got out and pulled her into the car.
Elizabeth found herself wedged in the back seat between two males. In
addition, two males were in the front seat of the car. She claimed that she was
afraid for her life and that she would eventually spend nearly four hours in the
car. Soon after forcing her into the car, the driver pulled up to another vehicle
and asked four men if they had drugs for sale. Unable to purchase drugs from
them, the driver proceeded to a convenience store, where two of the males went
into the store. One of them who remained with Elizabeth told her he had a gun.
While in the parking lot, Elizabeth saw her sister’s former boyfriend, but was
unable to convey her danger to him.
At some point in the evening, the men asked Elizabeth if she knew where
they could buy drugs. She directed them to a home, in which she knew the
Crawford family resided, intending to go inside and call the police; but when they
arrived there, nobody was home. After this, they proceeded to a secluded area
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where Elizabeth claimed she was raped by the males vaginally, anally, and
orally. She claimed they also forced her to drink alcohol during this time. Some
time between 4:00 and 5:00 a.m., the men dropped her off on East 12th Street in
Des Moines, where Elizabeth sought help at a stranger’s house. After knocking
on the door, Teresa Eggenberger answered it. Elizabeth told her she had been
raped by four Mexicans.
After reaching Elizabeth’s boyfriend by phone,
Eggenberger and the other resident of her house drove Elizabeth to her
boyfriend’s home, where they called police.
The State eventually charged Julio Bonilla with first-degree kidnapping
based on this incident. After a bench trial, the court entered its Findings of Fact,
Conclusions of Law, and Ruling in which it found Bonilla guilty as charged. After
denying Bonilla’s motion for a new trial, the court sentenced Bonilla to life in
prison. Bonilla appeals from this ruling.
II. Motion for New Trial.
Bonilla first maintains the court erred in denying his motion for new trial. 1
He contends the trial court, as fact finder, should have disregarded Elizabeth’s
testimony as too inconsistent to be believed. He further argues that two of the
court’s specific findings of fact are inaccurate.
We review a district court’s ruling on a motion for a new trial for an abuse
of discretion. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). A district court
should grant a new trial where a conviction is contrary to the weight of the
evidence. Id. at 659. The court should weigh the evidence and consider the
1
Although Bonilla initially references “sufficiency-of-the-evidence” language, we find
that he is actually challenging the court’s ruling on his motion for new trial, and thus, the
“weight” of the evidence.
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credibility of witnesses. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).
Unlike the sufficiency-of-the-evidence analysis, the weight-of-the-evidence
analysis is much broader, in that it involves questions of credibility and refers to a
determination that more credible evidence supports one side than the other. Id.
The court should grant a new trial only in exceptional cases in which the
evidence preponderates heavily against the verdict. Id.
A. Elizabeth’s Testimony. Bonilla maintains the trial court should have
“disregarded Elizabeth’s testimony because it was too inconsistent to be
believed.”
In support of this, he points to the following testimony.
First, he
asserts that her explanation of directing Bonilla and his friends to the Crawford
house is not believable because there were better alternatives in which to have
attempted an escape.
Second, he argues Elizabeth was untruthful about a
telephone call she made from Teresa Eggenberger’s house, in that she testified
to making two calls while Eggenberger said she made only one. Third, Bonilla
points to Elizabeth’s failure to inform nurses and doctors that she had engaged in
sexual relations with her boyfriend on the previous day.
Fourth, he asserts
Elizabeth’s versions of the rape are inconsistent. Fifth, he believes Elizabeth’s
alleged confinement in the car is not supported by a convenience store
surveillance tape. Finally, Bonilla contends the description of the house at which
she was dropped off is misleading.
Although Bonilla questions the consistency and veracity of a great deal of
Elizabeth’s testimony, questions of credibility and weight are matters for the
finder of fact. EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency,
641 N.W.2d 776, 785-86 (Iowa 2002). The inconsistencies relied on by Bonilla
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are not so substantial as to require the court to disregard the substantial portions
of Elizabeth’s evidence that support the guilty verdict. See State v. Mitchell, 568
N.W.2d 493, 503 (Iowa 1997) (noting that it is only when a witness’s testimony is
“so impossible, absurd, and self-contradictory that the court should deem it a
nullity”).
As the State notes, while some of Elizabeth’s testimony clearly is
inconsistent, such is understandable considering the distress and trauma caused
by the rape. Moreover, the court was aware of these inconsistencies and found
that that they did not destroy Elizabeth’s overall credibility. The court did not
abuse its discretion in failing to grant a new trial on this count.
B. Erroneous Factual Findings. Bonilla contends the court erred in its
recitation of certain facts in its Findings of Fact, Conclusions of Law, and Ruling.
In those findings, the court noted that seminal fluid was found belonging to
Bonilla, Elizabeth’s boyfriend, and “very likely at least one other person who
ejaculated leaving, more than likely, seminal fluid on Elizabeth’s clothing . . . .”
Bonilla notes that the State’s DNA expert, Kristin Evans, actually testified that
she could not determine whether the DNA was semen, blood, or saliva.
We find no error by the district court in this finding. First, the court only
found that the DNA was “likely” semen. This is a fair inference from the record.
Second, it acknowledged that Evans “could not state with certainty that the [DNA]
came from seminal fluid, but it is possible that they were the result of seminal
fluid.”
Bonilla next challenges the accuracy of the court’s finding that he did not
“change his story” about completely denying the events in question. The State
counters that, while Bonilla did admit to being in the car with three friends, the
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relevant fact is that he never changed his initial total denial until trial, when he
first admitted that he was with Elizabeth on the date of the incident. We conclude
this observation is accurate and that the court appropriately considered this in
making its ruling. No abuse of discretion occurred in failing to grant a new trial
based on this finding.
III. Rebuttal Testimony.
Bonilla contends the court improperly allowed the State to offer the
rebuttal testimony of Teresa Eggenberger. She testified, among other things, as
to Elizabeth’s comments upon knocking on her door, her demeanor, and her
physical appearance.
Rebuttal testimony is “that which explains, repels, controverts, or
disproves evidence produced by the other side.” State v. Miller, 229 N.W.2d 762,
770 (Iowa 1975). We conclude the court did not abuse its discretion, see State v.
Bakker, 262 N.W.2d 538, 543 (Iowa 1978) (setting forth the standard of review),
in allowing this rebuttal evidence. Eggenberger’s testimony rebutted Bonilla’s
testimony about Elizabeth’s demeanor 2 when they parted and his testimony that
she was fully clothed when she exited his car.
IV. Prosecutorial Misconduct.
Following the close of evidence, the State presented the court with a
“Proposed Findings of Fact and Conclusions of Law” and a “State’s Rebuttal.”
On appeal, Bonilla claims at least four statements made in these documents
constitute prosecutorial prejudice and entitle him to a new trial.
2
Bonilla testified that when they dropped Elizabeth off she was not upset and that she,
in fact, asked him for his phone number.
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To prevail on a claim of prosecutorial misconduct, a defendant must
establish that misconduct occurred, and that he was so prejudiced by the
misconduct that he was deprived of a fair trial. See State v. Bowers, 656 N.W.2d
349, 355 (Iowa 2002); State v. Greene, 592 N.W.2d 24, 30-31 (Iowa 1999). Thus
it is the prejudice resulting from misconduct, not the misconduct itself, that
entitles a defendant to a new trial. Greene, 592 N.W.2d at 31. Whether the
misconduct was isolated or pervasive and the strength of the evidence against
the defendant are appropriate considerations for the trial court. State v. Belken,
633 N.W.2d 786, 802 (Iowa 2001); Greene, 592 N.W.2d at 32.
We do not believe Bonilla is entitled to relief on any of the three alleged
instances of prosecutorial misconduct.
He first argues the State improperly
referred to Bonilla lying. 3 While it is true that in State v. Graves, 668 N.W.2d
860, 875 (Iowa 2003), our supreme court disapproved of the practice of the
prosecutor calling the defendant a liar, we believe the instance complained of
here was non-inflammatory, based on facts and reasonable inferences, and was
isolated in nature. As such, Bonilla suffered no prejudice by this comment.
Bonilla next complains of the State’s references to the fact that prior to
trial, although he spoke to police on several matters, he never claimed to have
engaged in consensual sex with Elizabeth until the time of trial.
First, it is
significant that this was a bench trial, which served to reduce any potential
prejudice attendant to the statements.
This is generally true because legal
training assists the fact finder in a bench trial “to remain unaffected by matters
3
The State claimed “The defendant readily admitted that in the past he has identified
himself as Jose Hernandez, thus lying to police.”
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that should not influence the determination.” State v. Matheson, 684 N.W.2d
243, 244 (Iowa 2004) (noting courts are less likely to reverse when inadmissible
evidence is introduced in a bench trial than in a jury trial).
Moreover, we
conclude that these references did not amount to a comment on Bonilla’s right to
remain silent.
As the State points out, while Bonilla did make a wealth of
statements to police, those statements were inconsistent with his eventual story
given at trial.
Third, Bonilla complains the State misstates the record and thus “play[s] to
the emotions of the fact-finder” when it stated in its rebuttal that Elizabeth “has
only been subjected to the sarcasms and ridicules of the defense.”
Again,
because this was a bench trial, see id., and because this was an isolated
comment made in the context of a lengthy trial and a voluminous record, we
conclude Bonilla was not prejudiced by this statement. See Greene, 592 N.W.2d
at 31.
V. Ineffective Assistance of Counsel.
Bonilla contends he received ineffective assistance of counsel in
numerous respects. We review claims of ineffective assistance of counsel de
novo.
State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct. App. 2001).
To
establish an ineffective assistance of counsel claim a defendant must show (1)
counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.
Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the
burden of proving both elements of his ineffective assistance claim by a
preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa
2001). We normally preserve ineffective assistance claims to allow development
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of the record concerning counsel’s conduct. State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006). However, if the record is sufficient we may decide the issue on
direct appeal. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).
We conclude the record is inadequate to address the following claims, and
therefore preserve them for a possible postconviction relief application: (1) that
defense counsel should have called alibi witnesses; (2) that counsel should have
called Elizabeth’s family and friends to impeach her version of the events; (3) that
counsel provided ineffective assistance by failing to retain an expert on DNA
evidence; (4) that counsel should have pursued an intoxication defense; and (5)
that counsel should have more adequately diagrammed the locations referred to
in Elizabeth’s testimony to emphasize the “implausibility” of her story.
However, we refuse to either address or preserve his claim that counsel
failed to perform his duty to inform him of his right to contact his local consulate
pursuant to the Vienna Convention on Consular Relations.
In making this
general claim, Bonilla fails to state any specific ways in which a “competent”
attorney that raised this issue would have changed the outcome of his criminal
case. See State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct. App. 1999).
AFFIRMED.
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