STATE OF IOWA, Plaintiff-Appellee, vs. AUDREY LYNN GONZALES, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 8-073 / 07-0805
Filed March 14, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
AUDREY LYNN GONZALES,
Defendant-Appellant.
_______________________________________________________________
Appeal from the Iowa District Court for Linn County, Marsha A. Bergan,
Judge.
Defendant appeals her conviction for pandering involving a minor.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., Vogel and Vaitheswaran, JJ.
2
SACKETT, C.J.
The defendant, Audrey Lynn Gonzales, appeals from her conviction and
sentence for pandering involving a minor in violation of Iowa Code section
725.3(2) (2005). She contends the trial court erred in admitting out of court
statements made by a participant to the crime and that there was insufficient
evidence to support the conviction. She also argues she received ineffective
assistance of counsel when her attorney failed to (1) object to certain testimony
as hearsay, (2) object to the admission of out-of-court statements made by J.M.
and her mother as a violation of her Sixth Amendment right to confront witnesses
against her, and (3) object to the marshaling instruction on pandering. We affirm
the defendant’s conviction and preserve two of her ineffective assistance of
counsel claims for postconviction relief.
I.
BACKGROUND AND PROCEEDINGS.
On March 2, 2006, Cedar Rapids police officers were conducting a
prostitution sting. They set up the sting operation in an apartment where officer
Matt Denlinger posed as a customer seeking a prostitute. Other officers hid in a
locked bedroom and used surveillance equipment to monitor and record the
investigation.
Officer Denlinger called a business called Jenderez that was
advertised in the Spa and Escort classified section in a local newspaper and
defendant answered the phone. Denlinger testified that he “explained to her I
needed an escort or I told her I was looking for a good time, something along
[those] lines, and she agreed to provide a female for that service.”
The
defendant testified that on the phone she made it clear to him that it was a dating
3
service, not an escort service. No prices or sexual activities were discussed on
the phone.
The defendant arrived at the apartment with another female, later
identified as seventeen-year-old J.M.
The defendant looked around the
apartment and inquired about the locked bedroom. Denlinger stated he had a
roommate who locked the door before he left. The defendant then told Denlinger
and J.M. to have fun and returned to her car in the parking lot.
J.M. and
Denlinger sat in the living room and J.M. told him he needed to pay her up front
for any services.
Denlinger asked about what he could get for his money.
According to Denlinger,
[s]he said for $150 I could have a hand release and for $200 I could
have sex. She said I’d have to pay for a full hour, though. I asked
her what a hand release is, in her words, she said it’s just a hand
job.
Denlinger then said the code word “peanuts,” and the other officers came out of
the bedroom. J.M. was then placed under arrest for prostitution. J.M. identified
herself, admitted her age, and was found to be carrying eleven condoms.
After this arrest, other officers confronted the defendant who was sitting in
her car in the parking lot. The defendant consented to a search of her vehicle
and officers found marijuana and a note with directions to the apartment, the
alias used by Denlinger, and the prices of $150 and $200 written on it. The
defendant was arrested for possession of marijuana and taken to the police
station. There, she gave a statement to police explaining that she runs a dating
service where clients pay for a set amount of time, that she also performs “dating
visits,” and that she cannot “control if a girl decides to do something more than
4
just talk.” She added that she previously had a business called Classy Ladies
but changed the name to Jenderez in January of 2006. She testified that the
client was charged $150 for a half-hour or $200 for a full hour date.
The
business would retain fifty dollars of the charged amount as a commission.
At trial the defendant testified that J.M. had contacted her the day before
the sting and stated that she wanted to work for Jenderez.
The defendant
testified that J.M. told her she was nineteen but could not provide identification
because her purse had been stolen. The defendant explained the business to
J.M. and agreed to pick her up the next day. After she picked J.M. up the next
day, the defendant took J.M. to a date with a regular client of Jenderez and then
took J.M. to the date with Denlinger, the undercover officer.
The defendant
testified she asked J.M. if she wanted the date, and J.M. agreed to it.
The defendant also testified that she looked around the apartment to
ensure safety by making certain the client is alone and that there are no weapons
around. She also testified that she told J.M. to leave or to call her if a client was
getting “perverted” or “sexually explicit.” She denied giving J.M. condoms. She
stated that she only told J.M. and Denlinger to “have fun” because she did not
want them to have a bad experience.
The State charged the defendant with pandering involving a minor in
violation of Iowa Code section 725.3(2), distribution of marijuana to a minor in
violation of section 124.406, and possession of a controlled substance in
violation of section 124.401(5). The defendant pleaded guilty to possession of a
controlled substance and a jury trial was held on the charges of pandering and
5
distribution of marijuana to a minor. The defendant filed a motion in limine to
exclude statements J.M. made to the police and a video of the sting. The State
obtained a material witness warrant for J.M. to testify but she did not appear at
trial.
Thus, at the close of the State’s evidence, the State dismissed the
distribution to a minor charge. The jury convicted the defendant of pandering
involving a minor.
The defendant appeals. Nearly all defendant’s claimed errors concern the
admission of out-of-court statements made by J.M. and J.M.’s mother.
The
defendant attacks her conviction on several different grounds relating to this
evidence including, (1) that some statements were erroneously admitted as
coconspirator statements, (2) that some statements were inadmissible hearsay,
(3) that there was insufficient evidence to convict her without these statements,
and (4) that she received ineffective assistance of counsel when her attorney did
not object to the admission of these statements as either hearsay or a violation of
her Sixth Amendment right to confront witnesses against her. The defendant
also claims her trial counsel was ineffective by not objecting to a jury instruction.
II.
STANDARD OF REVIEW.
We review claims concerning hearsay testimony for errors at law. State v.
Newell, 710 N.W.2d 6, 18 (Iowa 2006).
Hearsay must be excluded from
evidence at trial unless it can be admitted pursuant to an exception to, or
exclusion from, the hearsay rule. Id. “Inadmissible hearsay is considered to be
prejudicial to the nonoffering party unless otherwise established.” Id.
6
A defendant’s challenge to the sufficiency of the evidence supporting a
conviction is also reviewed for correction of errors at law. State v. Smith, 739
N.W.2d 289, 293 (Iowa 2007). We uphold a guilty verdict if it is supported by
substantial evidence. Id.
We generally preserve ineffective assistance of counsel claims for
postconviction relief but will address them if the record is sufficient. State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). These claims “have their basis in
the Sixth Amendment to the United States Constitution and thus, are reviewed de
novo.”
Id.
We will review counsel’s conduct, considering the totality of the
circumstances. State v. Lane, 743 N.W.2d 178, 181 (Iowa 2007).
In addition to promising effective assistance of counsel, the Sixth
Amendment to the United States Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; Newell, 710 N.W.2d at 24. “We
review claims based on the Confrontation Clause de novo.” Newell, 710 N.W.2d
at 23.
III.
ERROR PRESERVATION OF HEARSAY CLAIMS.
The defendant contends hearsay information was erroneously admitted in
four instances.
First, the court permitted Denlinger to testify as to J.M.’s
statements during the sting regarding the cost of certain sexual services.
Second, the court admitted a videotape of the sting which contained J.M.’s
statements to Denlinger during the sting.
Third, Denlinger testified as to
7
statements J.M. made after her arrest about her age. Fourth, the court allowed
officers to testify as to conversations with J.M.’s mother about J.M.’s age.
The State argues error is only preserved as to the statements J.M. made
prior to her arrest. The defendant’s trial counsel filed a motion in limine seeking
to exclude out-of-court statements made by J.M. and the videotape but the
record shows no ruling on this motion. At trial, counsel objected when the officer
began testifying as to what J.M. said to him during the sting and when the State
introduced the videotape.
However, counsel did not object when the officer
testified that J.M. told him she was seventeen after her arrest. Defense counsel
also did not object to an officer’s testimony that J.M.’s mother confirmed J.M. was
seventeen. Therefore, error was only preserved on the first two hearsay claims
through counsel’s timely objections concerning J.M.’s statements during the sting
and upon admission of the videotape. See Summy v. City of Des Moines, 708
N.W.2d 333, 338 (Iowa 2006) (explaining that error preservation turns on
whether the alleged “error has been timely brought to the attention of the district
court”). The defendant alternatively argues she received ineffective assistance of
counsel when her attorney failed to preserve her third and fourth claims of
hearsay by not objecting to the out-of-court statements regarding J.M.’s age.
See Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993) (noting that claims of
ineffective assistance of counsel are an exception to the general rule of error
preservation).
We therefore will address these claims when we consider
defendant’s other ineffective assistance of counsel claims.
IV.
COCONSPIRATOR STATEMENTS.
8
The parties disagree as to whether the statements J.M. made prior to
arrest are admissible through the rule that excludes coconspirator statements
from the definition of hearsay. “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.”
Iowa R. Evid. 5.801(c).
Hearsay is not
admissible except as provided by the Constitution, by statute, or by other rules of
evidence.
Iowa R. Evid. 5.802.
One rule of evidence excludes from the
definition of hearsay, certain statements made by a coconspirator to a crime.
Iowa R. Evid. 5.802(d)(2)(E). This rule provides that a statement is not hearsay if
“[t]he statement is offered against a party and is . . . (E) a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy.”
Id. Out-of-court statements by a coconspirator are admissible as admissions by
a party-opponent. State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). These
statements are not admitted via an exception to the hearsay rule. Id.
Before evidence of a coconspirator’s statements can be admitted under
this exclusion, “the court must find, by a preponderance of the evidence, that a
conspiracy to commit a crime existed between the declarant and the nonoffering
party.” State v. Tangie, 616 N.W.2d 564, 569 (Iowa 2000). When the district
court admits the statement, the finding of a conspiracy is implicit and we uphold
the finding if it is supported by substantial evidence. Id. “A conspiracy is a
combination or agreement between two or more persons to do or accomplish a
criminal or unlawful act, or to do a lawful act in an unlawful manner.” Ross, 573
N.W.2d at 914.
The agreement can be established though direct or
9
circumstantial evidence. Id. Our Supreme Court has advised that evidence of a
conspiracy for purposes of rule 5.802(d)(2)(E) can be gleaned from “‘the
circumstances surrounding the statement, such as the identity of the speaker, the
context in which the statement was made, or evidence corroborating the content
of the statement.’” State v. Dullard, 668 N.W.2d 585, 596 (Iowa 2003) (quoting
Fed. R. Evid. 801 advisory committee’s note, 1997 amendment). The statement
at issue is also relevant, but not determinative.
The State must prove the conspiracy by evidence other than the
challenged statement. In other words, the evidence relied on to
establish the conspiracy must include some proof independent of
the coconspirator’s statement. State v. Florie, 411 N.W.2d 689,
696 (Iowa 1987). But in making the determination whether such
independent proof has been shown, the district court need not
completely ignore the coconspirator’s statements. Bourjaily v.
United States, 483 U.S. 171, 176-81, 107 S. Ct. 2775, 2779-82, 97
L. Ed. 2d 144, 153-56 (1987); Florie, 411 N.W.2d at 696; accord In
re Matter of Scott, 508 N.W.2d 653, 655 (Iowa 1993).
In re Property Seized from DeCamp, 511 N.W.2d 616, 621 (Iowa 1994).
The defendant claims the coconspirator exclusion does not apply to her
case because (1) the State failed to prove the existence of a conspiracy, and (2)
J.M. cannot be considered a coconspirator when the pandering statute is
designed to protect minors.
The State counters that there is substantial
circumstantial evidence to support the finding of a conspiracy and argues that the
defendant should not be permitted to use the statute’s protective policy as a
means to challenge her conviction.
The circumstances leading up to the planned transaction, the statement
itself, and evidence found on J.M. and in the defendant’s car suggest the
defendant and J.M. were conspiring together to earn money through prostitution.
10
The defendant admitted that many persons wanting to use her service are
looking for sex. She testified that she made J.M. aware of this. The defendant
agreed to provide a girl for the undercover officer. The defendant drove J.M. to
the date and went to the apartment with her to ensure the apartment was safe.
Before leaving, the defendant stated, “Have fun.” Eleven condoms were found
on J.M. when she was arrested.
The defendant testified that clients were
charged $150 for a thirty minute date and $200 for an hour long date. She stated
that Jenderez kept fifty dollars as a commission for each date. A note was found
in the defendant’s car with the directions to the apartment with the prices $150
and $200 written on it. Together, these circumstances suggest that Jenderez
was designed to offer sex rather than simple companionship and that J.M. and
the defendant were executing this plan together.
The hearsay statement at issue confirms this plan. Only moments after
the defendant left the apartment, the undercover officer asked J.M. how much he
would have to pay. The officer testified that J.M. stated that a hand release cost
$150 and sex would cost $200, but that he would have to pay for an entire hour.
The video shows the statement was made without prompting or coercion. The
statement was corroborated by the note found in the defendant’s car. We find
the statement and surrounding circumstances provide substantial evidence that
J.M.’s statements were made in the course and in furtherance of a conspiracy.
The defendant’s argument that J.M., as a minor, cannot be considered a
coconspirator because she is considered a victim under the statute is without
merit. Whether one can be convicted of conspiracy is unrelated to the issue of
11
whether coconspirator statements are admissible evidence.
No conspiracy
charge is necessary for the coconspirator’s statements to be used against the
defendant. State v. Thai, 575 N.W.2d 521, 525 (Iowa Ct. App. 1997).
The videotape of the sting that also contained J.M.’s statement about price
and services was a recording of the statements properly allowed under the
coconspirator exemption. Therefore, this evidence was merely cumulative and
the defendant suffered no prejudice. See State v. Moeller, 589 N.W.2d 53, 55
(Iowa 1997).
V.
INSUFFICIENT EVIDENCE.
The defendant claims the State presented insufficient evidence as a
matter of law to support her conviction for pandering involving a minor. We
review these claims for whether substantial evidence supports the verdict. State
v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). “Evidence is substantial if it would
convince a rational fact finder that the defendant is guilty beyond a reasonable
doubt.” Id. (quoting State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002)). The
evidence is viewed in the light most favorable to the State but we consider all of
the evidence in the record, not only that which sustains a guilty verdict. Id. We
also consider those “legitimate inferences and presumptions that may fairly and
reasonably be deduced from the record evidence.” Id.
The defendant argues there is insufficient evidence that she “persuaded,
arranged, coerced or caused J.M. to become a prostitute.” At trial, the defendant
testified that J.M. contacted her and inquired about working for Jenderez and that
J.M. lied about her age. There was no evidence that the defendant persuaded or
12
coerced J.M. into offering sexual services. However, the defendant admitted to
arranging the date with the undercover officer and delivered J.M. to the
apartment. The testimony regarding price and services, coupled with the note
found in the defendant’s car, could allow a fact finder to reasonably infer that the
defendant arranged for J.M. to work as a prostitute for Jenderez. The defendant
did testify that Jenderez was a dating service that provided companionship and
no sexual services.
However, “[t]he jury is free to believe or disbelieve any
testimony as it chooses and to give weight to the evidence as in its judgment
such evidence should receive.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa
1993). “In fact, the very function of the jury is to sort out the evidence and ‘place
credibility where it belongs.’” Id. (quoting State v. Blair, 347 N.W.2d 416, 420
(Iowa 1984)). We conclude the record before us provides substantial evidence to
support the jury’s guilty verdict.
VI.
INEFFECTIVE ASSISTANCE OF COUNSEL.
The defendant next contends she received ineffective assistance of
counsel by her attorney’s (1) failure to object to hearsay testimony about J.M.’s
age, (2) failure to challenge the admission of statements by J.M. and J.M.’s
mother as a violation of the defendant’s Sixth Amendment right to confront
witnesses against her, and (3) failure to object to the marshaling instruction on
pandering.
“In order to succeed on a claim of ineffective assistance of counsel, a
defendant must prove: (1) counsel failed to perform an essential duty; and (2)
prejudice resulted.”
Maxwell, 743 N.W.2d at 195 (citing Strickland v.
13
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984)). The defendant must prove both elements by a preponderance of the
evidence and we can dispose of the claim if the defendant fails to prove either
element. State v. Cook, 565 N.W.2d 611, 613-614 (Iowa 1997).
Under the first element, we initially presume that the attorney performed
competently. Maxwell, 743 N.W.2d at 196. We use an “objective standard of
reasonableness” to gauge the attorney’s conduct and consider his or her
performance in relation to “prevailing professional norms.”
Id. at 195 (citing
Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360,
371 (2005)).
“‘Miscalculated trial strategies and mere mistakes in judgment
normally do not rise to the level of ineffective assistance of counsel.’” Id. (quoting
Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)). If a particular tactical
decision was reasonable, we will not reverse even if the strategy failed. State v.
Ondayog, 722 N.W.2d 778, 786 (Iowa 2006).
However, “[t]he fact that a
particular decision was made for tactical reasons does not . . . automatically
immunize the decision from a Sixth Amendment challenge.” Id. (quoting State v.
Graves, 668 N.W.2d 860, 881 (Iowa 2003)). This is why often a postconviction
relief proceeding is necessary to help develop a record for us to discern whether
the attorney’s conduct was improvident trial strategy or ineffective assistance. Id.
In addition to proving that counsel performed deficiently, the defendant
must prove prejudice. Maxwell, 743 N.W.2d at 195. “Prejudice exists where the
claimant proves by ‘a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
14
Id. at 196 (quoting Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)). The
defendant must “show that the probability of a different result is ‘sufficient to
undermine confidence in the outcome.’” Id. (quoting Bowman, 710 N.W.2d at
206). We make this determination by considering the totality of the evidence, the
factual findings affected by the attorney’s errors, and whether the error had an
isolated or pervasive effect on the trial. Id.
A. FAILURE TO OBJECT TO HEARSAY EVIDENCE.
The defendant first claims her trial counsel was ineffective for failing to
object to hearsay testimony regarding J.M.’s age. Establishing J.M.’s age was
crucial to the State’s case because the defendant was charged with pandering to
a minor. The State concedes that J.M.’s age was proved at trial through hearsay
testimony. 1
The State does not claim any exclusions or exceptions to the
hearsay rule apply to the testimony regarding J.M.’s age. 2 However, the State
alleges counsel may have had a strategic reason for not objecting. The record is
insufficient to determine whether counsel’s conduct in this respect was deficient
representation or a miscalculated strategy. We therefore preserve the claim for
postconviction relief.
1
The State presented evidence of J.M.’s age through officer testimony. Officer
Denlinger testified that J.M. admitted she was seventeen after she was arrested.
Another officer testified that J.M.’s mother was contacted after the arrest and confirmed
J.M. was seventeen. Neither J.M. or her mother testified at trial.
2
Since J.M.’s admission to the officer that she was seventeen was made post-arrest,
the rule allowing admission of coconspirator statements does not apply. See State v.
Beckett, 383 N.W.2d 66, 67-68 (Iowa Ct. App. 1985) (finding a coconspirator’s
declaration post-arrest “was not made ‘during’ or ‘in furtherance of’ the conspiracy” for
purposes of the rule). The State concedes that the mother’s confirmation of J.M.’s age
was an out-of-court statement offered to prove the truth of the matter asserted. The
State does not argue that any hearsay exemption or exception applies to this statement.
15
B. FAILURE TO MAKE SIXTH AMENDMENT OBJECTION.
The defendant also claims her attorney was ineffective in failing to object
to testimony about J.M. and her mother’s out-of-court statements as a violation of
the defendant’s Sixth Amendment right to confront witnesses. The Confrontation
Clause implements our policies of “face-to-face confrontation at trial and the right
of cross-examination.” Newell, 710 N.W.2d at 24.
Although this constitutional provision generally protects the same
values as the hearsay rule, “the Confrontation Clause bars the
admission of some evidence that would otherwise be admissible
under an exception to the hearsay rule.” State v. Castaneda, 621
N.W.2d 435, 444 (Iowa 2001).
On the other hand, the
Confrontation Clause, like the hearsay rule, does not prevent “the
use of testimonial statements for purposes other than establishing
the truth of the matter asserted.” Crawford v. Washington, 541 U.S.
36, 59 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177, 198 n.9
(2004).
Newell, 710 N.W.2d at 24. Therefore, even if some of J.M.’s statements were
properly admitted as coconspirator statements, these statements might
nonetheless be excluded from evidence to protect the defendant’s constitutional
right to confront and cross-examine witnesses against her. The Confrontation
Clause analysis focuses on whether the statements are testimonial or
nontestimonial in nature. Id.
“An out-of-court statement by a witness that is testimonial in nature is
barred under the Confrontation Clause unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness.”
State v.
Musser, 721 N.W.2d 734, 753 (Iowa 2006) (citing Crawford v. Washington, 541
U.S. 36, 59-60, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004)). The
Confrontation Clause is inapplicable to nontestimonial statements.
Id. (citing
16
Davis v. Washington, 547 U.S. 813, ___, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d
224, 236 (2006)).
[S]tatements in response to police interrogations that are “solely
directed at establishing the facts of a past crime, in order to identify
(or provide evidence to convict) the perpetrator,” are . . . testimonial
statements subject to the Confrontation Clause.
Id. (quoting Davis, 547 U.S. at ___, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240).
J.M.’s statements made during the sting are not testimonial. See Davis,
547 U.S. at ___, 126 S. Ct. at 2276-77, 165 L. Ed. 2d at 241-42 (finding
statements nontestimonial when the declarant is speaking about events as they
are happening rather than as a witness explaining past events). However, it
appears at least some of J.M.’s and her mother’s statements to police may have
been testimonial and therefore subject to Confrontation Clause scrutiny.
Statements by both J.M. and her mother about J.M.’s age were made post-arrest
and in response to police questions. These statements are testimonial. See
State v. Bentley, 739 N.W.2d 296, 299 (Iowa 2007) (finding child’s statements
made during an interview in which police participated were testimonial).
Therefore the statements are subject to a Confrontation Clause objection. We
cannot determine whether defendant’s attorney had a legitimate reason for not
objecting on this ground.
Since we are unable to evaluate the attorney’s
performance on the current record, we preserve this claim for postconviction
relief proceedings.
17
C. FAILURE TO OBJECT TO PANDERING INSTRUCTION.
The defendant also contends her attorney was ineffective for failing to
object to the marshaling instruction on pandering. The instruction given to the
jury stated in relevant part:
The State must prove all the following elements of Pandering:
1.
On or about March 2, 2006, the defendant Audrey L.
Gonzales persuaded, arranged, coerced or otherwise caused [J.M.]
. . . to become a prostitute.
2.
On March 2, 2006, [J.M.] . . . was under the age of eighteen
years.
If the State has proved both of the elements, the defendant is guilty
of Pandering. If the State has failed to prove both of the elements,
the defendant is not guilty.
The defendant argues that the instruction is ambiguous as to how the jury should
rule “if the State proves one of the elements but fails to prove the other.” The
defendant correctly states that the instruction tells the jury to acquit if the State
fails to prove both elements. The defendant argues that this is a misstatement of
the law because Iowa Code section 725.3 allows a person to be convicted of
pandering regardless of the prostitute’s age. Pandering involving a minor is a
class C felony and pandering involving an adult is a class D felony. Iowa Code §
725.3(1), (2). The defendant suggests a proper instruction would have included
the first element only and the jury would have been directed to a special
interrogatory regarding J.M.’s age if the first element was met.
Although the defendant correctly points out that she could have been
convicted of pandering with or without proof of J.M.’s age, this is irrelevant. The
defendant was charged under section 725.3(2), the particular pandering
18
provision involving minors. The State was required to prove J.M.’s age to secure
a conviction and the instruction correctly advised the jury that both elements
needed to be proved for a conviction.
By its terms, the instruction properly
advises the jury to acquit if either element is not proved.
“[C]ounsel is not
incompetent in failing to pursue a meritless issue.” State v. Greene, 592 N.W.2d
24, 29 (Iowa 1999). Therefore, we resolve this claim against the defendant due
to the defendant’s failure to prove that counsel breached an essential duty.
VII.
CONCLUSION.
We affirm the defendant’s conviction. The statements J.M. made to the
officer prior to her arrest were properly admitted as a coconspirator statement
under rule 5.802(d)(2)(E). There was sufficient evidence in the record to support
the jury’s guilty verdict. The defendant’s trial counsel was not ineffective for
failing to object to the marshaling instruction on pandering. We preserve the
defendant’s remaining ineffective assistance of counsel claims for postconviction
relief proceedings.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.