STATE OF IOWA, Plaintiff-Appellee, vs. TONY WALKER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-313 / 06-0259
Filed June 27, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TONY WALKER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Defendant-appellant appeals his conviction, following a jury trial, of
kidnapping in the first degree and sexual abuse in the second degree.
CONVICTION AFFIRMED; SENTENCE AND NUNC PRO TUNC ORDER
VACATED; REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant
State Appellate Defender for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, Matthew D. Wilber, County Attorney, and Jon Jacobmeier, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
Defendant-appellant
Tony
Walker
was
convicted
of
first-degree
kidnapping and second-degree sexual abuse in violation of Iowa Code sections
710.5, 709.1(1) and 709.3(1) (2005) following a jury trial.
Walker appeals,
contending he was denied effective assistance of counsel and the district court
erred in several ways. First, he argues that his trial attorney provided ineffective
assistance of counsel by not objecting to the term “victim” in the jury instructions.
He claims the trial court erred by (1) not granting him a new trial because the
jury’s verdict was contrary to the weight of the evidence, (2) only merging one
sexual abuse charge with the kidnapping charge, and (3) in imposing a special
sentence under Iowa Code chapter 903B.1 through a nunc pro tunc sentencing
order. We affirm the conviction, vacate the original sentence and nunc pro tunc
order, and remand for resentencing.
BACKGROUND.
The defendant-appellant is Marissa’s great-uncle.
Marissa was eighteen at the time of the incident and often spent time with the
defendant.
She viewed him as a father figure and they often went fishing
together. On July 11, 2005, Marissa went with the defendant to his apartment so
he could assist her in obtaining and completing insurance forms. Shortly after
arriving at the apartment, the defendant tried to kiss Marissa. After she resisted
him, he threatened her with a knife and forced her into his bedroom.
For
approximately the next sixteen hours the defendant kept Marissa restrained by
tying nylon rope around her wrists or ankles and by threatening her with the
knife. The defendant kissed and fondled Marissa about her face, breasts, and
genitalia in the bedroom. Twice during this period, the defendant tied ropes
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around Marissa’s ankles and drove her out in the country. At one point he led
her through a heavily weeded, muddy area where he ordered her to take off her
clothes, lay in the weeds, and he again fondled Marissa with his fingers and
tongue. After threatening to kill her, the defendant poked Marissa with the knife
and her finger was injured. Later, a suspicious officer pulled the defendant over
while he was driving with Marissa in the country.
The defendant instructed
Marissa not to say anything to the officer. When the officer asked Marissa if she
was there of her own free will, she responded, “uh-huh.” The defendant finally
agreed to take Marissa to her friend’s house after she let him cut a lock of her
hair and after she wrote a note promising to visit him as often as possible. After
confiding the incident to her friend, the police were called.
On July 22, 2005, the defendant was charged with first-degree kidnapping
and two counts of second-degree sexual abuse. The jury found the defendant
guilty on these charges. At sentencing, one count of sexual abuse was merged
with the kidnapping charge. The defendant was sentenced to life imprisonment
for the kidnapping charge. For the remaining sexual abuse conviction, the court
sentenced the defendant to serve, concurrent with the kidnapping sentence, no
more than twenty-five years in prison.
Six months after the sentencing, the
district court issued a nunc pro tunc order stating that under Iowa Code chapter
903B.1, the defendant was also subject to a special sentence of life in prison with
eligibility for parole to be served after completing the twenty-five year sexual
abuse sentence that was not merged into the kidnapping conviction.
INEFFECTIVE ASSISTANCE OF COUNSEL. Ineffective assistance of
counsel claims can be evaluated on direct appeal if the record is sufficient. State
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v. Hildebrant, 405 N.W.2d 839, 840-41 (Iowa 1987).
The denial of effective
counsel is a denial of due process and is reviewed de novo. Hinkle v. State, 290
N.W.2d 28, 30 (Iowa 1980). We evaluate the claim under the totality of the
circumstances. State v. Lane, 726 N.W.2d 371, 392 (Iowa 2007).
To establish this claim, the defendant must prove by a preponderance of
the evidence (1) that his counsel was ineffective and (2) that he was prejudiced
by his counsel’s errors. Ledezma v. State, 626 N.W.2d 134, 142-43 (Iowa 2001).
Under the first prong, we presume that the attorney performed competently but
also analyze whether the attorney’s conduct conformed to “prevailing
professional norms.” Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct.
2052, 2065, 80 L. Ed. 2d 674, 694-95 (1984); Ledezma, 626 N.W.2d at 142. The
defendant must prove that his counsel “performed below the standard demanded
of a reasonably competent attorney.” Strickland, 466 U.S. at 688, 104 S. Ct. at
2064-65, 80 L. Ed. 2d at 693-94; Ledezma, 626 N.W.2d at 142. Under the
second prong, the defendant shows prejudice when he proves by a
preponderance “that the decision reached would reasonably likely have been
different absent the errors.” Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L.
Ed. 2d at 699; Ledezma, 626 N.W.2d at 143-44. There must be a reasonable
probability that the jury would have found a reasonable doubt of guilt had the
attorney performed properly. Strickland, 466 U.S. at 695, 104 S. Ct. at 2068, 80
L. Ed. 2d at 698; Ledezma, 626 N.W.2d at 143. The prejudice requirement can
be evaluated without first examining the attorney’s conduct. Taylor v. State, 352
N.W.2d 683, 685 (Iowa 1984). “If it is easier to dispose of an ineffectiveness
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claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” Id.
Walker contends that his attorney was ineffective by not objecting to use
of the term “victim” in three jury instructions. Each of these instructions explained
the elements of first or second degree kidnapping and informed the jurors that
the State must prove that “[t]he defendant knew he did not have the consent of
the victim to do so.” (emphasis added). These instructions were copied from the
uniform jury instructions. Our courts are reluctant to disapprove of uniform jury
instructions.
State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987); State v.
Jeffries, 313 N.W.2d 508, 509 (Iowa 1981). However, uniform instructions have
required a conviction to be reversed when they contain an incorrect statement of
the law and the instructions as a whole do not adequately explain the material
issues to the jury. See, e.g., State v. Monk, 514 N.W.2d 448, 450-51 (Iowa
1994) (reversing conviction when uniform instruction on elements of sexual
abuse would have allowed a jury to convict without finding any sexual contact
because the instructions only required “an act” rather than a “sexual act”).
In a federal wire fraud and money laundering case, the Eighth Circuit
considered whether use of the term “victim” in a jury instruction was prejudicial to
a defendant’s rights by suggesting that the defendant was guilty. United States
v. Washburn, 444 F.3d 1007, 1013 (8th Cir. 2006). The court stated,
a number of courts have determined that the use of the term
“victim” in jury instructions is not prejudicial to a defendant’s rights
when . . . the instructions taken as a whole clarify the government’s
burden of proving all elements of the crime.
Id. (citations omitted).
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In applying these standards to the present case, we find that the
defendant has failed to show the use of the term “victim” in three of the jury
instructions was prejudicial to him. Viewing the totality of the circumstances and
the instructions as a whole, there is not a reasonable likelihood that the jury
would have reached a different result. Each of the challenged instructions made
clear that lack of consent was a required element that the State needed to prove.
In each challenged instruction, the four elements of kidnapping were listed.
Although Marissa was referred to as “the victim” in regard to the third element of
lack of consent, her specific name was used in reference to each of the other
elements of kidnapping within these specific instructions.
Overall, these
instructions properly informed the jury that the State had to prove the defendant
committed each element of the offense against his accuser. Furthermore, all of
the other instructions in the record refer to the accuser by her name. We do not,
however, sanction using “victim” in a jury instruction as we recognize the use of
the word can mislead or prejudice a defendant. The jury instructions, as a whole,
clearly identified the accuser by name and required the State to prove each
element.
MOTION FOR A NEW TRIAL. We review appeals from a denied motion
for a new trial under an abuse of discretion standard. State v. Reeves, 670
N.W.2d 199, 202 (Iowa 2003). The defendant asserts that the jury’s verdict was
contrary to the weight of the evidence and thus the district court erred in denying
his motion for a new trial.
District courts have broad discretion in deciding
whether to grant a new trial. Iowa R. App. P. 6.14(6)(c); Reeves, 670 N.W.2d at
202 (Iowa 2003). To establish that the court has abused this discretion, one
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“must show that the district court exercised its discretion on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.” Reeves, 670
N.W.2d at 202 (citing State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997)). An
appellate court does not re-weigh the evidence, but instead examines whether
the district court properly evaluated the motion for a new trial. Id. at 203. The
district court has a duty to grant a new trial if mistake, prejudice, or other cause
led the jury to a verdict that is contrary to the evidence. Id. However, a district
court should not insert its own judgment of the evidence and “when the evidence
is nearly balanced, or is such that different minds would naturally and fairly come
to different conclusions thereon, [the district court] has no right to disturb the
findings of the jury . . . .” Id. (quoting State v. Oasheim, 353 N.W.2d 291, 294
(N.D. 1984)).
The defendant argues that the court should have found the jury’s
conviction of the defendant for kidnapping and sexual abuse was against the
weight of the evidence. Defendant’s argument is supported by the facts that no
DNA evidence was presented, no physical trauma to Marissa’s genitals was
detected, and Marissa did not try to escape. The jury’s verdict is supported by
the testimony of Marissa, the emergency room physician, police officers, and
other witnesses. This testimony was corroborated by physical evidence such as
the rope, Marissa’s insect bites, and her injured finger. On the motion for a new
trial, the district court can evaluate the evidence and witness credibility to
determine if “the evidence preponderates heavily against the verdict.” State v.
Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). The transcript from the motion for a
new trial proceeding shows that the district court thoroughly evaluated the
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evidence and found that the weight of the evidence supported the jury’s verdict.
The court noted that witness testimony was actually consistent with the lack of
DNA evidence since the defendant never ejaculated on his accuser. The district
court did not abuse its discretion in denying the defendant a new trial.
MERGER. The defendant next contends that the district court’s failure to
merge both counts of sexual abuse into the kidnapping conviction violates
principles of double jeopardy and is an illegal sentence.
A claim of double
jeopardy is preserved for appeal if the attorney objects at sentencing. State v.
Halliburton, 539 N.W.2d 339, 343 (Iowa 1995). The defendant’s attorney did not
object to the sentence so we cannot consider this claim on appeal. However,
claims that sentences for multiple offenses should have been merged under Iowa
Code section 701.9 (2005) do not need to be preserved for appeal. Id. We
review these claims for errors at law. State v. Lambert, 612 N.W.2d 810, 815
(Iowa 2000).
The Iowa Code provides:
No person shall be convicted of a public offense which is
necessarily included in another public offense of which the person
is convicted. If the jury returns a verdict of guilty of more than one
offense and such verdict conflicts with this section, the court shall
enter judgment of guilty of the greater of the offenses only.
Iowa Code § 701.9 (2005).
Under this statute, if the greater offense cannot be committed without also
committing the lesser offense, then the offenses merge and only the greater
offense conviction will stand. State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994).
We must compare the elements of each offense to determine whether merger is
required. Id. First-degree kidnapping is defined as: “Kidnapping is kidnapping in
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the first degree when the person kidnapped, as a consequence of the
kidnapping, suffers serious injury, or is intentionally subjected to torture or sexual
abuse.” Iowa Code § 710.2 (2005).
Sexual abuse is defined as:
Any sex act between persons is sexual abuse by either of
the persons when the act is performed with the other person in any
of the following circumstances:
1. The act is done by force or against the will of the other. If
the consent or acquiescence of the other is procured by threats of
violence toward any person or if the act is done while the other is
under the influence of a drug inducing sleep or is otherwise in a
state of unconsciousness, the act is done against the will of the
other.
Iowa Code § 709.1(1) (2005).
Second-degree sexual abuse occurs when: “1. During the commission of
sexual abuse the person displays in a threatening manner a dangerous weapon,
or uses or threatens to use force creating a substantial risk of death or serious
injury to any person.” Iowa Code § 709.3(1) (2005).
The Iowa Supreme Court has applied the merger test to these offenses
several times. See State v. Morgan, 559 N.W.2d 603, 611-12 (Iowa 1997); State
v. Mitchell, 450 N.W.2d 828, 830-31 (1990); Lamphere v. State, 348 N.W.2d 212,
218 (Iowa 1984); State v. Williams, 334 N.W.2d 742, 743-44 (Iowa 1983); State
v. Davis, 328 N.W.2d 301, 307-08 (Iowa 1982); State v. Newman, 326 N.W.2d
788, 792-93; State v. Holderness, 301 N.W.2d 733, 739-40 (Iowa 1981).
In
Morgan, the court explained when a sexual abuse conviction must be merged
into the kidnapping conviction and when both convictions can stand. Morgan,
559 N.W.2d at 611-612.
The determining factor is how the charges were
presented to the jury. Id.; State v. Flanders, 546 N.W.2d 221, 224-25 (Iowa Ct.
10
App. 1996). In Morgan, although there was evidence that more than one sexual
assault was committed, the State presented the crime as one continuous event
and the jury was given one instruction on abuse and one instruction on
kidnapping. Morgan, 559 N.W.2d at 611-12. Therefore, the convictions merged.
Id. at 612. However, the State can “convict a defendant of both kidnapping in the
first degree and sexual abuse if the case is presented to the jury in that way and
the jury makes findings accordingly.” Newman, 326 N.W.2d at 793. The court
explained, “[a] defendant should not be allowed to repeatedly assault his victim
and fall back on the argument his conduct constitutes but one crime.” Id.
In this case, there was evidence that at least one incident of sexual abuse
occurred at the defendant’s apartment and another was committed when the
defendant drove Marissa out to the country. The State questioned Marissa about
each sexual encounter with the defendant. Although the sexual abuse occurred
over one continuous period, the State presented evidence of multiple acts of
sexual abuse. The jury was given instructions on two counts of second-degree
sexual abuse and the jury found the defendant guilty of two acts of sexual abuse.
One count of sexual abuse was properly merged into the kidnapping conviction.
However, the district court was not required to merge the other sexual abuse
conviction when the State presented, and the jury found, that a separate act of
sexual abuse had been committed. The district court explained this reasoning at
the sentencing proceeding. Therefore, the district court did not err in failing to
merge both sexual abuse convictions.
IMPOSITION OF SPECIAL SENTENCE BY NUNC PRO TUNC ORDER.
The defendant’s last claim of error concerns the district court’s modification of its
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sentence by a nunc pro tunc order. The defendant claims the district court did
not have authority to modify the sentence after he filed a notice of appeal. He
also claims that his sentence cannot be modified by a nunc pro tunc order.
Appellate review of illegal sentence claims is for errors at law. State v. Davis,
544 N.W.2d 453, 455 (Iowa 1996).
The Iowa Rules of Criminal Procedure provide two methods to correct
errors in sentencing orders. First, clerical errors can be corrected by a nunc pro
tunc order. Iowa R. Crim. P. 22(3)(g); State v. Suchanek, 326 N.W.2d 263, 26566 (Iowa 1982). Another rule permits courts to correct an illegal sentence at any
time. Iowa R. Crim. P. 23(5)(a); Suchanek, 326 N.W.2d at 265. If a sentence is
illegal, the proper procedure is to vacate the original sentence and enter a new
sentence. Id. at 266. A sentence can be illegally lenient. “[W]hen a sentencing
court departs-upward or downward-from the legislatively authorized sentence for
a given offense, the pronounced sentence is a nullity subject to correction, on
direct appeal or later.” State v. Draper, 457 N.W.2d 600, 605 (Iowa 1990).
In this case the additional special sentence was mandated by statute:
A person convicted of a class “C” felony or greater offense
under chapter 709 . . . shall also be sentenced, in addition to any
other punishment provided by law, to a special sentence
committing the person into the custody of the director of the Iowa
department of corrections for the rest of the person’s life, with
eligibility for parole as provided in chapter 906. The special
sentence imposed under this section shall commence upon
completion of the sentence imposed under any applicable criminal
sentencing provisions for the underlying criminal offense and the
person shall begin the sentence under supervision as if on parole.
Iowa Code § 903B.1 (Supp. 2005) (emphasis added).
The district court’s original sentence for second-degree sexual abuse was
illegally lenient because it failed to add the mandated special sentence. This
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type of error is considered an illegal sentence. See Draper, 457 N.W.2d at 60506. The sentence could not, however, be corrected by nunc pro tunc order.
Freeman v. Ernst & Young, 541 N.W.2d 890, 893 (Iowa 1995) (“The function of a
nunc pro tunc order is not to modify or correct a judgment but to make the record
show truthfully what judgment was actually rendered – ‘not an order now for then,
but to enter now for then an order previously made.’”); State v. Steffens, 282
N.W.2d 120, 122 (Iowa 1979) (plurality opinion) (holding a nunc pro tunc order is
not available to correct a judicial, as distinguished from a clerical, error). We
therefore vacate that portion of the sentence imposed by the nunc pro tunc order.
CONCLUSION.
The defendant failed to prove he was prejudiced by
ineffective assistance of counsel. The district court did not err in denying the
defendant’s motion for a new trial or by merging only one sexual abuse
conviction into the kidnapping conviction. The district court did err in modifying
the defendant’s sentence by nunc pro tunc order.
CONVICTION AFFIRMED; SENTENCE AND NUNC PRO TUNC ORDER
VACATED; REMANDED FOR RESENTENCING.
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