STATE OF IOWA, Plaintiff - Appellee, vs. GREGORIO TOVES GARRIDO JR., Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-711 / 07-1616
Filed October 29, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GREGORIO TOVES GARRIDO JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,
Judge.
Gregorio Toves Garrido Jr. appeals following his convictions and
sentences on charges of kidnapping in the first degree and sexual abuse in the
second degree. AFFIRMED IN PART AND VACATED IN PART.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.
Gregorio Toves Garrido Jr. appeals following his convictions and
sentences on charges of kidnapping in the first degree and sexual abuse in the
second degree.
He contends there was insufficient evidence to support his
conviction for kidnapping in the first degree and sexual abuse in the second
degree. He also contends the district court imposed an illegal sentence by failing
to merge sexual abuse in the second degree into kidnapping in the first degree.
Upon our review, we affirm in part and vacate in part.
I. Background Facts and Proceedings.
Christina Tolentino and her husband, Jenn Tolentino, socialized regularly
with Gregorio Garrido and his family. The Tolentinos and the Garridos had been
friends for approximately four to five years. Jenn worked the overnight shift, and
Garrido was familiar with Jenn’s work schedule.
In August 2005 the Tolentinos moved into a one-and-a-half-story house in
Waterloo, Iowa. The master bedroom was located on the first floor, and the
couple’s six-month-old baby slept in master bedroom with Jenn and Christina. A
spare bedroom with an air mattress was located on the second floor of the
house.
On August 21, 2005, Jenn left for work at approximately 9 p.m., and
Christina and the baby remained at home. Shortly thereafter, Christina received
a call from Garrido, asking if he and his wife could stop by to see the Tolentinos’
new house. Garrido also asked if Jenn was at work, and Christina affirmed that
he was.
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Garrido arrived at the Tolentinos’ house sometime after 11:00 p.m.,
wearing shorts and a t-shirt. Garrido was alone, though he claimed that his wife
was running late and would be there soon. Once inside the house, Garrido
asked Christina if he could see the rest of the house and the baby. Christina
showed Garrido the master bedroom, where the baby was sleeping. Garrido
then asked to see the upstairs, and Christina showed him the spare bedroom
upstairs.
Upon seeing an air mattress pump in the spare bedroom, Garrido
asked Christina to borrow the air pump. Christina said that he could, and Garrido
then picked up the pump and its attached hose.
Subsequently, Garrido asked Christina to see the baby again. Christina
and Garrido then went back downstairs to the Torentinos’ bedroom. Once in the
bedroom, Garrido placed the hose around Christina’s neck. Christina screamed
and struggled, and the baby woke up and began screaming. Garrido pulled
Christina to the ground using the hose around Christina’s neck. He then stated,
“I just want some money . . . . I’m going to tie you up.” Garrido tied Christina up
with undergarments, binding her ankles and wrists and causing injuries. Garrido
began frantically searching the room looking for money, pulling clothes out of the
drawers in his search. He again stated he wanted money, and Christina replied
that she didn’t have any money. Garrido then pulled a small ball bat out of his
shorts and threatened to kill or hurt the baby if Christina didn’t give him some
money. Christina indicated that there was money in the dresser. After Garrido
found the money, he stated, “I know you have more money than this.” The baby
continued screaming. Garrido attempted to quiet the baby by giving the baby a
bottle from the kitchen, but the baby refused the bottle and continued crying.
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Garrido then began looking for tape, and he asked Christina where her
tape was. Christina stated it was in the kitchen, and Garrido went back to the
kitchen. When Garrido was unable to locate tape in the kitchen, he returned to
the bedroom and threatened Christina and the baby with a pair of scissors.
Garrido put the scissors to Christina’s neck and stated, “I’ll kill your son. I want
some money. . . . I’ll kill you . . . do what I want.”
Garrido then pulled Christina to the kitchen, and Christina had to hop
because her legs were bound. In the kitchen, Garrido located the tape from a
drawer, and then pulled Christina back to the bedroom. In the bedroom, Garrido
placed Christina on her stomach, and continued demanding more money.
Garrido again threatened the baby with scissors.
Garrido stuffed clothing in
Christina’s mouth and taped her mouth. While gagged, Christina stated, “take
my ring.” Garrido then took Christina’s ring off her finger and placed it in his
pocket.
Garrido then announced that they were going to have sex.
After
unsuccessfully attempting to remove Christina’s bindings to make intercourse
possible, he went into the kitchen and returned with a wet towel.
He cut
Christina’s clothes with the scissors, and then he wiped Christina’s vagina with
the wet towel. Garrido then forced his fingers into her vagina and moved them
around inside, and said, “Oh, Christina.” He licked her breasts and then took off
his own clothes.
Garrido removed the gag from Christina’s mouth so he could force her to
perform fellatio. He put his flaccid penis into Christina’s mouth, but soon became
frustrated by the screaming child. Garrido then brought Christina to the living
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room, and inquired as to whether there was music. Garrido placed Christina in
the middle of the couch, and then went to the bedroom, leaving Christina alone
for a moment in the living room. Christina, naked at that point except for the
bindings left on her body, freed her ankles and ran outside while Garrido was
alone in the bedroom with the baby. Christina ran directly across the street and
screamed, “Call 911 . . . . He is going to kill my baby.”
Garrido, also naked, discovered that Christina had escaped and ran after
her.
He again threatened to kill the baby, and he picked up Christina and
dragged her back into the house. She resisted Garrido, and attempted to grab
the stairway railing to prevent him from forcing her back into the house. Once in
the house, Christina ran back into the master bedroom and locked the door.
While Christina was running back to the bedroom, Garrido stated, “Fuck this.”
Christina broke the bedroom window to scream for help, and called 911. When
the police arrived shortly thereafter, Garrido had left.
At trial, several neighbors and a pizza delivery man corroborated
Christina’s account. They each saw Christina without clothing, running from her
home and screaming that Garrido was going to kill her baby.
They further
witnessed Garrido naked, dragging Christina back inside. Garrido’s fingerprint
and DNA were found on a drinking glass. Garrido’s DNA was also detected on
Christina’s right nipple.
Garrido waived a jury trial and did not testify at trial. On June 7, 2007, the
trial court found Garrido guilty of sexual abuse in the second degree in violation
of Iowa Code section 709.3 (2005), robbery in the first degree in violation of
section 711.2, and kidnapping in the first degree in violation of section 710.2.
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The district court did not specify that it was using one of the sex acts as the
underlying sexual abuse for the kidnapping charge and the other sex act as a
separate charge.
Garrido appeals.
II. Merits.
Garrido contends there was insufficient evidence to support his
convictions of kidnapping in the first degree and sexual abuse in the second
degree.
Alternatively, he also contends the district court imposed an illegal
sentence by failing to merge sexual abuse in the second degree into kidnapping
in the first degree.
A. Sufficiency of the Evidence.
We review sufficiency of the evidence claims for correction of errors at
law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). In considering Garrido’s
challenge to the sufficiency of the evidence, we examine the record in the light
most favorable to the State. See State v. Crone, 545 N.W.2d 267, 270 (Iowa
1996). We look for substantial evidence, including any inferences arising from
the evidence, to support the verdict. Id. A verdict will be upheld where there is
substantial evidence in the record tending to support the charge. State v. Terry,
544 N.W.2d 449, 451 (Iowa 1996). Substantial evidence means evidence that
would convince a rational fact finder that the defendant is guilty beyond a
reasonable doubt. Id. As a constitutional issue is involved, our review is de
novo. Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981).
Iowa Code section 710.1 (2005) defines kidnapping in the following
manner:
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A person commits kidnapping when the person either confines a
person or removes a person from one place to another, knowing
that the person who confines or removes the other person has
neither the authority nor the consent of the other to do so; provided,
that to constitute kidnapping the act must be accompanied by one
or more of the following:
....
3. The intent to . . . subject the person to a sexual abuse.
Iowa Code § 710.1.
“Kidnapping is kidnapping in the first degree when the
person kidnapped, as a consequence of the kidnapping, . . . is intentionally
subjected to . . . sexual abuse.” Id. § 710.2.
One essential element of the offense of kidnapping is the removal or
confinement of the victim by the defendant. State v. Osborn, 455 N.W.2d 292,
293 (Iowa Ct. App. 1990). In State v. McGrew, 515 N.W.2d 36 (Iowa 1994), the
Iowa Supreme Court explained:
A defendant “confines” another person in violation of our
kidnapping statute only if the confinement definitely exceeds the
confinement that is an inherent incident of the underlying felony.
No minimum period of confinement is required to convict a
defendant of kidnapping.
Rather, the confinement must be
significantly independent of the confinement incident to the
commission of the underlying crime. Such confinement may exist if
it substantially increases the risk of harm to the victim, significantly
lessens the risk of detection, or significantly facilitates escape
following the commission of the underlying offense. The rationale
behind the “incidental rule” arises from our recognition that
confinement of a victim, against the victim’s will, is frequently an
attendant circumstance in the commission of many of the crimes,
notably robbery and sexual abuse.
Id. at 39 (citations omitted).
Garrido first argues that the State’s evidence supporting his conviction for
kidnapping in the first degree is insufficient because the evidence showed that
any confinement or removal was a part of the robbery, and that any confinement
of the victim during the sexual abuse was only incidental to that offense. As a
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result, he contends the district court erred in overruling his motion for judgment of
acquittal. We disagree.
Examining the record in the light most favorable to the State, we believe
the record reveals ample evidence from which a rational trier of fact could
conclude that Christina’s confinement exceeded the degree of confinement
inherent in the underlying crimes. Garrido engaged in deception from his first
contact with Christina that evening and throughout the evening’s events. Garrido
strangled Christina, bound her wrists and ankles, gagged her, threatened her and
her child repeatedly, moved Christina throughout the house, and drug her back
into the house upon her escape. We agree with the trial court’s conclusion:
The confinement and removal has significance apart from the
underlying offense committed. The binding and removal was
performed in order to maintain control of [Christina] while [Garrido]
was committing his theft, so that he could sexually abuse her. In
doing so, the risk of harm to [Christina] was increased, the risk of
detection was reduced, and the possibility of escape from the
scene was made easier.
Consequently, we conclude there was sufficient evidence to establish that the
confinement exceeded what was inherent in the underlying crimes.
B. Merger of the Convictions.
We next address Garrido’s alternative argument that the district court
imposed an illegal sentence by failing to merge sexual abuse in the second
degree into kidnapping in the first degree. Our review, therefore, is limited to the
correction of errors at law. State v. Walker, 610 N.W.2d 524, 526 (Iowa 2000).
Merger implicates the legality of the sentence. State v. Anderson, 565
N.W.2d 34, 343-44 (Iowa 1997). An illegal sentence can be challenged at any
time, State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001), and we can address the
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issue even if it was not expressly raised below. State v. Carney, 584 N.W.2d
907, 910 (Iowa 1998). Under our merger statute, “[n]o person shall be convicted
of a public offense which is necessarily included in another public offense of
which the person is convicted.” Iowa Code § 701.9.
Sexual abuse in the second degree is a lesser-included offense of
kidnapping in the first degree. State v. Mitchell, 450 N.W.2d 828, 831 (Iowa
1990). In State v. Holderness, 301 N.W.2d 733, 740 (Iowa 1981), the Iowa
Supreme Court found a defendant could be convicted and sentenced separately
for first-degree kidnapping and second-degree sexual abuse when the facts
supported the occurrence of two separate crimes in time and place. However,
the court has limited its holding in Holderness, concluding that the determining
factor of whether a defendant could be convicted and sentenced separately for
both offenses is how the charges were presented to the jury.
See State v.
Morgan, 559 N.W.2d 603, 612 (Iowa 1997); State v. Newman, 326 N.W.2d 788,
793 (Iowa 1982); see also State v. Flanders, 546 N.W.2d 221, 224-25 (Iowa Ct.
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
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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 the present case, the matter was not tried to a jury, but rather to the
district court. Consequently, no jury instructions were given. The State argues
that, because the case was tried to the court and not a jury, the court’s limitation
of Holderness is inapplicable here. We disagree.
Here, like in Morgan, there was evidence that more than one sexual act
was committed; however, the State presented the crime as one continuous
event. Furthermore, the district court did not make specific findings that it was
using one of the sex acts as the underlying sexual abuse for the kidnapping
charge and the other sex act for the sexual abuse charge. 1 Consequently, we
conclude that the district court erred in failing to merge the two offenses of firstdegree kidnapping and second-degree sexual abuse in this particular case.2
III. Conclusion.
Based on the foregoing, we affirm Garrido’s conviction and sentence for
kidnapping in the first degree, and vacate Garrido’s conviction and sentence for
sexual abuse in the second degree.
AFFIRMED IN PART AND VACATED IN PART.
1
At the post-trial motion and sentencing hearing, the district court explained that the
crimes committed by Garrido that evening were “closely associated with each other.
They were occurring in close proximity to each other. They are . . . an inseparable part
of the whole criminal occurrence happening that evening.”
2
Because we conclude the district court erred in failing to merge the two offenses of
first-degree kidnapping and second-degree sexual abuse in this particular case, we need
not and do not address the alternative grounds urged by Garrido for reversal of the
court’s ruling.
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