STATE OF IOWA, Plaintiff-Appellee, vs. ARMANDO OROZCO, JR., Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-536 / 08-1564
Filed October 7, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ARMANDO OROZCO, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
The defendant appeals from his conviction for kidnapping in the first
degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and E. Frank Rivera, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, Patrick Jennings, County Attorney, and Drew Bockenstedt and James
Loomis, Assistant County Attorney, for appellee.
Heard by Vaitheswaran, P.J., and Mansfield, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MILLER, S.J.
Armando Orozco appeals from his conviction for kidnapping in the first
degree, in violation of Iowa Code sections 710.1 and 710.2 (2007). He contends
the evidence was insufficient to prove beyond a reasonable doubt he committed
first-degree kidnapping. He also contends the district court erred in overruling his
motion for new trial, admitting evidence, and instructing the jury. Because we
conclude there was substantial evidence of Orozco‟s guilt and no error was
committed, we affirm.
I. Background Facts and Proceedings. On December 22, 2007, sevenyear-old J.G. was playing alone at a park near her home in Sioux City. While she
was on the swings, a man grabbed her and took her into an apartment building
across the street from the park. He took her to apartment number seven and
locked the door.
J.G. was led to the bedroom. Her pants and underwear were removed
and the man put his finger in her private parts, which J.G. refers to as her
“middle.” The man also inserted his penis inside her, which hurt.
The man
allowed J.G. to leave after warning her that if she told anyone, he would kill her
or her family.
After leaving the apartment, J.G. went home and told her father and
brother that she had been raped. She stated that the man who raped her drove
a blue or “gray-blue” car. J.G. then led them to the apartment building where the
assault had occurred. J.G.‟s father called the police to report the crime.
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J.G. told a police officer that a man had “grabbed” her from the park,
“drug” her to the apartment, and put his finger in her “middle.” She described the
man as “Mexican.” She reported he has a mustache and goatee, but did not
wear glasses. He was wearing a white coat with blue down the sleeves and blue
lettering.
J.G. was examined at Mercy Medical Center. She told an emergency
room nurse that she had pain “in her middle,” and that a man had put his finger in
her “middle” and then put “his middle” in her “middle.”
J.G. described the
perpetrator as “Mexican.”
J.G. was then taken to the Child Advocacy Center. She told the nurse
there that a man had taken her to a house, removed her clothing, and put his
fingers “up [her] middle.” J.G. also told the nurse the man put his “middle” in her
“middle.”
She reported that this occurred in a bedroom, on the bed, and
described the bed as having a dark blue blanket with suns on it. J.G. stated she
did not know the man, but that he was always “pulling up at [her] neighbor‟s
house.” She described the man as “Mexican” because he knew how to speak
Spanish.
A physical examination revealed bruising on J.G.‟s hymen and two tears
on her perineum, the area between the vagina and anus. The injuries were
consistent with vaginal penetration.
In a videotaped interview, J.G. spoke with a mental health counselor from
the Child Advocacy Center. In the interview, she stated she was playing at the
park when a man came up behind her and grabbed her from the swings. She
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said he took her to a yellow apartment building, made her go upstairs, and then
took her inside apartment number seven. J.G. said the apartment did not belong
to the man and he did not live there. She described climbing two flights of stairs
and told the counselor that once the stairs were climbed, apartment seven was
on the right. J.G. stated that the man removed their clothing and then put his
“middle” up her “middle” and put his finger up her “middle.” She said he told her
that if she told anyone, he would come at night and kill her family.
J.G. described the man as “Mexican” and “kind of black.” She said he had
a mustache that was small in the middle and went all the way around his mouth
on the outside. J.G. described the man as wearing a shirt that was “kind of
brown” and a coat that was white and blue, with the blue “going on the way up,
and on the side, too, and it had words.”
In the videotaped interview, J.G.
described the man as driving a “blackish-brown” four-door car.
Police suspicions focused on Armando Orozco, who lived with his mother
in the apartment at which J.G. claimed the assault took place. He matched the
physical description J.G. had given. Orozco was also the sole driver of a blue
Honda Civic, owned by his mother.
At approximately 9:33 p.m. that night, Orozco was observed driving
toward the apartment.
He was stopped and arrested for driving with a
suspended license. In the trunk of the car, officers discovered a white hooded
sweatshirt with black stripes down the outsides of the sleeves and lettering on
the front.
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Hours after J.G.‟s assault, a police officer showed J.G. a photographic
array that included a picture of Orozco. She glanced at it, but continued playing
with toys and did not identify the perpetrator. The officer observed J.G. was
tired.
DNA testing was performed on swabs taken from Orozco‟s right hand. It
showed J.G. was a possible contributor of DNA found on his hand.
The
probability that the same DNA profile would be matched to a random individual
from the population was one out of 300,000. A DNA test was also performed on
a sample from the crotch-area of the sweatpants J.G. was wearing on the day of
the assault.
The sample contained DNA for which Orozco was a possible
contributor with a one out of 400,000 probability the DNA would match a random
individual from the population.
A neighbor in the apartment complex, whose living room shared a
common wall with the bedroom in apartment number seven, testified that he
arrived home around 2:40 p.m. on December 22. Through the walls he heard
Orozco, whose voice he identified with “one hundred percent” certainty, speaking
to a girl. Also, this neighbor testified that Orozco‟s blue car was in the parking lot
when he arrived, but was gone when he left around 3:00 p.m.
On January 8, 2008, Orozco was charged with kidnapping in the first
degree. Orozco waived his right to a speedy trial and a jury trial was held in July
2008. On July 30, 2008, the jury returned a verdict finding him guilty of firstdegree kidnapping.
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II. Sufficiency of the Evidence. In order to convict Orozco of kidnapping
in the first degree, the State was required to prove: (1) he removed J.G. from the
park, (2) he did so with the specific intent to subject her to sexual abuse, (3) he
knew he did not have the consent or authority to do so, and (4) as a result of the
removal, J.G. was sexually abused. See Iowa Code §§ 710.1, 710.2.
Orozco contends the evidence was insufficient as a matter of law to
convict him of first-degree kidnapping.
Specifically, he claims there was
insufficient evidence to prove J.G.‟s removal from the park was more than
incidental to the underlying charge of second-degree sexual abuse, or that a sex
act occurred. He also claims there is no proof beyond a reasonable doubt that
he was the perpetrator of the crime.
We review challenges to the sufficiency of the evidence for the correction
of errors at law.
State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).
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.
Id.
A jury‟s findings of guilt are binding on appeal if supported by
substantial evidence. State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006). If
a rational trier of fact could conceivably find the defendant guilty beyond a
reasonable doubt, the evidence is substantial. Lambert, 612 N.W.2d at 813.
“Inherent in our standard of review of jury verdicts in criminal cases is the
recognition that the jury was free to reject certain evidence, and credit other
evidence.” State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998). “A jury is free to
believe or disbelieve any testimony as it chooses and to give as much weight to
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the evidence as, in its judgment, such evidence should receive.” State v. Liggins,
557 N.W.2d 263, 269 (Iowa 1996).
A. Evidence of Removal. We first address Orozco‟s claim there was
insufficient evidence to prove he removed J.G. from the park. He claims the
removal was merely incidental to a second-degree sexual abuse charge.
In order to be guilty of kidnapping, Orozco‟s removal of J.G. from the park
had to be more than an inherent incident of commission of the crime of sexual
abuse. State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981).
Although no minimum period of confinement or distance of removal
is required for conviction of kidnapping, the confinement or removal
must definitely exceed that normally incidental to the commission of
sexual abuse. Such confinement or removal must be more than
slight, inconsequential, or an incident inherent in the crime of
sexual abuse so that it has a significance independent from sexual
abuse. Such confinement or removal may exist because it
substantially increases the risk of harm to the victim, significantly
lessens the risk of detection, or significantly facilitates escape
following the consummation of the offense.
Id.
We find sufficient evidence Orozco removed J.G. from the park. J.G. was
playing on the swings in an open area, visible to anyone. Orozco came up
behind her and grabbed her. He took her across the street, up two flights of
stairs, and into an interior bedroom of a locked apartment. By doing so, he was
able to assault J.G. without risk of detection. Viewing the evidence in the light
most favorable to the State, we find substantial evidence Orozco removed J.G.
from the park.
B. Evidence of the Perpetrator’s Identity. Orozco next contends there
was insufficient evidence to prove he was the perpetrator of the crime.
He
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argues the evidence shows he could not have committed the offense because of
the limited amount of time between his departure from his girlfriend‟s residence
and his arrival at work that afternoon.
Melissa Hernandez testified Orozco was at her residence when she left at
approximately 2:15 p.m. on the afternoon in question.
reflects that he arrived at work at 2:57 p.m.
Orozco‟s time card
Orozco cites the testimony of
Detective Bertrand that it could take as long as seventeen minutes to drive from
Hernandez‟s residence to the apartment building.
He claims this evidence
precludes him from being considered the perpetrator.
Detective Bertrand testified seventeen minutes would not be an
unreasonably long time to drive from Hernandez‟s residence to the apartment
building. However, he also testified he made a test drive in just seven minutes,
which would provide Orozco adequate time to remove J.G. from the park to the
apartment and assault her before going to work. The evidence Orozco cites
does not exclude him as the perpetrator.
Viewing all the evidence in the light most favorable to the State, there is
sufficient evidence by which a reasonable jury could find beyond a reasonable
doubt Orozco was the perpetrator. Although J.G. described the perpetrator‟s
vehicle as brownish-black in the videotaped interview, she had stated to other
witnesses it was blue or gray-blue, the color of Orozco‟s vehicle.
She also
described the perpetrator as a man who matched Orozco‟s appearance, and
described that he wore a coat similar to a sweatshirt found in Orozco‟s trunk.
She identified the apartment at which Orozco lived with his mother as the one to
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which she was taken, and described the inside of the apartment, including the
blanket that covered the bed on which she was assaulted. Finally, J.G.‟s DNA
was found on Orozco‟s right hand and Orozco‟s DNA was found on the crotch of
the pants J.G. was wearing.
C. Evidence of a Sex Act. Orozco also challenges the sufficiency of the
evidence to prove he committed a sex act on J.G. He did not raise this issue
before the district court and therefore error is not preserved with respect to this
claim. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (noting that in order to
preserve error on a claim of insufficient evidence for appellate review in a jurytried criminal case, the defendant must make a motion for judgment of acquittal
at trial that identifies the specific grounds raised on appeal). Orozco alternatively
requests this issue be addressed under an ineffective-assistance-of-counsel
rubric.
We review ineffective-assistance-of-counsel claims de novo.
Martin, 704 N.W.2d 665, 668 (Iowa 2005).
State v.
To prevail on an ineffective
assistance of counsel claim, Orozco must show by a preponderance of the
evidence that (1) counsel failed to perform an essential duty and (2) prejudice
resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984); State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007).
While
we
often
preserve
ineffective-assistance-of-counsel
claims
for
postconviction proceedings, we consider such claims on direct appeal if the
record is sufficient. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We find
the record sufficient to address Orozco‟s claims.
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To prove that counsel breached an essential duty, a defendant must
overcome a presumption that counsel was competent and show that counsel‟s
performance was not within the range of normal competency. State v. Buck, 510
N.W.2d 850, 853 (Iowa 1994). To prove that prejudice resulted, a defendant
must show there is a reasonable probability that but for counsel‟s unprofessional
errors the result of the proceeding would have been different. Ledezma v. State,
626 N.W.2d 134, 143 (Iowa 2001).
The jury was instructed that the term “sex act” means any sexual contact:
1. By penetration of the penis into the vagina or anus.
2. Between the genitals of one person and the genitals or
anus of another.
3. Between the finger or hand of one person and the
genitals or anus of another person.
You may consider the type of contact and the circumstances
surrounding it in deciding whether the contact was sexual in nature.
We conclude Orozco‟s trial counsel had no duty to raise the issue of
whether the State had proved a sex act occurred. J.G. recounted multiple times
to multiple people that the same two sex acts occurred: the perpetrator put his
finger inside her and the perpetrator put his penis inside her.
The physical
examination of J.G. showed bruising and tearing consistent with her version of
events. Because there is substantial evidence a sex act occurred, trial counsel
had no duty to raise the issue. See State v. Hochmuth, 585 N.W.2d 234, 238
(Iowa 1998) (holding trial counsel was not ineffective for failing to pursue a
meritless issue).
III. Motion for New Trial. Orozco also contends the district court erred in
denying his motion for new trial.
He argues the verdict was contrary to the
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weight of the evidence. He also argues a new trial was warranted because an
email not admitted into evidence was included in an exhibit that went to the jury
room.
Our scope of review for rulings on motions for new trial is for errors at law.
Iowa R. App. P. 6.4. When a defendant argues the trial court erred in denying a
motion for new trial based on the claim that the verdict is contrary to the weight of
the evidence our standard of review is for abuse of discretion. State v. Ellis, 578
N.W.2d 655, 659 (Iowa 1998).
A. Weight of the Evidence. Orozco first argues the verdict was against
the weight of the evidence.
“The „weight of the evidence‟ refers to „a
determination [by] the trier of fact that a greater amount of credible evidence
supports one side of an issue or cause than the other.‟” Id. at 658 (quoting Tibbs
v. Florida, 457 U.S. 31, 37-38, 1025 S. Ct. 2211, 2216, 72 L. Ed. 2d 652, 658
(1982)). The court made it clear in Ellis that the contrary to the weight of the
evidence standard was not the same as the sufficiency of the evidence standard,
contrary to a previous holding. Id. at 659. The power of the trial court to grant a
new trial on the ground the verdict was contrary to the weight of the evidence
should be invoked only in exceptional cases in which the evidence
preponderates heavily against the verdict. Id.
Based on the evidence in the record set forth above, we conclude ample
evidence supports the verdict. This is not an exceptional case where witness
credibility is so questionable or the evidence against the defendant‟s guilt so
12
strong as to preponderate heavily against the verdict. Accordingly, the district
court did not abuse its broad discretion by denying Orozco‟s motion for new trial.
B. Exhibit. Orozco contends the court erred in denying his motion for
new trial because a hard copy of an email string not admitted into evidence was
stapled to an exhibit that was given to the jury. The document consisted of an
email from the prosecutor to the State‟s DNA expert, Amy Pogge, and Pogge‟s
answer. The email to Pogge requested that she send files to Orozco‟s expert
witness. In her reply, Pogge wrote:
Just a word of caution about having the defense “re-analyze” the
data. It is very common for the “liars for hire” experts out there to
re-analyze data using different settings, or even different programs
that do not meet the DCI standards or follow our SOPs and then
come back with a report of all sorts of contamination or “bad
analysis. . . .” If their expert is an ethical scientist, and not just in
this for the money, it won‟t be an issue at all.
Orozco‟s expert at trial gave an opinion that the evidence of J.G.‟s DNA on
Orozco was most likely the result of contamination.
Iowa Rule of Criminal Procedure 2.24(2)(b)(2) states that a court may
grant a new trial when the jury has received “any evidence, paper or document
out of court not authorized by the court.” Furthermore, if material disseminated
during the trial goes beyond the record and raises serious questions of possible
prejudice, the trial court may on its own motion, or shall on the motion of either
party, question each juror as to the event. State v. Jones, 511 N.W.2d 400, 408
(Iowa Ct. App. 1993). The defendant has the burden to prove jury prejudice. Id.
In denying Orozco‟s motion for new trial, the district court noted the exhibit
in question was offered and admitted without objection, and that at no time was
13
the issue brought to the court‟s attention.
The court also noted that it had
specifically imposed the duty on both counsel before the exhibits went to the jury
room to make sure they were correct.
The court also found there was no
evidence the jury considered the email. Finally, the court found Orozco failed to
demonstrate the email‟s exclusion would have resulted in a different verdict.
In order to impeach a verdict on the basis of jury misconduct, three
conditions must be met: (1) evidence from the jurors must consist only of
objective facts concerning what actually occurred in or out of the jury room
bearing on misconduct; (2) the acts or statements complained of must exceed
tolerable bounds of jury deliberations; and (3) it must appear the misconduct was
calculated to, and with reasonable probability did, influence the verdict. State v.
Arnold, 543 N.W.2d 600, 605 (Iowa 1996). Orozco is unable to satisfy, at a
minimum, the third condition.
Even assuming the jury saw the document in
question during its deliberation, Orozco cannot show he was prejudiced given the
overwhelming evidence of his guilt. Accordingly, we find no error in the court‟s
ruling.
IV. Evidentiary Matters. Orozco contends the court erred in overruling
his objections regarding the testimony of Karin Ward, a Child Advocacy Center
nurse. Ward testified regarding her examination of J.G. During the examination,
she asked J.G. questions regarding the sexual abuse. At one point during her
testimony, Ward asked to refer to her dictation in order to recall the next question
she asked J.G. Orozco objected to Ward‟s testimony twice, claiming Ward was
reading from her dictation.
14
After additional witnesses testified, Orozco‟s counsel again addressed the
matter with the court, outside the jury‟s presence. Counsel argued Ward could
have her memory refreshed by her dictation, but could not read from it. The
court found the dictation and testimony were admissible under Iowa Rule of
Evidence 5.803(4) as statements for the purpose of medical diagnosis or
treatment.
On appeal, Orozco simply states the court issued an erroneous ruling. He
notes he “objected to the court‟s rulings regarding the hearsay exception based
on past recollection.” After setting forth the general rules regarding hearsay,
Orozco makes no further argument. He does not address the court‟s finding that
the evidence was admissible under rule 5.803(4).
Before the district court,
Orozco only challenged the admissibility of Ward‟s testimony under rule 5.803(5).
Given Orozco‟s failure to make any specific argument on appeal, as well as his
failure to raise the issue of admissibility under rule 5.803(4) before either the
district court or this court, we find Orozco has not preserved error on this issue
and we need not address it on appeal. See State v. Philpott, 702 N.W.2d 500,
504 (Iowa 2005) (“Defendant‟s arguments on the evidentiary issues are too
vague and indefinite to support the granting of relief based on the admission of
improper evidence.”); State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997) (stating
issues must be presented to and passed upon by the district court before they
can be raised and decided on appeal); State v. Manna, 534 N.W.2d 642, 644
(Iowa 1995) (noting that where error is not preserved on an issue there is nothing
for an appellate court to review).
15
Even if error had been preserved, we conclude the district court did not
abuse its discretion in admitting the testimony.
Ward was a nurse and
statements to her by the victim could be reasonably regarded as for the purpose
of medical diagnosis or treatment.
See Iowa R. Evid. 5.803(4).
Moreover,
Orozco‟s objection somewhat misses the point. At trial, various witnesses were
allowed to testify as to what J.G. told them. J.G. herself testified at trial regarding
the assault and the identity of her assailant. Orozco would have had no objection
to Ward‟s testifying as to what J.G. told her, so long as Ward did so from her own
recollection. Thus, the “hearsay” objection really relates to Ward‟s credibility, not
J.G.‟s. Yet, Ward was subject to cross-examination and Orozco‟s attorney had
every opportunity to point out that she was relying on a report, rather than a
contemporaneous recollection.
Furthermore, if any error occurred, it was not prejudicial. The testimony
complained of was merely cumulative to other evidence already properly in the
record and therefore Orozco was not prejudiced.
See State v. Newell, 710
N.W.2d 6, 19 (Iowa 2006) (“[E]rroneously admitted hearsay will not be
considered prejudicial if substantially the same evidence is properly in the
record.”).
V. Jury Instructions.
Finally, Orozco contends the court issued
erroneous rulings regarding the jury instructions. He does not specify which of
the instructions was erroneous or how the court erred. He cites no authority.
Accordingly, we conclude Orozco has waived this issue. See Iowa R. App. P.
6.14(1)(c) (“Failure in the brief to state, to argue or to cite authority in support of
16
an issue may be deemed waiver of that issue.”). In addition, we note that at oral
argument Orozco, through counsel, waived argument on the jury instruction
issue, conceding the instructions were correct.
VI. Conclusion. We find Orozco‟s contentions on appeal to be without
merit. Accordingly, we affirm his conviction for kidnapping in the first degree.
AFFIRMED.
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