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State of Iowa v. Adym Ray Barth

May 15, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
ADYM RAY BARTH, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.

The opinion of the court was delivered by: Tabor, J.

Adym Barth appeals following his conviction of third-degree sexual abuse, alleging his trial counsel was ineffective. AFFIRMED.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

Adym Barth challenges his conviction for third-degree sexual abuse. During trial, the prosecutor asked him about his silence when interviewed by police and commented during the rebuttal closing argument on his girlfriend's belief he needed an attorney. On appeal, Barth alleges his trial counsel was ineffective for failing to object.

Given the strength of the evidence of Barth's guilt, we find no reasonable probability of a different outcome had counsel lodged objections. Accordingly, his ineffective-assistance-of-counsel claim fails, and we affirm.

I. Background Facts and Proceedings.

Adym Barth was staying with a friend's family in late 2009 while he looked for a place to live. Barth was nineteen years old. One night in early December 2009, Barth was watching the show Family Guy on a computer in his room with fourteen-year-old M.R. and her stepbrothers. Eventually the stepbrothers drifted to other parts of the house, leaving Barth and M.R. alone together.

Barth and M.R. began kissing on the bed. When M.R. asked Barth what would happen if someone walked in on them, Barth responded by locking the bedroom door. They resumed kissing, and Barth tried to remove M.R.'s pants. M.R. told Barth to "wait" and explained she had been shaving her pubic area earlier, had cut herself, and had not finished shaving. Barth said "fine" and continued to take off her pants. He then inserted his finger into her vagina.

When Barth asked M.R. "how far" she wanted to go, M.R. replied, "I don't know." Barth then put on a condom and inserted his penis into M.R.'s vagina. M.R., who never had intercourse before, found it to be painful. She pushed Barth away and told him, "I want to be done." Barth stopped, but asked M.R. if she wanted to "start back up." M.R. said she did not, pulled her pants on, and left the room. She called her friend, Lucy, and told her that she and Barth had sex.

The next day M.R. told another friend, Lacey, she and Barth had sex. Lacey wrote M.R. a note telling her how dangerous the situation was. M.R.'s mother discovered the note a few weeks later and confronted M.R. At first M.R denied having sex with Barth because she was afraid her mother would be angry. Eventually M.R. began crying and acknowledged what happened. M.R.'s parents reported the incident to police. An officer took M.R.'s statement and referred her to the emergency room for a sexual assault examination. The examination revealed M.R.'s hymen was not intact.

Waterloo Police Officer Jason Chopard called Barth for an interview at the police station. Officer Chopard did not reveal he was investigating an alleged sexual assault. When Barth arrived the officer advised him of his Miranda rights. Without being prompted by Officer Chopard, Barth brought up the incident in early December when he was watching Family Guy with M.R. and her stepbrothers. Barth said he was rarely alone with M.R. In the conversation with police Barth did not admit or deny having sex with M.R.

The State charged Barth with sexual abuse in the third degree. Following a September 2010 trial, a jury found Barth guilty as charged. The court entered judgment under Iowa Code section 709.4(2)(c)(4) (2009) and imposed an indeterminate ten-year sentence in prison with three to five years of probation. The court also ordered Barth to register as a sex offender, undergo lifetime supervision, and have no contact with the victim for five years.

II. Scope and Standard of Review.

We review ineffective-assistance-of-counsel claims de ...


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