Appeal from the Iowa District
Court for Polk County, Joel D. Novak, Judge.
A defendant appeals his
convictions on two counts of sexual abuse in the second degree.
Jesse A. Macro Jr. of Gaudineer, Comito & George, L.L.P., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John Sarcone, County Attorney, and Michael T. Hunter, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., Vaitheswaran, J., and Huitink, S.J. [*]
I. Background Facts & Proceedings.
Our review of the record discloses the following. In October 2009, James Hildreth was living with a woman who had a daughter, B.P., who was then six years old. On October 24, 2009, the mother and an older sibling were staying overnight with friends. B.P. testified that Hildreth woke her up in the night, placed a blindfold and a blanket over her head, and put her on the floor. She stated he took off her pajama bottoms, rubbed a "medicine" on her private parts, and then placed a buzzy thing inside her.
B.P. testified that Hildreth then picked her up and put her on the bed in the bedroom of the sibling who was gone that night. He put the blindfold over her eyes again, but she was able to look out and see Hildreth's penis sticking out of his underwear. She stated Hildreth put his penis inside her for about two or three minutes, which hurt and caused her to cry. B.P. stated Hildreth then put some more "medicine" on her private parts and put the buzzy thing inside her again. Hildreth then took B.P. to her room and told her to put her pajamas back on. He gave her some milk and a cookie, and she went back to bed.
The next morning, B.P. noticed that she had blood in her underwear. She changed her underwear several times because of the bleeding. When the mother returned, B.P. immediately told her what had happened. The mother saw B.P. was bleeding from the vagina and took her to the hospital. An examination showed the child had bruising of the hymen and vaginal wall, which was consistent with blunt-force, penetrating trauma.
The police were contacted from the hospital. The mother had a relative collect the bloody underwear to give to officers. When the mother got home she found a vibrator had blood on it. She wiped off the vibrator with a tissue. Officers collected both the vibrator and the tissue. A laboratory examination showed sperm and DNA attributable to Hildreth on two of the pairs of underwear. Also, DNA that matched that of Hildreth and B.P. was found on the tissue.
Hildreth was charged with two counts of sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3(2) (2009). The case was tried to the bench. Shortly before the trial, and again on the second day of trial, Hildreth requested the appointment of different court-appointed counsel. His requests were denied by the court. During the trial, evidence was presented as outlined above. The district court denied Hildreth's motion for judgment of acquittal. Hildreth testified that B.P. had a rash on her bottom so he put diaper cream on her. He also claimed B.P. had been kicked by a sibling and this may have injured her private area.
The district court issued a written ruling on June 23, 2010, finding Hildreth guilty of two counts of second-degree sexual abuse. The court found he committed two separate sex acts: one in the child's bedroom and another in the sibling's bedroom. Hildreth filed a motion for new trial. That motion was denied by the court. Hildreth was sentenced to a term of imprisonment not to ...