Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.
Defendant appeals his convictions on two counts of sexual abuse in the third degree.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Andre Darren White, Mt. Pleasant, pro se.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Janet M. Lyness, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., Potterfield, J., and Huitink, S.J. [*]
I. Background Facts & Proceedings.
The record includes evidence of the following. J.H. met Andre White in the fall of 2009 through his daughter, who was J.H.'s good friend White agreed to babysit J.H.'s child on some evenings, and at times he stayed overnight at her house. White and J.H. engaged in consensual sex on two occasions. J.H. informed White, however, that she did not want to be in a romantic relationship with him.
On January 22, 2010, J.H. and White were at her home in the evening, and she fell asleep on her bed. J.H. testified she woke up to find White choking her with his hands around her throat. White told J.H. he had a gun and placed a blunt object, which she did not see, by her ribs. He then put a knife by her neck. White threatened to kill J.H. and her child. He forced J.H. to engage in sexual intercourse two times.
In the morning of January 23, 2010, J.H. went to the home of Samantha Jones, who observed J.H. "had marks all over her neck. She seemed very shooken up, frightened. She was scared to death." Jones took pictures of J.H.'s injuries. Later that day J.H. went to the Johnson County Sheriff's Department to report the incident. The deputies who talked to J.H. observed scratches and bruising on her neck area. They also stated she was upset and crying.
At the request of the sheriff's department, J.H. had a physical examination at the University of Iowa Hospitals and Clinics by a sexual assault nurse examiner, Susan VanWye. VanWye stated J.H. had bruises on her neck and upper arms. J.H. was also examined by Dr. Carlyn Christensen-Szalanski, a physician, who testified J.H. had injuries consistent with someone who had been significantly choked.
White was charged with two counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3(1) (2009). At his criminal trial, White testified he and J.H. were engaged in an intimate relationship and they had consensual sex two times during the night in question. He stated that on the second occasion, J.H. asked him to choke her. White also presented the testimony of Dr. Kathryn Ando, a sexologist, who testified about erotic breath control, which can involve choking.
A jury found White guilty of two counts of sexual abuse in the third degree, in violation of section 709.4(1). White filed a motion for new trial. The district court denied the motion, finding, "I expressly find that the verdicts are not contrary to the weight of the evidence." White was sentenced to a term of imprisonment not to exceed ten years on each count, to be served concurrently. ...