Appeal from the Iowa District Court for Monona County, Steven J. Andreasen, Judge.
Defendant appeals his conviction for first-degree kidnapping.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold, Assistant Appellate Defender, for appellant.
Mark Bitzan, Fort Madison, pro se.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and Susan Krisko, Assistant Attorneys General, and Michael P. Jensen, County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Mark Bitzan appeals his conviction for first-degree kidnapping, challenging the sufficiency of the evidence supporting his conviction. Bitzan's pro se brief raises additional challenges to the jury instructions and to trial counsel's performance. We affirm.
I. Background Facts and Proceedings.
During the evening of December 17, 2010, Bitzan was inside the women's handicap stall at an interstate restroom when nineteen-year-old Natasha stopped at the rest area and used the restroom. As she stood at the sink and washed her hands, Bitzan exited the stall, walked up behind her, placed one hand over her mouth, placed the other hand around her torso, and kissed the top of her head. After asking her if she was "going to be quiet, " Bitzan forced Natasha away from the sink area and into the handicap stall at the back of the restroom. Bitzan reached back and latched the stall door as he pushed her up against the wall. Bitzan stood in front of her, between Natasha and the stall door, and began asking questions in a calm voice, for example, "Where are you going?" "Are you alone?" "Do you have people waiting for you or are people expecting you?"
When Natasha would not tell Bitzan her name and slapped his hands away from the zipper on her hoodie, Bitzan responded by changing his body language, reaching into his pocket, and pulling out a collapsible pocket knife. Natasha then gave a name, and Bitzan put the knife away and asked more questions. When Bitzan reached for her pants and she slapped his hand away, Bitzan displayed "frustration or anger" and stated, "This will just be easier if you cooperate." Natasha asked, "Are you going to hurt me?" Bitzan replied, "Not if you cooperate." Bitzan then asked personal questions, "Are you on birth control?" and "Is this a bad time of the month?" When Natasha hesitated in her response to his questions or to his demands, Bitzan gestured toward the knife in his pocket. At some point, Natasha asked herself, "What can I do to live?"
Bitzan proceeded to remove Natasha's boots, pants, and underwear. Bitzan began touching Natasha's genitals as she begged him to stop. Bitzan ordered Natasha to the floor, and he confirmed that she was not visible from outside the handicap stall. Natasha testified, "so I'm lying in that corner, and I remember him remarking . . . 'good, you are out of sight, ' because he kind of glanced off to the side to . . . check under the stalls to see if I would be visible." Bitzan pulled down his pants, raped Natasha, and ejaculated inside her. Bitzan wiped himself off and ordered Natasha to remain in the stall until he left. Natasha waited for a few minutes after she heard the bathroom door close, dressed, and drove away.
Natasha, who was in ROTC at college, called her commanding officer for advice. The officer advised Natasha to go directly to a hospital, and she stayed on the phone while Natasha drove to the hospital. Natasha called her mother, and her parents came to the hospital. The hospital was not equipped to perform a sexual assault exam, so the family went to a nearby hospital where Natasha provided samples for a sexual assault kit. The samples were analyzed by the Iowa DCI laboratory. The DNA in the samples matched Bitzan's profile. Bitzan's DNA was in the data bank as a result of a previous sexual abuse conviction in Wyoming.
On June 9, 2011, Bitzan was charged on two counts, first-degree kidnapping and second-degree sexual abuse. On July 21, 2011, the State filed a motion to amend the trial information to add a lifetime enhancement for second or subsequent sexual offenses. See Iowa Code § 902.14 (2009). The court allowed the amendment. Bitzan filed a motion to strike the sexual abuse count. The State requested a special interrogatory regarding sexual abuse if the court submitted the second-degree sexual abuse charge as a lesser-included offense of kidnapping. The court reserved ruling on the ...