Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
Hameed appeals his conviction for sexual abuse in the third degree, claiming the trial court erred in denying his motions for a judgment of acquittal and a new trial.
S.P. DeVolder of The DeVolder Law Firm, Norwalk, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Michael J. Walton, County Attorney, and Melisa K. Zaehringer, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ. Tabor, J., takes no part.
I. Factual and Procedural History
Muhammad Hameed was found guilty by a jury of one count sexual abuse in the third degree, in violation of Iowa Code section 709.4(1) (2011), a sex act done by force or against the victim's will. As we find sufficient evidence to support the verdict, we affirm his conviction.
At trial, the following evidence was shown. On March 8, 2011, the victim, S.M., and her friend, A.L., attended a Mardi Gras event at the Chorus Line, a gentlemen's club in Davenport, Iowa, managed by Hameed. The victim and her friend's testimony conflict as to whether they consumed alcohol before arriving. As they were both under the legal age to consume alcohol, they were denied beer, which was being served out of a keg. Hameed, who knew the young women from previous events at the Chorus Line, approached them and suggested they come to a back room.
S.M. and A.L. then went back to the office area of the club, where Hameed handed each of them a red cup containing about a shot of an unidentified liquid. A.L. testified it was some type of alcohol. Both girls drank the contents of the cup and then went into an adjacent bathroom for a few minutes. Both testified they could not remember anything from that point in the night until the next morning. In his defense, Hameed testified that neither young woman was provided alcohol, given their underage status.
Connor Thinnes, the victim's friend and club promoter, testified he went to the back office shortly after midnight. The entrance door was locked, at which point Thinnes knocked on the door and waited about five minutes before Hameed opened it. Thinnes observed the victim pulling up her pants and Hameed sweating profusely. Thinnes also testified that Hameed asked if Thinnes "would like it." Later, Thinnes, with the assistance of a bouncer, got the victim into his car and drove her home. During the drive, the victim made sexual overtures to Thinnes, which he refused. The victim could not direct Thinnes to where she lived, so Thinnes called another one of her friends, T.S., who told him the address of the victim's apartment complex. When they arrived, the victim could not recall in which apartment she lived and, after getting out of Thinnes's car while it was still moving, began knocking loudly on various doors. She inserted a key into what turned out to be her own apartment, but it broke in the lock.
After failing to retrieve the key and pick the lock, Thinnes offered his couch to both T.S. and the victim so they could sleep. The victim got into T.S.'s car, and they followed Thinnes to his home. Upon arrival, T.S. went into Thinnes's house to tell him the victim would not get out of the car. Both went back to T.S.'s car and discovered the victim was missing. They began searching for her and reported her missing to the police. Thinnes characterized the victim's behavior as belligerent and incoherent, and T.S. described her as "there, but she wasn't like there."
The victim testified her next memory after drinking the liquid Hameed handed her was walking alone on the Davenport streets about 4:00 or 5:00 the next morning, crying out for help. When a man stopped to assist her, she asked him to call the police. Shortly thereafter the victim was arrested on an outstanding failure-to-appear warrant. Later, when T.S. picked her up at the police station, the victim discovered she was "a little scraped up, " felt sick to her stomach, her clothes were dirty, and her underwear was balled up inside her pant leg. Consequently, she went to the hospital and was examined by a sexual assault nurse, who found traces of semen inside of the victim.
At trial, the State's expert criminologist testified as to the DNA collected and analyzed. The State then introduced Exhibit 31, the expert's report, which stated: "The DNA profile developed from the sperm fraction of the vaginal swab matched the known DNA profile of MUHAMMAD HAMEED (10). The probability of finding this profile in a population of unrelated individuals, chosen at random, would be less than 1 out of 100 billion." This evidence was admitted over a foundation objection from the defense. There was also a video of the victim entering the club.
Hameed and club photographer Robert Griffin testified in Hameed's defense. Griffin stated he saw the victim in Hameed's office sitting on his lap, hugging and kissing him. Hameed also produced photographs showing the victim with Hameed. While admitting he and S.M. had sex, Hameed claimed she was the aggressor and the sex was consensual.
Hameed made two motions for a judgment of acquittal, one at the close of the State's evidence and one at the close of all the evidence. In both motions he reargued his prior motion to dismiss based on speedy trial grounds, asserted there was insufficient evidence to show a sex act occurred based on the inadmissibility of the criminologist's testimony, the State's evidence was insufficient to establish guilt under either subsection (1) or (2)(a) of Iowa Code section 709.4, and the testimony of the State's witnesses was too inconsistent to be believed. The trial court granted the motion for a judgment of acquittal as to subsection (2)(a), a sex act performed while the victim was mentally or physically incapacitated or physically helpless,  and denied the other motions. Hameed's motion for a judgment of acquittal was renewed at the close of all the evidence, and was again denied. As such, the case was submitted to the jury only under Iowa Code section 709.4(1), a sex act committed by force or against the victim's will. The jury returned a guilty verdict on July 12, 2012. Hameed moved for a new trial, raising the same bases of error, which was denied.
On appeal, Hameed contends the trial court erred in denying his motions for a judgment of acquittal and a new trial. To support this claim, Hameed raises the following issues: (1) there was insufficient evidence showing he committed a sex act by force or against the victim's will; (2) there was insufficient evidence showing a sex act had occurred, as the DNA evidence should have been excluded because the criminologist did not adequately explain her methodology; (3) the State's main witnesses were too inconsistent to be believed; and (4) the case should have been dismissed because trial did not proceed within one year of Hameed's arraignment.
II. Sufficiency of the Evidence
Hameed asserts several theories of why the trial court erred in failing to grant his motions for judgment of acquittal and new trial. We will address his claims individually.
A. Whether there was sufficient evidence Hameed committed a sex act by force or against the victim's will
Hameed contends there was not sufficient evidence to satisfy the "against the will" prong contained in Iowa Code section 709.4(1). Hameed first argues that sexual abuse was not sufficiently proven, given the definition found in Iowa Code section 709.1, as there was no evidence the victim was "under the influence of a drug inducing sleep or [was] otherwise in a state of unconsciousness." Iowa Code § 709.1(1). Hameed next asserts that, because the trial court granted his judgment of acquittal as to the mental incapacitation alternative under Iowa Code section 709.4(2)(a), there was not sufficient evidence to convict him under the "by force or against the will" standard. He claims the State's only evidence that the sexual intercourse was against the victim's will was her inability to consent, due to ...