Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.
Defendant appeals his conviction for sexual abuse in the third degree, alleging ineffective assistance of counsel.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Darin J. Raymond, County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
Dakota V. Hernandez appeals his conviction for sexual abuse in the third degree on a claim of ineffective assistance of counsel. He asserts his trial attorney was remiss in failing to argue the correct standard when seeking a new trial. Because the greater weight of the evidence supports the jury's verdict, Hernandez cannot show he was prejudiced by counsel's performance. Accordingly, we affirm the conviction.
I. Background Facts and Proceedings
On June 19, 2011, Paul Peterson was fired from his job. To drown his sorrows he and several friends gathered at Shennon Herbold's house in Kingsley to drink. Peterson asked his girlfriend, O.N., to bring hard liquor. She purchased Wild Turkey 101. Peterson's friends, Dakota Hernandez and Jose Ramirez, also came to the gathering. O.N. had never met Hernandez before that night. The group played beer pong and "chugged" turkey bombs. O.N. testified she drank at least three turkey bombs and possibly as many as four or five.
The heavy drinking took its toll, and later that night Peterson and many of the guests were passed out or getting sick. Twenty-two-year-old O.N. said she had not been that drunk since her twenty-first birthday. Herbold and Ramirez testified O.N. appeared intoxicated. O.N. did not recall parts of the evening but did remember Hernandez helping her walk to the bathroom when she needed to throw up. O.N. remembers Hernandez holding her hair back while she got sick. After this, Hernandez helped O.N. back to bed.
O.N. also recalled lying on the bed, opening her eyes, and seeing Hernandez leaning over her. She said Hernandez had a "shocked expression" and told her to "shut the fuck up." O.N. told the jury she saw Hernandez's hand coming toward her face and felt his penis inside her vagina. O.N. also testified she and Peterson were in a monogamous relationship and they had no other "partners."
Ramirez testified that earlier that night he saw Hernandez angrily stare at the bedroom where Peterson and O.N. were passed out. "He was just sitting there. Looked like he was pissed off at the world." Ramirez slept on the couch for an hour or two until he heard screaming coming from the bedroom. All he could make out was O.N. saying: "Paul, help me." When Ramirez entered the bedroom, he saw Peterson passed out on the floor, O.N. on the bed, and Hernandez pulling up his pants. Hernandez told Ramirez he should go back to bed and Hernandez would "take care of everything."
Herbold also heard O.N. calling for Peterson. From the main floor of his house, Herbold sent a text message to Hernandez urging him to leave the basement bedroom because Peterson and O.N. were in there. Herbold received no response. Later, Herbold went down to the bedroom and asked what was going on. Hernandez said, "I didn't do anything." When Herbold found O.N., her t-shirt had been pushed up, and her vaginal area was exposed.
O.N. told Herbold what happened, and he convinced her to go to the hospital. Once there she met with Kingsley Police Chief Daniel Kremer. The hospital staff conducted a sexual assault examination and sent the kit to the Division of Criminal Investigation lab. The lab's testing showed the DNA sample ...