This opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed.
Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge. Mathew Jandreau appeals his convictions and sentences for burglary in the first degree, kidnapping in the third degree, assault with intent to commit sexual abuse, attempted burglary in the second degree, operating a motor vehicle without the owner's consent, and criminal mischief.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Darin J. Raymond, County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
Mathew Jandreau appeals his convictions and sentences for burglary in the first degree, in violation of Iowa Code sections 713.1 and 713.3 (2012); kidnapping in the third degree, in violation of Iowa Code sections 710.1 and 710.4; assault with intent to commit sexual abuse, in violation of Iowa Code sections 709.1 and 709.11; attempted burglary in the second degree, in violation of Iowa Code sections 713.1 and 713.6; operating a motor vehicle without the owner's consent, in violation of Iowa Code section 714.7; and criminal mischief in the third degree, in violation of Iowa Code sections 716.1, 716.2, and 716.5(2). Jandreau asserts he lacked the specific intent necessary to commit these crimes due to his mental health issues and severe intoxication at the time of the commission of the crimes, and thus sufficient evidence does not support his convictions. Jandreau further argues that trial counsel was ineffective for failing to request an intoxication instruction and for failing to argue issues other than specific intent in his motion for judgment of acquittal. He also asserts the convictions of first-degree burglary and assault with intent to commit sexual abuse should merge.
We conclude sufficient evidence exists to support Jandreau's convictions, though we agree with Jandreau that the convictions for burglary in the first degree and assault with intent to commit sexual abuse should merge. We also preserve Jandreau's ineffective-assistance claim for possible postconviction relief proceedings. Therefore, we affirm his convictions, but vacate his sentence for assault with intent to commit sexual abuse and remand.
I. Factual and Procedural Background
The jury could have found the following facts. On March 2, 2012, Jandreau went to three different residences. The first was the residence of Emily Palsma's parents, where Palsma was resting for the day. When Palsma looked out the window, she discovered her van was parked in a different spot than she had left it. Upon inspection, the cruise control lever had been broken off, the contents of the glove compartment strewn about, and Palsma's purse that she had left in the van was missing. The purse was later recovered at the third residence Jandreau went to that day.
The second residence he approached was that of LeAnn Waldo. She observed a man, who she later identified at trial as Jandreau, walk through her backyard carrying a black handbag with pink stars. Jandreau began kicking and hitting the back door. Waldo yelled out the window: " What the **** are you doing?" Panicked, she quickly sent her children upstairs and called 911. When she came back from making the call, Jandreau was gone.
The third residence Jandreau approached was that of Walter Kleinhesselink, who was not home at the time. However, A.F., Kleinhesselink's eleven-year-old granddaughter, was in the residence. She heard pounding on the front door, and when the door flew open, Jandreau entered the house. A.F. inquired whether Jandreau needed help from the police or hospital, and Jandreau replied " no." She picked up the telephone and began dialing 911 when Jandreau grabbed the phone and threw it. Jandreau then told A.F. he was " going to look around" the house and shoved her to the ground, thereby causing A.F. to hit her head on a flower pot. Jandreau repeatedly punched A.F. in the face with a closed fist, pulled off her pajama bottoms and underwear, put his hand over her mouth to muffle her screams, and put her in a headlock.
Jandreau then dragged A.F. into the kitchen and tried to open the dishwasher--which appeared to A.F. as Jandreau's attempt to put A.F. in the dishwasher--but she kicked the door closed several times. He then attempted to push A.F. into a broom closet, and when that failed, forced her into the basement. Jandreau threw A.F. into a corner and pushed her down on the floor. A.F. continued her struggle and attempts to escape, prompting Jandreau to grab her leg and again begin punching her. Upon hearing people in the house, A.F. began to scream louder, as Jandreau punched her " harder and faster." Quickly, the police apprehended Jandreau, who had his pants down around his ankles but his boxer shorts still on. At trial, Jandreau testified he did not remember any of these events.
On March 12, 2012, Jandreau was charged with burglary in the first degree, kidnapping in the third degree, assault with intent to commit sexual abuse, attempted burglary in the second degree, operating a motor vehicle without the owner's consent, and criminal mischief in the third degree. A jury trial was held, and Jandreau was convicted on all counts. He was sentenced to serve twenty-five years on the first-degree burglary count, ten years on the kidnapping count, and five years on the assault count, all to run consecutively. He was also sentenced to five years on the attempted burglary count, two years on the ...