On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge. Defendant appeals his conviction for lascivious acts with a child pursuant to Iowa Code section 709.8, claiming ineffective assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 10 of the Iowa Constitution.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Sean M. Corpstein, Student Legal Intern, Michael J. Walton, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
Max Thorndike appeals his conviction for two counts of sexual abuse in the second degree pursuant to Iowa Code section 709.3 (2013), and one count of lascivious acts with a child pursuant to Iowa Code section 709.8. He maintains there was insufficient evidence to support the jury's finding that he committed sex acts with the minor victims. Further, he asserts the district court erred in denying his motion for new trial because it applied the incorrect legal standard in concluding the weight of the evidence supported his convictions. He also asserts the district court abused its discretion in concluding the weight of the evidence supported his convictions. Finally, he maintains his trial counsel was ineffective in failing to object to the lascivious-acts jury instruction he claims was not supported by sufficient evidence. We transferred the case to the court of appeals, which affirmed the convictions. Thorndike applied for further review, which we granted.
When we grant further review of a decision of the court of appeals, we have discretion to select issues for our consideration. See Iowa R. App. P. 6.1103(1)( d ). In this appeal, we consider only whether Thorndike's trial counsel was ineffective in failing to object to the lascivious-acts jury instruction he claims was not supported by sufficient evidence. Therefore, we let the court of appeals' affirmance on the remaining issues stand as the final decision of this court. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). With respect to Thorndike's claim that trial counsel was ineffective in failing to object to the lascivious-acts jury instruction, we conclude Thorndike has failed to establish he suffered prejudice as a result of counsel's failure to
object to the instruction. We affirm the decision of the court of appeals and the judgment of the district court.
I. Background Facts and Proceedings.
In December 2012, Thorndike was living with his son, Joseph, Joseph's girlfriend, Tiffany, and their four-year-old son, N.T., in a duplex located in Davenport, Iowa. On the evening of December 15th, Joseph and Tiffany attended a graduation party along with their friends, A.C. and M.C., and Thorndike. While at the party, the adults had arranged for a babysitter to care for N.T. and the friends' twin daughters, Jo.S. and Ja.S. Jo.S. and Ja.S. were six years old at the time.
While at the party, Joseph received a phone call from his landlord who lived in the other half of the duplex. The landlord told Joseph the children were being loud and it sounded like N.T. was out of control. The adults convened to discuss the issue. Ultimately, it was decided that Thorndike would return to the duplex to calm the children. Thorndike then left the party and returned to the duplex. A.C. and M.C. left the party at approximately 2:00 a.m. so that M.C. could attend to a work-related matter. The couple then returned to their home. The twins stayed at the duplex for the night.
The next morning, M.C. went to the duplex to pick up the twins. On the ride home, the twins told M.C. they needed to tell him something. The twins then informed M.C. that after Thorndike had returned from the party the previous night, he had entered Joseph and Tiffany's room where they were sleeping and made each of them touch his " private part." The police were contacted soon thereafter.
The State charged Thorndike with two counts of sexual abuse in the second degree pursuant to Iowa Code section 709.3 and one count of lascivious acts with a child pursuant to Iowa Code section 709.8. Thorndike entered a plea of not guilty to each of the charges.
At trial, both Ja.S. and Jo.S. testified that on the evening in question, Thorndike came into the room in which they were sleeping, walked to the sides of the bed, and briefly made each of them touch his " private part." Neither twin testified that Thorndike touched their genital or pubic regions, and the State presented no other evidence to that effect at trial.
After the close of evidence, the district court provided the jury with the following instruction, quoted in relevant part, regarding the ...