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State v. Bol

Court of Appeals of Iowa

March 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
GATLUAK BOL, Defendant-Appellant.

         Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.

         A defendant appeals his convictions for sexual abuse in the third degree and assault with intent to commit sexual abuse. AFFIRMED AND REMANDED.

          Mark C. Smith, State Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kevin Cmelik and Kristin Guddall (until withdrawal), Assistant Attorneys General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          TABOR, Judge.

         A jury found Gatluak Bol guilty of sexual abuse in the third degree and assault with intent to commit sexual abuse based on evidence he attacked L.H. in the basement of the meat-packing plant where they both worked. He seeks a new trial on the assault offense, arguing his attorney should have objected to the jury instruction describing the elements of that crime. He also points out the written sentencing order contradicts the district court's oral pronouncement regarding fines and surcharges. Finally, Bol filed a pro se supplemental brief asking us to consider the sufficiency of the evidence for his convictions and the constitutionality of his sentence.

         Because the jury instructions, read together, adequately defined the elements of assault with intent to commit sexual abuse, counsel had no duty to object. Accordingly, we reject Bol's claims of ineffective assistance of counsel. We likewise find no ground for relief in Bol's pro se filing. But because the written judgment was at odds with the oral sentencing pronouncement, we remand for entry of a corrected sentencing order.

         I. Facts and Prior Proceedings

         In late October 2015, L.H. started working the night shift at the JBS Swift plant. After a training session in early November, she lost her way back to the company office and encountered coworker Bol. When she asked him directions, he pointed out various routes and eventually said he would escort her there. Instead, he led her down a long hallway into the basement.

         In that isolated location, Bol pushed her up against the wall and tried to kiss her. L.H. told Bol to leave her alone and tried to walk away. But he blocked her departure with his arm and tried to open her shirt and kiss her neck. She also thought he was reaching for his penis so that she would "have some kind of relations with him." She rebuffed him, saying: "No, I'm not that girl. I'm not doing this." He then pushed her head toward his penis, and L.H. recalled him saying "something like suck my dick" as "he was reaching into his pants." L.H. yelled, but she could not be heard on the floors above over the whir of machinery.

         As she tried to scramble away, L.H. fell to the floor. She felt a light bulb hit her head. While she was on the ground, Bol pulled off her clothes, tried to penetrate her anus, then pulled out her tampon, and penetrated her vagina. During the sex act, he was startled and released her arms. She was able to pull up her uniform pants and run for help. Shaking and crying, she immediately reported the rape.

         When police interviewed Bol, he denied committing the sex act and predicted they would not find his DNA on L.H.'s body or clothing. But later testing did show Bol's DNA on L.H.'s underwear and on swabs of her vagina, inner thighs, and anus. Police also found the broken light bulb and tampon on the basement floor of the plant. In a later interview, Bol admitted arguing with L.H. in the basement but said nothing sexual happened, and he could not explain how his DNA ended up on her body.

         The State charged Bol with two counts: (I) sexual abuse in the third degree, a class "C" felony, in violation of Iowa Code sections 709.1, 709.4(1) and 702.17 (2015), alleging he engaged in a sex act ("vaginal intercourse") by force or against the will of L.H.; and (II) assault with intent to commit sexual abuse, an aggravated misdemeanor, in violation of sections 709.11 and ...


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