from the Iowa District Court for Marshall County, James C.
defendant appeals his convictions for sexual abuse in the
third degree and assault with intent to commit sexual abuse.
AFFIRMED AND REMANDED.
C. Smith, State Appellate Defender, for appellant.
J. Miller, Attorney General, and Kevin Cmelik and Kristin
Guddall (until withdrawal), Assistant Attorneys General, for
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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
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.
Facts and Prior Proceedings
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.
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.
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.
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.
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