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State v. Werner

Court of Appeals of Iowa

June 21, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
WILLIE CLAY WERNER, Defendant-Appellant.

         Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn, Judge.

         The defendant appeals from his convictions for sexual abuse in the second degree. CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Doyle and McDonald, JJ.

          MCDONALD, Judge.

         Between 2007 and 2014, Willie Werner molested three of his minor granddaughters on several occasions. The three children testified at trial generally consistent with one another and generally consistent with their previous accounts of the sexual abuse. Following trial by jury, Werner was convicted of five counts of sexual abuse in the second degree, in violation of Iowa Code section 709.3 (2013), and two counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(1)(b)(2). Werner raises a single challenge to his convictions and a single challenge to his sentences.

         I.

         In his challenge to his convictions, Werner claims his trial counsel provided constitutionally deficient representation in failing to object to a sheriff's deputy's testimony that the defendant requested to speak to an attorney when questioned about the allegations. Werner also claims his counsel was ineffective in eliciting similar testimony from the deputy. The prosecutor elicited the following testimony:

Q. Did you attempt to speak with the defendant about the allegations concerning [N.V.]? A. Yes. . . . I went and talked to Mr. Werner, advised him that there [were] new allegations, and I explained to him that I needed to talk to him again, and at that point his wife told me I needed to talk to his attorney.
Q. His wife told you that?
A. Yes. Defense counsel elicited the following testimony on cross-examination of the deputy:
Q. Now, you've said that after [N.V.] came forward, his wife declined a statement; is that correct?
A. She told-when I asked him to come to the office to speak with him, she told me that I would have to contact their attorney . . . first.
Q. And so this is after he had had a chance to get the advice of an ...

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