from the Iowa District Court for Hamilton County, Timothy J.
defendant appeals from his convictions for sexual abuse in
the second degree. CONVICTIONS AFFIRMED, SENTENCES
VACATED, AND REMANDED.
C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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.
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 ...