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State v. Wynn

Court of Appeals of Iowa

February 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
XAVIER GARRETT DEY WYNN, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         Xavier Wynn appeals from his convictions following a jury trial for third-degree sexual abuse and criminal mischief.

          Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.

          Danilson, C.J., and Doyle and Mullins, JJ.

          DANILSON, Chief Judge.

         Xavier Wynn appeals from his convictions following a jury trial for third-degree sexual abuse, in violation of Iowa Code sections 709.1(1) and .4(1) (2016), and criminal mischief, in violation of sections 716.1 and .5.[1] Wynn contends defense counsel rendered ineffective assistance by failing to object to jury instructions. Wynn also asserts there is insufficient evidence to establish the lack of consent necessary to sustain his conviction for third-degree sexual abuse and to establish the value of damaged property to support his third-degree-criminal-mischief conviction. Wynn maintains defense counsel provided ineffective assistance in failing to move for judgment of acquittal on the particular insufficient-evidence grounds raised on appeal. We find Wynn has not shown defense counsel provided ineffective assistance and affirm.

         I. Background Facts & Proceedings.

         This matter arose in March 2016 when S.B. alleged Wynn assaulted and raped her. S.B. testified she and Wynn met through a social-media application and began seeing each other about one and one-half weeks prior to the night of March 27, 2016. S.B. and Wynn made plans to meet that night at the home where Wynn lived. However, when S.B. arrived at around 10:15 p.m., Wynn was angry and accused S.B. of getting a ride to his residence from another man. S.B. testified Wynn was also angry because she had refused to let him look through her cell phone a few days prior. S.B. stated through the course of the night Wynn threw her into a glass sliding door, pushed her head into a television, picked her up by her hair and threw her to the ground, and choked her with his arm or hands three times. Wynn also broke S.B.'s cell phone by throwing it to the ground, causing it to shatter. S.B. said Wynn would not let her leave, and she was afraid to attempt to leave the residence after Wynn had exhibited violent behavior. Eventually, at about three or four in the morning-after the third time Wynn choked S.B.-S.B. convinced Wynn to let her sleep. S.B. stated she was awoken shortly thereafter by Wynn pulling her pants and underwear down to her knees. Wynn proceeded to have intercourse with S.B. S.B. told Wynn "no" and attempted to push him away, but she stopped resisting because she feared for her safety based on Wynn's previous actions. S.B. testified:

At that point I was just, . . . I was like either I'm going to say no and resist and have something bad happen or just say no and try to resist as much as I can, but just for my own safety, I guess I let it happen.

         The next morning Wynn permitted S.B. to use his cell phone to call her father for a ride. S.B. went to the hospital where her injuries were evaluated and a rape kit was completed. S.B. had visible bruising and swelling on her forehead, bruises on her arms, bumps on the back of her head, irritation around the roots of her hair, and a cut above her left eye. The rape kit results indicated the presence of seminal fluid in S.B.'s underwear and vagina matching Wynn's DNA.

         After a jury trial on October 12-14, 2016, the jury returned its verdict finding Wynn guilty of third-degree sexual abuse, assault causing bodily injury, and third-degree criminal mischief. Wynn appeals.

          II. Standard of Review.

         We review ineffective-assistance-of-counsel claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). To prevail on an ineffective-assistance-of-counsel claim, Wynn must show by a preponderance of the evidence defense counsel failed to perform an essential duty and prejudice resulted. See id. at 495. Both failure to perform an essential duty and prejudice must be established for the claim to be successful. Id.

         III. Jury Instructions.

         (1) Jury ...


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