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State v. Douglass

Court of Appeals of Iowa

April 18, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
DAVID PAUL DOUGLASS, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         David Douglass appeals his conviction for assault with the intent to commit sexual abuse. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., Mullins, J., and Mahan, S.J. [*]

          MAHAN, Senior Judge.

         David Douglass appeals his conviction for assault with the intent to commit sexual abuse, contending his trial counsel was ineffective in failing to move to suppress the eyewitness identification from the victim's neighbor. We affirm.

         I. Background Facts and Proceedings

         During the summer of 2016, J.B. joined her church softball league. A week before the season started, J.B. met Douglass at a softball meeting. On May 19, Douglass asked J.B. if she would substitute for his team later that day. J.B. was exhausted from her day and wanted to take a nap before the game, but she knew Douglass lived nearby so she told him, "My window will be open, holler at me and get me up." J.B. is eighty-seven percent deaf in both ears, but her bedroom was on the ground floor and she knew Douglass had "a loud enough voice that [she] would have heard him yell at [her] to wake [her] up."

         J.B.'s neighbor, Tommy Mayse, had a "good view" of the back of J.B.'s house. Mayse saw a person he did not recognize enter the back door of J.B.'s home that evening. Mayse later identified Douglass as that person from a photo line-up and at trial.

         J.B. woke up to "the feeling of a hand tapping on [her] shoulder." She saw Douglass sitting on the end of her bed. "[H]is hand was in between [her] breasts in [her] cleavage area and he was groping [her]." J.B. tried to get out of bed, but Douglass "stood in front of [her] and started groping [her] in between [her] legs." He pushed her back onto the bed and tried to touch her again.

         J.B.'s dog was barking, and she tried to get to the kitchen to let the dog out. Douglass was "behind [J.B.] hovering over [her]" with "his hands . . . inside [her] shirt on [her] breasts." Douglass again "grop[ed J.B.] in between [her] legs and would not stop." During the encounter, Douglass made remarks that led J.B. to believe he wanted or expected a sexual relationship. J.B. was scared, angry, and threatened by Douglass.

         J.B. was able to push Douglass through the back door, put her dog outside, and shut the door. Early the next day, Douglass sent J.B. a text message asking if she was mad at him. After J.B. responded, Douglass said he was "100% sorry, " he "felt more than terrible, " and he "kn[ew] that sorry isn't enough to fix the damage."

         The State charged Douglass with one count of burglary in the second degree and one count of sexual abuse in the third degree with an enhancement.[1]At trial, J.B. and Mayse testified as eyewitnesses. At the close of the State's case, defense counsel moved for judgment of acquittal on both counts. The district court granted the motion as to the charged offenses, finding there was insufficient evidence of the element of a "sex act" required for both ...


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