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State v. Garduno-Rodriguez

Court of Appeals of Iowa

June 20, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
ERWIN GARDUNO-RODRIGUEZ, Defendant-Appellant.

          Appeal from the Iowa District Court for Crawford County, Jeffrey L. Poulson, Judge.

         Erwin Garduno-Rodriguez appeals from his conviction for second-degree sexual abuse. AFFIRMED.

          Thomas O. Campbell of TLN Law LLC, Omaha, Nebraska, and Chinedu I. Igbokwe of Banwo & Igbokwe Law Firm, Omaha, Nebraska, for appellant.

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

          Considered by Danilson, C.J., and Mullins and McDonald, JJ.

          DANILSON, Chief Judge.

         Erwin Garduno-Rodriguez (Garduno)[1] appeals from his conviction for second-degree sexual abuse, which arose from allegations by N.C. that when Garduno was fourteen years old, he sexually abused then seven-year-old N.C., for whom Garduno's mother provided childcare. N.C. reported the alleged abuse some three years later. Garduno challenges the sufficiency of the evidence and the trial court's denial of his motion for new trial on grounds the verdict is against the weight of the evidence. Garduno complains this is a "simple he said she said matter" and his denials should outweigh N.C. 's inconsistent accusations.

         We review a challenge to the sufficiency of evidence for correction of errors at law. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). "We review a trial court's findings in a jury-waived case as we would a jury verdict: If the verdict is supported by substantial evidence, we will affirm." State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). We "consider all of the record evidence viewed in the light most favorable to the State, including all reasonable inferences that may be fairly drawn from the evidence." State v. Showens, 845 N.W.2d 436, 439-40 (Iowa 2014) (citation omitted). "Evidence is substantial when 'a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt.'" Howse, 875 N.W.2d at 688 (citation omitted).

         To convict Garduno of second-degree sexual abuse, the State was required to prove: (1) that between January 1, 2011, and January 1, 2012, Garduno performed a sex act on N.C., and (2) Garduno performed the sex act while N.C. was under the age of twelve. See Iowa Code § 709.3(1) (2017). A "sex act" includes sexual contact between the finger or hand of one person and the genitals of another person. See id. § 702.17(3).

         At trial, N.C. explained that she attended childcare before and after school at Garduno's residence. She testified that she would arrive early in the morning and would go to lie down on one of the couches in the living room. Garduno would come out of his room, stand or kneel over her, and touch her vagina and breasts under her clothes as she lay on the couch. N.C. testified Garduno would touch her almost every day, always for just a few minutes and while the others in the trailer were still asleep. She also stated Garduno would threaten to kill her family if she told anyone what he had done. Although N.C. initially said at a deposition that Garduno inserted his finger into her vagina, she testified at trial that she remembered he touched and rubbed her vagina but did not penetrate it with his hand. She demonstrated on a doll the way in which Garduno would slip his hand down inside the top of her pants or up through a leg opening in her clothing. She described all three of the childcare giver's sons and stated she had no doubt Garduno was the person who touched her.

          N.C. 's mother testified that N.C. attended daycare at Garduno's mother's trailer home for about eight months, from October 2011 to May 2012. She stated that after about three months, N.C. became a less happy child, had instances of nightmares and bedwetting, started to scratch herself, resisted going to childcare, and displayed different behaviors at school. N.C. 's mother also testified that after she would get N.C. dressed in the morning, N.C. would put on a second pair of underwear over those her mother had put on her.

         Garduno testified on his own behalf, denying the allegations. He testified he was asleep in the mornings when the daycare children arrived, and he often overslept, requiring his mother to drive him to school because he missed his bus. Garduno stated he remembered N.C. and did not like her because she screamed too much.

         The defense also presented the testimony of three of the mothers of other children who were cared for by Garduno's mother[2] and one child that attended the daycare[3]-all stated that many children were present and awake mornings at the home, none observed Garduno touching N.C.

         The trial court found Garduno guilty of second-degree sexual abuse. Written findings were filed, and the court ...


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