Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Nuno

Court of Appeals of Iowa

April 3, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
DAVID JAY NUNO, Defendant-Appellant.

          Appeal from the Iowa District Court for Mills County, Mark J. Eveloff, Judge.

         A defendant appeals his conviction for second-degree sexual abuse.

          Mark C. Smith, State Appellate Defender, (until withdrawal), and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

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

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          Potterfield, Presiding Judge.

         David Nuno appeals his conviction and sentence for second degree sexual abuse in violation of Iowa Code sections 709.1, 709.3(1)(b), and 903B.1 (2017). On appeal, Nuno argues his constitutional right to confront the State's witnesses were violated, the denial of his motion for new trial applied the wrong legal standard, and trial counsel was ineffective for failing to object to hearsay testimony, vouching testimony, and victim impact statements from non-victims.

         I. Background Facts and Proceedings.

         Nuno was accused of sexually touching five-year-old H.R. and eight-year-old L.S. on one occasion in April 2017. H.R. and L.S. live with their maternal grandparents (the Schoenings); H.R.'s uncle; and the uncle's fiancée, Hollingsworth. Nuno was a friend of the children's mother. Nuno was charged with four counts of sexual abuse, two charges involving each of the complaining witnesses, in July 2017. A jury trial was held in September. The district court allowed the complaining witnesses to testify via closed-circuit television. The complaining witnesses, one of Nuno's attorneys, the prosecutor, and the judge were positioned in a room separate from Nuno, his second attorney, and the jury during their testimony. Three of the four counts were submitted to the jury, which returned a guilty verdict on one count of sexual abuse in the second degree involving H.R. The court sentenced Nuno in November to the statutory indeterminate sentence of incarceration for twenty-five years with a 70% mandatory minimum.

         Nuno appeals.

          II. Standard of Review.

         We review for errors at law when determining whether the trial court erred in granting the State permission to present the testimony of child witnesses by closed-circuit television. State v. Rupe, 534 N.W.2d 442, 444 (Iowa 1995). Constitutional claims, including those based on the Confrontation Clause, are reviewed de novo. State v. Rogerson, 855 N.W.2d 495 (Iowa 2014).

         "We review a trial court's ruling on a motion for new trial for an abuse of discretion." State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

         Ineffective assistance of counsel claims are also reviewed de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2016). "The defendant may raise the ineffective assistance claim on direct appeal if he or she has reasonable grounds to believe the record is adequate to address the claim on direct appeal." Id. "Only in rare cases will the trial record alone be sufficient to resolve the claim on direct appeal." Id.

         III. Discussion.

         A. Right to Confront Witnesses.

         Nuno argues his right to confront his accusers was violated when the district court allowed L.S. and H.R. to testify by closed-circuit television broadcast from a location separate from Nuno's location. The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Iowa Code section 915.38(1)(a) allows a minor to testify via closed-circuit television when testifying in the presence of the defendant would cause trauma and would impair the minor's ability to communicate.

         Nuno objected to the State's pre-trial request to use closed-circuit television for the presentation of the child witnesses' testimony. Nuno asserts the State did not lay a sufficient foundation under section 915.38 and Maryland v. Craig,497 U.S. 83 (1990), to justify the lack of face-to-face confrontation. Nuno argues the district court was required, but failed, to make a specific finding that the complaining witnesses' ability to communicate would be impaired by his presence in the same room and that the accommodation was necessary to protect the children from trauma. See Iowa Code § 915.38(1)(a) ("[A] court may protect a minor . . . from trauma caused by testifying in the physical presence of the defendant where it would impair the minor's ability to communicate . . . . [S]uch an order shall be entered only upon a specific finding by the court that such measures are necessary to protect the minor from trauma."); Maryland v. Craig, 497 U.S. at 857 ("[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.