from the Iowa District Court for Wapello County, Crystal S.
Cronk, District Associate Judge.
Gomez appeals several criminal convictions and the imposition
of consecutive sentences.
C. Smith, State Appellate Defender (until withdrawal), and
Bradley M. Bender, Assistant Appellate Defender, for
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee.
Considered by Tabor, P.J., Bower, J., and Scott, S.J.
Background Facts and Proceedings
the evidence presented at trial, a rational jury could make
the following factual findings. Anthony Gomez and M.M. met in
2013 in an online chatroom. At the time, M.M. lived in
Michigan and Gomez lived in Iowa. They began a romantic
relationship a month or so later. They met for the first time
in person roughly two years later, when Gomez visited M.M. in
Michigan. The relationship continued, and in 2017, M.M. made
plans to move to Iowa to live with Gomez. Days before the
move, M.M.'s "last hoorah" involved going to a
concert in Michigan with one of her best friends. This
angered Gomez because he did not give M.M. permission to
attend the concert.
traveled to Iowa to begin living with Gomez on April 3. M.M.
arrived at Gomez's Ottumwa home at around 5:00 or 6:00
p.m., after which she spent around ten minutes text messaging
Gomez because she did not know if he was home. Gomez
initially did not respond to the text messages, but he
eventually opened his garage, in which he was sitting in his
car. M.M. approached, but Gomez did not want to talk to M.M.
Gomez directed M.M. to take her stuff inside the home. M.M.
moved her things into the home, visited a nearby fast food
restaurant, and then returned to the home, where she made
herself a makeshift bed and laid down.
was in and out of the home throughout the night. There
continued to be limited conversation between the two. At some
point, Gomez returned to the home for the last time and
started watching television. Shortly after, M.M. awoke and
attempted to speak with Gomez; Gomez began hitting M.M. in
the head and face multiple times with his fists. M.M. fell to
the ground, upon which Gomez began strangling her. M.M. began
to lose consciousness. Gomez eventually discontinued
strangling M.M., upon which he told M.M. to bend over and not
move. Gomez then pulled down M.M.'s leggings and
commenced anal intercourse with her. M.M. advised Gomez in
prior discussions that anal intercourse was "not an
interest of" hers.
Gomez finished, he continued attacking M.M. M.M. blacked out,
but she made it outside of the home at some point and made
contact with a neighbor. Law enforcement was ultimately
contacted and M.M. was transported to the hospital. M.M. did
not immediately report the sexual assault to police officers,
but she did report it to medical personnel at the hospital,
where she was examined and a rape kit was administered. A
small tear to M.M.'s anus was discovered. Photographs
taken of M.M. depict facial injuries including a bloody nose
and swollen eyes; bruising to the face, neck, body, legs, and
arms; and some scratches and abrasions to various areas. M.M.
also suffered oral injuries, due to the presence of braces in
her mouth. She developed a black eye and was diagnosed with a
April 4, police executed a search warrant on Gomez's
home. During the search, police were able to locate all of
M.M.'s property with the exception of her cellular phone
and car keys. M.M. likewise testified when she returned to
Gomez's home to retrieve her belongings, her car keys and
cell phone were missing. The only two people with knowledge
of the cell phone's password were M.M. And Gomez. The
evidence shows Gomez sent text messages from M.M.'s phone
in the afternoon hours of April 4. Gomez was apprehended on
April 5 at another location in Ottumwa. M.M.'s cell phone
was found at the location where Gomez was apprehended.
was charged by trial information with: (1) third-degree
sexual abuse, (2) willful injury causing bodily injury, (3)
domestic abuse assault causing bodily injury by impeding
breathing or circulation, (4) domestic abuse assault causing
bodily injury or mental illness, and (5) third-degree theft.
A jury found him guilty as charged. The court sentenced Gomez
to, among other things, imprisonment in the amount of ten
years for count one, five years each for counts two and
three, one year for count four, and two years for count five.
The court ordered counts one and two to be served
consecutively with the remaining counts to be served
appeals, challenging his convictions and the imposition of
consecutive sentences. Specifically, he argues (1) his
counsel rendered ineffective assistance in failing to (a)
request definitional jury instructions in relation to the
willful-injury charge and the two domestic-abuse-assault
charges and (b) object to hearsay testimony relative to the
theft charge; (2) the evidence was insufficient to support
all charges; and (3) the court improperly failed to
provide reasons for imposing consecutive sentences.
Ineffective Assistance of Counsel
begin with Gomez's claims of ineffective assistance of
counsel. Such claims are immune from error-preservation
defects. See State v. Fountain, 786 N.W.2d 260, 263
(Iowa 2010). We review ineffective-assistance-of-counsel
claims de novo. State v. Albright, ___ N.W.2d ___,
___, 2019 WL 1302384, at *4 (Iowa 2019). Gomez "must
establish by a preponderance of the evidence that '(1)
his trial counsel failed to perform an essential duty, and
(2) this failure resulted in prejudice.'" State
v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting
State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017));
accord Strickland v. Washington, 466 U.S. 668, 687
(1984). We "may consider either the prejudice prong or
breach of duty first, and failure to find either one will
preclude relief." State v. McNeal, 897 N.W.2d
697, 703 (Iowa 2017) (quoting State v. Lopez, 872
N.W.2d 159, 169 (Iowa 2015)).
Domestic abuse assault
argues his counsel was ineffective in failing to object to
the marshalling instructions for the two
domestic-abuse-assault charges. Gomez does not challenge his
attorney's competence in relation to the elementary
makeup of these instructions. Instead, he argues his counsel
was ineffective in failing to request an instruction
clarifying the final element of each charge, which provided,
"The act occurred between persons who are the parents of
the same minor child and/or a family member or intimate
partner residing with the defendant." Gomez argues his
counsel should have requested an instruction defining
"family or household members," which is statutorily
defined in relevant part as "persons cohabiting,"
see Iowa Code § 236.2(4)(a) (2017), in
accordance with our supreme court's decision in State
v. Kellogg, 542 N.W.2d 514, 516-18 (Iowa 1996). He
maintains that, without such an instruction, "the jury
was able to find domestic abuse based only on the fact that
Gomez and M.M. were residing in the same home."
State argues counsel's failure to request an instruction
did not result in prejudice. The State points out the
instruction did not use the phrase "household
members," see Iowa Code § 236.2(2)(a),
which the State concedes would be "ambiguous under these
circumstances." However, the instruction did use the
phrase "family member," which the Iowa Code
dictates is synonymous with "household member."
See id. § 232.6(4)(a). Conceding that portion
of the instruction would be ambiguous, the State argues the
instructional term "intimate partner residing with the
defendant" "is much more definite and provided
proper guidance to the jury" and, in any event, the
"evidence of cohabitation . . . was overwhelming."
the language "intimate partner residing with the
defendant" contained in the instruction only apprised
the jury of the first of the six nonexclusive factors for
cohabitation under Kellogg. We therefore disagree with
the State that the language "provided proper guidance to
the jury," as it did not give the jury the opportunity
to consider all of the factors. That leaves us with the
concededly vague "family member"
language. We disagree with the State that the
evidence of cohabitation was "overwhelming" here.
Under the Kellogg factors, we find the evidence
rather underwhelming to support a finding of cohabitation;
or, at the very most, a toss-up. As such, we find an
instructional definition would have aided Gomez and,
consequently, counsel failed to perform an essential duty in
not requesting it. See State v. Virgil, 895 N.W.2d
873, 879-82 (Iowa 2017) (stating, among other things, "A
lawyer should be aware of the Kellogg factors and
the readily available definitional instruction").
to prejudice. A defendant establishes prejudice in the
ineffective-assistance-of-counsel context when he or she
shows "a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Krogmann v.
State, 914 N.W.2d 293, 313 (Iowa 2018) (quoting
Strickland, 466 U.S. at 694). Upon our de novo
review of the record, and given our finding that the evidence
concerning cohabitation was at most symmetrical, we find a
reasonable probability that, had the jury been instructed on
the Kellogg factors, the outcome of the verdicts on
the domestic-abuse-assault charges would have been different.
Cf. Virgil, 895 N.W.2d at 883. As such, we vacate
the sentences and reverse judgment and conviction on counts
three and four and remand for a new trial on those charges.
the willful-injury charge, the jury was instructed the State
must prove Gomez "specifically intended to cause a
serious injury to M.M." Gomez argues his counsel was
ineffective in failing to request an instruction defining
"serious injury." "Serious injury" is
statutorily defined, in relevant part, as any of the
(a) Disabling mental illness.
(b) Bodily injury which does any of the ...