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State v. Gomez

Court of Appeals of Iowa

April 17, 2019

STATE OF IOWA, Plaintiff-Appellee,
ANTHONY GOMEZ, Defendant-Appellant.

          Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, District Associate Judge.

         Anthony Gomez appeals several criminal convictions and the imposition of consecutive sentences.

          Mark C. Smith, State Appellate Defender (until withdrawal), and Bradley M. Bender, Assistant Appellate Defender, for appellant.

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

          Considered by Tabor, P.J., Bower, J., and Scott, S.J. [*]


         I. Background Facts and Proceedings

         Upon 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.

         M.M. 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[1] and laid down.

         Gomez 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.

         After 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 concussion.

         On 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.

         Gomez 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.[2] 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 concurrently.

         Gomez 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;[3] and (3) the court improperly failed to provide reasons for imposing consecutive sentences.

         II. Ineffective Assistance of Counsel

         We 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)).

         A. Jury Instructions

         1. Domestic abuse assault

         Gomez 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."

         The 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."

         However, 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.[4] 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.[5] 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.[6] 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").

         We turn 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.

         2. Willful injury

         As to 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 following:

(a) Disabling mental illness.
(b) Bodily injury which does any of the ...

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