State of Iowa v. Napoleon Mbonyunkiza ( 2016 )


Menu:
  •                     IN THE COURT OF APPEALS OF IOWA
    No. 14-1283
    Filed December 21, 2016
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    NAPOLEON MBONYUNKIZA,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Karen A. Romano,
    Judge.
    Napolean Mbonyunkiza appeals following his guilty pleas to sexual abuse
    in the third degree, neglect of a dependent person, dependent adult abuse, and
    failure to appear. AFFIRMED.
    Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,
    for appellant.
    Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant
    Attorney General, for appellee.
    Considered by Vaitheswaran, P.J., McDonald, J., and Mahan, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
    2
    MAHAN, Senior Judge.
    Napolean Mbonyunkiza appeals following his guilty pleas to sexual abuse
    in the third degree, neglect of a dependent person, dependent adult abuse, and
    failure to appear. Mbonyunkiza contends (1) the district court erred in finding him
    competent to stand trial; (2) his trial counsel was ineffective in failing to challenge
    his plea as unknowing, involuntary, and uninformed, or without a factual basis;
    (3) his sentences violate double jeopardy and the merger rule; and (4) the district
    court abused its discretion in sentencing him. We affirm.
    I.        Background Facts and Proceedings
    D.B., a mentally and physically incapacitated woman living at a Des
    Moines-area group home, was treated at Mercy Hospital for weight loss, gagging,
    and digestive issues. It was discovered D.B. was twenty weeks pregnant. The
    pregnancy was terminated per the direction of D.B.’s guardian. Police sought
    DNA samples of all males with access to D.B., including Mbonyunkiza, a
    caretaker for D.B. at the group home. While paternity testing could exclude
    99.9% of the male population, it could not exclude Mbonyunkiza as the fetus’
    father.
    In July 2010, the State filed a trial information (FECR237656) charging
    Mbonyunkiza with sexual abuse in the third degree, neglect of a dependent
    person, and dependent adult abuse. Mbonyunkiza was arrested, a preliminary
    hearing was scheduled, and he was released.            After Mbonyunkiza failed to
    appear for his preliminary hearing, police discovered he had fled to Uganda. The
    State then filed a trial information (FECR238083) charging Mbonyunkiza with
    failure to appear.
    3
    Mbonyunkiza subsequently returned to the United States and was taken
    into custody to face the pending charges. The issue of competency was raised
    by defense counsel, and the district court ordered Mbonyunkiza to be evaluated
    by Dr. Tracy Thomas. The State moved for a separate evaluation, and the court
    ordered Mbonyunkiza to be evaluated by Dr. James Dennert.                Both experts
    opined Mbonyunkiza was competent to stand trial.         Following a competency
    hearing, the court concluded Mbonyunkiza was competent to stand trial.
    Mbonyunkiza subsequently pled guilty as charged to each count.
    Mbonyunkiza’s attorney informed the court Mbonyunkiza intended to argue for a
    favorable sentence. The court accepted Mbonyunkiza’s pleas and sentenced
    him to the maximum terms of imprisonment—ten years on two counts and five
    years on two counts—to run consecutively, for a total of thirty years.
    Mbonyunkiza appeals. Additional facts will be set forth below as relevant
    to the issues raised on appeal.
    II.   Competency
    Mbonyunkiza challenges the district court’s finding that he was competent
    to stand trial. Mbonyunkiza contends his alleged incompetence to stand trial
    implicates his due process rights.     “[T]he constitutional basis of a claim the
    defendant is not competent to be tried requires a de novo review on appeal.”
    See State v. Johnson, 
    784 N.W.2d 192
    , 194 (Iowa 2010).
    Competency to stand trial is governed by Iowa Code section 812.3 (2015),
    which provides:
    If at any stage of a criminal proceeding the defendant or the
    defendant’s attorney, upon application to the court, alleges specific
    facts showing that the defendant is suffering from a mental disorder
    4
    which prevents the defendant from appreciating the charge,
    understanding the proceedings, or assisting effectively in the
    defense, the court shall suspend further proceedings and determine
    if probable cause exists to sustain the allegations. The applicant
    has the burden of establishing probable cause.
    “We presume a defendant is competent to stand trial. The defendant has the
    burden of proving his or her incompetency to stand trial by a preponderance of
    the evidence. If the evidence is in equipoise, the presumption of competency
    prevails.” 
    Id. at 194
     (citation omitted).
    In September 2013, defense counsel and Mbonyunkiza requested a
    competency evaluation pursuant to section 812.3.         Defense counsel became
    concerned     about    Mbonyunkiza’s        competence   after   discussions   with
    Mbonyunkiza. Mbonyunkiza reported he heard voices, someone cast “spells” on
    him, and “sorcery” caused him to do bad things. Mbonyunkiza related that he
    grew up in Rwanda, where he witnessed brutal murders of his family members.
    He had been treated for posttraumatic stress and depression.
    The district court granted the request for a competency evaluation. The
    defense’s evaluator, Dr. Tracy Thomas, submitted an initial report in October
    2013, stating “a definitive opinion [as to Mbonyunkiza’s competence] could not be
    made due to lack of information.” During that hearing, the State requested a
    second evaluation, and the court granted the request.
    The State’s evaluator, Dr. James Dennert, conducted an interview of
    Mbonyunkiza and reviewed the trial information, minutes of testimony, and Dr.
    Thomas’ October 2013 report.        Dr. Dennert’s December 16, 2013 evaluation
    opined:
    5
    On the basis of the information provided to me, and my
    interview of Mr. Mbonyunkiza, it is my medical opinion that he does
    not suffer a mental illness that renders him incompetent to stand
    trial. Specifically, he does not suffer a mental illness that prevents
    him from understanding the charges against him, or that prevents
    him from being able to understand the court proceedings, or that
    prevents him from assisting his attorney in his defense.
    While Mr. Mbonyunkiza said that he did not know or
    understand the charges against him, he seemed to understand
    quite well when I told him, in general, what he was accused of. He
    denied that he had done what he is charged with, and maintained
    his denial throughout our interview. He also indicated that he was
    trying to learn about how trials work, and that the major impediment
    to his current understanding is his poor English. He even said that,
    if he could have the trial explained to him in French that this would
    help “absolutely.”
    Mr. Mbonyunkiza’s claimed lack of memory for his trip to
    Uganda and subsequent return to the United States is not
    consistent with any known psychiatric or neurological syndrome.
    He is able to provide very good history for other aspects of his life.
    It is my opinion that Mr. Mbonyunkiza does, in fact, recall going to
    Uganda, but that he is falsely claiming not to recall. His lack of
    memory is clearly self-serving.
    It is also my opinion that Mr. Mbonyunkiza’s reports of
    hearing “voices” are self-serving as well. During my interview, he at
    no time appeared to be attending to inner stimuli. I am unaware of
    any reports of his behavior while in jail that would suggest psychotic
    symptoms. I am unaware of any history of psychosis in Mr.
    Mbonyunkiza; his reported treatment in Rwanda and Uganda
    appear to be for depression, or possibly posttraumatic stress, but
    not psychosis.
    Mr. Mbonyunkiza does report current symptoms of a
    depressive nature. He complains of sleep problems, appetite
    disturbance, and decreased energy. He was also tearful at times
    during our interview. These symptoms are not surprising in
    someone jailed for the crimes that Mr. Mbonyunkiza is accused of
    committing. Taken together, they are consistent with a diagnosis of
    Adjustment Disorder with Depressed Mood.
    On the basis of all the information provided to me and my
    interview with Mr. Mbonyunkiza, it is my medical opinion that he is
    competent to stand trial. He does not suffer any psychiatric or
    mental illness that renders him incompetent. The only potential
    obstacle to his participation in his trial is language, and that can be
    addressed by providing him with a French interpreter, who could
    explain the charges, the basic workings of the court system, and
    provide ongoing interpretation during trial.
    6
    After Dr. Dennert’s report was submitted—and after conducting another
    interview of Mbonyunkiza and reviewing additional materials—Dr. Thomas
    submitted an “update[d]” report opining Mbonyunkiza was competent to stand
    trial. Dr. Thomas’ January 17, 2014 evaluation opined:
    Based on the information available to this evaluator and on
    the two interviews conducted with the defendant, this evaluator was
    not able to find conclusive evidence of a mental disorder that would
    preclude the defendant from appreciating his charges,
    understanding the proceedings against him, or assisting in his
    defense. Although he reported at first interview a history of mental
    health problems, his report of those issues has not been consistent
    and available records do not show that he has ever been observed
    to have a major mental illness that would be expected to impact
    competence. Further, his presentation during interviews with this
    evaluator was not consistent with a major mental illness, such as a
    bipolar disorder or a psychotic disorder. Mr. Mbonyunkiza may
    have [posttraumatic stress disorder] PTSD from experiences in
    Africa and may have an Adjustment Disorder related to his current
    situation.    However, these conditions would not typically be
    expected to impact an individual’s competence to proceed.
    The fact that the defendant does not present with a requisite
    mental disorder makes further analysis of his competence-related
    abilities moot; however, this evaluator would like to briefly comment
    on the issue of psycho-legal abilities. Mr. Mbooyunkiza does report
    a fairly significant lack of understanding of his charges, the legal
    process, and the role of his attorney. It is this evaluator’s opinion
    that those deficits are a product of cultural and language issues. It
    is also possible that the defendant is magnifying his lack of
    knowledge due to fear regarding his charges and the impending
    legal process. He is likely to need some education on the legal
    system and will likely require the continued use of an interpreter.
    Taken together, it is this evaluator’s opinion the defendant is
    competent to proceed with his current charges.
    The experts’ reports were introduced at a second hearing, where the
    district court ruled: “The court has had an opportunity to review all of the
    evaluations that have been presented.        The court finds based upon those
    evaluations and the expert opinions that the defendant in this matter is
    competent to stand trial.”
    7
    On appeal, Mbonyunkiza points to Dr. Thomas’ initial report as “the first
    professional indication[] . . . that it was possible [he] was incompetent.” But
    Mbonyunkiza ignores the fact that Dr. Thomas subsequently updated the initial
    report to reach an opinion Mbonyunkiza was competent to stand trial stating,
    “Since the time of the October 2013 report, this evaluator was able to review
    additional information and re-interview the defendant making possible the
    formation of an opinion regarding competence.” Moreover, by the time of Dr.
    Thomas’ updated evaluation, Dr. Thomas had conducted two interviews with
    Mbonyunkiza and reviewed Mbonyunkiza’s medical and jail records.
    Mbonyunkiza further claims, “The exhibits demonstrated that there was a
    language barrier, as well as serious concerns about Mbonyunkiza’s mental
    health.” According to Mbonyunkiza, “A general theme came through the written
    materials, and the statements made by Mbonyunkiza on the record—that he was
    suffering from voices, that he was suffering from the effects of genocide, and he
    believed he was under a voodoo spell from a witch.”
    In addition to reviewing the experts’ reports, the district court had the
    opportunity to observe Mbonyunkiza at several hearings before making a
    determination of his competence.        Although Mbonyunkiza did not testify, the
    court was able to view Mbonyunkiza’s demeanor, as well as his ability to ask and
    answer questions and interact with counsel. Upon our de novo review of the
    record, we conclude Mbonyunkiza failed to prove by a preponderance of the
    evidence that he was not competent to stand trial. Accordingly, we affirm the
    decision of the district court on this issue.
    8
    III.   Ineffective Assistance of Counsel
    Mbonyunkiza contends his trial counsel was ineffective in failing to
    challenge his plea where (A) there was no factual basis to support his conviction
    for dependent adult abuse; (B) the plea was not intelligent, knowing, or voluntary
    due to his lack of competence; and (C) there was no plea agreement. 1                     To
    succeed on these ineffective-assistance-of-counsel claims, Mbonyunkiza must
    show (1) the breach of an essential duty and (2) prejudice.                   Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984). “If we conclude a claimant has failed to
    establish either of these elements, we need not address the remaining element.”
    Dempsey v. State, 
    860 N.W.2d 860
    , 868 (Iowa 2015).
    A.      Factual Basis–Dependent Adult Abuse
    A guilty plea may not be accepted by a court without the court first
    determining the plea has a factual basis. Iowa R. Crim. P. 2.8(2)(b). If there is
    no factual basis to support a defendant’s guilty plea and the defendant’s counsel
    permits the defendant “to plead guilty and waive his right to file a motion in arrest
    of judgment” anyway, that counselor renders the defendant ineffective
    assistance. See State v. Ortiz, 
    789 N.W.2d 761
    , 764-65 (Iowa 2010) (stating
    “counsel violates an essential duty” and “[p]rejudice is presumed under these
    circumstances”). To succeed on the essential-duty prong, Mbonyunkiza must
    1
    Generally, a defendant’s failure to file a motion in arrest of judgment bars a direct
    appeal of the conviction. Iowa R. Crim. P. 2.24(3)(a). But this failure does not bar a
    challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from
    ineffective assistance of counsel. State v. Rodriguez, 
    804 N.W.2d 844
    , 848 (Iowa 2011).
    We therefore proceed to the merits of Mbonyunkiza’s ineffective-assistance-of-counsel
    claims.
    9
    demonstrate the record lacks a factual basis to support his guilty plea to
    dependent adult abuse. See id. at 765.
    Mbonyunkiza pled guilty to dependent adult abuse causing physical injury,
    in violation of Iowa Code sections 235B.2(5)(a)(1)(b) and 235B.20(4).
    “‘Dependent adult abuse’ means . . . [a]ny of the following as a result of the willful
    or negligent acts or omissions of a caretaker: . . . [t]he commission of a sexual
    offense . . . with or against a dependent adult.” Iowa Code § 235B.2(5)(a)(1)(b).
    “A caretaker who intentionally commits dependent adult abuse on a dependent
    adult in violation of this chapter is guilty of a class ‘C’ felony if the intentional
    dependent adult abuse results in physical injury.” Id. § 235B.20(4) (emphasis
    added).
    Mbonyunkiza challenges the “physical injury” element of the offense.
    Specifically, he claims D.B.’s pregnancy and related sickness from the pregnancy
    was not a “physical injury,” and the court “should not read pregnancy into a
    definition of ‘physical injury’ without clear language from the legislature that
    pregnancy is considered a ‘physical injury.’”        Mbonyunkiza relies on United
    States v. Yankton, 
    986 F.2d 1225
    , 1229-30 (8th Cir. 1993), where the court
    concluded pregnancy resulting from rape did not constitute a “serious bodily
    injury.”     But as the State points out, the court in Yankton was interpreting
    sentencing guidelines, which allowed for an elevated offense level for
    “permanent or life-threatening injury” or “serious bodily injury,” not physical injury.
    See Yankton, 
    986 F.2d at 1229
    . Indeed, Mbonyunkiza pled guilty to dependent
    adult abuse resulting physical injury—not resulting in serious injury. Compare
    Iowa Code § 235B.20(2) (defining dependent adult abuse resulting in serious
    10
    injury), with id. § 235B.20(4) (defining dependent adult abuse resulting in
    physical injury); see also id. §§ 235B.2(13) (“‘Serious injury’ means the same as
    defined in section 702.18.”); 702.18 (defining “serious injury”).         The State
    counters, “A better, common-sense view holds that pregnancy resulting from
    rape meets not only the lower threshold of ‘physical injury’ but definitions of ‘great
    bodily injury.’”
    We need not reach the question of whether pregnancy should be
    considered a physical injury per se. The parties acknowledge “physical injury” is
    not defined in the Iowa Code.       According to Black’s Law Dictionary, “bodily
    injury”—also termed “physical injury”—is defined as “physical damage to a
    person’s body.” Black’s Law Dictionary 789 (7th ed. 1999).
    Here, the record shows D.B. was a “wheel chair bound” woman “unable to
    speak works or write” and “suffer[ing] from physical incapacitation as well as a
    mental defect or incapacity.” While caring for D.B. as part of his employment
    duties at the group home where D.B. resided, Mbonyunkiza forcibly sexually
    assaulted D.B. The Iowa Supreme Court has “recognize[d] that forcible sexual
    abuse will frequently cause pain or other injury. It has been held, for example,
    that forcible rape is bodily injury as a matter of law.” State v. McKee, 
    312 N.W.2d 907
    , 914 (Iowa 1981) (citation omitted). In addition to the act of sexual assault
    itself, Mbonyunkiza’s assault caused D.B. to become pregnant and hospitalized
    for weight loss, gagging, and digestive problems; D.B.’s pregnancy culminated in
    an abortion at twenty-weeks’ gestation.       The record supports a finding of a
    physical injury. Accordingly, we conclude the minutes provide a factual basis for
    11
    Mbonyunkiza’s plea, and trial counsel was not ineffective for permitting him to
    plead guilty.
    B.       Unknowing, Involuntary, Uninformed Plea
    Mbonyunkiza next contends his counsel was ineffective in failing to
    challenge his “clear incompetency” and allowing him to plead guilty.
    Mbonyunkiza points to statements he made during the hearings that showed
    “issues with [his] ability to understand the guilty plea he was entering.”
    At the outset of the plea hearing, trial counsel stated:
    I set these two cases for guilty pleas. That was done at the request
    of my client. He informed me that he wishes to plead guilty to these
    charges and have this matter set down for sentencing. And at the
    time of sentencing, we intend to argue for a favorable disposition
    for this defendant.
    But prior to the plea colloquy, Mbonyunkiza told the court, “[W]hat I want is
    with complete awareness of the mental illness that I have that is bothering me so
    much.” He stated, “[B]efore making a decision, in order to make a decision, [I]
    ask for more time because I’m taking these medications and I was for my mental
    health to be quite okay so that it would be adequate for making this kind of
    decision.” Mbonyunkiza further stated he did not understand “a lot of things” the
    court had talked about.       The court responded, “It appears to me you’ve
    understood all of my questions,” and reminded Mbonyunkiza, “Sir, you have
    undergone a competency evaluation during the pendency of this case and you
    have been found competent to stand trial.”
    Defense counsel then explained her investigation of possible defenses on
    Mbonyunkiza’s behalf:
    12
    So what I did was discuss this case with this defendant as well as
    an expert that I consulted with regarding the defenses such as
    diminished responsibility, diminished capacity, any mental health
    defenses.
    I also obtained medical records regarding this defendant and
    it provided some history. The information I obtained from my
    various sources, in my opinion, would not be able to support a
    diminished responsibility, diminished capacity or any such mental
    health defenses that would have been—that this defendant would
    have been suffering from at the time the alleged offenses occurred.
    The court observed defense counsel was “capable and competent” in her
    investigation of Mbonyunkiza’s mental health and possible defenses.
    After more discussion by Mbonyunkiza with regard to his mental health,
    the court asked Mbonyunkiza if he wanted to enter a plea or whether he wanted
    the matter set for trial. Mbonyunkiza stated, “I would first like to discuss that with
    my lawyer to make a decision.” The court allowed Mbonyunkiza twenty minutes
    in private with counsel.       When the hearing resumed, the court asked
    Mbonyunkiza, “Do you wish to enter a plea of guilty today or do you want me to
    confirm this for trial?” to which Mbonyunkiza answered, “I understand. Yes. I
    want to take—I want to plead guilty today.”
    On our de novo review, we cannot find counsel was ineffective in failing to
    challenge Mbonyunkiza’s plea as unknowing, involuntary, or uninformed. We
    further observe trial counsel was the one who raised the issue of competence
    initially, and she requested a competency evaluation.         As noted above, the
    experts agreed Mbonyunkiza was competent to stand trial. Moreover, in the plea
    context, the prejudice element requires proof of a reasonable probability that, but
    for counsel’s errors, the defendant would not have pled guilty and would have
    insisted on going to trial. State v. Straw, 
    709 N.W.2d 128
    , 138 (Iowa 2006). On
    13
    our de novo review, we are convinced Mbonyunkiza cannot establish either
    element of his claim. We affirm on this issue.
    C.      Plea Agreement
    Mbonyunkiza contends his counsel was ineffective in allowing him to
    plead guilty without a plea agreement. Mbonyunkiza cites no authority for this
    assertion, only a generalized claim that he received “no benefit whatsoever” to
    pleading guilty. It is apparent from the record Mbonyunkiza decided to plead
    guilty and “argue for a favorable” sentence. At the outset of the plea hearing, the
    State acknowledged, “[I]t’s my understanding that the defendant will plead to all
    of these charges. There is not a plea agreement so the parties will be free to
    argue any disposition.”
    Mbonyunkiza’s decision to plead guilty could be considered both strategic
    and logical.   The evidence against him was overwhelming.          By “accept[ing]
    responsibility” for his actions, Mbonyunkiza was able to express remorse to the
    court, describe his “mental illness” as the reason he made a “poor decision,” and
    ask the court to consider his act “a single incident” for sentencing purposes. Trial
    counsel was not ineffective in allowing Mbonyunkiza to plead guilty under these
    circumstances. We affirm on this issue.
    IV.    Double Jeopardy and Merger
    Mbonyunkiza contends he “was accused of having sex one time with one
    victim who was mentally incapable of giving consent,” and “he was charged with
    sex abuse in the third degree, neglect of a dependent person and dependent
    14
    adult abuse, and given consecutive sentences.”2 According to Mbonyunkiza,
    “This violated [his] rights under Iowa statutory law for a violation of the merger
    rule in Iowa Rule of Criminal Procedure 2.6(1), and the double jeopardy clause of
    the Fifth Amendment to the United States Constitution.”
    Our review of a double-jeopardy claim is de novo, due to its constitutional
    nature.     State v. Lindell, 
    828 N.W.2d 1
    , 4 (Iowa 2013).               To the extent
    Mbonyunkiza claims his sentence was illegal because the court failed to merge
    the three offenses (in accordance with Iowa Code section 701.9), our review is at
    law. See State v. Perez, 
    563 N.W.2d 625
    , 627 (Iowa 1997); see also 
    Iowa Code § 701.9
     (“No person shall be convicted of a public offense which is necessarily
    included in another public offense of which the person is convicted. If the jury
    returns a verdict of guilty of more than one offense and such verdict conflicts with
    this section, the court shall enter judgment of guilty of the greater of the offenses
    only.”); Iowa R. Crim. P. 2.6(2) (“Upon prosecution for a public offense, the
    defendant may be convicted of either the public offense charged or an included
    offense, but not both.”).
    The Double Jeopardy Clause of the United States Constitution states that
    no person shall “be subject for the same offense to be twice put in jeopardy of life
    or limb.”    U.S. Const. amend. V.        The clause “protects against successive
    2
    The State challenges Mbonyunkiza’s error preservation, noting, “Parties cannot
    ‘predicate error upon the court’s doing the very thing they requested the court to do.’”
    State v. Means, No. 14-1376, 
    2015 WL 6509741
    , at *9 (Iowa Ct. App. Oct. 28, 2015)
    (citation omitted). But here, at sentencing, trial counsel requested the court “to run the
    counts in . . . the sex abuse case . . . concurrent” due to the “single nature of this
    incident.” Trial counsel acknowledged “it makes sense” to run the sentence for failure to
    appear consecutive because “that’s a separate charge, separate incident.” We therefore
    disagree with the State’s contention Mbonyunkiza is now challenging the court’s action
    in doing what he requested the court do.
    15
    prosecutions after acquittal or conviction; and, pertinent to this appeal, it protects
    against multiple punishments for the same offense.” Perez, 
    563 N.W.2d at 627
    .
    The prohibition is based on principles of finality and the prevention of
    prosecutorial overreaching. State v. Butler, 
    505 N.W.2d 806
    , 807 (Iowa 1993).
    Where multiple punishments are imposed pursuant to a single
    prosecution, however, application of the Double Jeopardy Clause is limited. The
    reason is that the multiple-punishment proscription “does no more than prevent
    the sentencing court from prescribing greater punishment than the legislature
    intended.”   Missouri v. Hunter, 
    459 U.S. 359
    , 366 (1983).           Accordingly, “the
    question of what punishments are constitutionally permissible is no different from
    the question of what punishments the legislature intended to be imposed.” State
    v. McKettrick, 
    480 N.W.2d 52
    , 57 (Iowa 1992).
    The question before us is whether Mbonyunkiza, found to have committed
    the single act of sexual assault on D.B., can be sentenced for convictions of
    sexual abuse in the third degree,3 neglect of a dependent person,4 and
    3
    Relevant to Mbonyunkiza’s plea on this charge, Iowa Code section 709.1 provides:
    Any sex act between persons is sexual abuse by either of the
    persons when the act is performed with the other person in any of the
    following circumstances:
    ....
    2. Such other person is suffering from a mental defect or
    incapacity which precludes giving consent, or lacks the mental capacity to
    know the right and wrong of conduct in sexual matters.
    With regard to the factual basis for the degree of the charge to which Mbonyunkiza pled,
    “[a] person commits sexual abuse in the third degree when the person performs a sex
    act [and t]he act is between persons who are not at the time cohabiting as husband and
    wife and [t]he other person is suffering from a mental defect or incapacity which
    precludes giving consent.” 
    Iowa Code § 709.4
    (1)(b)(2).
    4
    The crime of neglect of a dependent person is defined as follows:
    A person . . . having custody of a . . . person who by reason of
    mental or physical disability is not able to care for the person’s self, who
    knowingly or recklessly exposes such person to a hazard or danger
    16
    dependent adult abuse.5         In the absence of clear legislative intent to intend
    cumulative punishment, we turn to the rule of statutory construction articulated in
    Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932). Namely, “‘where the
    same act or transaction constitutes a violation of two distinct statutory provisions,
    the test to be applied to determine whether there are two offenses or only one, is
    whether each provision requires proof of an additional fact which the other does
    not.’” Butler, 
    505 N.W.2d at 807
     (quoting Blockburger, 284 U.S. at 304). “If one
    crime is a lesser included offense of the other crime, the offenses are the ‘same’
    and cumulative punishments cannot be imposed.” State v. Taylor, 
    596 N.W.2d 55
    , 57 (Iowa 1999).
    But if one offense is not included within the other, there is a
    presumption that multiple punishments can be assessed. The
    lesser included offense is necessarily included in the greater
    offense if it is impossible to commit the greater offense without also
    committing the lesser offense. If the lesser offense includes an
    element that is not required for the greater offense, the lesser is not
    included in the greater.
    against which such person cannot reasonably be expected to protect
    such person’s self . . . , knowing or having reason to believe that the
    person will be exposed to such hazard or danger, commits a class “C”
    felony.
    
    Iowa Code § 726.3
    .
    5
    The crime of dependent adult abuse is defined as: “Any of the following as a result of
    the willful or negligent acts or omissions of a caretaker: . . . . The commission of a
    sexual offense under chapter 709 or section 726.2 with or against a dependent adult.”
    Iowa Code § 235B.2(5)(a)(1)(b). “Caretaker” is defined as “a related or nonrelated
    person who has the responsibility for the protection, care, or custody of a dependent
    adult as a result of assuming the responsibility voluntarily, by contract, through
    employment, or by order of the court.” Id. § 235B.2(1). “Dependent adult” is defined as
    “a person eighteen years of age or older who is unable to protect the person’s own
    interests or unable to adequately perform or obtain services necessary to meet essential
    human needs, as a result of a physical or mental condition which requires assistance
    from another, or as defined by departmental rule.” Id. § 235B.2(4). Section 235B.20(4)
    further provides: “A caretaker who intentionally commits dependent adult abuse on a
    dependent adult in violation of this chapter is guilty of a class ‘C’ felony if the intentional
    dependent adult abuse results in physical injury.”
    17
    Id. (citations omitted); see also State v. Miller, 
    841 N.W.2d 583
    , 587-88 (Iowa
    2014) (“The test we have settled on to determine whether a crime is a lesser
    included offense of a greater crime generally inquires ‘whether the greater
    offense cannot be committed without also committing all elements of the lesser
    offense.’” (citation omitted)).
    Mbonyunkiza contends sexual abuse in the third degree is a lesser-
    included offense of neglect of a dependent person and dependent adult abuse.
    Because it is possible to commit neglect of a dependent person without
    committing sexual abuse in the third degree and to commit dependent adult
    abuse without committing sexual abuse in the third degree, Mbonyunkiza’s
    challenge fails. For instance, it is possible to commit neglect of a dependent
    person without committing the other two offenses if the perpetrator is the victim’s
    husband and the victim is under eighteen years of age or does not suffer an
    injury. It is possible to commit dependent adult abuse but not the other two
    offenses if the perpetrator is married to the adult victim but while she has the
    capacity to consent to sex she cannot perform certain physical or financial tasks
    for herself. Because it is possible to commit one offense without committing the
    other, Mbonyunkiza’s challenge fails.
    V.     Sentencing
    Mbonyunkiza also challenges the district court’s imposition of “the
    maximum possible sentence of 30 years in prison.” Specifically, Mbonyunkiza
    claims because three of the four counts were “all for one act,” the court should
    have imposed concurrent sentences for those counts rather than consecutive
    18
    sentences. Our review is for an abuse of discretion. State v. Thompson, 
    856 N.W.2d 915
    , 918 (Iowa 2014).
    We have already concluded in our analysis of Mbonyunkiza’s double
    jeopardy and merger claims that there were separate offenses.             Imposing
    consecutive sentences on multiple convictions arising from the same transaction
    is within the prerogative of the sentencing court.     See State v. Criswell, 
    242 N.W.2d 259
    , 261 (Iowa 1976) (“Iowa statutes allow imposition of consecutive
    sentences for convictions obtained under the circumstances presented [separate
    offenses committed in the course of a single transaction].”); see also Taylor, 
    596 N.W.2d at 57
        (“The   decision   to    impose   consecutive   sentences was
    discretionary.”). Here, in sentencing Mbonyunkiza, the district court stated:
    I appreciate your acceptance of responsibility by your pleas
    of guilty and by the statements you’ve made. But with responsibility
    comes accountability, and we are accountable for our actions. The
    problems afflicting you are serious. I understand that from what
    you’ve said and the presentence investigation report, but I believe
    the problems that you suffer from and afflictions that you may have
    can best be treated in an atmosphere that allows for the maximum
    protection of the public from further criminal activity by you.
    The offenses of sex abuse in the third degree, neglect of a
    dependent person, dependent adult abuse all are horrible offenses.
    They not only show a massive deviation from proper and decent
    human behavior, but an utter disregard for a person you are
    charged with caring for.
    This design and devious abuse of a person totally unable to
    care for herself and a person especially defenseless against the
    sexual assault perpetrated upon her is particularly heinous.
    In addition, your voluntary absence and flight from this
    jurisdiction illustrates your contempt for the law. Your actions taken
    together with all of the factors the Court must consider by law lends
    itself to the conclusion that society deserves and expects protection
    from you for as long as possible to allow necessary steps, if you are
    willing, for your treatment for whatever you are suffering from or
    what afflictions you have.
    You, as much as anyone, have observed and endured first-
    hand terrible cruelty that can come from the hands of humans.
    19
    You, more than anyone, should appreciate the pain and suffering
    not only the victims of such cruelty or such abuse and heinous
    crimes, but also what happens to those who are the loved ones
    who are left to weep and suffer and mourn.
    You came to the United States to seek asylum and enjoy the
    freedoms and protection of our laws, our people and the
    government of the people. And even though this was all provided
    to you, the acts you have committed have caused that freedom now
    to be limited, soon to be taken away.
    Mbonyunkiza again requested the court order his sentences to run
    concurrent, to which the court responded:
    The Court has considered the request made by the
    defendant and defendant’s counsel. The request is hereby denied.
    For the reasons as previously stated, the Court finds, again, these
    crimes are so horrible and heinous as to require protection of the
    public, and the Court intends to do just that.
    ....
    The Court, again, has considered all the circumstances and
    all the factors involved. Particularly aggravating is the fact that this
    offense was committed upon a person who was totally defenseless,
    totally unable to give consent, let alone to fend off the actions of the
    defendant, and that this defendant, as you stated, came to the
    United States to seek asylum, to seek a new life for himself, to seek
    freedom, to be protected from the genocide he escaped from and
    yet decided, for whatever reason, to commit this heinous offense—
    offenses.
    I can’t think of another case or set of circumstances that
    could require the sentence imposed as I have done so than this.
    We discern no abuse of discretion in the district court’s statement of
    reasons and imposition of consecutive sentences.         We affirm Mbonyunkiza’s
    convictions and sentences for sexual abuse in the third degree, neglect of a
    dependent person, dependent adult abuse, and failure to appear.
    AFFIRMED.