State of Iowa v. Christopher Lakeith McAfee ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0268
Filed April 16, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRISTOPHER LAKEITH MCAFEE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
District Associate Judge.
A defendant appeals his conviction challenging the sufficiency of the
evidence and the effectiveness of counsel’s representation. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Michael J. Walton, County Attorney, and Melisa Zaehringer, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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VOGEL, P.J.
Christopher McAfee appeals his conviction for invasion of privacy—nudity
and simple assault. He asserts there is insufficient evidence to support his
conviction because there was no evidence he recorded the video of the victim for
the purpose of sexual arousal or gratification and the victim did not have a
reasonable expectation of privacy. He claims there was insufficient evidence he
had the specific intent to cause pain or injury to the victim or to offend or insult
her. Finally, he also asserts his attorney rendered ineffective assistance in failing
to object to the trial court’s failure to read its verdict in his presence. Because we
find sufficient evidence to sustain the convictions and the trial court subsequently
cured the error of not announcing its verdict in McAfee’s presence, we affirm his
convictions.
I. Background Facts and Proceedings.
After a night of drinking, McAfee returned to his home with his girlfriend,
his girlfriend’s roommate—the victim, and a friend of the victim. All were
drinking, and all but the victim were using cocaine. The victim awoke the next
morning and found she was not wearing her pants or underwear. She did not
recall what happened the night before, but about a month later, her boyfriend
received photos and a video that were taken of her that night. She was
embarrassed and humiliated, and contacted the police. McAfee admitted to
taking the video in which the victim is face down in the bed, unclothed from the
waist down, and does not move during the video. The trial court noted during the
video it appears the video operator said, “She shouldn’t be asleep.” The video
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also shows McAfee touching the victim in a sexual manner, and the victim did not
move in reaction to the touching.
McAfee waived a jury trial, and his case was tried to the bench on
December 14, 2012. The trial court filed its decision two weeks later finding
McAfee guilty of invasion of privacy—nudity, in violation of Iowa Code section
709.21 (2011), and simple assault, in violation of Iowa Code section 708.2(6).
The court sentenced McAfee on February 15, 2013, to one year in jail on the
invasion of privacy conviction and thirty days in jail on the simple assault, to be
served concurrently. The court imposed the special sentence under Iowa Code
section 903B.2, ordered McAfee to register as a sex offender, and imposed a
five-year no-contact order.
McAfee appeals.
II. Scope and Standard of Review.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). 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.’”
Id. (citation omitted).
“[W]e will uphold a verdict if substantial record evidence supports
it.” We will consider all the evidence presented, not just the
inculpatory evidence. Evidence is considered substantial if, when
viewed in the light most favorable to the State, it can convince a
rational jury that the defendant is guilty beyond a reasonable doubt.
Id. (internal citations omitted).
Our review of McAfee’s ineffective-assistance claim is de novo. See State
v. Velez, 829 N.W.2d 572, 576 (Iowa 2013). A defendant must prove by a
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preponderance of the evidence that (1) counsel failed to perform an essential
duty and (2) prejudice resulted from this failure. Id. If a defendant fails to prove
prejudice, we need not address whether the attorney failed to perform an
essential duty. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
III. Insufficient Evidence.
McAfee challenges the sufficiency of the evidence supporting both the
invasion of privacy conviction and the simple assault conviction.1 We will
address each challenge separately.
A. Invasion of Privacy. In order to sustain a conviction for invasion of
privacy—nudity, the State must prove the following elements:
1. A person who knowingly views, photographs, or films
another person, for the purpose of arousing or gratifying the sexual
desire of any person, commits invasion of privacy if all of the
following apply:
a. The other person does not have knowledge about and
does not consent or is unable to consent to being viewed,
photographed, or filmed.
b. The other person is in a state of full or partial nudity.
c. The other person has a reasonable expectation of privacy
while in a state of full or partial nudity.
Iowa Code § 709.21. McAfee first challenges the sufficiency of the evidence to
prove he took the video of the victim for the purpose of sexual arousal or
gratification. He claims instead the video was taken to settle a score with the
victim regarding a dispute over marijuana and to show her boyfriend she had
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While no motion for judgment of acquittal was filed by McAfee, his challenge to the
sufficiency of the evidence is preserved in light of the fact the case was tried to the court
and not to a jury. See State v. Petithory, 702 N.W.2d 854, 856 (Iowa 2005). However,
to the extent McAfee challenges the trial court’s failure to make specific findings on each
element of the offenses in its verdict, he was required to file motion for a new trial,
seeking to amend or enlarge, to preserve error. See State v. Miles, 346 N.W.2d 517,
519 (Iowa 1984). That was not done in this case, and McAfee alleges on appeal this
was due to counsel ineffectiveness. We will therefore address those claims through the
ineffective-assistance-of-counsel rubric.
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been unfaithful. The video evidence admitted at trial showed the victim
unclothed from the waist down, lying face down on the bed. The video showed
McAfee and McAfee’s girlfriend, who was nude, groping and spreading her
buttocks. The photographs admitted into evidence also show a naked McAfee
with his finger in the victim’s vagina. While the element of intent is rarely
provable by direct evidence, we find the evidence in this case sufficient to prove
the video was taken to arouse or gratify McAfee’s sexual desires. See State v.
Kirchner, 600 N.W.2d 330, 334 (Iowa 1999) (stating a defendant’s intent is
seldom capable of proof by direct evidence but the fact finder may determine
intent based on reasonable inferences and deductions drawn from the evidence
in accordance with common experiences and observation). The fact that McAfee
claims his purpose in later using the video was to show the victim’s boyfriend the
victim had been unfaithful or to settle a score does not detract from the evidence
that shows the video was taken to sexually arouse or gratify.
McAfee also asserts the victim had no reasonable expectation of privacy
as earlier in the evening she was partially undressed and engaging in sexual acts
with two other people. The victim testified she had no knowledge any videos
were being taken and she was embarrassed and humiliated when her boyfriend
later showed her the video and photographs. The fact she was in a partial state
of nudity before she passed out does not negate her expectation of privacy not to
be photographed or filmed while in that state. Her expectation of privacy was
only curtailed by the acts she consented to and she did not consent to being
photographed or video recorded. We therefore find sufficient evidence to support
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the conclusion that the victim had a reasonable expectation of privacy not to be
photographed or video recorded while in a partial state of nudity.
B. Simple Assault. Assault, as defined under the code, includes a
person doing an act without justification that is “intended to cause pain or injury
to, or which is intended to result in physical contact which will be insulting or
offensive to another, coupled with the apparent ability to execute the act.” See
Iowa Code § 708.1(2)(a). While it is described in the code as a “general intent
crime,” our supreme court has made it clear that the elements of the crime
require the State to prove the defendant had a specific intent. State v. Fountain,
786 N.W.2d 260, 265 (Iowa 2010).
McAfee claims the trial court applied an incorrect legal standard when it
stated the crime of assault was a general intent crime. He also asserts the
evidence does not support a finding that he had the specific intent to cause pain
or injury to the victim or intended his acts to result in contact that would have
been insulting or offensive. McAfee claims that if the victim was unconscious at
the time of the touching then she could not have been offended by his touching; if
the victim was conscious, as he maintains, then she never voiced her
displeasure and consented to the touching.
Because McAfee never challenged the court’s statement regarding the
intent necessary to sustain a conviction for assault through a motion for a new
trial or a motion to enlarge or amend, we will address this claim through an
ineffective-assistance-of-counsel rubric. If sufficient evidence supports the
conclusion that McAfee had the required specific intent, he cannot sustain the
prejudice prong of his ineffective-assistance claim.
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The victim testified that she was devastated, embarrassed, and humiliated
when she saw the photographs and the video. She stated the sexual contact
from McAfee was not something she acknowledged or agreed to. She found the
images offensive and did not in any way consent to the contact. She went on to
say she had never had intimate contact with McAfee in the past and any touching
McAfee would have done that night would have been offensive to her. We
conclude the record contains sufficient evidence of McAfee’s specific intent to
offend or insult the victim with his touching. The two had never been intimate
before, the victim was unconscious and unable to consent to the touching, and
once she was made aware of the contact, she was offended that it had occurred.
McAfee also admitted to sending the photographs and video to the victim’s
boyfriend to settle a score with the victim regarding a dispute over marijuana and
to show her unfaithfulness, which McAfee orchestrated through his sexual
contact. Purposefully using the photos and video in a malevolent manner only
underscores McAfee’s knowledge that the victim would be offended or insulted
by the acts he performed on the victim, which were captured on the video.
Because we find sufficient evidence to support McAfee’s specific intent, his
ineffective-assistance claim regarding his attorney’s failure to challenge the trial
court’s use of the incorrect legal standard with respect to his intent fails.
IV. Reading of the Verdict.
Finally, McAfee asserts it was error for the trial court to file its verdict
without first reading its decision in open court in his presence. He claims his
attorney rendered ineffective assistance in failing to challenge the district court’s
failure to read the verdict in his presence, which deprived him of the opportunity
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to immediately seek to enlarge the court’s findings of fact and conclusions at law.
The court’s ruling was filed December 27, 2012, and sentencing was held on
February 15, 2013.
Our supreme court has stated that the rules of criminal procedure require
a trial court to announce its verdict in open court and in the presence of the
defendant when a case is tried to the bench. See State v. Jones, 817 N.W.2d
11, 19 (Iowa 2012). The court in this case failed to reconvene the proceedings
and announce its verdict in McAfee’s presence. However, this error can be
cured if the court later reads the verdict in open court at a subsequent
proceeding such as at sentencing. Id. at 20. In this case, the court stated at
sentencing on the record, in open court, and in McAfee’s presence that it had
found McAfee “guilty of Invasion of Privacy, Nudity in violation of section 709.21
of the Code of Iowa as well as Simple Assault, in violation of 708.2(6) of the
Code of Iowa.” Because the trial court later cured the earlier error of failing to
render the verdict on the record in the presence of the defendant, McAfee is not
entitled to any further relief. See id.
V. Conclusion.
Having found sufficient evidence to support his convictions and found the
trial court cured its error in failing to initially read its verdict on the record in the
presence of the defendant, we affirm his convictions and sentence.
AFFIRMED.