State of Iowa v. Francisco M. Cardona

IN THE COURT OF APPEALS OF IOWA
No. 19-1047
Filed April 15, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
FRANCISCO M. CARDONA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
A man appeals from felony sexual abuse convictions. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.
Francisco Cardona appeals from two sexual abuse convictions. He argues
the witness testimony lacked detail and contained inconsistencies such that the
testimony was insufficient to support a conviction. He further contends he received
ineffective assistance of trial counsel due to counsel’s failure to make a motion for
a new trial or a motion in arrest of judgment based on the weight of the evidence
standard. We find substantial evidence to support the verdict, and we reject the
ineffective-assistance claim in light of the overwhelming evidence of Cardona’s
guilt.
I. Background Facts and Proceedings
Based on the record, a rational jury could find the following facts beyond a
reasonable doubt. Cardona frequently subjected N.C. to sexual abuse for a period
of several years prior to 2009. N.C. testified that the abuse began when she was
approximately nine years old. Cardona would fondle N.C. and digitally penetrate
her. Cardona attempted to have intercourse with N.C. and would use force to
prevent N.C. from crying out. Cardona would condition N.C.’s time with friends on
her participation in his sexually abusive acts. In 2009, N.C. told a friend Cardona
was doing bad things to her and she planned to commit suicide. The friend made
N.C. report the abuse. An investigation was undertaken but was ultimately closed
without charges being filed. L.C., N.C.’s sibling, was elementary-school age at the
time and did not supplement N.C.’s allegations when interviewed as part of the
investigation into N.C.’s allegations.
In May 2016, L.C. told school officials about abuse she suffered at
Cardona’s hands during the same period in which N.C. had been abused. L.C.
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testified that the abuse began when she was six years old. Cardona touched L.C.’s
genital area, digitally penetrated her, and had sexual intercourse with her. During
its duration, Cardona’s abuse of L.C. occurred at least every other day.
Following L.C.’s 2016 report, a second investigation ensued, resulting in the
issuance of a warrant for Cardona’s arrest. After he was apprehended in
September 2018, Cardona was charged with two counts of second-degree sexual
abuse, Class “B” felonies. The case proceeded to trial in April 2019. After the
State rested its case, the defense moved for a judgment of acquittal on both
counts, alleging there was insufficient evidence that the defendant committed a
sex act. The defense renewed this motion after the defense rested. Both motions
were denied. The defense did not move for a new trial or a make a motion in arrest
of judgment. Cardona timely appealed, arguing the evidence was insufficient to
support his convictions and that he received ineffective assistance of counsel due
to trial counsel’s failure to make a motion for a new trial or a motion in arrest of
judgment based on the weight of the evidence standard.
II. Standard of Review
We review ineffective-assistance-of-counsel claims de novo. State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). “[W]e review challenges to the
sufficiency of evidence for correction of errors at law.” State v. Dullard, 668 N.W.2d
585, 589 (Iowa 2003). “On a weight-of-the-evidence claim, appellate review is
limited to a review of the exercise of discretion by the trial court, not of the
underlying question of whether the verdict is against the weight of the evidence.”
State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). If a defendant makes a motion
for a new trial on the ground that the verdict is contrary to the weight of the
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evidence, we review the court’s ruling for abuse of discretion. State v. Neiderbach,
837 N.W.2d 180, 190 (Iowa 2013).
III. Discussion
a. Insufficiency of the Evidence
We disagree that the evidence is insufficient to support Cardona’s
convictions for second-degree sexual abuse. Challenges to the sufficiency of the
evidence are reviewed the correction of errors at law. State v. Keopasaeuth, 645
N.W.2d 637, 639–40 (Iowa 2002). We view “the evidence in the light most
favorable to the State, including all reasonable inferences that may be fairly drawn
from the evidence.” Id. at 640. “We uphold the verdict if there is substantial
evidence in the record supporting it.” Neiderbach, 837 N.W.2d at 216. “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.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).
L.C. testified that Cardona sexually abused her by touching her genital area
both over and under her clothes, by digitally penetrating her, forcing fellatio upon
her, and having sexual intercourse with her. N.C. testified that her abuse consisted
of Cardona groping and fondling her, digitally penetrating her, rubbing his penis on
her, and attempting to have sexual intercourse with her. Viewing this evidence in
the light most favorable to the State, we conclude the victims’ testimony is sufficient
to convince a rational jury that Cardona was guilty of the crimes charged beyond
a reasonable doubt.
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In arguing the evidence is insufficient to support his convictions, Cardona
relies on our decision in State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993).1
Smith involved sexual-abuse allegations by the defendant’s two step-daughters.
Based on the complaining witnesses’ self-contradictory statements, pervasive use
of hedging language, and inability to recall significant details of the incidents, we
found the evidence insufficient to support the defendant’s convictions. Id. at 103–
05. We determined the accounts were so inconsistent and self-contradictory that
the testimony lacked the probative value needed to support a guilty verdict. Id. at
104–05.
The Smith decision relied on a narrow doctrine developed by our supreme
court in Graham v. Chicago & Nw. Ry. Co., 119 N.W. 708 (Iowa 1909) and State
ex rel. Mochnick v. Andrioli, 249 N.W. 379 (Iowa 1933). Under this doctrine, the
court adopted a limitation on the general rule that “the jury is empowered to resolve
[evidentiary] conflicts in accordance with its own views as to the credibility of the
witnesses.” State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984). The limitation
applies only where “[t]he testimony of a witness may be so impossible and absurd
and self-contradictory that it should be deemed a nullity by the court.” Smith, 508
1 The State, in part, asks us to overrule Smith, arguing that Smith erroneously
limited the rule that credibility determinations are exclusively the province of
factfinders and that Smith denigrated the testimony of sexual abuse victims,
including by ignoring the phenomenon of victim grooming, requiring unrealistic
descriptions of sex acts from child victims, and crediting an absence of enduring
genital injury as more probative than a victim’s testimony. As will be discussed,
the inconsistencies raised in this appeal are of the kind commonly found in
prosecutions for child sex abuse, and they do not render the substance of the
testimony impossible, as we found was the case in Smith. Given the substantial
evidence of Cardona’s brazen actions, we leave for another day the question of
Smith’s continued salience.
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N.W.2d at 103 (quoting Graham, 119 N.W. at 615). We found application of the
doctrine appropriate in Smith; however, the use of this doctrine to vacate a
conviction “is exceedingly rare.” See State v. Hobbs, No. 12-0730, 2013 WL
988860, at *3 (Iowa Ct. App. Mar. 13, 2013). We decline Cardona’s invitation to
employ the impossibility doctrine found in Smith on these facts to vacate his
conviction.
Cardona notes a contradiction with respect to whether L.C. told her mother
of the abuse prior to reporting it at school; but whether L.C. told her mother of the
abuse is not an “operative fact” with respect to the charged crimes. See State v.
Mitchell, 568 N.W.2d 493, 503 (Iowa 1997) (“[The victim] was somewhat
inconsistent with her story about how she was abused by Mitchell, but she never
changed the operative fact that she and Mitchell had sexual intercourse.”); see
also State v. Thorndike, No. 13-1403, 2014 WL 3931873, at *1 (Iowa Ct. App.
Aug. 13, 2014) (“While there are some minor differences in the victims’ respective
accounts regarding details immaterial to the offense, the victims’ respective
testimony does not deviate on the operative facts.”). As we said in a factually
similar case, “given the amount and duration of abuse, it is hardly surprising that
the girls’ testimony would contain some minor inconsistencies.” See State v.
Davis, No. 02-0355, 2003 WL 21544491, at *2 (Iowa Ct. App. July 10, 2003).
Cardona also highlights that during the 2009 investigation N.C. told a
representative of the Iowa Department of Human Services that Cardona “only
touched her groin area over her clothing.” Given N.C.’s substantial detailed
testimony regarding the abuse at trial and her young age during the 2009
investigation, her prior partial disclosure can be considered the type of minor
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inconsistency in a sex abuse case that may be “attributable to her young age.”
See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); accord Thorndike, 2014
WL 3931873, at *1; In re J.M.S., No. 11-1307, 2012 WL 1612024, at *2 (Iowa Ct.
App. May 9, 2012); State v. Paulsen, No. 10-1287, 2011 WL 3925699, at *4 (Iowa
Ct. App. Sept. 8, 2011). N.C.’s failure to give full disclosure in 2009 is further
explained by Cardona’s threats to hurt N.C.’s mother if N.C. disclosed the abuse,
a threat N.C. took seriously in light of Cardona already having abused her mother
in N.C.’s presence.
Finally, Cardona asserts confusion at trial regarding the extent to which the
girls’ younger brother, I.C., witnessed the abuse. However, I.C.’s testimony was
not necessary to convict Cardona because a victim’s accusation need not be
corroborated. See Iowa R. Crim. P. 2.21(3) (“Corroboration of the testimony of
victims shall not be required.”); State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995)
(“The law has abandoned any notion that a rape victim’s accusation must be
corroborated.”). Regardless, I.C.’s testimony as a whole supported the conviction.
Disregarding the inquiry of whether or not I.C. saw the abuse occur, he testified to
having heard N.C. screaming for help during Cardona’s abuse, and Cardona takes
no issue with that testimony.
The Iowa Supreme Court “ha[s] said numerous times it is the province of
the jury to assess the credibility of witnesses.” State v. Hickman, 576 N.W.2d 364,
367 (Iowa 1998). “Based on all of this evidence, we see no need to depart from
our general rule of leaving the credibility of witnesses to the jury and allowing it to
resolve inconsistencies as it sees fit.” Mitchell, 568 N.W.2d at 504. We conclude
the evidence was sufficient for a rational jury to conclude, as the jury here did, that
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Cardona was guilty beyond a reasonable doubt of two counts of sexual abuse in
the second degree.
b. Ineffective Assistance of Counsel
Cardona claims he received ineffective assistance of counsel because his
trial counsel neglected to file either a motion in arrest of judgment or a motion for
a new trial based on a weight-of-the-evidence standard. We hold that the
overwhelming evidence of Cardona’s guilt precludes us from finding Cardona’s
trial counsel ineffective for failing to make such motions.
“[C]laims of ineffective assistance of counsel raised on direct appeal are
ordinarily reserved for postconviction proceedings to allow full development of the
facts surrounding counsel's conduct.” State v. Atley, 564 N.W.2d 817, 833 (Iowa
1997). “Only in rare cases will the trial record alone be sufficient to resolve the
claim.” Id. Because Cardona’s ineffective-assistance claim rests entirely on trial
counsel’s failure to file a motion in arrest of judgment or motion for a new trial on
a weight-of-the-evidence standard, we can resolve his claim on direct appeal, as
the evidence shows such a motion would have been meritless.
To prevail on an ineffective-assistance-of-counsel claim, a defendant “must
show by a preponderance of the evidence that his trial counsel failed to perform
an essential duty and prejudice resulted.” State v. Ondayogi, 722 N.W.2d 778,
784 (Iowa 2006). The claim will fail if the defendant “is unable to prove either
element of this test.” Id. When considering whether counsel breached an essential
duty, “we measure counsel’s performance against the standard of a reasonably
competent practitioner.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). We
ask whether the counsel has made such serious errors that he or she “was not
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functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “Prejudice exists where the claimant
proves by ‘a reasonable probability that, but for the counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Maxwell, 743
N.W.2d at 196 (quoting Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)). “We
will not find counsel incompetent for failing to pursue a meritless issue.” State v.
Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).
Here, Cardona cannot succeed on either prong, and his ineffective-
assistance-of-counsel claim therefore fails. Cardona argues his trial counsel
should have filed a motion for a new trial under Iowa Rule of Criminal Procedure
2.24(2)(b)(6) or a motion in arrest of judgment under rule 2.24(3). Under rule
2.24(2)(b)(6), a new trial may be granted “[w]hen the verdict is contrary to law or
evidence.” The phrase “contrary to . . . evidence” means “contrary to the weight
of the evidence.” Reeves, 670 N.W.2d at 201 (quoting State v. Ellis, 578 N.W.2d
655, 659 (Iowa 1998)). “The ‘weight of the evidence’ refers to ‘a determination [by]
the trier of fact that a greater amount of credible evidence supports one side of an
issue or cause than the other.’” Ellis, 578 N.W.2d at 658 (quoting Tibbs v. Florida,
457 U.S. 31, 102 (1982)). A motion in arrest of judgment shall be granted “when
upon the whole record no legal judgment can be pronounced.” Iowa R. Crim. P.
2.24(3)(c).
The court denied trial counsel’s several motions for a directed verdict in light
of the detailed victim accounts of recurring sexual abuse. The defense presented
three witnesses whose testimony was short and focused on minor inconsistencies
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in the victims’ and their brother’s accounts of the abuse. Under such
circumstances, there was no reasonable probability the court would have granted
either a motion in arrest of judgment or a motion for a new trial on the grounds
asserted by Cardona. Trial counsel had no duty to make a meritless motion. See
State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005) (“[T]rial counsel has no duty to
raise an issue that has no merit.”).
IV. Conclusion
The record contains substantial evidence of Cardona’s guilt, and we reject
his insufficiency-of-the-evidence claim. Because of the ample evidence of his guilt,
we also reject the contention that Cardona received ineffective assistance of
counsel when his counsel failed to file a motion in arrest of judgement or motion
for new trial on the ground that the greater amount of credible evidence was
contrary to the verdict. Accordingly, we affirm the convictions.
AFFIRMED.