State v. Farnum, 95-0893

• Decision Date: 30 August 1996
• Docket Number: No. 95-0893,95-0893
• Citation: 554 N.W.2d 716
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Christopher Wesley FARNUM, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 716

554 N.W.2d 716

STATE of Iowa, Plaintiff-Appellee, v. Christopher Wesley FARNUM, Defendant-Appellant.

No. 95-0893.

Court of Appeals of Iowa.

Aug. 30, 1996.

Jon M. Kinnamon of Kinnamon, Kinnamon, Russo & Meyer, Cedar Rapids, for defendant-appellant.

Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, J. Patrick White, County Attorney, and Janet M. Lyness, Assistant County Attorney, for plaintiff-appellee.

Considered by SACKETT, C.J., and HABHAB and STREIT, JJ.

HABHAB, Judge.

Defendant Christopher Farnum was convicted of third-degree sexual abuse in violation of Iowa Code section 709.4 (1993). On appeal he argues: 1) there was insufficient evidence to support the conviction; 2) the trial court erred in allowing witnesses to testify about whether an assault had occurred, the elements of the offense, and the credibility of the victim; and 3) his trial counsel was ineffective. We affirm.

I. Sufficiency of the Evidence. Defendant argues there was insufficient evidence to support his conviction of third-degree sexual abuse. He asserts the victim's testimony was self-contradictory and inconsistent, and in the absence of scientific evidence or corroboration, he should have been acquitted.

When reviewing criminal convictions for sufficiency of the evidence, we review the evidence in a light most favorable to the State. State v. McGrew, 515 N.W.2d 36, 37 (Iowa 1994). A conviction is reversed only if there is no substantial evidence in the record supporting the verdict or the verdict is clearly against the weight of the evidence. Id. at 37-38. Substantial evidence is evidence which could convince a rational trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt. Id. at 38. A fair inference of guilt with respect to each element of the crime charged is sufficient to uphold a verdict. Id. We consider all of the evidence, not merely that supportive of the conviction, in determining the sufficiency of the evidence to support a guilty verdict. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980).

A review of the record reveals there was substantial evidence to support the conviction. The victim, her boyfriend Demetri, defendant, and his date Brenda, had visited a bar on the night of June 30, 1994, and in the early morning hours of July 1, 1994. The victim became very intoxicated, and witnesses testified she was drunk and vomited several times.

The group returned to Demetri's apartment where Demetri placed the victim on his bed. He testified she had "passed out" and he put her in bed fully-clothed. Demetri left the apartment to visit other friends. Defendant and his date remained in the living room of the apartment.

The victim testified she remembered telling Demetri she was not feeling well while they were still at the bar. The next thing she remembered was being awakened in Demetri's apartment with defendant on top of her. Her shorts and underwear had been removed and defendant's penis was in her vagina. The victim testified that when she tried to speak, defendant covered her mouth and nose with his hand and she had trouble breathing. The victim also described defendant's attempt to place his penis in her mouth. During the incident defendant kept telling the victim, "Don't tell Demetri." The victim claimed she tried to use her hands to force defendant off of her but could not.

After defendant had left the apartment, the victim attempted to reach Demetri by phone. While attempting to do so, Demetri returned to the apartment and found the victim "shaking and crying uncontrollably." The police were called and they testified they found the victim crying, shaking, and scared. The victim was taken to a hospital for an examination. Some bruises were found on her thighs and shin, although the cause of the bruises or when they had been incurred could not be determined by the doctor.

Defendant does not deny having had sexual intercourse with the victim at the apartment in the early morning hours of July 1. However, he testified he had three separate encounters with the victim and all were initiated by her and with her consent.

Defendant's date, Brenda, was in the living room of the apartment. She testified she heard no noises, cries, or screams coming from the bedroom where the victim was. Brenda did testify defendant left her twice to go the bathroom and the first time he was gone eight or nine minutes. Brenda confirmed the victim was "wasted" and could not stand, walk or talk whey they left the bar and returned to the apartment.

There was sufficient evidence from which the jury could find the victim was incapacitated by intoxication and could not consent to sexual intercourse with defendant. Likewise, the jury could find that after the victim awakened she did not want to have sex with defendant but he continued to do so by force and against her will. Defendant argues the victim's version of the events was not corroborated. Other witnesses testified about the victim's intoxication and that she was "passed out" when her boyfriend left the apartment. While there are no witnesses to corroborate the victim's account of the actual sexual abuse, none are required. "The law has abandoned any notion that a rape victim's accusation must be corroborated." State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995).

In challenging the sufficiency of the evidence, defendant contends there was contradictory evidence. The victim and defendant testified about two very different versions of the events which transpired on July 1. A jury is free to accept all, part, or none of a witness's testimony. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is in the best position to judge whom and what to believe. Knox, 536 N.W.2d at 742. It was well within the evidence for the jury to believe the victim's testimony.

Defendant argues there was a lack of physical evidence to support his conviction. The testimony of the doctor who examined the victim established it is not unusual for there not to be evidence of physical trauma in a sexual assault. The victim did have some bruises on her thighs and shin which she did not recall having before that night. Given the significant disparity in the size of the victim (5'6"', 120 pounds) and defendant (6'4"', 225 pounds), it is likely any effort by the victim to strongly resist would have been futile. Furthermore, the victim's ability to resist was probably compromised by her intoxicated state.

Finally, defendant argues his date, Brenda, was in the apartment and did not hear any noises to indicate he was assaulting the victim. Brenda stayed in the living room, and the jury may have concluded any noises the victim or defendant made in the bedroom could have been too faint to be heard.

We have considered all of defendant's arguments challenging the sufficiency of the evidence and find there was substantial evidence which could convince a rational trier of fact defendant was guilty of the crime charged beyond a reasonable doubt.

II. Testimony of Police Officers. At trial, Police Officer Lippold was questioned about being dispatched to investigate a report of sexual assault. Defendant objected when the officer's response indicated a female had been "assaulted." The court sustained the objection. ¹ On appeal, defendant cites seven subsequent pieces of testimony which he claims were also objectionable because they allowed Officers Lippold and Krei to offer opinions about whether the victim had been sexually assaulted, the elements of the crime, and the credibility of the victim.

With respect to the fourth ² and seventh ³ pieces of testimony, defendant objected and the objections were sustained. ⁴ Defendant presents nothing further for us to review with respect to this testimony. With respect to the remaining five pieces of testimony, defendant claims they should not have been admitted given that the court had initially sustained his objection to Officer Lippold's characterization of the offense as an assault. Defendant did not object at trial to any of the subsequent five pieces of testimony which he now claims are objectionable.

"The rule is well established that failure to object to evidence or move to strike the same at the time the record is made and when the grounds for objection or motion to strike are first apparent precludes the party from asserting on appeal admission of evidence was error." State v. King, 225 N.W.2d 337, 341 (Iowa 1975). Error which is not preserved is waived. See State v. Heacock, 521 N.W.2d 707, 710 (Iowa 1994). We find error was not preserved and decline to address defendant's arguments about the inadmissibility of the five pieces of testimony to which defendant did not object at trial.

III. Ineffective Assistance of Counsel. Defendant claims his trial counsel was ineffective. He contends his counsel should have objected to jury instructions number nine and fourteen; his counsel should have objected to the police officers' testimony addressed previously in division II of this opinion; and his counsel should have objected to the submission of two separate and alternative theories of sexual abuse.

A defendant bears the burden of proving by a preponderance of the evidence he received ineffective assistance of counsel. State v. Wissing, 528 N.W.2d 561, 563 (Iowa 1995). He must prove two elements: 1) counsel failed to perform an essential duty; and 2) he was prejudiced by counsel's omission. Id. at 563-64. The test for the first element is whether the attorney's performance was outside the range of normal competency. Id. at 564. The test for the second element is whether there is a reasonable probability that, but for his trial attorney's unprofessional errors, the resulting conviction and sentence would have been different. Id. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so...