State v. Gonzales, No. 8-073/07-0805 (Iowa App. 3/14/2008)

Decision Date14 March 2008
Docket NumberNo. 8-073/07-0805,8-073/07-0805
PartiesSTATE OF IOWA, Plaintiff-Appellee, v. AUDREY LYNN GONZALES, Defendant-Appellant.
CourtIowa Court of Appeals

Appeal from the Iowa District Court for Linn County, Marsha A. Bergan, Judge.

Defendant appeals her conviction for pandering involving a minor.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., Vogel and Vaitheswaran, JJ.

SACKETT, C.J.

The defendant, Audrey Lynn Gonzales, appeals from her conviction and sentence for pandering involving a minor in violation of Iowa Code section 725.3(2) (2005). She contends the trial court erred in admitting out of court statements made by a participant to the crime and that there was insufficient evidence to support the conviction. She also argues she received ineffective assistance of counsel when her attorney failed to (1) object to certain testimony as hearsay, (2) object to the admission of out-of-court statements made by J.M. and her mother as a violation of her Sixth Amendment right to confront witnesses against her, and (3) object to the marshaling instruction on pandering. We affirm the defendant's conviction and preserve two of her ineffective assistance of counsel claims for postconviction relief.

I. BACKGROUND AND PROCEEDINGS.

On March 2, 2006, Cedar Rapids police officers were conducting a prostitution sting. They set up the sting operation in an apartment where officer Matt Denlinger posed as a customer seeking a prostitute. Other officers hid in a locked bedroom and used surveillance equipment to monitor and record the investigation. Officer Denlinger called a business called Jenderez that was advertised in the Spa and Escort classified section in a local newspaper and defendant answered the phone. Denlinger testified that he "explained to her I needed an escort or I told her I was looking for a good time, something along [those] lines, and she agreed to provide a female for that service." The defendant testified that on the phone she made it clear to him that it was a dating

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service, not an escort service. No prices or sexual activities were discussed on the phone.

The defendant arrived at the apartment with another female, later identified as seventeen-year-old J.M. The defendant looked around the apartment and inquired about the locked bedroom. Denlinger stated he had a roommate who locked the door before he left. The defendant then told Denlinger and J.M. to have fun and returned to her car in the parking lot. J.M. and Denlinger sat in the living room and J.M. told him he needed to pay her up front for any services. Denlinger asked about what he could get for his money. According to Denlinger,

[s]he said for $150 I could have a hand release and for $200 I could have sex. She said I'd have to pay for a full hour, though. I asked her what a hand release is, in her words, she said it's just a hand job.

Denlinger then said the code word "peanuts," and the other officers came out of the bedroom. J.M. was then placed under arrest for prostitution. J.M. identified herself, admitted her age, and was found to be carrying eleven condoms.

After this arrest, other officers confronted the defendant who was sitting in her car in the parking lot. The defendant consented to a search of her vehicle and officers found marijuana and a note with directions to the apartment, the alias used by Denlinger, and the prices of $150 and $200 written on it. The defendant was arrested for possession of marijuana and taken to the police station. There, she gave a statement to police explaining that she runs a dating service where clients pay for a set amount of time, that she also performs "dating visits," and that she cannot "control if a girl decides to do something more than

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just talk." She added that she previously had a business called Classy Ladies but changed the name to Jenderez in January of 2006. She testified that the client was charged $150 for a half-hour or $200 for a full hour date. The business would retain fifty dollars of the charged amount as a commission.

At trial the defendant testified that J.M. had contacted her the day before the sting and stated that she wanted to work for Jenderez. The defendant testified that J.M. told her she was nineteen but could not provide identification because her purse had been stolen. The defendant explained the business to J.M. and agreed to pick her up the next day. After she picked J.M. up the next day, the defendant took J.M. to a date with a regular client of Jenderez and then took J.M. to the date with Denlinger, the undercover officer. The defendant testified she asked J.M. if she wanted the date, and J.M. agreed to it.

The defendant also testified that she looked around the apartment to ensure safety by making certain the client is alone and that there are no weapons around. She also testified that she told J.M. to leave or to call her if a client was getting "perverted" or "sexually explicit." She denied giving J.M. condoms. She stated that she only told J.M. and Denlinger to "have fun" because she did not want them to have a bad experience.

The State charged the defendant with pandering involving a minor in violation of Iowa Code section 725.3(2), distribution of marijuana to a minor in violation of section 124.406, and possession of a controlled substance in violation of section 124.401(5). The defendant pleaded guilty to possession of a controlled substance and a jury trial was held on the charges of pandering and

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distribution of marijuana to a minor. The defendant filed a motion in limine to exclude statements J.M. made to the police and a video of the sting. The State obtained a material witness warrant for J.M. to testify but she did not appear at trial. Thus, at the close of the State's evidence, the State dismissed the distribution to a minor charge. The jury convicted the defendant of pandering involving a minor.

The defendant appeals. Nearly all defendant's claimed errors concern the admission of out-of-court statements made by J.M. and J.M.'s mother. The defendant attacks her conviction on several different grounds relating to this evidence including, (1) that some statements were erroneously admitted as coconspirator statements, (2) that some statements were inadmissible hearsay, (3) that there was insufficient evidence to convict her without these statements, and (4) that she received ineffective assistance of counsel when her attorney did not object to the admission of these statements as either hearsay or a violation of her Sixth Amendment right to confront witnesses against her. The defendant also claims her trial counsel was ineffective by not objecting to a jury instruction.

II. STANDARD OF REVIEW.

We review claims concerning hearsay testimony for errors at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). Hearsay must be excluded from evidence at trial unless it can be admitted pursuant to an exception to, or exclusion from, the hearsay rule. Id. "Inadmissible hearsay is considered to be prejudicial to the nonoffering party unless otherwise established." Id.

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A defendant's challenge to the sufficiency of the evidence supporting a conviction is also reviewed for correction of errors at law. State v. Smith, 739 N.W.2d 289, 293 (Iowa 2007). We uphold a guilty verdict if it is supported by substantial evidence. Id.

We generally preserve ineffective assistance of counsel claims for postconviction relief but will address them if the record is sufficient. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). These claims "have their basis in the Sixth Amendment to the United States Constitution and thus, are reviewed de novo." Id. We will review counsel's conduct, considering the totality of the circumstances. State v. Lane, 743 N.W.2d 178, 181 (Iowa 2007).

In addition to promising effective assistance of counsel, the Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; Newell, 710 N.W.2d at 24. "We review claims based on the Confrontation Clause de novo." Newell, 710 N.W.2d at 23.

III. ERROR PRESERVATION OF HEARSAY CLAIMS.

The defendant contends hearsay information was erroneously admitted in four instances. First, the court permitted Denlinger to testify as to J.M.'s statements during the sting regarding the cost of certain sexual services. Second, the court admitted a videotape of the sting which contained J.M.'s statements to Denlinger during the sting. Third, Denlinger testified as to

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statements J.M. made after her arrest about her age. Fourth, the court allowed officers to testify as to conversations with J.M.'s mother about J.M.'s age.

The State argues error is only preserved as to the statements J.M. made prior to her arrest. The defendant's trial counsel filed a motion in limine seeking to exclude out-of-court statements made by J.M. and the videotape but the record shows no ruling on this motion. At trial, counsel objected when the officer began testifying as to what J.M. said to him during the sting and when the State introduced the videotape. However, counsel did not object when the officer testified that J.M. told him she was seventeen after her arrest. Defense counsel also did not object to an officer's testimony that J.M.'s mother confirmed J.M. was seventeen. Therefore, error was only preserved on the first two hearsay claims through counsel's timely objections concerning J.M.'s statements during the sting and upon admission of the videotape. See Summy v. City of Des Moines, 708 N.W.2d 333, 338 (Iowa 2006) (explaining that error preservation turns on...

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