State v. Thorndike

• Decision Date: 27 February 2015
• Docket Number: No. 13–1403.,13–1403.
• Citation: 860 N.W.2d 316
• Parties: STATE of Iowa, Appellee, v. Max V. THORNDIKE, Appellant.
• Court: Iowa Supreme Court

860 N.W.2d 316

STATE of Iowa, Appellee

v.Max V. THORNDIKE, Appellant.

No. 13–1403.

Supreme Court of Iowa.

Feb. 27, 2015.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Sean M. Corpstein, Student Legal Intern, Michael J. Walton, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.

Opinion

ZAGER, Justice.

Max Thorndike appeals his conviction for two counts of sexual abuse in the second degree pursuant to Iowa Code section 709.3 (2013), and one count of lascivious acts with a child pursuant to Iowa Code section 709.8. He maintains there was insufficient evidence to support the jury's finding that he committed sex acts with the minor victims. Further, he asserts the district court erred in denying his motion for new trial because it applied the incorrect legal standard in concluding the weight of the evidence supported his convictions. He also asserts the district court abused its discretion in concluding the weight of the evidence supported his convictions. Finally, he maintains his trial counsel was ineffective in failing to object to the lascivious-acts jury instruction he claims was not supported by sufficient evidence. We transferred the case to the court of appeals, which affirmed the convictions. Thorndike applied for further review, which we granted.

When we grant further review of a decision of the court of appeals, we have discretion to select issues for our consideration. See Iowa R.App. P. 6.1103(1)(d ). In this appeal, we consider only whether Thorndike's trial counsel was ineffective in failing to object to the lascivious-acts jury instruction he claims was not supported by sufficient evidence. Therefore, we let the court of appeals' affirmance on the remaining issues stand as the final decision of this court. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). With respect to Thorndike's claim that trial counsel was ineffective in failing to object to the lascivious-acts jury instruction, we conclude Thorndike has failed to establish he suffered prejudice as a result of counsel's failure to object to the instruction. We affirm the decision of the court of appeals and the judgment of the district court.

I. Background Facts and Proceedings.

In December 2012, Thorndike was living with his son, Joseph, Joseph's girlfriend, Tiffany, and their four-year-old son, N.T., in a duplex located in Davenport, Iowa. On the evening of December 15, Joseph and Tiffany attended a graduation party along with their friends, A.C. and M.C., and Thorndike. While at the party, the adults had arranged for a babysitter to care for N.T. and the friends' twin daughters, Jo.S. and Ja.S. Jo.S. and Ja.S. were six years old at the time.

While at the party, Joseph received a phone call from his landlord who lived in the other half of the duplex. The landlord told Joseph the children were being loud and it sounded like N.T. was out of control. The adults convened to discuss the issue. Ultimately, it was decided that Thorndike would return to the duplex to calm the children. Thorndike then left the party and returned to the duplex. A.C. and M.C. left the party at approximately 2:00 a.m. so that M.C. could attend to a work-related matter. The couple then returned to their home. The twins stayed at the duplex for the night.

The next morning, M.C. went to the duplex to pick up the twins. On the ride home, the twins told M.C. they needed to tell him something. The twins then informed M.C. that after Thorndike had returned from the party the previous night, he had entered Joseph and Tiffany's room where they were sleeping and made each of them touch his “private part.” The police were contacted soon thereafter.

The State charged Thorndike with two counts of sexual abuse in the second degree pursuant to Iowa Code section 709.3 and one count of lascivious acts with a child pursuant to Iowa Code section 709.8. Thorndike entered a plea of not guilty to each of the charges.

At trial, both Ja.S. and Jo.S. testified that on the evening in question, Thorndike came into the room in which they were sleeping, walked to the sides of the bed, and briefly made each of them touch his “private part.” Neither twin testified that Thorndike touched their genital or pubic regions, and the State presented no other evidence to that effect at trial.

After the close of evidence, the district court provided the jury with the following instruction, quoted in relevant part, regarding the charge of lascivious acts with a child:

[T]he State must prove each of the following elements of Lascivious Acts with a Child:

1. On or about the 15th day of December, 2012, the Defendant, with or without Ja.S. or Jo.S's consent:

(a) fondled or touched the pubes or genitals of Ja.S. or Jo.S.; or

(b) permitted or caused Ja.S. or Jo.S to fondle or touch the Defendant's genitals or pubes.

2. The Defendant did so with the specific intent to arouse or satisfy the sexual desires of the Defendant or Ja.S. or Jo.S.

3. The Defendant was then 16 years of age or older.

4. Ja.S. or Jo.S. was under the age of 12 years.

The jury was further instructed:

Where two or more alternative theories are presented, or where two or more facts would produce the same result, the law does not require each juror to agree as to which theory or fact leads to his or her verdict. It is the verdict itself which must be unanimous, not the theory of facts upon which it is based.

During the State's closing argument, the attorney for the State explained to the jury the elements necessary to sustain a conviction for lascivious acts with a child. Specifically, he stated:

From the evidence in this case we're talking late in the evening of December 15 ... [t]hat one of two things happened. And here the first one, (a), probably doesn't apply. We are talking about the second one, “permitted or caused Ja.S. or Jo.S. to fondle or touch the Defendant's genitalia or pubes.”

On June 13, 2013, the jury returned its verdicts finding Thorndike guilty of each of the charged offenses. With respect to the charge of lascivious acts with a child, the jury's verdict was on a general verdict form.

Thorndike appealed, and we transferred the case to the court of appeals. On appeal Thorndike asserted, among other things, that trial counsel was ineffective in failing to object to the alternative offered in the lascivious-acts jury instruction 1(a) because the State had failed to present sufficient evidence to instruct that Thorndike fondled or touched the pubes or genitals of Ja.S. or Jo.S. Thorndike argued that because the jury returned its verdict on a general verdict form, there was no way of knowing on which basis the jury rendered its verdict. Therefore, Thorndike argued, he was entitled to a new trial. The court of appeals rejected Thorndike's ineffective-assistance-of-counsel claim. It reasoned the jury instruction was a correct statement of the law and that Thorndike had failed to show prejudice even if counsel should have objected to the instruction.

Thorndike applied for further review, which we granted.

II. Standard of Review.

We review ineffective-assistance-of-counsel claims de novo. Clay, 824 N.W.2d at 494. This is because such claims are grounded in the Sixth Amendment to the United States Constitution.¹ Id. In a criminal case, an ineffective-assistance-of-counsel claim “need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.” Iowa Code § 814.7(1). However, a defendant may raise such a claim on direct appeal if he or she has “reasonable grounds to believe that the record is adequate to address the claim on direct appeal.” Id. § 814.7(2). Ordinarily, we preserve such claims for postconviction relief proceedings. Clay, 824 N.W.2d at 494. “We prefer to reserve such questions for postconviction proceedings so the defendant's trial counsel can defend against the charge.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). “We will resolve the claims on direct appeal only when the record is adequate.” Clay, 824 N.W.2d at 494. In this case, the record is adequate for us to address the merits of Thorndike's ineffective-assistance-of-counsel claim. See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (concluding record was adequate to address ineffective-assistance-of-counsel claim on direct appeal when defendant asserted counsel was ineffective in failing to object to superfluous aiding-and-abetting instruction); State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“A claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal.”).

III. Discussion.

To succeed on a claim of ineffective assistance of counsel, a claimant must establish by a preponderance of the evidence: “ ‘(1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice.’ ” State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) ); accord Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Thus, reversal is warranted only where a claimant makes a showing of both of these elements. Simmons v. State Pub. Defender, 791 N.W.2d 69, 75–76 (Iowa 2010). If we conclude a claimant has failed to establish either of these elements, we need not address the remaining element. See Clay, 824 N.W.2d at 501 n. 2 (“The court always has the option to decide the claim on the prejudice prong of the Strickland test, without deciding whether the attorney performed deficiently.”).

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