State v. Zacarias

• Decision Date: 23 April 2021
• Docket Number: No. 19-0838,19-0838
• Parties: STATE of Iowa, Appellee, v. Zachary Tyler ZACARIAS, Appellant.
• Court: Iowa Supreme Court

958 N.W.2d 573

STATE of Iowa, Appellee,

v.Zachary Tyler ZACARIAS, Appellant.

No. 19-0838

Supreme Court of Iowa.

Submitted February 17, 2021

Filed April 23, 2021

Andrew Dunn and Jessica Donels of Parrish Kruidenier Dunn Gentry Brown Bergmann & Messamer L.L.P., for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and Michael Salvner, Assistant County Attorneys, for appellee.

Christensen, C.J., delivered the opinion of the court, in which Waterman, Mansfield, and McDermott, JJ., joined. McDonald, J., filed a special concurrence in which Appel and Oxley, JJ., joined.

CHRISTENSEN, Chief Justice.

The defendant appeals his conviction by a jury for assault "us[ing] any object to penetrate the genitalia or anus of another person" in violation of Iowa Code section 708.2(5) (2017) after he penetrated the victim's vagina with his finger while the victim was unconscious. On appeal, the defendant argues there was insufficient evidence to support his conviction because his finger did not constitute an "object" under section 708.2(5). He also argues the district court impermissibly restricted his ability to impeach the victim about prior inconsistent statements and maintains his trial counsel was ineffective in failing to impeach the victim on cross-examination and failing to object to alleged instances of prosecutorial misconduct. On our review, we affirm the defendant's conviction.

I. Background Facts and Proceedings.

On the evening of May 28, 2017, C.G., then seventeen years old, was watching a movie with friends in Ankeny when she realized she did not have a ride to her parents’ house in Urbandale in time to meet her 10:00 p.m. curfew. C.G. began texting and snapchatting people to arrange a ride. Zachary Zacarias, then twenty-one years old, was the only person who responded that he could give her a ride home, but he told C.G. that he needed to "sober up before he could take [her] home."

A friend dropped C.G. off at Zacarias's home, where a mutual friend greeted C.G. and led her to Zacarias's bedroom in the basement to interact with other guests who were present as part of a party Zacarias was hosting. By the time she arrived at the home, C.G. had already taken her Trazodone sleeping pill with the assumption that she was going to go home and go to bed shortly thereafter. When she arrived in the bedroom, C.G. smoked marijuana wax out of a bong. Zacarias gave C.G. a drink in a red Solo cup that he claimed contained vodka and orange juice, though C.G. thought the consistency had an unusual "chalky taste to it."

C.G. soon became drowsy, so she laid down on the couch in the bedroom and told her friend to wake her if she fell asleep. She awoke "a little foggy" to find herself naked from the waist down with Zacarias on top of her wearing only his shirt. Zacarias held C.G.’s legs apart by placing his knees on her thighs and pressed one hand on her shoulder while he used his other hand to masturbate with his penis close to C.G.’s vagina.

C.G. hit Zacarias, causing him to roll off the couch. C.G. jumped off the couch and began screaming for help, and Zacarias kept repeating "nothing had happened yet." C.G. discovered the rest of her clothes scattered across the room and a dresser had been moved in front of the bedroom door. She was able to push the dresser aside and ran out of the house. As she was leaving, someone C.G. did not know ran after her, but C.G. told the person to "get away from [her.]." C.G. ran to her boyfriend's home about a block away.

C.G. started banging on the door of her boyfriend's home, which awoke him. He let her in, and the boyfriend's parents called the police. Two police officers responded and found C.G. "distraught." C.G. explained to the police her memory of what happened and that she never consented to Zacarias touching her body in any way. The police recommended C.G. go to the hospital for examination and a sexual assault kit, and C.G. subsequently went to Broadlawns Medical Center for an examination. Nurse Janie Pering described C.G. as "very sleepy," noting she "had to keep waking [C.G.] up multiple times during the exam." DNA analysis of a sample taken from C.G.’s underwear "tested positive for an enzyme that is produced in saliva, but that sample was not strong enough to be tested against the DNA of Mr. Zacarias," in addition to C.G.’s DNA profile.

After responding to C.G., the police officers went to Zacarias's home, where they found Zacarias waiting for them on his porch. Zacarias told the officers he asked his friends to leave the bedroom so he could be alone with C.G. and claimed C.G. "fell asleep or blacked out for a while" as they were "making out." He admitted to removing C.G.’s thong and then digitally penetrating her vagina with his finger.

He acknowledged that C.G. did not reciprocate his actions and did not touch his body in any way, and he claimed C.G. was "in and out of a state." When an officer asked Zacarias how C.G. "could have consented if she was ‘blacked out,’ " Zacarias told the officer that C.G. had relaxed her legs. He reiterated to the police that C.G. "never said no" and told them C.G. "freaked out" when he tried to have sex with her. The officer asked Zacarias why C.G. "freaked out," and Zacarias told them C.G. had consumed drugs and alcohol and was in and out of consciousness. At the end of the conversation, Zacarias also claimed he performed oral sex on C.G.

At some point after Zacarias's party, Meghan Storlie, another party attendee, messaged C.G. on Facebook after learning C.G.’s identity from a mutual friend. Storlie was the person who ran after C.G. when C.G. was leaving and wanted to check on C.G. C.G. shared the Facebook message with police, who subsequently contacted Storlie. Storlie told them she was in an adjacent room in Zacarias's basement on the night in question and heard a woman screaming, "What are you doing to me? Why are my pants off?" She then saw C.G. run out of the bedroom, and Storlie followed C.G. "to see if she was okay." C.G. responded, "Ma'am, please don't touch me. Get away from me," and then ran down the street. Storlie told police she returned to the house to confront Zacarias, asking him if he had raped C.G. Zacarias responded, "No, we had a thing."

The State initially charged Zacarias with sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)(a ) or (d ) on August 1, 2017, but the charge was dismissed on August 22, 2018, due to a speedy trial violation. On October 1, 2018, the State refiled its criminal complaint, charging Zacarias with one count of assault by penetration of the genitalia with an object in violation of Iowa Code sections 708.1 and 708.2(5). The case was tried to a jury in April 2019. Zacarias's counsel filed proposed jury instructions defining an "object" under section 708.2(5) as "a material thing other than any portion of the defendant's body or organs." The State opposed this instruction, requesting the district court use the dictionary definition of "object" to define an "object" as "anything that is visible or tangible and is relatively stable in form." Zacarias also argued for a motion of acquittal based on his proposed definition of "object." The district court chose to use the State's proffered definition of "object" to instruct the jury and denied Zacarias's motion of acquittal, reasoning there was no authority to support Zacarias's proposition.

The jury found Zacarias guilty, and the district court sentenced him to an indeterminate term of ten years imprisonment. Zacarias was also required to register as a sex offender as part of his sentence. Zacarias filed a timely notice of appeal. We retained the appeal.

II. Standard of Review.

We review jury instruction challenges for the correction of errors at law to determine whether the challenged instruction correctly states the law. State v. Shorter , 945 N.W.2d 1, 6 (Iowa 2020). "Erroneous jury instructions are prejudicial and require reversal when they ‘mislead the jury or materially misstate the law.’ " Id. (quoting State v. Benson , 919 N.W.2d 237, 241–42 (Iowa 2018) ). We generally review evidentiary rulings for an abuse of discretion. State v. Buelow , 951 N.W.2d 879, 884 (Iowa 2020).

We may consider ineffective-assistance claims on direct appeal if "the appeal was already pending on July 1, 2019, when Senate File 589 eliminating the ability to pursue ineffective-assistance claims on direct appeal, took effect." State v. Ross , 941 N.W.2d 341, 345 (Iowa 2020). Here, Zacarias's challenge is properly before us on direct appeal because he filed his notice of appeal on May 19, 2019. We review claims of ineffective assistance de novo. Id.

III. Analysis.

Zacarias presents numerous claims on appeal. First, he argues the district court erroneously instructed the jury on the definition of "object." Second, Zacarias contends the district court violated his due process right to present a defense and did not follow Iowa Rule of Evidence 5.613 by restricting his ability to impeach the complaining witness. Third, he claims his trial counsel was ineffective in failing to impeach C.G. on cross-examination. Fourth, Zacarias maintains his trial counsel was ineffective in failing to object to alleged instances of prosecutorial misconduct during trial. Finally, Zacarias argues the cumulative effect of trial counsel's errors denied him of his right to a fair trial.

A. Motion to Strike Zacarias's Reply Brief. In his initial brief, Zacarias argued the district court erroneously instructed the jury on the definition of "object," arguing an "object" under Iowa Code section 708.2(5) should be defined as "a material thing other than any portion of the defendant's body or organs." Zacarias claims, in relevant part, the district court's interpretation of "object" to include a defendant's hand "would create substantial and unnecessary overlap between" Iowa Code section 708.2(5) and Iowa...