Opinion
No. 2-023 / 01-0772
Filed February 20, 2002
Appeal from the Iowa District Court for Woodbury County, Richard J. Vipond, Judge.
Defendant Christopher James Negroni appeals following his conviction of the offenses of sexual abuse in the second degree and assault while participating in a felony, in violation of Iowa Code sections 709.3(2) and 708.1, and 708.3 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Drew Bockenstedt, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Defendant-appellant Christopher James Negroni appeals following his conviction of the offenses of sexual abuse in the second degree and assault while participating in a felony, in violation of Iowa Code sections 709.3(2) and 708.1, and 708.3 (1999). We affirm.
Defendant was charged with breaking into an apartment occupied by Mr. and Mrs. Santana and their children and sexually abusing the Santana's five-year-old daughter. The Santana's apartment was located on the floor below defendant's apartment.
Mrs. Satana returned from work about eight o'clock on the morning of September 2, 2000 from a shift that began at ten o'clock the proceeding evening. She found her daughter, the victim, with red spots on her face and labored breathing. The child's ear was bruised and upon pulling down the victim's underwear Delores saw blood. The victim's eight-year-old brother testified while the family slept and Mrs. Satana worked, defendant entered their apartment. The brother said defendant told him to stay quiet and not tell his father. The brother also said the defendant carried the victim and her cousin into a bedroom. The cousin came out shortly, but it was some time before the victim left the bedroom. The brother said when the victim left the bedroom she seemed to have freckles on her face.
John Goebel, M.D. of St. Lukes Hospital examined the victim on September 2 and testified the red spots on her face were consistent with an adult putting a hand over her face, and the rectal tears she suffered were consistent with the penetration of an adult penis.
Scott Stocksleger, a criminalist with the Iowa Crime Laboratory, testified he conducted a DNA analysis of samples taken from defendant and the victim. He testified a pubic swab taken from the victim contained genetic information consistent with both that of defendant and the victim, and neither person could be eliminated as a possible contributor to the mixture. Stocksleger further testified over objection that the probability of the frequency of such an occurrence in the general population was one in 1.9 million. He also testified that he found from the victim's buccal or saliva a single profile identified as the defendant's. He testified over objection that fewer than one in 1000 billion individuals would be expected to have the same profile as was found. He further found a mixture of DNA of three people from a swab from the defendant's left hand. He identified the DNA of two people as being consistent with the defendant and the victim. He testified over objection that the probability that same DNA profile would be matched to a random individual from the population to be fewer than one out of 72,000.
Defendant contends the evidence that fewer than one in 1000 billion people would have the same profile is saying it is impossible for any other person to be the contributor and that evidence should be excluded under Iowa Rule of Evidence 403 as its probative value is substantially outweighed by the danger of unfair prejudice.
DNA testing was found sufficiently reliable to be admitted into evidence in State v. Brown, 470 N.W.2d 30, 32 (Iowa 1991). In Brown the court upheld the trial court's admission of DNA testing and the admission of the accompanying statistics finding it was not an abuse of discretion to admit the statistical probability of a random match. Id. at 33. The court went on to find statistics would be helpful to the trier of fact in accordance with the criteria for admissibility under Iowa Rule of Evidence 702 and that without statistical evidence, the ultimate results of DNA testing would become a matter of speculation. See id.; s ee also State v. Ripperger, 514 N.W.2d 740, 751 (Iowa Ct. App. 1994). Then in State v. Williams, 574 N.W.2d 293, 298-299 (Iowa 1998) the court went further and held that the admission of evidence of a DNA match without accompanying statistical probability of a random match was error. Id. In doing so the court noted, "We agree with the NRC Report which stated `[t]o say that two [DNA] patterns match, without providing any scientific valid estimate . . . of the frequency with which such matches might occur by chance, is meaningless.' Citing NRC Report at 3-1." Id.
We agree with the State's argument that for DNA evidence to be admissible the statistical probability of the match must be admitted. Williams, 574 N.W.2d at 298. The issue of whether the evidence of the statistical probability was reliable is not raised as an issue. The district court did not abuse its discretion in admitting the questioned evidence. Id. We affirm on this issue.
Defendant next contends his trial attorney was ineffective in not raising the issues of merger and double jeopardy.
We review claims of ineffective assistance of counsel de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Defendant bears the burden of demonstrating ineffective assistance of counsel. State v. Morgan, 559 N.W.2d 603, 612 (Iowa 1997); Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994); State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct. App. 1996). "A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal 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). We resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Defendant contends the offense of assault while participating in a felony calls for the same behavior that comprises the first element of the sexual abuse charge and which was described in the jury instruction describing assault. Arguing although the offenses do not necessarily satisfy the elements test of State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000), separate consideration and punishment of the offenses raises a double jeopardy clause issue relating to multiple punishments.
Defendant does not challenge the sufficiency of the evidence to support this conviction.
Citing State v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998), the State argues that the double jeopardy principles are not implicated and the statutory merger provisions were not violated.
The State further argues that the question of whether multiple punishment is permitted here is a question of legislative intent, and if the legislature intends double punishment, section 701.9 is not applicable and merger is not required. State v Perez, 563 N.W.2d 625, 629 (Iowa 1997).
There is no merit to the defendant's argument on this issue. Iowa Code section 701.9 "codifies the double jeopardy protection against cumulative punishment." State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993). "The purpose of the merger statute is to prevent a court from imposing a punishment greater than that contemplated by the legislature." State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000). Legislative intent determines whether merger is required under section 701.9. See Gallup, 500 N.W.2d at 445. If the legislature intended multiple punishments arising from the same set of circumstances, then section 701.9 does not apply, merger is not required, and double jeopardy is not implicated. In detecting legislative intent, we first decide whether the crimes meet the legal elements test for lesser-included offenses. Lambert, 612 N.W.2d at 815; see generally Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) (applying the legal-elements test to determine if one act constituted two offenses). The defendant concedes the crimes at issue in this case "do not necessarily satisfy the elements test" in Lambert.
To convict the defendant under count I, sexual abuse in the second degree, the jury was instructed it had to find he engaged in a sex act with the victim and the victim was under twelve years old. Count II was burglary in the first degree. To convict the defendant of the lesser-included offense of assault while participating in a felony, the jury was instructed it had to find he was participating in a burglary and assaulted the victim. The offenses are distinct and require entirely different elements. Iowa Code section 701.9 does not apply. Merger was not appropriate and there is no violation of the protections against double jeopardy. Consequently, there was no duty for counsel to raise the issues. We find the defendant's claim counsel was ineffective to be without merit.
Iowa Code section 708.3, assault while participating in a felony, provides:
Any person who commits an assault as defined in section 708.1 while participating in a felony other than sexual abuse is guilty of a class "C" felony if the person thereby causes serious injury to any person; if no serious injury results, the person is guilty of a class "D" felony.
Id. (emphasis in original).
AFFIRMED.