IN THE SUPREME COURT OF IOWA No. 87 / 04-1247
Filed October 20, 2006
STATE OF IOWA,
Appellee,
vs.
REYNOLD RAYNALDO ONDAYOG,
Appellant. ________________________________________________________________________ On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee, Judge.
State seeks further review of court of appeals decision finding
defendant received ineffective assistance of counsel. COURT OF
APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant
Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn
and John Beaty, Assistant County Attorneys, for appellee. 2
STREIT, Justice.
Reynold Ondayog appeals from his conviction for assault with
intent to commit sexual abuse causing bodily injury, a class “D” felony in
violation of Iowa Code section 709.11 (2003). Ondayog contends his trial
attorney rendered ineffective assistance of counsel by failing to object to
the jury instruction which included this charge as a lesser-included
offense to the charge of kidnapping in the first degree (resulting in sexual
abuse). The court of appeals determined Ondayog’s trial counsel
provided ineffective assistance and reversed his conviction, vacated his
judgment and sentence, and remanded the case back to the district court
for a new trial. The court of appeals also concluded double jeopardy
principles precluded retrial of the submitted greater offenses of first-
degree kidnapping, third-degree kidnapping, and third-degree sexual
abuse. Upon further review, we find Ondayog did not satisfy both
elements of his ineffective assistance of counsel claim. We vacate the
decision of the court of appeals, affirm the decision of the district court,
and preserve Ondayog’s ineffective assistance claim for postconviction
relief proceedings.
I. Facts and Prior Proceedings
The charges in this case arose from events that happened in Fort
Dodge on the night of October 23, 2003. R.H., an eighteen-year-old
college student, started the night drinking beer and vodka while driving
around country roads with friends. Later, she went to a local bar called
“Big Reds.” She met Ondayog outside of the bar and asked him for a
cigarette. She had never met Ondayog prior to this encounter. They
spoke briefly, and Ondayog invited her to go back to his apartment to
pick up something. She agreed and got into Ondayog’s car. On the way 3
to the apartment, she rebuffed Ondayog’s repeated sexual overtures.
Once they reached Ondayog’s apartment, she claims he unlocked the
door and pushed her inside and onto the floor, scraping her knee in the
process. She claims he forced her onto a mattress, removed her pants
and underwear, and had sexual intercourse with her. After he was done,
she ran back to Big Reds. Ondayog also returned to the bar.
R.H. told her friends what happened, and someone called the
police. The police arrived and questioned Ondayog. He allowed the
police to search both his car and his apartment. Police found R.H.’s
underwear in his apartment. R.H. was taken to the hospital for a physical and pelvic
examination. The doctor observed an abrasion in the area between her
vagina and rectum. The doctor opined the injury was fresh and could
have been caused by some sort of penetration of the vagina. A DNA test
did not reveal Ondayog’s DNA on R.H., her clothing, or on his bed sheets.
However, Ondayog’s seminal fluid was found on his own pants. R.H.’s
blood was also found on her own pants.
Ondayog was charged by trial information on December 4, 2003
with kidnapping in the first degree (resulting in sexual abuse), in
violation of Iowa Code section 710.2 (2003), and sexual abuse in the
third degree, in violation of Iowa Code section 709.4. The charge of
third-degree sexual abuse was stricken from the trial information before
trial per mutual agreement the third-degree sexual abuse charge was a
lesser-included offense of first-degree kidnapping. At the conclusion of
trial, the district court instructed the jury the charge of kidnapping in
the first degree included the following six lesser offenses:
(1) Kidnapping in the third degree; 4
(2) Sexual abuse in the third degree;
(3) Assault with the intent to commit sexual abuse causing bodily
injury;
(4) Assault with the intent to commit sexual abuse not causing
bodily injury;
(5) False imprisonment; and
(6) Assault.
Ondayog’s trial counsel did not object to the court’s instruction.
The jury returned a verdict of guilty on the offense of assault with the
intent to commit sexual abuse causing bodily injury. After the verdict was entered, Ondayog’s trial counsel, James Koll,
made a motion for new trial based on the court’s error in instructing the
jury. He argued the crime of assault with the intent to commit sexual
abuse causing injury was not a lesser-included offense of first-degree
kidnapping and therefore the conviction was a “nullity.” See State v.
Adcock, 426 N.W.2d 639, 640 (Iowa Ct. App. 1998) (stating willful injury
was not lesser-included offense of attempted murder and therefore
conviction for willful injury was nullity because the indictment charged
defendant with attempted murder but not with willful injury). In
response to the State’s argument he had not objected to the jury
instructions, Koll indicated his failure to object to the jury instructions
did not eliminate his grounds for a new trial. Citing Iowa Rule of
Criminal Procedure 23.2 (now 2.24(2)), Koll argued the court must grant
a new trial because the court had “misdirected the jury in a material
matter of law.” Koll argued this rule indicates an objection was not
necessary when the court made the error. Finally, Koll stated, if the
court did not grant his motion, then 5 it goes on appeal, the court rules that we failed to object and it will come right back to this Court on a PCR and say was there any prejudice. . . . So I think my client is entitled to have this conviction thrown out [because] he is entitled to that both on the grounds that the Court has misinstructed the jury and on the grounds he has not received a fair and impartial trial because of my mistake, if I did make one.[ 1 ]
The district court overruled the motion, stating Koll had not made a
timely objection to the disputed jury instruction, and therefore, the
instruction had become the law of the case. The court did not address
the issue of whether Ondayog received ineffective assistance of counsel.
Rather than challenge the court’s ruling on the motion for new
trial, Ondayog frames this appeal as a claim of ineffective assistance of
counsel.
II. Scope of Review
We review ineffective-assistance-of-counsel claims de novo. State
v. Martin, 704 N.W.2d 665, 668 (Iowa 2005).
III. The Merits
Ondayog argues the crime for which he was convicted was
improperly submitted to the jury as a lesser-included offense of the
original charges of kidnapping in the first degree and sexual abuse in the
third degree. He asserts his trial counsel rendered ineffective assistance
by failing to timely object to the jury instruction that submitted this
charge to the jury. We first analyze whether sexual abuse causing bodily
injury is a lesser-included offense to kidnapping in the first degree, and
1Later, Koll went on to argue: if you grant our Motion for New Trial, I think the State could charge him with the crime he has been found guilty of but was not charged with so it doesn’t get my client out of this crime that he was convicted of. It just gives him an opportunity to contest that crime that he has not had the opportunity to in terms of the strategy that was designed in the trial to confront the charges that he was charged with. 6
then discuss the “law of the case” doctrine and Ondayog’s ineffective-
assistance claim.
A. Lesser-Included Offenses
Iowa Rule of Criminal Procedure 2.22(3) allows the jury to find the
defendant guilty of “any offense the commission of which is necessarily
included in that with which the defendant is charged.” To determine
whether one crime is a lesser-included offense of another, we apply the
impossibility test and look to the elements of the offenses in question.
State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990). The impossibility test
provides one offense is a lesser-included offense of the greater when the
greater offense cannot be committed without also committing the lesser.
Id. In the case at hand, the two greater offenses do not necessarily
include bodily injury, which is an element of the assault for which
Ondayog was convicted. See Iowa Code §§ 710.1-.2, 709.4(1), 709.11.
This means the crime of assault with intent to commit sexual abuse
causing bodily injury is not included in the greater offenses because the
greater offenses of kidnapping in the first degree and sexual abuse in the
third degree can be committed without also committing the lesser offense
of assault with intent to commit sexual abuse causing bodily injury. Cf.
State v. Clarke, 475 N.W.2d 193, 195–96 (Iowa 1991) (holding willful
injury is not a lesser-included offense of attempted murder due to the
distinguishing element of proof of serious injury, required for conviction
of willful injury but not attempted murder). Therefore, assault with the
intent to commit sexual abuse causing bodily injury does not qualify as a
lesser-included offense of first-degree kidnapping (with the “subjected to
sexual abuse” alternative). 7
B. Law of the Case
The State argues the jury instructions in this case are unassailable
on appeal because they have become the “law of the case.” See State v.
Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (stating “[f]ailure to timely
object to an instruction not only waives the right to assert error on
appeal, but also ‘the instruction, right or wrong, becomes the law of the
case’” (citation omitted)). We disagree. In Taggart, the case upon which
the State relies for its “law of the case” doctrine, the defendant did not
argue he was denied effective assistance of counsel. See id. at 424.
Therefore, when we rejected his claim for lack of error preservation we
did not go further to decide whether he had received ineffective
assistance. This case comes before us as an ineffective-assistance-of-counsel
claim. Ineffective-assistance-of-counsel claims are not bound by
traditional error-preservation rules. See State v. Lucas, 323 N.W.2d 228,
232 (Iowa 1982) (stating the claim of ineffective assistance of counsel is
an exception to the general rule of error preservation). Such claims are
an exception to normal error-preservation rules and the “law of the case”
doctrine. See State v. Callender, 444 N.W.2d 768, 772 (Iowa Ct. App.
1989) (analyzing ineffective-assistance-of-counsel claim that addressed
trial counsel’s failure to timely object to a jury instruction).
C. Ineffective Assistance of Counsel
The right to assistance of counsel, under the Sixth Amendment to
the United States Constitution and article I, section 10 of the Iowa
Constitution, guarantees “effective” assistance of counsel. Powell v. 8
Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158, 172 (1932);
State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997). To prove a claim of
ineffective assistance of counsel, Ondayog must show by a
preponderance of the evidence that his trial counsel failed to perform an
essential duty and prejudice resulted. Martin, 704 N.W.2d at 669; accord
Rompilla v. Beard, ___ U.S. ___, ___, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d
360, 377 (2005) (“Ineffective assistance . . . is deficient performance by
counsel resulting in prejudice . . . .”). Ondayog’s ineffective-assistance
claim fails if he is unable to prove either element of this test. State v.
Cook, 565 N.W.2d 611, 614 (Iowa 1997). 1. Prejudice
The resulting prejudice element of an ineffective assistance claim is
satisfied if a reasonable probability exists that, “‘but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Martin, 704 N.W.2d at 669 (quoting Strickland v. Washington,
466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698. Ondayog asks us to presume prejudice
because he was convicted of a crime for which he was not charged. We
need not do so because the facts themselves provide enough evidence to
find prejudice in this case.
The jury instructions set forth a cascade of criminal offenses,
beginning with the crime of kidnapping in the first degree. The last
sentence of the kidnapping in the first degree instruction states:
If the State has failed to prove any one of the elements [of this charge], the defendant is not guilty of Kidnapping in the First Degree and you will then consider the charge of 9 Kidnapping in the Third Degree explained in [a subsequent instruction].
The instruction pertaining to kidnapping in the third degree
contains a similar statement referring the jury to the charge of sexual
abuse in the third degree. The instruction pertaining to sexual abuse in
the third degree contains a similar statement referring the jury to the
charge of assault with intent to commit sexual abuse causing bodily
injury. This instruction directs the jury to the next lower offense, assault
with the intent to commit sexual abuse not causing bodily injury.
Presumably, the jury crossed off each instruction one at a time, in order,
until it settled upon a crime for which all members agreed the elements
were satisfied. 2 If the jury had not been presented with this nonlesser-
included offense, then it would likely have settled upon the next available
alternative—assault with intent to commit sexual abuse (not causing
bodily injury). Since this crime is only an aggravated misdemeanor,
Ondayog’s trial counsel’s alleged error may have been the difference
between a felony and a misdemeanor conviction.
This is clear proof, had his attorney objected to the inclusion of the
crime of sexual abuse causing bodily injury, the result of the proceeding
would have been different.
2. Did Trial Counsel Breach an Essential Duty?
We presume performance of counsel falls within a range of
reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735,
739 (Iowa 1995). Ondayog has the burden to rebut this presumption
with evidence his trial counsel’s “representation fell below an objective
2A jury is presumed to follow the instructions of the court. State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998); State v. Anderson, 209 Iowa 510, 517, 228 N.W. 353, 356 (Iowa 1929). There is no evidence indicating the jury did not follow the court’s instructions in this case. 10
standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at
2064, 80 L. Ed. 2d at 693.
Because timely objection to jury instructions in criminal
proceedings is necessary to preserve alleged error for appellate review,
State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988), Ondayog argues his
counsel breached an essential duty by not objecting to the improper jury
instructions at the time of trial. Indeed, we have previously held the
failure to recognize an erroneous instruction and preserve error breaches
an essential duty. See State v. Hopkins, 576 N.W.2d 374, 379-80 (Iowa
1998). The question becomes whether there was a tactical reason for not
objecting to the instruction. See State v. Graves, 668 N.W.2d 860, 881-
82 (Iowa 2003) (concluding trial counsel breached an essential duty by
failing to object to the county attorney’s questions and argument and in
failing to request a mistrial because there was no tactical reason for not
objecting). Courts generally presume counsel is competent and a
“defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995) (quoting
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694–95).
Moreover, we must evaluate trial counsel’s actions from the
perspective of when the decision was made—during the course of trial.
See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694,
(“A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.”). Viewed from this
angle, it appears Ondayog’s trial counsel’s failure to object to the 11
erroneous jury instruction could be deemed trial strategy. Ondayog was
charged with kidnapping in the first degree, a Class “A” felony. Iowa
Code § 710.2. If convicted of this crime, he would have been sentenced
to mandatory life imprisonment. Id. § 902.1. As proper lesser-included
offenses, Ondayog could have been convicted of kidnapping in the third
degree, or sexual abuse in the third degree, both class “C” felonies. See
id. §§ 709.4, 710.4. Class “C” felonies carry a maximum indeterminate
sentence of ten years and a maximum fine of $10,000. Id. § 902.9. Trial
counsel representing a defendant in such a situation might purposely
allow the jury to be instructed on the lesser offense of assault with intent
to commit sexual abuse causing bodily injury because this crime is only
a class “D” felony, punishable by a maximum indeterminate sentence of
five years and a fine of $7500. Id. §§ 709.11, 902.9. By instructing on
this lesser crime, trial counsel would give the jury the opportunity to
forego the three higher offenses. If this was the strategy, it was
successful. This case illustrates why we rarely address ineffective-assistance
claims on direct appeal and instead preserve such claims for
postconviction relief. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).
Because “[i]mprovident trial strategy, miscalculated tactics, and mistakes
in judgment do not necessarily amount to ineffective assistance of
counsel,” State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992),
postconviction proceedings are often necessary to discern the difference
between improvident trial strategy and ineffective assistance.
The fact that a particular decision was made for tactical reasons does not, however, automatically immunize the decision from a Sixth Amendment challenge. That decision must still satisfy the ultimate test: “whether under the entire 12 record and totality of circumstances” counsel performed competently.
Graves, 668 N.W.2d at 881 (citations omitted). Nonetheless, we do not
delve into trial tactics and strategy “when they do not clearly appear to
have been misguided.” State v. Couser, 567 N.W.2d 657, 659 (Iowa
1997). In other words, “we will not reverse where counsel has made a
reasonable decision concerning trial tactics and strategy, even if such
judgments ultimately fail.” Brewer v. State, 444 N.W.2d 77, 83 (Iowa
1989); see also Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984) (“we
require more than a showing that trial strategy backfired or that another
attorney would have prepared and tried the case somewhat differently”).
Since a counsel’s “mistake in judgment” is rarely grounds for
ineffective assistance, we cannot automatically assume every alleged
misstep was a reasonable strategy simply because some lawyer,
somewhere, somehow, under some circumstances at some time would
have done such a thing. In Strickland, the United States Supreme Court
conceded “[r]epresentation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in another.”
Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.
Thus, a reviewing court must determine whether a reasonably competent
attorney would have failed to object to the erroneous jury instruction
under the given circumstances. Id. at 688, 104 S. Ct. at 2065, 80
L. Ed. 2d at 694 (“The proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.”).
Ondayog contends postconviction proceedings are not necessary in
this case because his trial counsel admitted he may have made a 13
mistake. 3 Ondayog contends these statements indicate his trial counsel
did make a mistake, and therefore violated an essential duty.
Standing alone, Ondayog’s trial counsel’s statements are not
enough to rebut the presumption that performance of counsel falls
within a range of reasonable professional assistance. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (stating “the
defendant must show that counsel’s representation fell below an objective
standard of reasonableness” (emphasis added)). This issue is preserved
for postconviction proceedings where the record can be more fully
developed. If Ondayog desires, his trial counsel may testify in order to
more fully explain his actions. See, e.g., State v. Peck, 539 N.W.2d 170,
175 (Iowa 1995) (finding the record incomplete with respect to ineffective-
assistance issues and preserving for postconviction proceedings
determination of whether defense counsel’s failure to request lesser
included offense instructions was part of an “all or nothing” strategy);
Wycoff v. State, 382 N.W.2d 462, 472 (Iowa 1986) (after reviewing trial
counsel’s testimony at the postconviction trial, concluding counsel’s
failure to request an alibi instruction was based on his general strategy
of attempting to disprove the State’s evidence by showing the
3During the motion for a new trial, Ondayog’s trial counsel said the following:
Your Honor, after the jury verdict in this case, I tried to analyze why the jury came to this conclusion and . . . . I think I made a mistake. I think the jury found my client guilty of something he wasn’t charged with. . . . Now I know the State will probably argue I think in their brief we waived that argument . . . . If that’s correct, if I made a mistake by failing to object that instruction . . . . [i]f I made a mistake in not correcting the Court’s error, then that is still grounds for new trial, Judge. . . . Whether it’s my mistake and I failed to object . . . —he is entitled to [a new trial] both on the grounds that the Court has misinstructed the jury and on the grounds that he has not received a fair and impartial trial because of my mistake, if I did make one.
(Emphasis added.) 14
unlikelihood that Wycoff, although present, murdered the victim); State
v. Wilkens, 346 N.W.2d 16, 18 (Iowa 1984) (after reviewing trial counsel’s
testimony at the hearing on the motion for a new trial, concluding trial
counsel’s tactical decision to concentrate on self defense rather than
diminished capacity “made sense”). Ultimately though, the district court
must determine whether trial counsel’s omission was reasonable under
“prevailing professional norms,” Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80
L. Ed. 2d at 694); that is the court must apply “an objective standard of
reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80
L. Ed. 2d at 693. IV. Conclusion
Ondayog has failed to establish his claim of ineffective assistance
of counsel. The decision of the district court is affirmed, and we preserve
Ondayog’s ineffective assistance claim for postconviction relief
proceedings.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Hecht, J., who takes no part.