                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1283
                             Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NAPOLEON MBONYUNKIZA,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



       Napolean Mbonyunkiza appeals following his guilty pleas to sexual abuse

in the third degree, neglect of a dependent person, dependent adult abuse, and

failure to appear. AFFIRMED.



       Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee.



       Considered by Vaitheswaran, P.J., McDonald, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2


MAHAN, Senior Judge.

          Napolean Mbonyunkiza appeals following his guilty pleas to sexual abuse

in the third degree, neglect of a dependent person, dependent adult abuse, and

failure to appear. Mbonyunkiza contends (1) the district court erred in finding him

competent to stand trial; (2) his trial counsel was ineffective in failing to challenge

his plea as unknowing, involuntary, and uninformed, or without a factual basis;

(3) his sentences violate double jeopardy and the merger rule; and (4) the district

court abused its discretion in sentencing him. We affirm.

I.        Background Facts and Proceedings

          D.B., a mentally and physically incapacitated woman living at a Des

Moines-area group home, was treated at Mercy Hospital for weight loss, gagging,

and digestive issues. It was discovered D.B. was twenty weeks pregnant. The

pregnancy was terminated per the direction of D.B.’s guardian. Police sought

DNA samples of all males with access to D.B., including Mbonyunkiza, a

caretaker for D.B. at the group home. While paternity testing could exclude

99.9% of the male population, it could not exclude Mbonyunkiza as the fetus’

father.

          In July 2010, the State filed a trial information (FECR237656) charging

Mbonyunkiza with sexual abuse in the third degree, neglect of a dependent

person, and dependent adult abuse. Mbonyunkiza was arrested, a preliminary

hearing was scheduled, and he was released.            After Mbonyunkiza failed to

appear for his preliminary hearing, police discovered he had fled to Uganda. The

State then filed a trial information (FECR238083) charging Mbonyunkiza with

failure to appear.
                                         3


      Mbonyunkiza subsequently returned to the United States and was taken

into custody to face the pending charges. The issue of competency was raised

by defense counsel, and the district court ordered Mbonyunkiza to be evaluated

by Dr. Tracy Thomas. The State moved for a separate evaluation, and the court

ordered Mbonyunkiza to be evaluated by Dr. James Dennert.                Both experts

opined Mbonyunkiza was competent to stand trial.         Following a competency

hearing, the court concluded Mbonyunkiza was competent to stand trial.

      Mbonyunkiza subsequently pled guilty as charged to each count.

Mbonyunkiza’s attorney informed the court Mbonyunkiza intended to argue for a

favorable sentence. The court accepted Mbonyunkiza’s pleas and sentenced

him to the maximum terms of imprisonment—ten years on two counts and five

years on two counts—to run consecutively, for a total of thirty years.

      Mbonyunkiza appeals. Additional facts will be set forth below as relevant

to the issues raised on appeal.

II.   Competency

      Mbonyunkiza challenges the district court’s finding that he was competent

to stand trial. Mbonyunkiza contends his alleged incompetence to stand trial

implicates his due process rights.     “[T]he constitutional basis of a claim the

defendant is not competent to be tried requires a de novo review on appeal.”

See State v. Johnson, 784 N.W.2d 192, 194 (Iowa 2010).

      Competency to stand trial is governed by Iowa Code section 812.3 (2015),

which provides:

             If at any stage of a criminal proceeding the defendant or the
      defendant’s attorney, upon application to the court, alleges specific
      facts showing that the defendant is suffering from a mental disorder
                                            4


       which prevents the defendant from appreciating the charge,
       understanding the proceedings, or assisting effectively in the
       defense, the court shall suspend further proceedings and determine
       if probable cause exists to sustain the allegations. The applicant
       has the burden of establishing probable cause.

“We presume a defendant is competent to stand trial. The defendant has the

burden of proving his or her incompetency to stand trial by a preponderance of

the evidence. If the evidence is in equipoise, the presumption of competency

prevails.” Id. at 194 (citation omitted).

       In September 2013, defense counsel and Mbonyunkiza requested a

competency evaluation pursuant to section 812.3.         Defense counsel became

concerned     about    Mbonyunkiza’s        competence   after   discussions   with

Mbonyunkiza. Mbonyunkiza reported he heard voices, someone cast “spells” on

him, and “sorcery” caused him to do bad things. Mbonyunkiza related that he

grew up in Rwanda, where he witnessed brutal murders of his family members.

He had been treated for posttraumatic stress and depression.

       The district court granted the request for a competency evaluation. The

defense’s evaluator, Dr. Tracy Thomas, submitted an initial report in October

2013, stating “a definitive opinion [as to Mbonyunkiza’s competence] could not be

made due to lack of information.” During that hearing, the State requested a

second evaluation, and the court granted the request.

       The State’s evaluator, Dr. James Dennert, conducted an interview of

Mbonyunkiza and reviewed the trial information, minutes of testimony, and Dr.

Thomas’ October 2013 report.        Dr. Dennert’s December 16, 2013 evaluation

opined:
                                  5


        On the basis of the information provided to me, and my
interview of Mr. Mbonyunkiza, it is my medical opinion that he does
not suffer a mental illness that renders him incompetent to stand
trial. Specifically, he does not suffer a mental illness that prevents
him from understanding the charges against him, or that prevents
him from being able to understand the court proceedings, or that
prevents him from assisting his attorney in his defense.
        While Mr. Mbonyunkiza said that he did not know or
understand the charges against him, he seemed to understand
quite well when I told him, in general, what he was accused of. He
denied that he had done what he is charged with, and maintained
his denial throughout our interview. He also indicated that he was
trying to learn about how trials work, and that the major impediment
to his current understanding is his poor English. He even said that,
if he could have the trial explained to him in French that this would
help “absolutely.”
        Mr. Mbonyunkiza’s claimed lack of memory for his trip to
Uganda and subsequent return to the United States is not
consistent with any known psychiatric or neurological syndrome.
He is able to provide very good history for other aspects of his life.
It is my opinion that Mr. Mbonyunkiza does, in fact, recall going to
Uganda, but that he is falsely claiming not to recall. His lack of
memory is clearly self-serving.
        It is also my opinion that Mr. Mbonyunkiza’s reports of
hearing “voices” are self-serving as well. During my interview, he at
no time appeared to be attending to inner stimuli. I am unaware of
any reports of his behavior while in jail that would suggest psychotic
symptoms. I am unaware of any history of psychosis in Mr.
Mbonyunkiza; his reported treatment in Rwanda and Uganda
appear to be for depression, or possibly posttraumatic stress, but
not psychosis.
        Mr. Mbonyunkiza does report current symptoms of a
depressive nature. He complains of sleep problems, appetite
disturbance, and decreased energy. He was also tearful at times
during our interview. These symptoms are not surprising in
someone jailed for the crimes that Mr. Mbonyunkiza is accused of
committing. Taken together, they are consistent with a diagnosis of
Adjustment Disorder with Depressed Mood.
        On the basis of all the information provided to me and my
interview with Mr. Mbonyunkiza, it is my medical opinion that he is
competent to stand trial. He does not suffer any psychiatric or
mental illness that renders him incompetent. The only potential
obstacle to his participation in his trial is language, and that can be
addressed by providing him with a French interpreter, who could
explain the charges, the basic workings of the court system, and
provide ongoing interpretation during trial.
                                         6


       After Dr. Dennert’s report was submitted—and after conducting another

interview of Mbonyunkiza and reviewing additional materials—Dr. Thomas

submitted an “update[d]” report opining Mbonyunkiza was competent to stand

trial. Dr. Thomas’ January 17, 2014 evaluation opined:

               Based on the information available to this evaluator and on
       the two interviews conducted with the defendant, this evaluator was
       not able to find conclusive evidence of a mental disorder that would
       preclude the defendant from appreciating his charges,
       understanding the proceedings against him, or assisting in his
       defense. Although he reported at first interview a history of mental
       health problems, his report of those issues has not been consistent
       and available records do not show that he has ever been observed
       to have a major mental illness that would be expected to impact
       competence. Further, his presentation during interviews with this
       evaluator was not consistent with a major mental illness, such as a
       bipolar disorder or a psychotic disorder. Mr. Mbonyunkiza may
       have [posttraumatic stress disorder] PTSD from experiences in
       Africa and may have an Adjustment Disorder related to his current
       situation.    However, these conditions would not typically be
       expected to impact an individual’s competence to proceed.
               The fact that the defendant does not present with a requisite
       mental disorder makes further analysis of his competence-related
       abilities moot; however, this evaluator would like to briefly comment
       on the issue of psycho-legal abilities. Mr. Mbooyunkiza does report
       a fairly significant lack of understanding of his charges, the legal
       process, and the role of his attorney. It is this evaluator’s opinion
       that those deficits are a product of cultural and language issues. It
       is also possible that the defendant is magnifying his lack of
       knowledge due to fear regarding his charges and the impending
       legal process. He is likely to need some education on the legal
       system and will likely require the continued use of an interpreter.
               Taken together, it is this evaluator’s opinion the defendant is
       competent to proceed with his current charges.

       The experts’ reports were introduced at a second hearing, where the

district court ruled: “The court has had an opportunity to review all of the

evaluations that have been presented.        The court finds based upon those

evaluations and the expert opinions that the defendant in this matter is

competent to stand trial.”
                                           7


       On appeal, Mbonyunkiza points to Dr. Thomas’ initial report as “the first

professional indication[] . . . that it was possible [he] was incompetent.” But

Mbonyunkiza ignores the fact that Dr. Thomas subsequently updated the initial

report to reach an opinion Mbonyunkiza was competent to stand trial stating,

“Since the time of the October 2013 report, this evaluator was able to review

additional information and re-interview the defendant making possible the

formation of an opinion regarding competence.” Moreover, by the time of Dr.

Thomas’ updated evaluation, Dr. Thomas had conducted two interviews with

Mbonyunkiza and reviewed Mbonyunkiza’s medical and jail records.

       Mbonyunkiza further claims, “The exhibits demonstrated that there was a

language barrier, as well as serious concerns about Mbonyunkiza’s mental

health.” According to Mbonyunkiza, “A general theme came through the written

materials, and the statements made by Mbonyunkiza on the record—that he was

suffering from voices, that he was suffering from the effects of genocide, and he

believed he was under a voodoo spell from a witch.”

       In addition to reviewing the experts’ reports, the district court had the

opportunity to observe Mbonyunkiza at several hearings before making a

determination of his competence.        Although Mbonyunkiza did not testify, the

court was able to view Mbonyunkiza’s demeanor, as well as his ability to ask and

answer questions and interact with counsel. Upon our de novo review of the

record, we conclude Mbonyunkiza failed to prove by a preponderance of the

evidence that he was not competent to stand trial. Accordingly, we affirm the

decision of the district court on this issue.
                                              8


III.   Ineffective Assistance of Counsel

       Mbonyunkiza contends his trial counsel was ineffective in failing to

challenge his plea where (A) there was no factual basis to support his conviction

for dependent adult abuse; (B) the plea was not intelligent, knowing, or voluntary

due to his lack of competence; and (C) there was no plea agreement. 1                     To

succeed on these ineffective-assistance-of-counsel claims, Mbonyunkiza must

show (1) the breach of an essential duty and (2) prejudice.                   Strickland v.

Washington, 466 U.S. 668, 687 (1984). “If we conclude a claimant has failed to

establish either of these elements, we need not address the remaining element.”

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

       A.      Factual Basis–Dependent Adult Abuse

       A guilty plea may not be accepted by a court without the court first

determining the plea has a factual basis. Iowa R. Crim. P. 2.8(2)(b). If there is

no factual basis to support a defendant’s guilty plea and the defendant’s counsel

permits the defendant “to plead guilty and waive his right to file a motion in arrest

of judgment” anyway, that counselor renders the defendant ineffective

assistance. See State v. Ortiz, 789 N.W.2d 761, 764-65 (Iowa 2010) (stating

“counsel violates an essential duty” and “[p]rejudice is presumed under these

circumstances”). To succeed on the essential-duty prong, Mbonyunkiza must




1
  Generally, a defendant’s failure to file a motion in arrest of judgment bars a direct
appeal of the conviction. Iowa R. Crim. P. 2.24(3)(a). But this failure does not bar a
challenge to a guilty plea if the failure to file a motion in arrest of judgment resulted from
ineffective assistance of counsel. State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).
We therefore proceed to the merits of Mbonyunkiza’s ineffective-assistance-of-counsel
claims.
                                           9


demonstrate the record lacks a factual basis to support his guilty plea to

dependent adult abuse. See id. at 765.

           Mbonyunkiza pled guilty to dependent adult abuse causing physical injury,

in violation of Iowa Code sections 235B.2(5)(a)(1)(b) and 235B.20(4).

“‘Dependent adult abuse’ means . . . [a]ny of the following as a result of the willful

or negligent acts or omissions of a caretaker: . . . [t]he commission of a sexual

offense . . . with or against a dependent adult.” Iowa Code § 235B.2(5)(a)(1)(b).

“A caretaker who intentionally commits dependent adult abuse on a dependent

adult in violation of this chapter is guilty of a class ‘C’ felony if the intentional

dependent adult abuse results in physical injury.” Id. § 235B.20(4) (emphasis

added).

           Mbonyunkiza challenges the “physical injury” element of the offense.

Specifically, he claims D.B.’s pregnancy and related sickness from the pregnancy

was not a “physical injury,” and the court “should not read pregnancy into a

definition of ‘physical injury’ without clear language from the legislature that

pregnancy is considered a ‘physical injury.’”        Mbonyunkiza relies on United

States v. Yankton, 986 F.2d 1225, 1229-30 (8th Cir. 1993), where the court

concluded pregnancy resulting from rape did not constitute a “serious bodily

injury.”     But as the State points out, the court in Yankton was interpreting

sentencing guidelines, which allowed for an elevated offense level for

“permanent or life-threatening injury” or “serious bodily injury,” not physical injury.

See Yankton, 986 F.2d at 1229. Indeed, Mbonyunkiza pled guilty to dependent

adult abuse resulting physical injury—not resulting in serious injury. Compare

Iowa Code § 235B.20(2) (defining dependent adult abuse resulting in serious
                                         10

injury), with id. § 235B.20(4) (defining dependent adult abuse resulting in

physical injury); see also id. §§ 235B.2(13) (“‘Serious injury’ means the same as

defined in section 702.18.”); 702.18 (defining “serious injury”).         The State

counters, “A better, common-sense view holds that pregnancy resulting from

rape meets not only the lower threshold of ‘physical injury’ but definitions of ‘great

bodily injury.’”

       We need not reach the question of whether pregnancy should be

considered a physical injury per se. The parties acknowledge “physical injury” is

not defined in the Iowa Code.       According to Black’s Law Dictionary, “bodily

injury”—also termed “physical injury”—is defined as “physical damage to a

person’s body.” Black’s Law Dictionary 789 (7th ed. 1999).

       Here, the record shows D.B. was a “wheel chair bound” woman “unable to

speak works or write” and “suffer[ing] from physical incapacitation as well as a

mental defect or incapacity.” While caring for D.B. as part of his employment

duties at the group home where D.B. resided, Mbonyunkiza forcibly sexually

assaulted D.B. The Iowa Supreme Court has “recognize[d] that forcible sexual

abuse will frequently cause pain or other injury. It has been held, for example,

that forcible rape is bodily injury as a matter of law.” State v. McKee, 312 N.W.2d

907, 914 (Iowa 1981) (citation omitted). In addition to the act of sexual assault

itself, Mbonyunkiza’s assault caused D.B. to become pregnant and hospitalized

for weight loss, gagging, and digestive problems; D.B.’s pregnancy culminated in

an abortion at twenty-weeks’ gestation.       The record supports a finding of a

physical injury. Accordingly, we conclude the minutes provide a factual basis for
                                         11


Mbonyunkiza’s plea, and trial counsel was not ineffective for permitting him to

plead guilty.

       B.       Unknowing, Involuntary, Uninformed Plea

       Mbonyunkiza next contends his counsel was ineffective in failing to

challenge his “clear incompetency” and allowing him to plead guilty.

Mbonyunkiza points to statements he made during the hearings that showed

“issues with [his] ability to understand the guilty plea he was entering.”

       At the outset of the plea hearing, trial counsel stated:

       I set these two cases for guilty pleas. That was done at the request
       of my client. He informed me that he wishes to plead guilty to these
       charges and have this matter set down for sentencing. And at the
       time of sentencing, we intend to argue for a favorable disposition
       for this defendant.

       But prior to the plea colloquy, Mbonyunkiza told the court, “[W]hat I want is

with complete awareness of the mental illness that I have that is bothering me so

much.” He stated, “[B]efore making a decision, in order to make a decision, [I]

ask for more time because I’m taking these medications and I was for my mental

health to be quite okay so that it would be adequate for making this kind of

decision.” Mbonyunkiza further stated he did not understand “a lot of things” the

court had talked about.       The court responded, “It appears to me you’ve

understood all of my questions,” and reminded Mbonyunkiza, “Sir, you have

undergone a competency evaluation during the pendency of this case and you

have been found competent to stand trial.”

       Defense counsel then explained her investigation of possible defenses on

Mbonyunkiza’s behalf:
                                         12


       So what I did was discuss this case with this defendant as well as
       an expert that I consulted with regarding the defenses such as
       diminished responsibility, diminished capacity, any mental health
       defenses.
              I also obtained medical records regarding this defendant and
       it provided some history. The information I obtained from my
       various sources, in my opinion, would not be able to support a
       diminished responsibility, diminished capacity or any such mental
       health defenses that would have been—that this defendant would
       have been suffering from at the time the alleged offenses occurred.

The court observed defense counsel was “capable and competent” in her

investigation of Mbonyunkiza’s mental health and possible defenses.

       After more discussion by Mbonyunkiza with regard to his mental health,

the court asked Mbonyunkiza if he wanted to enter a plea or whether he wanted

the matter set for trial. Mbonyunkiza stated, “I would first like to discuss that with

my lawyer to make a decision.” The court allowed Mbonyunkiza twenty minutes

in private with counsel.       When the hearing resumed, the court asked

Mbonyunkiza, “Do you wish to enter a plea of guilty today or do you want me to

confirm this for trial?” to which Mbonyunkiza answered, “I understand. Yes. I

want to take—I want to plead guilty today.”

       On our de novo review, we cannot find counsel was ineffective in failing to

challenge Mbonyunkiza’s plea as unknowing, involuntary, or uninformed. We

further observe trial counsel was the one who raised the issue of competence

initially, and she requested a competency evaluation.         As noted above, the

experts agreed Mbonyunkiza was competent to stand trial. Moreover, in the plea

context, the prejudice element requires proof of a reasonable probability that, but

for counsel’s errors, the defendant would not have pled guilty and would have

insisted on going to trial. State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). On
                                        13


our de novo review, we are convinced Mbonyunkiza cannot establish either

element of his claim. We affirm on this issue.

       C.      Plea Agreement

       Mbonyunkiza contends his counsel was ineffective in allowing him to

plead guilty without a plea agreement. Mbonyunkiza cites no authority for this

assertion, only a generalized claim that he received “no benefit whatsoever” to

pleading guilty. It is apparent from the record Mbonyunkiza decided to plead

guilty and “argue for a favorable” sentence. At the outset of the plea hearing, the

State acknowledged, “[I]t’s my understanding that the defendant will plead to all

of these charges. There is not a plea agreement so the parties will be free to

argue any disposition.”

       Mbonyunkiza’s decision to plead guilty could be considered both strategic

and logical.   The evidence against him was overwhelming.          By “accept[ing]

responsibility” for his actions, Mbonyunkiza was able to express remorse to the

court, describe his “mental illness” as the reason he made a “poor decision,” and

ask the court to consider his act “a single incident” for sentencing purposes. Trial

counsel was not ineffective in allowing Mbonyunkiza to plead guilty under these

circumstances. We affirm on this issue.

IV.    Double Jeopardy and Merger

       Mbonyunkiza contends he “was accused of having sex one time with one

victim who was mentally incapable of giving consent,” and “he was charged with

sex abuse in the third degree, neglect of a dependent person and dependent
                                           14


adult abuse, and given consecutive sentences.”2 According to Mbonyunkiza,

“This violated [his] rights under Iowa statutory law for a violation of the merger

rule in Iowa Rule of Criminal Procedure 2.6(1), and the double jeopardy clause of

the Fifth Amendment to the United States Constitution.”

       Our review of a double-jeopardy claim is de novo, due to its constitutional

nature.     State v. Lindell, 828 N.W.2d 1, 4 (Iowa 2013).               To the extent

Mbonyunkiza claims his sentence was illegal because the court failed to merge

the three offenses (in accordance with Iowa Code section 701.9), our review is at

law. See State v. Perez, 563 N.W.2d 625, 627 (Iowa 1997); see also Iowa Code

§ 701.9 (“No person shall be convicted of a public offense which is necessarily

included in another public offense of which the person is convicted. If the jury

returns a verdict of guilty of more than one offense and such verdict conflicts with

this section, the court shall enter judgment of guilty of the greater of the offenses

only.”); Iowa R. Crim. P. 2.6(2) (“Upon prosecution for a public offense, the

defendant may be convicted of either the public offense charged or an included

offense, but not both.”).

       The Double Jeopardy Clause of the United States Constitution states that

no person shall “be subject for the same offense to be twice put in jeopardy of life

or limb.”    U.S. Const. amend. V.        The clause “protects against successive


2
   The State challenges Mbonyunkiza’s error preservation, noting, “Parties cannot
‘predicate error upon the court’s doing the very thing they requested the court to do.’”
State v. Means, No. 14-1376, 2015 WL 6509741, at *9 (Iowa Ct. App. Oct. 28, 2015)
(citation omitted). But here, at sentencing, trial counsel requested the court “to run the
counts in . . . the sex abuse case . . . concurrent” due to the “single nature of this
incident.” Trial counsel acknowledged “it makes sense” to run the sentence for failure to
appear consecutive because “that’s a separate charge, separate incident.” We therefore
disagree with the State’s contention Mbonyunkiza is now challenging the court’s action
in doing what he requested the court do.
                                          15


prosecutions after acquittal or conviction; and, pertinent to this appeal, it protects

against multiple punishments for the same offense.” Perez, 563 N.W.2d at 627.

The prohibition is based on principles of finality and the prevention of

prosecutorial overreaching. State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993).

       Where multiple punishments are imposed pursuant to a single

prosecution, however, application of the Double Jeopardy Clause is limited. The

reason is that the multiple-punishment proscription “does no more than prevent

the sentencing court from prescribing greater punishment than the legislature

intended.”   Missouri v. Hunter, 459 U.S. 359, 366 (1983).           Accordingly, “the

question of what punishments are constitutionally permissible is no different from

the question of what punishments the legislature intended to be imposed.” State

v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992).

       The question before us is whether Mbonyunkiza, found to have committed

the single act of sexual assault on D.B., can be sentenced for convictions of

sexual abuse in the third degree,3 neglect of a dependent person,4 and



3
  Relevant to Mbonyunkiza’s plea on this charge, Iowa Code section 709.1 provides:
                Any sex act between persons is sexual abuse by either of the
        persons when the act is performed with the other person in any of the
        following circumstances:
                ....
                2. Such other person is suffering from a mental defect or
        incapacity which precludes giving consent, or lacks the mental capacity to
        know the right and wrong of conduct in sexual matters.
With regard to the factual basis for the degree of the charge to which Mbonyunkiza pled,
“[a] person commits sexual abuse in the third degree when the person performs a sex
act [and t]he act is between persons who are not at the time cohabiting as husband and
wife and [t]he other person is suffering from a mental defect or incapacity which
precludes giving consent.” Iowa Code § 709.4(1)(b)(2).
4
  The crime of neglect of a dependent person is defined as follows:
                A person . . . having custody of a . . . person who by reason of
        mental or physical disability is not able to care for the person’s self, who
        knowingly or recklessly exposes such person to a hazard or danger
                                              16


dependent adult abuse.5         In the absence of clear legislative intent to intend

cumulative punishment, we turn to the rule of statutory construction articulated in

Blockburger v. United States, 284 U.S. 299, 304 (1932). Namely, “‘where the

same act or transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of an additional fact which the other does

not.’” Butler, 505 N.W.2d at 807 (quoting Blockburger, 284 U.S. at 304). “If one

crime is a lesser included offense of the other crime, the offenses are the ‘same’

and cumulative punishments cannot be imposed.” State v. Taylor, 596 N.W.2d

55, 57 (Iowa 1999).

       But if one offense is not included within the other, there is a
       presumption that multiple punishments can be assessed. The
       lesser included offense is necessarily included in the greater
       offense if it is impossible to commit the greater offense without also
       committing the lesser offense. If the lesser offense includes an
       element that is not required for the greater offense, the lesser is not
       included in the greater.



        against which such person cannot reasonably be expected to protect
        such person’s self . . . , knowing or having reason to believe that the
        person will be exposed to such hazard or danger, commits a class “C”
        felony.
Iowa Code § 726.3.
5
  The crime of dependent adult abuse is defined as: “Any of the following as a result of
the willful or negligent acts or omissions of a caretaker: . . . . The commission of a
sexual offense under chapter 709 or section 726.2 with or against a dependent adult.”
Iowa Code § 235B.2(5)(a)(1)(b). “Caretaker” is defined as “a related or nonrelated
person who has the responsibility for the protection, care, or custody of a dependent
adult as a result of assuming the responsibility voluntarily, by contract, through
employment, or by order of the court.” Id. § 235B.2(1). “Dependent adult” is defined as
“a person eighteen years of age or older who is unable to protect the person’s own
interests or unable to adequately perform or obtain services necessary to meet essential
human needs, as a result of a physical or mental condition which requires assistance
from another, or as defined by departmental rule.” Id. § 235B.2(4). Section 235B.20(4)
further provides: “A caretaker who intentionally commits dependent adult abuse on a
dependent adult in violation of this chapter is guilty of a class ‘C’ felony if the intentional
dependent adult abuse results in physical injury.”
                                        17

Id. (citations omitted); see also State v. Miller, 841 N.W.2d 583, 587-88 (Iowa

2014) (“The test we have settled on to determine whether a crime is a lesser

included offense of a greater crime generally inquires ‘whether the greater

offense cannot be committed without also committing all elements of the lesser

offense.’” (citation omitted)).

       Mbonyunkiza contends sexual abuse in the third degree is a lesser-

included offense of neglect of a dependent person and dependent adult abuse.

Because it is possible to commit neglect of a dependent person without

committing sexual abuse in the third degree and to commit dependent adult

abuse without committing sexual abuse in the third degree, Mbonyunkiza’s

challenge fails. For instance, it is possible to commit neglect of a dependent

person without committing the other two offenses if the perpetrator is the victim’s

husband and the victim is under eighteen years of age or does not suffer an

injury. It is possible to commit dependent adult abuse but not the other two

offenses if the perpetrator is married to the adult victim but while she has the

capacity to consent to sex she cannot perform certain physical or financial tasks

for herself. Because it is possible to commit one offense without committing the

other, Mbonyunkiza’s challenge fails.

V.     Sentencing

       Mbonyunkiza also challenges the district court’s imposition of “the

maximum possible sentence of 30 years in prison.” Specifically, Mbonyunkiza

claims because three of the four counts were “all for one act,” the court should

have imposed concurrent sentences for those counts rather than consecutive
                                           18

sentences. Our review is for an abuse of discretion. State v. Thompson, 856

N.W.2d 915, 918 (Iowa 2014).

      We have already concluded in our analysis of Mbonyunkiza’s double

jeopardy and merger claims that there were separate offenses.             Imposing

consecutive sentences on multiple convictions arising from the same transaction

is within the prerogative of the sentencing court.     See State v. Criswell, 242

N.W.2d 259, 261 (Iowa 1976) (“Iowa statutes allow imposition of consecutive

sentences for convictions obtained under the circumstances presented [separate

offenses committed in the course of a single transaction].”); see also Taylor, 596

N.W.2d    at 57    (“The   decision   to    impose   consecutive   sentences was

discretionary.”). Here, in sentencing Mbonyunkiza, the district court stated:

               I appreciate your acceptance of responsibility by your pleas
      of guilty and by the statements you’ve made. But with responsibility
      comes accountability, and we are accountable for our actions. The
      problems afflicting you are serious. I understand that from what
      you’ve said and the presentence investigation report, but I believe
      the problems that you suffer from and afflictions that you may have
      can best be treated in an atmosphere that allows for the maximum
      protection of the public from further criminal activity by you.
               The offenses of sex abuse in the third degree, neglect of a
      dependent person, dependent adult abuse all are horrible offenses.
      They not only show a massive deviation from proper and decent
      human behavior, but an utter disregard for a person you are
      charged with caring for.
               This design and devious abuse of a person totally unable to
      care for herself and a person especially defenseless against the
      sexual assault perpetrated upon her is particularly heinous.
               In addition, your voluntary absence and flight from this
      jurisdiction illustrates your contempt for the law. Your actions taken
      together with all of the factors the Court must consider by law lends
      itself to the conclusion that society deserves and expects protection
      from you for as long as possible to allow necessary steps, if you are
      willing, for your treatment for whatever you are suffering from or
      what afflictions you have.
               You, as much as anyone, have observed and endured first-
      hand terrible cruelty that can come from the hands of humans.
                                        19


      You, more than anyone, should appreciate the pain and suffering
      not only the victims of such cruelty or such abuse and heinous
      crimes, but also what happens to those who are the loved ones
      who are left to weep and suffer and mourn.
              You came to the United States to seek asylum and enjoy the
      freedoms and protection of our laws, our people and the
      government of the people. And even though this was all provided
      to you, the acts you have committed have caused that freedom now
      to be limited, soon to be taken away.

      Mbonyunkiza again requested the court order his sentences to run

concurrent, to which the court responded:

              The Court has considered the request made by the
      defendant and defendant’s counsel. The request is hereby denied.
      For the reasons as previously stated, the Court finds, again, these
      crimes are so horrible and heinous as to require protection of the
      public, and the Court intends to do just that.
              ....
              The Court, again, has considered all the circumstances and
      all the factors involved. Particularly aggravating is the fact that this
      offense was committed upon a person who was totally defenseless,
      totally unable to give consent, let alone to fend off the actions of the
      defendant, and that this defendant, as you stated, came to the
      United States to seek asylum, to seek a new life for himself, to seek
      freedom, to be protected from the genocide he escaped from and
      yet decided, for whatever reason, to commit this heinous offense—
      offenses.
              I can’t think of another case or set of circumstances that
      could require the sentence imposed as I have done so than this.

      We discern no abuse of discretion in the district court’s statement of

reasons and imposition of consecutive sentences.         We affirm Mbonyunkiza’s

convictions and sentences for sexual abuse in the third degree, neglect of a

dependent person, dependent adult abuse, and failure to appear.

      AFFIRMED.
