                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0491
                                  Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EVER ULISES BONILLA,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



      Defendant appeals from his convictions for third-degree sexual abuse and

false imprisonment. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Aaron J. Rogers, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., Bower, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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VOGEL, Presiding Judge.

       Ever Bonilla appeals from his convictions for third-degree sexual abuse and

false imprisonment, contending his trial counsel was ineffective in failing to

specifically assert in his motion for judgment of acquittal the insufficiency of the

evidence supporting the false-imprisonment charge.1 Bonilla also asserts the

district court erred in determining the weight of the evidence supports the jury’s

verdict on the false-imprisonment conviction. Finally, Bonilla contends the district

court erred in ordering him to pay restitution for court costs and court-appointed-

attorney fees. Because we conclude there was sufficient evidence to support the

false-imprisonment charge, Bonilla’s counsel was not ineffective in failing to make

a more specific argument in the motion for judgment of acquittal.          Also, we

conclude the jury verdict was not against the weight of the evidence and the district

court considered Bonilla’s ability to pay in ordering restitution. Accordingly, we

affirm Bonilla’s convictions and sentences.

    I. Background Facts and Proceedings

       From the evidence presented at trial, the jury could have found the following

facts. Bonilla and his former girlfriend, M.F., had one young child together but were

not living together. On the evening of October 10, 2016, Bonilla messaged M.F.

and asked if he could take their child to a restaurant. M.F. agreed and drove

herself, Bonilla, and their son to the restaurant, but they left soon as it was near

closing time.   After getting food at a fast-food restaurant, they went to Bonilla’s




1
  Bonilla does not challenge the sufficiency of the evidence as to the sexual-abuse
conviction.
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parents’ home, where Bonilla had a room upstairs. The child watched cartoons

and eventually fell asleep on the bed.

        Bonilla then asked M.F. to lie down on the bed with him. M.F. told him she

was not interested, and she attempted to gather her son and leave the room.

Bonilla prevented her from leaving, pushed her down, and attempted to hug and

kiss her. M.F. still refused and tried to push Bonilla away. Bonilla grabbed M.F.,

forcefully removed her pants and underwear, and penetrated her vaginally while

recording the encounter with his cell phone.

       M.F. was eventually able to get away from Bonilla and make it to the top of

the stairs. M.F. found a knife and prepared to use it to defend herself; however,

Bonilla grabbed a glass cup, and, according to M.F.’s testimony, he threatened to

“to cut this glass and . . . slit [M.F.’s] throat with the glass.” Although she had fled

from the room once, M.F. did not want to leave her son alone with Bonilla. Bonilla

then forced M.F. back into the room where he continued to perform sex acts on

her. He recorded the acts on his cell phone while M.F. repeated her pleas to stop.

During the acts, Bonilla held the glass cup in his hand. Once the encounter ended,

M.F. called the police from a downstairs bathroom. When the police arrived, they

collected M.F.’s son and detained Bonilla.

       The State charged Bonilla with third-degree sexual abuse and false

imprisonment on November 21, 2016. Both charges were tried before a jury.

Bonilla was found guilty, and he was sentenced to indeterminate prison terms of

ten years on the sexual-abuse conviction and one year on the false-imprisonment

conviction, the sentences to be served consecutively.          The district court also

imposed a special sentence pursuant to Iowa Code section 903B.1 (2016) and
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required Bonilla to register as a sex offender pursuant to Iowa Code chapter 692A.

The fines were suspended but Bonilla was ordered to pay restitution in the form of

court-appointed-attorney fees as well as court costs.

       Bonilla appeals.

   II. Standard of Review

       We review claims of ineffective assistance of counsel de novo. State v.

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).          We review sufficiency-of-the-

evidence claims for errors of law. State v. Begey, 672 N.W.2d 747, 749 (Iowa

2003). When a district court rules on a motion for new trial based on whether the

verdict was contrary to the weight of the evidence, we review the ruling for abuse

of discretion. State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013). Our review

of a restitution order is for correction of errors at law. State v. Watts, 587 N.W.2d

750, 751 (Iowa 1998).

   III. False Imprisonment Conviction

       A. Ineffective Assistance of Counsel

       Bonilla concedes his trial counsel failed to preserve error on his claim of

insufficient evidence and, instead, raises his claim through the lens of ineffective

assistance of counsel. Ineffective-assistance-of-counsel claims are an exception

to the traditional error-preservation rules. State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010) (internal citations omitted). If a claim of ineffective assistance of

counsel is raised on direct appeal from the criminal proceedings, the court may

address it if the record is adequate to decide the claim. Id. If the record is not

adequate, the defendant may raise the claim in a postconviction action. Id. (citing

Iowa Code § 814.7(3)).
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       To succeed on a claim of ineffective assistance of counsel, Bonilla must

show by a preponderance of the evidence: “(1) his trial counsel failed to perform

an essential duty, and (2) this failure resulted in prejudice.” Thorndike, 860 N.W.2d

at 320 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). If there is

sufficient evidence to support the verdicts, counsel cannot be found to be

ineffective for failing to make a more specific argument in his motion for judgment

of acquittal. 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. Clearly, if the record in this case fails to reveal

substantial evidence to support the convictions, counsel was ineffective for failing

to properly raise the issue and prejudice resulted. On the other hand, if the record

reveals substantial evidence, counsel’s failure to raise the claim of error could not

be prejudicial.” (citation omitted)).

       Bonilla claims the State did not present sufficient evidence that he confined

M.F. beyond evidence that was merely incidental to the sexual-abuse conviction.

If substantial evidence supports the verdict, we will affirm. State v. Quinn, 691

N.W.2d 403, 407 (Iowa 2005). Evidence is substantial if it would convince a

reasonable trier of fact the defendant is guilty beyond a reasonable doubt. Id. We

view the “evidence in the light most favorable to the State, including legitimate

inferences and presumptions that may fairly and reasonably be deduced from the

record evidence.” Id.

       Under Iowa Code section 710.7:
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              A person commits false imprisonment when, having no
       reasonable belief that the person has any right or authority to do so,
       the person intentionally confines another against the other’s will. A
       person is confined when the person’s freedom to move about is
       substantially restricted by force, threat, or deception.

       “The essential elements of false imprisonment are (1) detention or restraint

against one’s will, and (2) the unlawfulness of such detention or restraint.” State

v. Snider, 479 N.W.2d 622, 623 (Iowa Ct. App. 1991). To determine whether the

confinement is incidental to the underlying assault Snider adopts the assessment

found in our kidnapping cases. See State v. Robinson, 859 N.W.2d 464, 475 (Iowa

2015); see also State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981). The Rich court

concluded:

       Although no minimum period of confinement or distance of removal
       is required for conviction of kidnapping, the confinement or removal
       must definitely exceed that normally incidental to the commission of
       sexual abuse. . . . Such confinement or removal may exist because
       it substantially increases the risk of harm to the victim, significantly
       lessens the risk of detection, or significantly facilitates escape
       following the consummation of the offense.

305 N.W.2d at 745. In Robinson, our supreme court recently noted our cases often

emphasize the use of a weapon or the binding of the defendant in a fashion that

exceeds confinement ordinarily incident to sexual abuse. 859 N.W.2d at 479.

       Bonilla’s use of the glass cup substantially increased the risk of harm

because of the way he threatened to use it. While not typically thought of or used

as a weapon, Bonilla threatened to break the glass in M.F.’s face unless she had

sex with him, and he indicated he would use it to “slit [M.F.’s] throat with the glass.”

See Iowa Code § 702.7 (defining a dangerous weapon as any instrument that

when used in a manner in which the defendant intends to inflict death or serious

injury and is capable of inflicting death); see also e.g., State v. Greene, 709 N.W.2d
                                          7


535, 538 (Iowa 2006) (holding metal shards were not dangerous weapons when

placed under a vehicle’s tires, but they could be considered dangerous if held in

defendant’s hand during “a personal confrontation”). M.F. did not want to have sex

with Bonilla. When he forced her to undress, she began to cry and asked him to

stop. Bonilla did not stop; instead, he continued to perform sex acts on M.F.

against her will while he held the glass and threatened to violently use it.

       In addition, the videos Bonilla recorded include M.F.’s repeated pleas for

Bonilla to let her go so she could use the bathroom. Bonilla refused her requests;

instead, he continued to order M.F. to assume certain positions so he could

continue to abuse her, and he threatened to break the glass in her face if she didn’t

cooperate. On cross examination, Bonilla admitted he would not let her go to the

bathroom over her tearful pleas, and he was “confining her” without permission.

The videos and Bonilla’s own admissions alone provide evidence sufficient to

support his conviction on the false-imprisonment count. Thus, counsel was not

ineffective for failing to make more specific arguments in the motion for judgment

of acquittal. Therefore, we affirm Bonilla’s conviction.

       B. Motion for a New Trial

       Bonilla next claims the weight of the evidence does not support the jury’s

verdict on the false imprisonment charge, and the district court abused its

discretion in denying his motion for a new trial. A motion for a new trial based on

the weight of the evidence will be granted if the district court determines the verdict

is contrary to the weight of the evidence and a miscarriage of justice has occurred.

State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008). “The weight-of-the-evidence

analysis is broader than the sufficiency-of-the-evidence analysis in that ‘it involves
                                            8


questions of credibility and refers to a determination that more credible evidence

supports one side than the other.’” Id. (quoting State v. Nitcher, 720 N.W.2d 547,

559 (Iowa 2006)).      A district court should overturn a jury’s verdict only in

extraordinary cases where the evidence preponderates heavily against the verdict.

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

       This is not an extraordinary case where the evidence preponderates heavily

against the verdict. The district court considered all of the evidence—including

M.F.’s testimony, the four video recordings, and Bonilla’s own admissions—and it

found the weight of the evidence supported the jury’s verdict. Upon our review of

the record, we agree and find the district court did not abuse its discretion in

denying Bonilla’s motion for a new trial.

   IV. Restitution

       Iowa criminal defendants who plead guilty or who are found guilty are

required to make restitution “to the victims of the offender’s criminal activities [and]

to the clerk of court.” Iowa Code § 910.2(1). “A defendant’s reasonable ability to

pay is a constitutional prerequisite for a criminal restitution order such as that

provided by Iowa Code chapter 910.” State v. Kurtz, 878 N.W.2d 469, 472 (Iowa

Ct. App. 2016) (internal citations omitted). “Thus, before ordering payment for

court-appointed-attorney fees and court costs, the court must consider the

defendant’s ability to pay.” Id.

       Upon our review of the record, it is clear the district court’s sentencing order

considered Bonilla’s ability to pay when it ordered him to pay $500.00 in attorney

fees and additional amounts in court costs. The district court noted Bonilla’s ability

to work while incarcerated, albeit on a limited income, as well as potential future
                                           9


earnings when released based on his previous work experience. Because the

court considered factors relevant to Bonilla’s ability to pay, we conclude the district

court did not abuse its discretion in ordering restitution.

   V. Conclusion

       Because we conclude there was sufficient evidence to support the false-

imprisonment conviction, Bonilla’s counsel was not ineffective in failing to make a

specific argument in the motion for judgment of acquittal. Also, we conclude the

district court did not abuse its discretion in finding the jury verdict was not against

the weight of the evidence and the district court considered Bonilla’s ability to pay

in ordering restitution. Accordingly, we affirm Bonilla’s convictions.

       AFFIRMED.
