                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1554
                            Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AARON LEE STINDE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.

      A defendant appeals his convictions for first-degree kidnapping, three

counts of second-degree sexual abuse, domestic abuse assault with bodily

injury, and operating a motor vehicle without consent. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Goodhue, S.J.*

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

      Aaron Lee Stinde appeals following a bench trial that resulted in

convictions for first-degree kidnapping, three counts of second-degree sexual

abuse, domestic abuse assault with bodily injury, and operating a motor vehicle

without consent.

      I.     Factual Background

      Twenty-year-old A. and Stinde became acquainted through work and

began dating, which developed into an intimate relationship. They lived together

off and on for about three months. They were not living together on January 15,

2014, but at about 9:30 p.m., they went to the Quad City Inn for the purpose of

having consensual sex. They took A.’s car, and she paid for the room rental.

Stinde purchased an alcoholic beverage, and A. took a few sips.          The two

participated in consensual oral and vaginal sex. A. showered, lay down on the

bed, and went to sleep for one-and-a-half to two hours.

      Stinde woke A. up and started yelling at her about Facebook messages

she had allegedly sent to a third party assumed to be a boyfriend. Stinde struck

A. in the face, causing a nose bleed. He got on top of her in the bed, choked her,

and called her a “whore” and “bitch.” When A. went to the bathroom, Stinde

followed and, over her objection, forced her to take off her pants and give him

oral sex. He then bent her over the sink and penetrated her both vaginally and

anally. She made her way to the bed where, again, Stinde forced oral sex on

her. She went to the door and attempted to leave, but Stinde pulled her back into

the room, threw her to the floor, and choked her.
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         A. testified that over the course of the evening, Stinde choked her to the

point of unconsciousness, kicked her, and hit her in the side of the head hard

enough to make her dizzy. At different times during the ordeal, she lost fecal

matter as a result of forced anal sex and vomited as a result of the forced oral

sex. She pleaded with Stinde to stop, but she testified the ordeal went on for

hours.    Eventually, Stinde told A. that she could leave if she paid him one

hundred dollars for his suffering for having cheated on him.

         A. managed to clothe herself, but Stinde told her to get away from the

door and give him oral sex one more time. A. retrieved her keys, made it to the

outside railing of the motel balcony, and hung on as Stinde pulled her hair and

smacked her in the face. She let go of the keys, managed to break loose from

Stinde, and ran for the motel lobby. The motel receptionist called the police.

Stinde ran to A.’s car and left in it.

         Officer Gavin Tigges testified he was called to the Quad City Inn at about

6:30 a.m. on January 16 and first made contact with A. in an ambulance. A. was

taken to a hospital, where law enforcement and hospital personnel interviewed

her and took pictures of her bruises. A. initially reported she had been sexually

assaulted but did not advise either law enforcement or medical personnel that the

encounter had begun with consensual sex.

         The motel room, including the bathroom and the outside railing that A. had

clung to, was examined and pictures were taken. Blood spots, towels, and the

furniture disarray were consistent with A.’s testimony.        Multiple samples of

material were tested for DNA. Two stains taken from A.’s pants contained both

seminal fluid and sperm. DNA testing revealed the sperm fraction of the stain
                                        4


matched the DNA profile of Stinde and the probability of finding the same profile

in randomly chosen individuals would be one out of one hundred billion.

      Stinde turned himself in to authorities and was charged with kidnapping in

the first degree, three counts of sexual abuse in the second degree, domestic

abuse/strangulation with bodily injury, and operating without owner’s consent.

He signed a written waiver of a jury, which was buttressed by an in-court

colloquy.

      The matter proceeded to trial. Stinde did not testify, but a video of his

police interview was shown. During the interview, Stinde claimed the following:

He had wanted to break up with A., but they agreed to go to the hotel for sex.

The evening began with consensual sex and drinking, but A. received a

telephone call from another boyfriend, prompting him to try to leave, but A. would

not let him.   As she physically resisted Stinde’s departure, an altercation

developed.

      Stinde moved for acquittal at the close of the State’s case, but his motion

was overruled. The trial court found Stinde’s statements were not credible, and

Stinde was found guilty of all charges. He was sentenced for a term of life in

prison on the kidnapping conviction, which merged with the sexual abuse

sentences. Stinde was sentenced to five years in prison on the domestic-abuse-

causing-bodily-injury conviction and two years on the operating-without-the-

owner’s-consent conviction, to run concurrently with the kidnapping sentence.

      On June 22, 2015, before sentencing, Stinde was notified that the Iowa

Department of Public Safety had sent a note to the prosecutor that stated a 1999

Journal of Forensic Science article indicated the population data published by the
                                         5


FBI in 1999 contained an error. The FBI data was relied upon in determining the

likelihood that Stinde’s DNA was found at the scene.             The DCI filed a

supplemental report that confirmed the previous report finding Stinde’s DNA in

the sperm in one test, but the other test could not be reevaluated because of the

low level of mixtures.

       Stinde moved for acquittal or, alternatively, for his convictions to be set

aside and a new trial or supplemental hearing granted based on newly

discovered evidence. He argued the changed results of one of the DNA tests

had an effect on the trial court’s decision of guilt and on his counsel’s ability to

cross-examine the criminalist who testified concerning the DNA test results. He

also argued it had an effect on his decision to waive a jury. His motions were

denied.

       On appeal, Stinde contends there was insufficient evidence to support a

conviction of kidnapping in the first degree by reason of a failure to establish

confinement and the district court erred in failing to grant a new trial or

supplemental hearing based on the statistical error in the DNA testing, which he

asserts was newly discovered evidence.

       II.    Error Preservation

       The State does not contest error preservation as to any issues Stinde has

raised.

       III.   Motion for Acquittal—Sufficiency of the Evidence

              A. Standard of Review

       Sufficiency-of-the-evidence challenges are based on a lack of substantial

evidence State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001).              Substantial
                                        6


evidence means such evidence viewed in its most favorable light as would

convince a rational trier of fact that the defendant is guilty beyond a reasonable

doubt. Id. All evidence must be considered and not just evidence favorable to

the State. Id.

                 B. Discussion

       Stinde asserts the facts do not support the transport or confinement

elements required to constitute kidnapping. With regard to these elements, our

supreme court has stated:

       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 must be more than
       slight, inconsequential, or an incident inherent in the crime of
       sexual abuse so that it has a significance independent from 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.

State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981). After recently reviewing its

previous cases involving sexual abuse and confinement, our supreme court has

essentially reaffirmed this rule. See State v. Robinson, 859 N.W.2d 464, 478-

479 (Iowa 2015).

       The facts before us support a finding of confinement.         The meeting

between the two parties began with consensual sex. However, A.’s voluntary

entry into the room and her initial consent to the planned activity does not

preclude a kidnapping conviction. See State v. Griffin, 564 N.W.2d 370, 372-73

(Iowa 1997) (holding voluntary entry into a motel room and consent to join in

unlawful activity with the defendant “does not prevent the law from recognizing
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her as a victim, or from recognizing her attacker as a kidnapper”).                 After

completion of two consensual encounters, A. went to sleep on the bed. Stinde

awakened her and confronted her about a text message that she had allegedly

sent.1 He proceeded to bloody A.’s nose, followed her into the bathroom when

she went to clean up, and forcibly sexually assaulted her over her objection. He

forced oral, vaginal, and anal sex more than once, called her a “whore” and a

“bitch,” struck her, choked her, and kicked her over a period of hours while

preventing her from leaving the room. When A. attempted to escape, she was

pulled back into the room. She pleaded with Stinde to let her go, but he would

not. As the trial court found, “there could be little question that [the confinement]

substantially increased the risk of harm to [A.],” as she testified that she felt

terrorized by the confinement and abuse, apparently making her afraid to call for

help and substantially reducing Stinde’s risk of detection.

       Stinde argues the confinement was merely incidental to the commission of

three acts of second-degree sexual abuse.           We disagree.      The fact that he

sexually abused A. for hours and still wanted oral sex before he would let her go

does not make the detention incidental to the commission of the underlying

crimes. It would be ludicrous to determine the confinement was merely incidental

to the sexual abuse when he retained her for the purpose of serial sexual

assaults over a period of hours.




1
  Stinde asserted in his interview that she received a call, but her phone did not reflect
that any call was received during the relevant period. It was later determined that a text
message had been sent from A.’s phone at 1:04 a.m. A. claimed she had not sent the
text message, which used language she did not use, and was asleep at the time it was
sent. The assumption is that the message was sent by Stinde.
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       The evidence was sufficient to establish Stinde’s guilt of kidnapping in the

first degree beyond a reasonable doubt. If Stinde is to be granted relief because

of the newly discovered evidence, it must be in the form of a new trial.

       IV.    Request for a New Trial or Supplemental Hearing

       Stinde relies on the proposition that when a defendant has discovered

new and important material evidence after the verdict that is favorable to the

defendant and could not have previously been discovered with reasonable

diligence, the defendant is entitled to a new trial or a supplemental hearing when

the matter was tried to the court. See Iowa R. Crim. P. 2.24(2)(b)(8), (2)(c).

              A. Standard of Review

       To prevail on the motion for a new trial based on newly discovered

evidence, Stinde must establish: (1) the evidence was discovered after the

verdict, (2) the evidence could not have been discovered earlier with due

diligence, (3) the evidence is material to the case and not merely cumulative, and

(4) the evidence probably would have changed the results of the trial. State v.

Jefferson, 545 N.W.2d 248, 249 (Iowa 1996).

              B. Discussion

       Stinde has failed to establish or even argue that the DNA evidence was

anything other than cumulative or that it would have changed the result of the

trial. Instead, he contends it limited his counsel’s ability to cross-examine and

affected his decision to waive the jury. We conclude that the evidence was, in

fact, cumulative and would not have changed the result of the trial.             The

uncontroverted evidence of Stinde’s guilt was overwhelming.
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       V.     Ineffective Assistance of Counsel

              A. Standard of Review

       Stinde contends that his counsel was ineffective because he was unable

to cross-examine the State’s expert witness, who testified to the DNA findings.

Ineffective assistance of counsel claims are of a constitutional nature and are

reviewed de novo.     Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

Ordinarily,   we    preserve     ineffective-assistance-of-counsel    claims    for

postconviction-relief hearings, but we will consider them when the record is

adequate. State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015). To the extent the

claim of ineffective assistance in this case is a true claim of ineffective

assistance, the record is adequate.

              B. Discussion

       To prevail on an ineffective-assistance-of-counsel claim, the proponent

must establish both ineffective assistance and prejudice by a preponderance of

the evidence. Ledezma, 626 N.W.2d at 142. If the claim lacks prejudice, it can

be decided on that basis alone. Id.

       The meeting between Stinde and A. began with consensual sex. The

presence of Stinde’s DNA was expected and inconsequential. The contention

that the error would have been a subject for effective cross-examination assumes

a situation where Stinde’s counsel knew of the error but the prosecutor did not. It

further assumes that because of his lack of knowledge of the error, the

prosecutor attempted to use the erroneous report as evidence. Otherwise, the

DNA test found to be defective would have been just another test among several

that did not contain enough material to get a reliable test, and it would not have
                                              10


been used by the State. The erroneous test did not absolve Stinde in any way.

It was rejected because of insufficient material to make a valid test. Regardless,

the evidence in this case was overwhelming, did not depend on the DNA test,

and would have been equally strong if the test had been ignored.

       Stinde also contends that if the error in the DNA testing had been known,

he would not have waived his right to a jury. He also contends the information

would have affected his counsel’s recommendation that the jury be waived.

Stinde quotes statistics that a defendant is more often acquitted if a matter is

tried to a jury than if tried to the court.

       The same differential between the methods of trial existed before the

discovery of the DNA error as existed afterward.        The DNA evidence was

primarily cumulative and of little value since the parties agreed that the evening

began with consensual sex.            The error found in the DNA testimony was

insignificant, and the DNA test was meaningless because of the initial consent to

the sex act. No prejudice has been established.

       We affirm Stinde’s conviction of kidnapping in the first degree and the

penalty imposed.

       AFFIRMED.
