                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1047
                               Filed April 15, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FRANCISCO M. CARDONA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      A man appeals from felony sexual abuse convictions. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

         Francisco Cardona appeals from two sexual abuse convictions. He argues

the witness testimony lacked detail and contained inconsistencies such that the

testimony was insufficient to support a conviction. He further contends he received

ineffective assistance of trial counsel due to counsel’s failure to make a motion for

a new trial or a motion in arrest of judgment based on the weight of the evidence

standard. We find substantial evidence to support the verdict, and we reject the

ineffective-assistance claim in light of the overwhelming evidence of Cardona’s

guilt.

I. Background Facts and Proceedings

         Based on the record, a rational jury could find the following facts beyond a

reasonable doubt. Cardona frequently subjected N.C. to sexual abuse for a period

of several years prior to 2009. N.C. testified that the abuse began when she was

approximately nine years old. Cardona would fondle N.C. and digitally penetrate

her. Cardona attempted to have intercourse with N.C. and would use force to

prevent N.C. from crying out. Cardona would condition N.C.’s time with friends on

her participation in his sexually abusive acts. In 2009, N.C. told a friend Cardona

was doing bad things to her and she planned to commit suicide. The friend made

N.C. report the abuse. An investigation was undertaken but was ultimately closed

without charges being filed. L.C., N.C.’s sibling, was elementary-school age at the

time and did not supplement N.C.’s allegations when interviewed as part of the

investigation into N.C.’s allegations.

         In May 2016, L.C. told school officials about abuse she suffered at

Cardona’s hands during the same period in which N.C. had been abused. L.C.
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testified that the abuse began when she was six years old. Cardona touched L.C.’s

genital area, digitally penetrated her, and had sexual intercourse with her. During

its duration, Cardona’s abuse of L.C. occurred at least every other day.

       Following L.C.’s 2016 report, a second investigation ensued, resulting in the

issuance of a warrant for Cardona’s arrest.         After he was apprehended in

September 2018, Cardona was charged with two counts of second-degree sexual

abuse, Class “B” felonies. The case proceeded to trial in April 2019. After the

State rested its case, the defense moved for a judgment of acquittal on both

counts, alleging there was insufficient evidence that the defendant committed a

sex act. The defense renewed this motion after the defense rested. Both motions

were denied. The defense did not move for a new trial or a make a motion in arrest

of judgment. Cardona timely appealed, arguing the evidence was insufficient to

support his convictions and that he received ineffective assistance of counsel due

to trial counsel’s failure to make a motion for a new trial or a motion in arrest of

judgment based on the weight of the evidence standard.

II. Standard of Review

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

Straw, 709 N.W.2d 128, 133 (Iowa 2006).            “[W]e review challenges to the

sufficiency of evidence for correction of errors at law.” State v. Dullard, 668 N.W.2d

585, 589 (Iowa 2003). “On a weight-of-the-evidence claim, appellate review is

limited to a review of the exercise of discretion by the trial court, not of the

underlying question of whether the verdict is against the weight of the evidence.”

State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). If a defendant makes a motion

for a new trial on the ground that the verdict is contrary to the weight of the
                                          4

evidence, we review the court’s ruling for abuse of discretion. State v. Neiderbach,

837 N.W.2d 180, 190 (Iowa 2013).

III. Discussion

   a. Insufficiency of the Evidence

       We disagree that the evidence is insufficient to support Cardona’s

convictions for second-degree sexual abuse. Challenges to the sufficiency of the

evidence are reviewed the correction of errors at law. State v. Keopasaeuth, 645

N.W.2d 637, 639–40 (Iowa 2002). We view “the evidence in the light most

favorable to the State, including all reasonable inferences that may be fairly drawn

from the evidence.” Id. at 640. “We uphold the verdict if there is substantial

evidence in the record supporting it.” Neiderbach, 837 N.W.2d at 216. “Evidence

is considered substantial if, when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

       L.C. testified that Cardona sexually abused her by touching her genital area

both over and under her clothes, by digitally penetrating her, forcing fellatio upon

her, and having sexual intercourse with her. N.C. testified that her abuse consisted

of Cardona groping and fondling her, digitally penetrating her, rubbing his penis on

her, and attempting to have sexual intercourse with her. Viewing this evidence in

the light most favorable to the State, we conclude the victims’ testimony is sufficient

to convince a rational jury that Cardona was guilty of the crimes charged beyond

a reasonable doubt.
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       In arguing the evidence is insufficient to support his convictions, Cardona

relies on our decision in State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993).1

Smith involved sexual-abuse allegations by the defendant’s two step-daughters.

Based on the complaining witnesses’ self-contradictory statements, pervasive use

of hedging language, and inability to recall significant details of the incidents, we

found the evidence insufficient to support the defendant’s convictions. Id. at 103–

05. We determined the accounts were so inconsistent and self-contradictory that

the testimony lacked the probative value needed to support a guilty verdict. Id. at

104–05.

       The Smith decision relied on a narrow doctrine developed by our supreme

court in Graham v. Chicago & Nw. Ry. Co., 119 N.W. 708 (Iowa 1909) and State

ex rel. Mochnick v. Andrioli, 249 N.W. 379 (Iowa 1933). Under this doctrine, the

court adopted a limitation on the general rule that “the jury is empowered to resolve

[evidentiary] conflicts in accordance with its own views as to the credibility of the

witnesses.” State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984). The limitation

applies only where “[t]he testimony of a witness may be so impossible and absurd

and self-contradictory that it should be deemed a nullity by the court.” Smith, 508



1 The State, in part, asks us to overrule Smith, arguing that Smith erroneously
limited the rule that credibility determinations are exclusively the province of
factfinders and that Smith denigrated the testimony of sexual abuse victims,
including by ignoring the phenomenon of victim grooming, requiring unrealistic
descriptions of sex acts from child victims, and crediting an absence of enduring
genital injury as more probative than a victim’s testimony. As will be discussed,
the inconsistencies raised in this appeal are of the kind commonly found in
prosecutions for child sex abuse, and they do not render the substance of the
testimony impossible, as we found was the case in Smith. Given the substantial
evidence of Cardona’s brazen actions, we leave for another day the question of
Smith’s continued salience.
                                         6

N.W.2d at 103 (quoting Graham, 119 N.W. at 615). We found application of the

doctrine appropriate in Smith; however, the use of this doctrine to vacate a

conviction “is exceedingly rare.” See State v. Hobbs, No. 12-0730, 2013 WL

988860, at *3 (Iowa Ct. App. Mar. 13, 2013). We decline Cardona’s invitation to

employ the impossibility doctrine found in Smith on these facts to vacate his

conviction.

       Cardona notes a contradiction with respect to whether L.C. told her mother

of the abuse prior to reporting it at school; but whether L.C. told her mother of the

abuse is not an “operative fact” with respect to the charged crimes. See State v.

Mitchell, 568 N.W.2d 493, 503 (Iowa 1997) (“[The victim] was somewhat

inconsistent with her story about how she was abused by Mitchell, but she never

changed the operative fact that she and Mitchell had sexual intercourse.”); see

also State v. Thorndike, No. 13-1403, 2014 WL 3931873, at *1 (Iowa Ct. App.

Aug. 13, 2014) (“While there are some minor differences in the victims’ respective

accounts regarding details immaterial to the offense, the victims’ respective

testimony does not deviate on the operative facts.”). As we said in a factually

similar case, “given the amount and duration of abuse, it is hardly surprising that

the girls’ testimony would contain some minor inconsistencies.” See State v.

Davis, No. 02-0355, 2003 WL 21544491, at *2 (Iowa Ct. App. July 10, 2003).

       Cardona also highlights that during the 2009 investigation N.C. told a

representative of the Iowa Department of Human Services that Cardona “only

touched her groin area over her clothing.”       Given N.C.’s substantial detailed

testimony regarding the abuse at trial and her young age during the 2009

investigation, her prior partial disclosure can be considered the type of minor
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inconsistency in a sex abuse case that may be “attributable to her young age.”

See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); accord Thorndike, 2014

WL 3931873, at *1; In re J.M.S., No. 11-1307, 2012 WL 1612024, at *2 (Iowa Ct.

App. May 9, 2012); State v. Paulsen, No. 10-1287, 2011 WL 3925699, at *4 (Iowa

Ct. App. Sept. 8, 2011). N.C.’s failure to give full disclosure in 2009 is further

explained by Cardona’s threats to hurt N.C.’s mother if N.C. disclosed the abuse,

a threat N.C. took seriously in light of Cardona already having abused her mother

in N.C.’s presence.

       Finally, Cardona asserts confusion at trial regarding the extent to which the

girls’ younger brother, I.C., witnessed the abuse. However, I.C.’s testimony was

not necessary to convict Cardona because a victim’s accusation need not be

corroborated. See Iowa R. Crim. P. 2.21(3) (“Corroboration of the testimony of

victims shall not be required.”); State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995)

(“The law has abandoned any notion that a rape victim’s accusation must be

corroborated.”). Regardless, I.C.’s testimony as a whole supported the conviction.

Disregarding the inquiry of whether or not I.C. saw the abuse occur, he testified to

having heard N.C. screaming for help during Cardona’s abuse, and Cardona takes

no issue with that testimony.

       The Iowa Supreme Court “ha[s] said numerous times it is the province of

the jury to assess the credibility of witnesses.” State v. Hickman, 576 N.W.2d 364,

367 (Iowa 1998). “Based on all of this evidence, we see no need to depart from

our general rule of leaving the credibility of witnesses to the jury and allowing it to

resolve inconsistencies as it sees fit.” Mitchell, 568 N.W.2d at 504. We conclude

the evidence was sufficient for a rational jury to conclude, as the jury here did, that
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Cardona was guilty beyond a reasonable doubt of two counts of sexual abuse in

the second degree.

   b. Ineffective Assistance of Counsel

       Cardona claims he received ineffective assistance of counsel because his

trial counsel neglected to file either a motion in arrest of judgment or a motion for

a new trial based on a weight-of-the-evidence standard.          We hold that the

overwhelming evidence of Cardona’s guilt precludes us from finding Cardona’s

trial counsel ineffective for failing to make such motions.

       “[C]laims of ineffective assistance of counsel raised on direct appeal are

ordinarily reserved for postconviction proceedings to allow full development of the

facts surrounding counsel's conduct.” State v. Atley, 564 N.W.2d 817, 833 (Iowa

1997). “Only in rare cases will the trial record alone be sufficient to resolve the

claim.” Id. Because Cardona’s ineffective-assistance claim rests entirely on trial

counsel’s failure to file a motion in arrest of judgment or motion for a new trial on

a weight-of-the-evidence standard, we can resolve his claim on direct appeal, as

the evidence shows such a motion would have been meritless.

       To prevail on an ineffective-assistance-of-counsel claim, a defendant “must

show by a preponderance of the evidence that his trial counsel failed to perform

an essential duty and prejudice resulted.” State v. Ondayogi, 722 N.W.2d 778,

784 (Iowa 2006). The claim will fail if the defendant “is unable to prove either

element of this test.” Id. When considering whether counsel breached an essential

duty, “we measure counsel’s performance against the standard of a reasonably

competent practitioner.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). We

ask whether the counsel has made such serious errors that he or she “was not
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functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010) (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)). “Prejudice exists where the claimant

proves by ‘a reasonable probability that, but for the counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Maxwell, 743

N.W.2d at 196 (quoting Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)). “We

will not find counsel incompetent for failing to pursue a meritless issue.” State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

       Here, Cardona cannot succeed on either prong, and his ineffective-

assistance-of-counsel claim therefore fails.     Cardona argues his trial counsel

should have filed a motion for a new trial under Iowa Rule of Criminal Procedure

2.24(2)(b)(6) or a motion in arrest of judgment under rule 2.24(3). Under rule

2.24(2)(b)(6), a new trial may be granted “[w]hen the verdict is contrary to law or

evidence.” The phrase “contrary to . . . evidence” means “contrary to the weight

of the evidence.” Reeves, 670 N.W.2d at 201 (quoting State v. Ellis, 578 N.W.2d

655, 659 (Iowa 1998)). “The ‘weight of the evidence’ refers to ‘a determination [by]

the trier of fact that a greater amount of credible evidence supports one side of an

issue or cause than the other.’” Ellis, 578 N.W.2d at 658 (quoting Tibbs v. Florida,

457 U.S. 31, 102 (1982)). A motion in arrest of judgment shall be granted “when

upon the whole record no legal judgment can be pronounced.” Iowa R. Crim. P.

2.24(3)(c).

       The court denied trial counsel’s several motions for a directed verdict in light

of the detailed victim accounts of recurring sexual abuse. The defense presented

three witnesses whose testimony was short and focused on minor inconsistencies
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in the victims’ and their brother’s accounts of the abuse.             Under such

circumstances, there was no reasonable probability the court would have granted

either a motion in arrest of judgment or a motion for a new trial on the grounds

asserted by Cardona. Trial counsel had no duty to make a meritless motion. See

State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005) (“[T]rial counsel has no duty to

raise an issue that has no merit.”).

IV. Conclusion

       The record contains substantial evidence of Cardona’s guilt, and we reject

his insufficiency-of-the-evidence claim. Because of the ample evidence of his guilt,

we also reject the contention that Cardona received ineffective assistance of

counsel when his counsel failed to file a motion in arrest of judgement or motion

for new trial on the ground that the greater amount of credible evidence was

contrary to the verdict. Accordingly, we affirm the convictions.

       AFFIRMED.
