                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0424
                                 Filed July 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LUIS RODRIGUEZ,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Luis Rodriguez challenges his conviction of third-degree sexual assault.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant

County Attorney, for appellee.



      Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2


POTTERFIELD, J.

       Luis Rodriguez challenges his conviction of third-degree sexual assault,

contending his trial counsel was ineffective in failing to assert the statutory

definition of “mentally incapacitated” is unconstitutionally vague and in failing to

object to the jury instruction definition.    He also asserts there is insufficient

evidence to sustain his conviction. Trial counsel had no duty to raise a meritless

constitutional claim, and Rodriguez does not establish a failure to object to the

instruction prejudiced him. Substantial evidence supports the conviction and we

therefore affirm.

I. Background Facts and Proceedings.

       On the evening of June 21, 2012, Luis Rodriguez attended a going away

party for a friend.    Rodriguez, along with his friends Logan Lumley, Justin

Scheffler, and Dillon Sorenson, then spent the evening at a bar in Cedar Falls.

       The same evening, A.R.1 met a group of friends to celebrate a birthday.

After dinner, the group of girls also visited the bars in Cedar Falls. While at the

bar (Joker’s), A.R. drank heavily. At one point during the evening, A.R.’s friend,

Gabby Sabic, discovered A.R. in the bathroom, where she was vomiting from

drinking too much. Around this point, A.R.’s memory of the evening began to get

“gray.” After leaving Joker’s, A.R. and Sabic went to an after-party at a house.

A.R. did not know where the party was or who was throwing the party. Due to

intoxication, A.R. continued to have difficulties remembering details of leaving the

1
  We choose to protect the identity of the complaining witness in this written opinion.
See State v. Cromer, 765 N.W.2d 1, 3 n.1 (Iowa 2009); State v. Knox, 536 N.W.2d 735,
736 (Iowa 1995) (identifying complaining witness in sex-abuse case only as
“complainant”); State v. Plaster, 424 N.W.2d 226, 227 (Iowa 1988) (identifying
complaining witness in sex-abuse case by first name only).
                                       3


bar and arriving at the party.    Once A.R. arrived at the party, she, Sabic,

Rodriguez, Sorenson (who lived at the house), Schreffler, and Lumley went to

the garage. A.R. remembers sitting in a chair in the garage. A.R. was “passing

out, in and out.” Eventually, Sorensen carried A.R. to a basement couch. A.R.

did not wake up during the transfer and had no memory of being moved to the

basement. Rodriguez followed A.R. to the basement; the rest of those present

slept upstairs. A.R. next remembers waking up with an unknown man on top of

her, and the man’s penis was in her vagina. A.R. told him to stop. He did not

respond at first, but after A.R. pushed him he stopped. A.R. gathered up her

clothes and left the house.

      A friend picked A.R. up and took her home. A.R. called a rape hotline,

which in turn contacted Seeds of Hope, a victim’s advocate center, and arranged

to have A.R. picked up and someone accompany her to the hospital. From

swabs taken during A.R.’s sexual assault examination, the crime lab identified

Rodriguez’s sperm in A.R.’s vagina and anus.

      A.R. later identified Rodriguez in a photographic line up. When Rodriguez

was questioned by Officer Mark Abernathy on July 31, 2012, Rodriguez was

aware of A.R.’s allegations but he denied any assault or sexual activity occurred

with A.R.   Rodriguez stated that both he and A.R. were “sloppy drunk” and

“making out.” Rodriguez told Officer Abernathy that he was not able to get an

erection due to his intoxication. Rodriguez again denied sexual contact when

Abernathy questioned him in December 11, 2012. Rodriguez did acknowledge

A.R. was “extremely intoxicated.”   When confronted with the DNA results of
                                        4


A.R.’s sexual assault examination, Rodriguez did not say they had consensual

sex. He could not explain the presence of his DNA.

      At trial, A.R. identified Rodriguez as the man who had sex with her. She

testified she did not have consensual sex with him. She stated she remembered

nothing between the time she was in the garage and awaking in the morning with

Rodriguez on top of her.

      Lumley testified A.R. was passing out due to alcohol when in the garage.

Sorenson testified, “It was very clear that all of us were, some more than others,

and [A.R.] being the one most intoxicated that night.” Sorenson testified that

after he carried A.R. to the basement and placed her on the loveseat, he

returned to the basement after Sabic expressed concern that A.R. and Rodriguez

were on the floor having sex. Sorenson went to the basement and saw the two

on the floor; he yelled at Rodriguez to “knock it off.” Sorenson testified he went

downstairs because he had a concern “Luis was taking advantage of the female,

[A.R.], downstairs.” The prosecutor asked Sorenson, “Did you think she could

consent at that point?” Sorenson stated, “No.”

      Defense counsel moved for judgment of acquittal, contending the State

had failed to establish “the accuser in this case was mentally incapacitated or

physically incapacitated or physically helpless when the alleged sex act

occurred.” The court overruled the motion stating, “There is ample evidence of

incapacitation and corroborated evidence of incapacitation of the alleged victim in

this case.” Rodriguez did not testify or present any other witness. The defense

did not object to the proposed jury instructions. The jury returned a general

verdict finding Rodriguez guilty of third-degree sexual abuse and he now
                                         5


appeals, contending his trial counsel was ineffective and there is not sufficient

evidence to sustain the conviction.

II. Scope and Standard of Review.

       The right to the effective assistance of counsel is grounded in the Sixth

Amendment to the United States Constitution, and therefore, we review a claim

of ineffective assistance de novo. State v. Ambrose, 861 N.W.2d 550, 555, 556

(Iowa 2015).

       We review challenges to the sufficiency of evidence for correction of errors

at law. State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011).

       In doing so, we examine whether, taken in the light most favorable
       to the State, the finding of guilt is supported by substantial evidence
       in the record. We find evidence substantial if it would convince a
       rational fact finder the defendant is guilty beyond a reasonable
       doubt. We draw all fair and reasonable inferences that may be
       deduced from the evidence in the record. In assessing the
       sufficiency of the evidence, we find circumstantial evidence equally
       as probative as direct.

Id. (citations omitted).

III. Discussion.

       A. Ineffectiveness—failure to raise constitutional challenge.      Rodriguez

claims the definition of “mentally incapacitated” found in Iowa Code section

709.1A(1) (2011) is unconstitutionally vague as applied and on its face.         He

asserts a competent trial counsel would have recognized the statute’s

unconstitutionality and raised the issue before trial. We disagree.

       “To establish an ineffective-assistance-of-counsel claim, an applicant must

show that ‘(1) his trial counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice.’” State v. Ambrose, 861 N.W.2d 550, 556 (Iowa
                                            6

2015) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)); see also

Strickland v. Washington, 466 U.S. 668, 687 (1984). The claimant must prove

both elements by a preponderance of the evidence. Ambrose, 861 N.W.2d at

556. We can resolve an ineffective-assistance claim under either prong of the

analysis. Id.; see also State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). Trial

counsel has no duty to raise meritless claims. State v. Dudley, 766 N.W.2d 606,

620 (Iowa 2009). And it is not enough to simply claim that counsel should have

done a better job. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citing State

v. White, 337 N.W.2d 517, 519 (Iowa 1983)).             A defendant must state how

counsel’s performance was inadequate and how competent representation

probably would have changed the outcome. Rivers v. State, 615 N.W.2d 688,

690 (Iowa 2000); Dunbar, 515 N.W.2d at 15.

       “The Due Process Clauses of the Fourteenth Amendment of the United

States Constitution and Article I, section 9 of the Iowa Constitution prohibit

enforcement of statutes that are so vague that they do not provide citizens with

fair warning of what conduct is prohibited and encourage discriminatory law

enforcement.”2    State v. Feregrino, 756 N.W.2d 700, 703 (Iowa 2008).                We

presume the statute is constitutional. State v. Robinson, 618 N.W.2d 306, 314

(Iowa 2000).     Consequently, in order to prove counsel failed to perform an

essential duty in not challenging the statue, Rodriguez must demonstrate the




2
  Rodriguez does not offer argument or authority for the proposition that the Iowa
Constitution should be construed differently than the United States Constitution. See
State v. Seering, 701 N.W.2d 655, 662 (Iowa 2005) (“In the absence of an argument that
our analysis under each should differ, we construe them similarly in this case as well.”).
                                             7


“unconstitutional vagueness of [the] criminal statute” beyond a reasonable doubt.

See id.

       Rodriguez was charged with sexual abuse in the third degree under Iowa

Code section 709.4(4). The statute prohibits a sex act “performed while the other

person is mentally incapacitated, physically incapacitated, or physically helpless.”

Iowa Code § 709.4(4).          “‘Mentally incapacitated’ means that a person is

temporarily incapable of apprising or controlling the person’s own conduct due to

the influence of a narcotic, anesthetic, or intoxicating substance.”                     Id.

§ 709.1A(1). It is this definition of mental incapacitation which Rodriguez claims

is unconstitutional. However, the jury was not instructed on the elements of

709.4(4), nor on the full definition of “mentally incapacitated” in 709.1A(1).

Rather, the jury was instructed that the State had to prove:

             1. On or about the 22nd day of June, 2012, the defendant
       performed a sex act with [A.R.].
             2. The defendant performed the sex act while [A.R.] was
       mentally incapacitated or physically helpless and the defendant
       knew or reasonably should have known that [A.R.] was mentally
       incapacitated or physically helpless.[3]

The definition instruction no. 21 informed the jury: “Mentally incapacitated means

that a person is temporarily incapable of controlling the person’s own conduct

due to the influence of a[n] intoxicating substance.”4




3
  “Knew or reasonably should have known” is not an element of the offense under Iowa
Code section 709.4(4). Compare Iowa Code § 709.4(3)(b) with id. § 709.4(4); see also
State v. Tague, 310 N.W.2d 209, 211 (Iowa 1981) (“Statutes regarding sex offenses are
common examples of employment of strict liability intended to protect the public
welfare.”). However, because no party objected to this instruction, no. 20, it is the law of
the case. See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).
4
  No objection was lodged to this instruction either, and thus it is the law of Rodriguez’s
case. Canal, 773 N.W.2d at 530.
                                         8

             1. Facial Challenge. Rodriguez claims the statutory definition of

mentally incapacitated in 709.1A(1) is unconstitutional on its face.      While a

defendant who has been charged with the violation of a statute always has

standing to claim the statute is unconstitutionally vague as applied to himself, he

does not necessarily have standing to claim that it is unconstitutional as applied

to others or on its face. State v. Hunter, 550 N.W.2d 460, 463 n.1 (Iowa 1996),

overruled on other grounds by State v. Robinson, 618 N.W.2d 306 (Iowa 2000).

“If a statute is constitutional as applied to a defendant, the defendant cannot

make a facial challenge unless a recognized exception to the standing

requirement applies.” State v. Robinson, 618 N.W.2d 306, 311 n.1 (Iowa 2000);

see also Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a

statute clearly applies may not successfully challenge it for vagueness.”). “One

such exception is a situation in which the vagueness of the statute chills the

exercise of First Amendment rights.” State v. Musser, 721 N.W.2d 734, 746 n.7

(Iowa 2006) (citing Hunter, 550 N.W. 2d at 463).        We do not find this case

appropriate to address a facial vagueness challenge. Consequently, Rodriguez

has not proved he was prejudiced by his counsel’s failure to raise the issue that

the statute was unconstitutionally vague on its face.

             2. As applied.     The State charged Rodriguez with third-degree

sexual abuse for performing a sex act “while the other person is mentally

incapacitated, physically incapacitated, or physically helpless.”      Iowa Code

§ 709.4(4) (2011).

      Rodriguez asserts the definition of          “mentally incapacitated” was

unconstitutionally vague as applied to him.
                                          9


       The Due Process Clause of the Fourteenth Amendment to the
       United States Constitution prohibits vague statutes.
              A statute can be impermissibly vague for either of two
              independent reasons. First, if it fails to provide people
              of ordinary intelligence a reasonable opportunity to
              understand what conduct it prohibits. Second, if it
              authorizes or even encourages arbitrary and
              discriminatory enforcement.
       [Musser, 721 N.W.2d at 745] (citations and internal quotation marks
       omitted). We have also said that a “similar prohibition has been
       recognized under the Iowa due process clause found in article I,
       section 9 of the Iowa Constitution.” Formaro v. Polk Cnty., 773
       N.W.2d 834, 840 (Iowa 2009).

State v. Showens, 845 N.W.2d 436, 441-42 (Iowa 2014).

       Rodriguez contends the definition of “mentally incapacitated” fails on the

first enunciated reason—that it fails to provide people of ordinary intelligence a

reasonable opportunity to understand what conduct it prohibits.          He argues:

“Having sexual contact with an intoxicated person is not prohibited.              It is

unreasonable for Rodriguez to be required to consider whether the other

person’s judgment is impaired by alcohol and whether she would otherwise not

agree to participation in a sex act.”

       Our supreme court has rejected a similar argument. In State v. Sullivan,

298 N.W.2d 267 (Iowa 1980), our supreme court rejected a challenge to a

predecessor statute, which prohibited a sex act where “[t]he other participant is

suffering from a mental defect or incapacity which precludes giving consent.”

Sullivan, 298 N.W.2d at 269 n.1, 272. There, the court stated the applicable

principles:

       The person mounting the constitutional challenge on a legislative
       enactment carries the heavy burden to rebut a strong presumption
       of constitutionality. If a statute can be made constitutionally definite
       by a reasonable construction, this court is under a duty to give the
       statute that construction.
                                         10


              The specificity due process requires of a penal statute . . .
       need not be apparent from the face of the statute but may be
       ascertained by reference to prior judicial decisions, similar statutes,
       the dictionary, or common generally accepted usage. Judicial
       decisions from other jurisdictions may be helpful.
              In ascribing meaning to a criminal statute, “courts may
       properly consider the evil sought to be remedied and the objects or
       purposes the legislative enactment seeks to obtain.”

Id. at 270-71 (citations omitted). The Sullivan court concluded,

       We are unimpressed by the defendant’s arguments that the statute
       is rendered vague by its requirement that the alleged violator
       determine another’s mental capacity . . . .
              ....
              The fact an erroneous judgment by an offender may still
       subject him or her to criminal sanction if the partner in fact does not
       possess the requisite mental capacity does not make the statute
       unconstitutional. This crime does not require knowledge or intent.
       As in the case of sexual abuse due to age statutes, the policies in
       support of protecting those who suffer mental incapacities outweigh
       the danger of mistake.

Id. at 272-73.

       In Meyers, 799 N.W.2d at 143, addressing the “against the will” language

of section 709.4(1) our supreme court made clear

       [A] psychological inability to consent broadly protects individuals
       from nonconsensual sex when particular circumstances have
       rendered that person incapable of consenting to the sexual
       advances of a particular person. Importantly, the statute as a
       whole expresses no limit on the conduct or circumstance that can
       be used to establish nonconsent under section 709.4(1). See [Iowa
       Code] § 4.2 (directing courts to liberally construe the provisions of
       the Code “with a view to promote its objects and assist the parties
       in obtaining justice”).
              [N]onconsent includes both consent that is nonexistent and
       consent that is ineffectual, and these circumstances have been
       largely assimilated into the statute to account for its present
       expanded categories of rape. Nevertheless, “the unifying principle
       among this diversity of conduct is the idea of meaningful consent.”
       Consent precludes rape, which conversely means the law of rape
       focuses on “imposition by the actor under circumstances where
       there is an actual failure of consent or where the law is prepared to
                                          11


       characterize an actual consent as incompetent.”            Model Penal
       Code § 213.1 cmt. 4, at 301.

(Some internal citations omitted.) It is the mental state of the victim that “is a

proper circumstance to consider in determining if a sex act is nonconsensual.”

Meyers, at 799. “[M]eaningful consent is the important inquiry, and this inquiry

normally takes into account circumstances indicating any overreaching by the

accused, together with circumstances indicating any lack of consent by the other

person.”   Id. at 146.    Rodriguez argues that Sullivan’s focus on a mentally-

disabled victim as opposed to a temporarily-incapacitated victim makes the

Sullivan analysis irrelevant here. We disagree.

       Here, the State was required to prove A.R. was mentally incapacitated or

physically helpless. As already noted, “mentally incapacitated” was defined by

the jury instructions to mean: “[T]hat a person is temporarily incapable of

controlling the person’s own conduct due to the influence of an intoxicating

substance.”5 We have no difficulty determining ordinary people are capable of

understanding this definition. “It is well settled in this State that a lay witness

may express an opinion regarding another person’s sobriety, provided the

witness has had an opportunity to observe the other person.” State v. Murphy,

451 N.W.2d 154, 155 (Iowa 1990). It has also “long been held that a witness,

either lay or expert, may testify to an ‘ultimate fact which the jury must

determine.’” Id. at 156. The concepts of intoxication and controlling one’s own

5
   We note this jury instruction contains a more limited definition of “mentally
incapacitated” than does Iowa Code section 709.1A(1), which allows the State to prove
mental incapacity by either a victim’s inability to (1) control her own conduct or
(2) apprise her own conduct. However, the State did not pursue the “apprise” alternative
and we therefore do not address Rodriguez’s arguments about the definition of
“apprise.”
                                            12


behavior are commonly understood. It is not unreasonable to expect a person to

refrain from having sexual contact with another who is incapable of controlling

their own conduct due to the influence of an intoxicating substance.6

       The State also points out that in this case, due to jury instruction 20, the

State was also required to prove Rodriguez knew or reasonably should have

known of A.R.’s mental incapacity or physical helplessness. By its guilty verdict,

the jury found this additional element to be true beyond a reasonable doubt.

       The evidence submitted at trial allowed the jury to find A.R. was

intoxicated to the point of not being able to control her own conduct. At the after-

party, A.R. repeatedly “passed out” in the chair where she was sitting, and did

not stir when Sorenson carried her downstairs. Sorenson testified he went to the

basement because he was concerned Rodriguez was sexually taking advantage

of A.R. When the prosecutor asked Sorenson, “Did you think she could consent

at that point?” Sorenson stated, “No.” Rodriguez himself admitted A.R. was “too

wasted” and that she was “real sloppy.” He told Officer Abernathy they were


6
 In an unpublished opinion, State v. Cromer, No. 04-0814, 2005 WL 724211, at *4 (Iowa
Ct. App. Mar. 31, 2005), this court reversed a trial court’s conclusion that the application
of the sexual abuse statutes through the jury instructions violated the defendant’s right to
due process “because there’s nothing in there that says the defendant had to have any
knowledge that she was mentally incapacitated.” We stated:
        The standard imposed by Iowa Code section 709.4(4) is clear: to avoid
        the proscribed conduct Cromer should have refrained from performing a
        sex act with a person who is mentally incapacitated as that term is
        defined in Iowa Code section 709.1A(1). If he did engage in such
        conduct, his lack of knowledge of [the victim’s] mental incapacitation
        caused by his intoxication is no defense. See State v. Tague, 310
        N.W.2d 209, 211 (Iowa 1981) (indicating that “statutes regarding sex
        offenses are common examples of employment of strict liability intended
        to protect the public welfare”). Moreover, even if [the defendant’s]
        subjective knowledge of [the victim’s] mental incapacity was required by
        due process, the weight of the evidence supports a jury conclusion that
        [the defendant] knew of [the victim’s] . . . .”
                                         13


both “highly intoxicated” and they were “too drunk.” Even focusing (as Rodriguez

does in his brief) on the sex act Rodriguez was committing when A.R. woke up or

became conscious with Rodriguez’s penis in her vagina, the evidence supports

the jury’s finding that A.R. was mentally incapacitated or physically helpless.

A.R. was asleep, passed out, or completely unaware of her surroundings during

this time, and in either circumstance, Iowa Code section 709.1A(1) gave

Rodriguez fair notice that sexual contact was prohibited. The fact that Rodriguez

may have somehow incorrectly assessed A.R.’s mental capacity does not render

the statute unconstitutional. Because the statute is not unconstitutionally vague

as applied to Rodriguez, his trial counsel breached no duty in failing to raise the

constitutional challenge.

       B. Ineffectiveness—failure to object to jury instruction definition of

“mentally incapacitated.” Rodriguez also asserts trial counsel was ineffective in

failing to object to the jury instruction that set out the definition of “mentally

incapacitated” but did not include “apprising” where the statutory definition is: “[A]

person is temporarily incapable of apprising or controlling the person’s own

conduct due to the influence of a narcotic, anesthetic, or intoxicating substance.”

Iowa Code § 709.1A(1) (emphasis added). The instruction given to the jury here

provided: “[T]hat a person is temporarily incapable of controlling the person’s

own conduct due to the influence of an intoxicating substance.”

       Rodriguez cannot establish he was prejudiced by counsel’s failure to

object. The instruction given was more narrow than required. In addition to

requiring the State to prove A.R. was incapable of controlling her own conduct

due to an intoxicating substance, the jury was instructed it must also find
                                        14


Rodriguez knew or had reason to know she was mentally incapacitated.             By

returning a guilty verdict, the jurors found A.R. was unable to control her conduct

due to the influence of an intoxicating substance or she was physically helpless.

Under these circumstances, Rodriguez is hard-pressed to establish the omission

of another alternative of mental incapacitation would have changed the outcome

of the trial.

        C. Sufficiency of the evidence.      Finally, Rodriguez asserts there is

insufficient evidence that A.R. was “temporarily incapable of controlling her own

conduct due to the influence of an intoxicating substance” though he does not

dispute that she was intoxicated.

        As already noted, the State here had to prove:

              1. On or about the 22nd day of June, 2012, the defendant
        performed a sex act with [A.R.]
              2. The defendant performed the sex act while [A.R.] was
        mentally incapacitated or physically helpless and the defendant
        knew or reasonably should have known that [A.R.] was mentally
        incapacitated or physically helpless.

(Emphasis added.)

        In reviewing the evidence, we view the evidence in the light most

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

drawn from the evidence. State v. Stanford, 814 N.W.2d 611 615 (Iowa 2012).

“We will uphold a verdict if substantial evidence supports it.”       Id. (citation,

alteration, and internal quotation marks omitted).       “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.”

Id. “If substantial evidence is presented to support each alternative method of
                                        15


committing a single crime, and the alternatives are not repugnant to each other,

then unanimity of the jury as to the mode of commission of the crime is not

required.”   State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981) (citation,

alterations, and internal quotation marks omitted).

       With these principles in mind, we summarize the evidence: A.R. was

extremely intoxicated on the night in question. Rodriguez himself admitted she

was “sloppy drunk.” She vomited while still at the bar. She slurred her words

and stumbled when she walked. A.R. passed out in the garage and did not stir

or react when she was carried downstairs and placed on a couch at about 3 a.m.

A.R. testified she woke up about 5 or 6 a.m. and an unknown male was on top of

her with his penis in her vagina. A.R. immediately told him to stop, and he did

not. The unknown male, Rodriguez, did not stop until A.R. physically pushed him

away from her. The jury could reasonably find A.R. was asleep or not conscious

when Rodriguez initiated the sex act. See State v. Tapia, 751 N.W.2d 405, 407

(Iowa Ct. App. 2008) (“In Iowa ‘a crime commences with the first act directed

toward the commission of the crime.’”). Thus, there is substantial evidence that

A.R. was physically helpless or mentally incapacitated to support the conviction.

See id. (“When viewing the evidence in the light most favorable to the State, we

conclude a rational trier of fact could have found the victim incapable of consent

due to being asleep and physically helpless.”).

       AFFIRMED.
