                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1851
                             Filed January 25, 2017

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZACHARY SCOTT VULICH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hancock County, Colleen D.

Weilend, Judge.



      A defendant appeals his convictions and sentence.       CONVICTIONS

AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
                                           2


VOGEL, Presiding Judge.

       Zachary Vulich appeals his convictions for one count of sexual abuse in

the third degree, in violation of Iowa Code sections 709.1(1) and 709.4(1)

(2013)1, and one count of assault while using an object to penetrate the genitalia

of another person, in violation of Iowa Code sections 708.1 and 708.2(5). Vulich

asserts: (1) there was insufficient evidence to support his convictions, (2) his

counsel was ineffective for failing to object to expert testimony that he claims

impermissibly boosted the victim’s credibility, (3) the district court erred in

refusing to give two instructions he requested, and (4) the district court imposed

an illegal sentence. Because we reject Vulich’s claims regarding the sufficiency

of the evidence, ineffective assistance of counsel, and his requested instructions,

we affirm his convictions.     However, we agree the district court imposed an

inapplicable special sentence, and we vacate his sentence and remand for entry

of a corrected sentencing order.

       I.     Background Facts and Proceedings

       On November 12, 2013, the complaining witness, who was sixteen years

old at the time, went to Vulich’s house with her older sister. After they arrived,

the complaining witness played games on her phone while her older sister talked

with Vulich. A short time later, the three were in the basement, and Vulich made

sexually-suggestive comments to the complaining witness, including indicating

he wanted to have a “three-way” with the complaining witness and her older



1
  It appears the district court incorrectly used the 2015 Iowa Code rather than the 2013
Iowa Code. However, the only difference between the code years involves a
renumbering of the criminal statutes and had no substantive impact.
                                         3


sister. The complaining witness told Vulich she did not like the comments and

asked him to stop.

       Later, the complaining witness was sitting in the living room while Vulich

and the older sister were in the kitchen.       Vulich and the older sister were

dropping ice down each other’s shirts and pants, and the older sister called the

complaining witness into the kitchen.     The complaining witness attempted to

shove ice down Vulich’s shirt. Then, Vulich shoved ice down the front of the

complaining witness’s shirt and pants, touching her skin.            Despite the

complaining witness’s pleas to stop, Vulich pushed her to the floor, held her

down with his arm while positioning his body to pin her to the floor, reached

inside of her underwear, and shoved an ice cube into her vagina. Vulich also

continued touching the complaining witness’s vagina with his hand for a couple

minutes. The complaining witness was screaming and telling Vulich to stop while

this happened. Vulich then turned his attention to the older sister. A few minutes

later, Vulich again shoved the complaining witness to the floor in the dining room

and shoved ice inside her vagina.         During the second occurrence, Vulich

summoned the older sister to assist him by holding the complaining witness’s

arms down.     After the complaining witness struggled to breath and nearly

blacked out, Vulich got off of her. She quickly left the house.

       On January 21, 2014, the State charged Vulich with two counts sexual

abuse in the third degree, which was amended on December 21 to one count of

sexual abuse in the third degree and one count of assault while using an object

to penetrate the genitalia of another person. On September 10, 2015, a jury

found Vulich guilty of both counts. On September 11, Vulich filed a motion for
                                         4


new trial, which challenged the court’s denial of his request for a consent

instruction as well as an age-of-consent instruction.       On November 3, after

hearing the arguments of counsel, the court denied the motion for a new trial and

sentenced Vulich to a term of imprisonment and lifetime supervision under Iowa

Code chapter 903B. Vulich now appeals his convictions and sentence.

       II.    Standard of Review

       “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We review claims of

ineffective assistance of counsel de novo. Ledezma v. State, 626 N.W.2d 134,

141 (Iowa 2001). Issues involving jury instructions are reviewed for correction of

errors at law. State v. Anderson, 636 N.W.2d 26, 30 (Iowa 2001). We also

review the interpretation of a sentencing statute for errors at law. State v. Boggs,

741 N.W.2d 492, 498 (Iowa 2007).

       III.   Sufficiency of the Evidence

       Vulich claims the evidence was insufficient to support his conviction on

either count. Specifically, he asserts there was not sufficient evidence to show

his actions were against the complaining witness’s will in order to support his

conviction for sexual abuse in the third degree. He also asserts the evidence

was not sufficient to show he intended to cause contact that was painful,

injurious, or offensive in order to support his conviction for assault while using an

object to penetrate the genitalia of another. The State disagrees on both counts.

       “In reviewing challenges to the sufficiency of evidence supporting a guilty

verdict, courts consider all of the record evidence viewed ‘in the light most

favorable to the State, including all reasonable inferences that may be fairly
                                         5

drawn from the evidence.’” Sanford, 814 N.W.2d at 615 (quoting State v.

Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002)).                When substantial

evidence exists to support the jury’s verdict, the verdict will stand. Id. “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. Further, credibility determinations are left to the jury, and the jury is

free to accept or reject whichever evidence it chooses. State v. Thornton, 498

N.W.2d 670, 673 (Iowa 1993).

              A.     Sexual Abuse in the Third Degree

       Iowa Code section 709.4 provides:

             A person commits sexual abuse in the third degree when the
       person performs a sex act under any of the following
       circumstances:
             (1) The act is done by force or against the will of the other
       person, whether or not the other person is the person’s spouse or is
       cohabiting with the person.

Vulich relies on the context of the situation and claims there was insufficient

evidence his actions were “done by force or against the will” of the complaining

witness. In support of his contention, Vulich points to the testimony of the older

sister that the incident was just joking around and she would not have

participated if she thought her sister was bothered by it.

       Our review of the record indicates there is substantial evidence to support

the jury’s verdict. Except for minor differences regarding the sequence of events,

the testimony of all the witnesses is consistent regarding what occurred.

Therefore, it is essentially undisputed that the complaining witness was held

down, struggled, and told Vulich to stop during the two incidents.         The only
                                         6


disputed issue turns on whether the complaining witness was serious—that is,

that she did not want Vulich to touch her or was joking around or playing a game

with Vulich. While the older sister testified that she thought the complaining

witness was joking around, the complaining witness testified that the contact was

unwelcomed and she attempted to make it clear several times by her resistance,

pleas for help, and screams. The jury was free to evaluate the witnesses and

determine which testimony was more credible. See Thornton, 498 N.W.2d at

673.   Based on the record, the jury could have reasonably determined the

complaining witness’s testimony was more credible and combined that

determination with the undisputed facts of the case to reach a guilty verdict.

Accordingly, we conclude there was substantial evidence to support the jury’s

verdict of guilty of sexual abuse in the third degree, and we reject Vulich’s claim

of insufficient evidence.

              B.     Assault While Using an Object to Penetrate the Genitalia of

              Another

       Iowa Code section 708.1(2)(a) defines assault, in part, as “[a]ny act which

is intended to cause pain or injury to, or which is intended to result in physical

contact which will be insulting or offensive to another, coupled with the apparent

ability to execute the act.” Further, Iowa Code section 708.2(5) provides: “A

person who commits an assault, as defined in section 708.1, and who uses any

object to penetrate the genitalia or anus of another person, is guilty of a class “C”

felony.” Vulich again relies on the older sister’s testimony, along with his claim

that the incident was playful and joking, to argue he did not specifically intend to
                                          7

cause “contact which will be insulting or offensive to another.” See Iowa Code

§ 708.1(2)(a).

       In determining whether a person had the requisite intent to commit an

assault, “an actor will ordinarily be viewed as intending the natural and probable

consequences that usually follow from his or her voluntary act.” State v. Taylor,

689 N.W.2d 116, 132 (Iowa 2004). Further, “intent may be inferred from the

circumstances surrounding the alleged assault.” Id.

       As discussed above, the facts and circumstances surrounding the alleged

assault were essentially undisputed at trial. The only issue Vulich raised was

whether the incident was serious or playful and, thus, in the context of the assault

count, whether he had the requisite intent. Taking the undisputed facts, along

with the complaining witness’s testimony at trial, the jury could have reasoned

that the natural result of Vulich’s actions was to cause offensive contact. See id.

Additionally, the jury could have inferred that the circumstances surrounding the

alleged assault, including the complaining witness’s testimony concerning her

statements of discomfort, compromised ability to breath, physical attempts to

resist, escalating verbal pleas to stop, and screams of resistance indicated

Vulich—showing no inclination to stop—intended to cause offensive contact.

See id. Accordingly, we conclude there was substantial evidence to support the

jury’s verdict of guilty on the assault count and reject Vulich’s claim of insufficient

evidence.

       IV.    Ineffective Assistance of Counsel

       Vulich asserts his counsel was ineffective in failing to object to testimony

from the State’s expert, which he claims impermissibly boosted the credibility of
                                        8


the complaining witness.    The State responds the expert did not improperly

comment on the complaining witness’s credibility and there was no prejudice.

       When counsel’s performance, measured against objective standards, falls

below professional norms, counsel is considered ineffective. State v. Clay, 824

N.W.2d 488, 494–95 (Iowa 2012). “In order to succeed on a claim of ineffective

assistance of counsel, a defendant must prove: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185,

195 (Iowa 2008). “Ordinarily, we do not decide ineffective-assistance-of-counsel

claims on direct appeal. . . . However, we depart from this preference in cases

where the record is adequate to evaluate the appellant’s claim.” State v. Tate,

710 N.W.2d 237, 240 (Iowa 2006). We are not always required to address both

prongs of a claim of ineffective assistance of counsel. Ledezma, 626 N.W.2d at

142 (“If the claim lacks prejudice, it can be decided on that ground alone without

deciding whether the attorney performed deficiently.”).

       A defendant must demonstrate prejudice by showing “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

694 (1984). Therefore, Vulich must demonstrate a reasonable probability he

would not have been convicted, absent any breach of duty by his counsel.

       Vulich takes issue with the State’s expert’s testimony regarding her

interview with the complaining witness.      Specifically, Vulich focuses on this

portion:

               Q: All right. Now just to be clear, ma’am, you’re not here to
       testify as to content of any statement made by [the complaining
       witness] during the interview; correct? A: Correct.
                                        9


             Q: You’re also not here to render any professional opinion or
      opinion as to whether or not she was credible or truthful what she
      told you; right? A: Right. That’s the job of the jury.
             Q: And it’s not your job to tell the jury whether or not they
      should believe her; right? A: Right.
             Q: And you’re also not here to tell the jury or express an
      opinion whether or not the defendant is guilty or not guilty, are you?
      A: No. I’m not here today to do that.
             Q: That’s also for the jury to decide; right? A: Yes.
             Q: Now just to be clear, when an interview of a child is
      recorded, by law, you just can’t come in here and play it; right? A:
      Right.
             Q: You’re not hiding anything; right? A: Right.
             Q: It’s just the law; right? A: Right.
             Q: Okay. Do you remember how long the interview lasted?
      A: It was [sixty-one] minutes.
             Q: And I just have a couple questions about the interview
      protocol that you explained earlier. Did you utilize those interview
      protocols when you interviewed [the complaining witness]? A: Yes,
      I did.
             Q: Did you ask her questions in non-suggestive and non-
      leading ways then? A: Yes.
             Q: And did you ask follow-up questions? A: Yes, I did.
             Q: During the interview, was she able to describe events in a
      way that was consistent with her age and development? A: Yes.
             Q: Did she provide you a consistent version of events? A:
      Yes.
             Q: Did she use words that were appropriate for her age and
      development? A: Yes.
             Q: Did she tell you how things felt, what she heard, et
      cetera? A: Yes.
             Q: And you asked follow-up questions; is that right? A: Yes,
      I did.
             Q: Was she able to provide you specific details about the
      people involved? A: Yes.
             Q: A sequence of events? A: Yes.
             Q: The location of events? A: Yes.
             Q: Specific details of what occurred? A: Yes.
             Q: Sensory details of what occurred, how things felt, et
      cetera? A: Yes.

      Our review of the trial record indicates that Vulich was not prejudiced by

any alleged improper comment by the State’s expert.            The jury’s verdict

necessarily turned largely on the credibility of the complaining witness balanced
                                          10


against the credibility of Vulich’s and other witness’s version of events—

specifically, whether the complaining witness’s pleas to stop were serious or

joking.        The State’s expert stated on multiple occasions that she was only

testifying on the research and her experience regarding young victims, not on the

truthfulness of this particular complaining witness.        Much of the expert’s

testimony explained reasons why child victims’ testimony can at times be

inconsistent or confusing. However, the complaining witness was a teenager at

the time of the incident; thus, the expert’s testimony about child victims’

testimony would not have necessarily affected the jury in this case. Rather, the

jury had ample opportunity to assess the complaining witness’s credibility during

her testimony, which included a thorough cross-examination by defense counsel.

Based on these facts, we conclude Vulich failed to demonstrate a reasonable

probability he would not have been convicted, absent any alleged breach of duty

by his counsel and reject his claim of ineffective assistance of counsel.

          V.      Consent and Age-of-Consent Instructions

          Vulich contends the district court erred in denying his request for a

consent defense instruction on the assault charge and his request for an age-of-

consent instruction on the sexual abuse charge. Vulich argues he was entitled to

the consent instruction because his defense was based on his perception that

the victim consented to the “ice fight” that occurred and, therefore, the jury should

have been asked to decide whether the incident was a “social activity” that fell

within the scope of the consent. He also claims he was entitled to the age-of-

consent instruction to show the complaining witness was legally capable of

consenting to the sexual touching. The State responds the incident was outside
                                         11


the scope of the proposed consent instruction and the age-of-consent instruction

is not applicable to either of the charges.

       The consent instruction Vulich requested is codified by Iowa Code section

708.1(3)(a) and provides an act is not assault:

               [i]f the person doing any of the enumerated acts, and such
       other person, are voluntary participants in a sport, social or other
       activity, not in itself criminal, and such act is a reasonably
       foreseeable incident of such sport or activity, and does not create
       an unreasonable risk of serious injury or breach of the peace.

The district court denied Vulich’s request to include the instruction because it

concluded the incident here did not qualify as “a sport, social or other activity” for

purposes of the statute and the repeated insertion of ice into the complaining

witness’s vagina was not “a reasonably foreseeable incident” of the “ice fight.”

       The legislature did not define “sport, social, or other activity” in the code,

and our courts have yet to define the phrase. See State v. Collier, 372 N.W.2d

303, 305, 307 (Iowa Ct. App. 1985) (“We are hesitant to give a precise definition

of this term and believe it is more appropriate that its meaning be interpreted on

a case by case basis.”). While we share the district court’s skepticism that the

incident here—labeled an “ice fight”—was something the legislature intended to

qualify as a “sport, social, or other activity” under the code, we need not decide

that issue because we agree with the court’s conclusion that the assault was not

“a reasonably foreseeable incident” of the “ice fight.”

       In State v. Floyd, our court rejected a defendant’s request for a consent

instruction when a fight broke out after a basketball game. 466 N.W.2d 919, 923

(Iowa Ct. App 1990).       The court held that the victims were not “voluntary

participants” for the purposes of the statute and questioned the reasonable
                                             12

foreseeability of the assaults. Id. (“[W]e are not disposed toward finding that

defendant’s acts were ‘reasonably foreseeable incident[s]’ of basketball.”). The

court explained: “We need not go into detail in deciding what, if any, contact is

‘incident’ to basketball. . . . It strains the imagination and contorts the concept of

foreseeability beyond recognition to assert that the brutal assaults carried out by

defendant in this case could have been ‘reasonably foreseeable incident[s].’” Id.

(alteration in original).

       We believe the same reasoning applies in this case. Even assuming the

complaining witness was a voluntary participant “in a sport, social or other

activity”—an “ice fight”—we do not find the subsequent assault was a

“reasonably foreseeable incident” of the ice fight.        See id.    “It strains the

imagination and contorts the concept of foreseeability beyond recognition to

assert that” pushing the complaining witness to the floor, holding her down,

reaching into her pants, inserting an ice cube into her vagina, and fondling her

vagina was a reasonably foreseeable incident to the ice fight. See id. Thus, we

agree with the district court that Vulich was not entitled to a consent instruction.

       We also agree with the district court Vulich was not entitled to an age-of-

consent instruction. The district court correctly noted: “The [S]tate is not arguing

that she was incapable of consent. . . . It’s not part of the elements. I don’t think

there’s any requirement or necessity for having it in the instructions.” We agree

that such an instruction was uncalled for under the elements of the charges and

affirm the district court’s refusal to give it.
                                       13


      VI.    Sentencing

      Vulich asserts the district court erred in imposing a special sentence of

lifetime supervision for the assault count, pursuant to Iowa Code chapter 903B.

The State concedes that the special sentence was not applicable to the assault

conviction. We agree. See Iowa Code § 903B.1. Therefore, we vacate the

special-sentence provision as to the assault conviction and remand for a

corrected sentencing order.

      VII.   Conclusion

      Because we reject Vulich’s claims regarding the sufficiency of the

evidence, the requested instructions, and ineffective assistance of counsel, we

affirm his convictions.   However, because the lifetime supervision special

sentence was inapplicable to the assault conviction, we vacate that portion of his

sentence and remand for entry of a corrected sentencing order.

      CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED.
