               IN THE SUPREME COURT OF IOWA
                            No. 01 / 05-1798

                        Filed September 7, 2007


STATE OF IOWA,

      Appellee,

vs.

LORANT A. WELLS,

      Appellant.


      Appeal from the Iowa District Court for Johnson County, L. Vern

Robinson, Judge.



      Defendant appeals from his conviction of sexual abuse in the third

degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, J. Patrick White, County Attorney, and Anne Lahey,

Assistant County Attorney, for appellee.
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HECHT, Justice.

       Lorant Wells appeals from his conviction of sexual abuse in the third

degree, contending the district court erred in: (1) admitting, over Wells’s

hearsay and confrontation clause objections, evidence of statements made

by a patient to a sexual assault nurse examiner, (2) failing to inquire into
the alleged breakdown of Wells’s relationship with his attorney, and (3)

applying an incorrect legal standard when ruling on a motion for new trial.

We conclude the error, if any, arising from the admission of the challenged

evidence was harmless. We also conclude the district court applied the

correct standard when ruling on the motion for new trial, and we preserve

for a possible postconviction proceeding Wells’s claim that the district court

failed to adequately inquire into the claimed breakdown of the relationship

between Wells and his lawyer.

       I.      Background Facts and Proceedings.

       On December 4, 2001, Iowa City police officers were dispatched to a

residence to investigate a claim that L.M. had been sexually abused. The

officers asked L.M.’s mother to take L.M. to University of Iowa Hospitals and

Clinics for a sexual abuse examination. L.M.’s mother subsequently took

L.M. to the hospital, where sexual assault nurse examiner Nicollet

Markovetz conducted an examination.

       Although she was initially reluctant to cooperate, L.M. eventually

related her history to Markovetz. L.M. reported she was fourteen years old

and had engaged in a consensual sexual relationship over a period of

several months with Lorant Wells.1 L.M. stated the last time she had sex
with Wells was earlier that evening, and she came to the hospital because

her parents required her to do so.

       1Wells’sbirth certificate revealed that he was twenty-four years old at the time he
engaged in the sex acts with L.M.
                                           3

       L.M. told Markovetz she had recently been experiencing intermittent

pain in her lower right abdomen.               A school nurse had given L.M. a

pregnancy test the previous day, but the results were inconclusive.

Markovetz administered another pregnancy test, which indicated L.M. was

not pregnant.
       Markovetz performed a gynecological examination, during which she

collected, pursuant to a sexual assault protocol, vaginal smears and swabs.

Markovetz also collected oral swabs. She placed the evidence collected from

L.M. in a sexual assault kit, sealed it, and delivered it to the hospital’s

storage facility.

       Three years later, in November 2004, an Iowa City police detective

took “buccal swabs”2 from Lorant Wells. The detective correctly affixed

Wells’s name to the swabs and placed them in an envelope bearing Wells’s

police department case file number, but entered the name of “Lamont Wells”

on a related evidence form. In December 2004, the detective obtained

L.M.’s kit from the hospital and delivered it, along with the swabs harvested

from Wells, to the Iowa City police evidence custodian.

       The custodian subsequently delivered both the kit and Wells’s buccal

swabs to a lab for testing. A DNA analyst found spermatozoa on L.M.’s
vaginal smears and seminal fluid on one of L.M.’s oral swabs. The male

DNA found on L.M.’s oral swab matched the DNA profile derived from

Wells’s buccal swabs.3
       By a trial information filed on September 27, 2004, the State charged

Wells with two counts of sexual abuse in the third degree, in violation of


       2“Buccal swabs” are essentially long Q-tips used to collect DNA evidence from the
mouth or other parts of the body.
       3The  DNA analyst opined that fewer than one in one hundred billion unrelated
individuals would be expected to have the same profile.
                                              4

Iowa Code sections 709.4(2)(c)(4) (2001) and 702.17, and failure to register

as a sex offender, in violation of sections 692A.2(1), 692A.3(1), and 692A.7.4
       LeAnn Heun represented Wells at the outset of the case.                          On

December 22, 2004, Heun filed a motion to withdraw as Wells’s attorney,

which the court granted. Upon Wells’s request, the court appointed Jeffrey

Fields as Wells’s new attorney.

       In the spring and summer of 2005, the district court received six

letters from Wells expressing dissatisfaction with Fields and requesting

appointment of a different attorney. The court sent a copy of each letter to

Fields.5 After receiving a letter from Wells dated June 8, 2005, the court

ordered Fields to have in-person contact with Wells and file a written report

as to whether he would continue to represent Wells. The record contains no

evidence that Fields ever filed such a report.

       On August 2, 2005, the court received a letter from a person who

claimed to be a friend of Wells expressing concern over Wells’s situation.

The letter inquired why Wells had “been waiting so long” for resolution of

his case and why Wells’s attorney had not taken “time to speak with . . .

Wells in person.” The court forwarded this letter to Fields.6 The record

does not document that the court made a further inquiry of Wells before
trial as to either the requests for substitute counsel or the state of the

lawyer-client relationship between Fields and Wells.

       Fields appeared as Wells’s counsel during the trial. Neither L.M. nor

her mother testified.         Over Wells’s hearsay and Confrontation Clause

objections, the district court received Markovetz’s testimony recounting

       4Upon   the State’s motion, the court later dismissed one count of sexual abuse as
well as the count charging Wells with failure to register as a sex offender.
       5Theletters were received and forwarded by a judge other than Judge Robinson,
who subsequently presided at the trial of this case.
       6Again,   it was not Judge Robinson who received and forwarded this letter to Fields.
                                          5

L.M.’s out-of-court statement that she had sexual contact with Wells. The

jury found Wells guilty of sexual abuse in the third degree.

      Wells filed a motion for new trial alleging in relevant part that the

verdict was contrary to the evidence and that the district court had erred in

ruling upon various questions of law during the trial. The district court
denied the motion during the sentencing hearing stating: “I’ve reviewed the

presentence report and I’ve also reviewed the defendant’s motion for a new

trial. The grounds for the motion are rulings that I made at the time of the

trial, and I stand by those prior rulings.” The court filed a written judgment

and sentence stating: “The defendant’s motion for new trial is denied. The

verdict was not contrary to the weight of the evidence.”               Wells was

sentenced to an indeterminate term of imprisonment not to exceed ten

years.7

      On appeal, Wells reasserts his claim that Markovetz’s testimony

included inadmissible hearsay and violated his right to confront a witness

against him under the Sixth Amendment of the United States Constitution

and article I, section 10 of the Iowa Constitution. He also contends the

district court failed to adequately inquire into the claimed breakdown of his

relationship with Fields and applied an incorrect standard in overruling the
motion for new trial.

      II.      Scope of Review.
      Our review of Wells’s constitutional claim is de novo.             State v.

Castenada, 621 N.W.2d 435, 443 (Iowa 2001).                 Our review of Wells’s

contention that the district court failed to adequately inquire into the

alleged breakdown of the attorney-client relationship is also de novo. State

v. Tejeda, 677 N.W.2d 744, 749 (Iowa 2004). We review for errors at law


      7The   court also imposed, but suspended, a $1000 fine.
                                      6

Wells’s claim that the district court failed to apply the proper standard in

ruling on the motion for new trial. Iowa R. App. P. 6.4.

      III.   Admission of Markovetz’s Testimony.

      The Confrontation Clauses of the United States and Iowa

Constitutions guarantee to Wells the right “to be confronted with the
witnesses against him.” U.S. Const. amend. VI; Iowa Const. art. I, § 10. A

testimonial out-of-court statement made by a declarant who is unavailable

to testify is inadmissible if the defendant has not had an opportunity to

cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54,

124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 194 (2004). Wells contends

L.M.’s out-of-court statements identifying him as the person with whom she

had sexual relations were testimonial and therefore inadmissible because

L.M. was unavailable to testify and he had no opportunity to cross-examine

her. Even if we assume, without deciding, that L.M.’s statements were

testimonial, we find their admission was harmless beyond a reasonable

doubt. Cf. State v. Simmons, 714 N.W.2d 264, 275 (Iowa 2006).
      “[T]he admission of [hearsay] in violation of the Confrontation Clause

does not mandate reversal.” State v. Newell, 710 N.W.2d 6, 25 (Iowa 2006).

Reversal is not required “if the State establishes that the error was harmless
beyond a reasonable doubt.” Id. (citing State v. Brown, 656 N.W.2d 355,

361 (Iowa 2003)). “To determine harmlessness, the inquiry ‘is not whether,

in a trial that occurred without the error, a guilty verdict surely would have

been rendered, but whether the guilty verdict actually rendered in this trial

was surely unattributable to the error.’ ” Id. (quoting Sullivan v. Louisiana,

508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 189 (1993)).

We conclude the guilty verdict in this case was surely unattributable to

Markovetz’s recounting of L.M.’s statement that she had sex with Wells.

The jury was presented with DNA evidence that overwhelmingly established
                                      7

Wells’s guilt; in fact, the likelihood that someone other than Wells deposited

the foreign DNA found in L.M.’s body is less than one in one hundred

billion.

      We reject Wells’s contention that the reliability of the DNA evidence

was called into serious question. The buccal swabs harvested from Wells
were accurately marked with the correct spelling of Wells’s name, “Lorant

Wells,” and were placed by the detective in an envelope bearing the police

file number assigned to Wells’s case. The same detective who harvested

Wells’s DNA on those swabs testified at trial, stating he correctly labeled the

swabs and simply misspelled Wells’s first name when he completed a

related evidence form. The detective identified Wells at trial as the person

from whom the swabs in question were harvested. We are consequently

satisfied beyond a reasonable doubt under the circumstances of this case

that the guilty verdict was surely unattributable to Markovetz’s recounting

of L.M.’s identification of Wells as the person with whom she had sexual

relations. The verdict was surely attributable instead to DNA evidence that

overwhelmingly established Wells’s guilt. Accordingly, we conclude the

State met its burden to prove the error, if any, resulting from the admission

of L.M.’s statements through the testimony of Markovetz was harmless

beyond a reasonable doubt.
      Wells’s contention that the district court committed reversible error by

admitting L.M.’s statements in violation of the hearsay rule, Iowa Rule of

Evidence 5.802, is also vulnerable to a prejudice analysis. Even if we

assume, without deciding, that the hearsay rule prohibited the admission

of L.M.’s statements, the error was harmless. Because the admission of

the evidence was harmless under the standard applied to the claimed

constitutional error, it was also harmless under the standard applied to

admission of hearsay in violation of the hearsay rule. State v. Martin, 704
                                        8

N.W.2d 665, 673 (Iowa 2005) (“ ‘In cases of nonconstitutional error,

reversal is required if it appears the complaining party has suffered a
miscarriage of justice or his rights have been injuriously affected.’ ”

(quoting State v. Moorehead, 699 N.W.2d 667, 672 (Iowa 2005))).

      IV.      Motion for New Trial.

      A court may grant a new trial pursuant to Iowa Rule of Criminal

Procedure 2.24(2)(b)(6) when “the verdict is contrary to law or evidence.”

The Iowa Supreme Court has held a verdict is contrary to the evidence

under this rule if it is “contrary to the weight of the evidence.” State v. Ellis,

578 N.W.2d 655, 659 (Iowa 1998).

      Wells claims the district court did not apply the weight-of-the-

evidence standard in ruling on the motion for new trial. We disagree.

Although the court did state during the sentencing hearing that it would

“stand by” the rulings made during the trial, we believe that statement was

directed to Wells’s alternative claim in the motion for new trial that the

district court erred in deciding certain questions of law before and during

trial. In its written judgment and sentence, the district court expressly

found that the verdict was not contrary to the weight of the evidence.

Accordingly, we find no merit in Wells’s claim that the court failed to apply

the Ellis standard in this case.

      V.       Attorney-Client Relationship.

      We next turn to Wells’s claim that the district court erred in failing to

adequately inquire into the lawyer-client relationship between Wells and

Fields.    Judges who receive from a defendant a request for substitute

counsel on account of an alleged breakdown in communication have a “duty

of inquiry.”    Tejeda, 677 N.W.2d at 749–50.         This duty stems from a

defendant’s Sixth Amendment right to counsel. Id. A complete breakdown

in communication between an attorney and a defendant is sufficient cause
                                           9

justifying the appointment of substitute counsel.               State v. Lopez, 633

N.W.2d 774, 778–79 (Iowa 2001).
       The State and Wells agree the record is inadequate for us to assess
whether the district court made an adequate inquiry on this issue. As in
Tejeda, there is no record as to whether the court ever addressed the
defendant in person on this subject or whether Fields reported as directed
by the court on the status of the relationship. Tejeda, 677 N.W.2d at 751.
The record contains insufficient evidence as to whether there was a
“complete breakdown in communication, and if so, its causes and
duration.”8 Id. We therefore conclude the record is inadequate for us to
rule on this issue, and we consequently preserve it for a potential
postconviction proceeding.
       VI.    Conclusion.
       We conclude any error resulting from the admission of L.M.’s
statements through Markovetz’s testimony was harmless.                     We further
conclude the district court applied the correct standard in ruling on Wells’s
motion for new trial. We preserve for possible postconviction proceedings
Wells’s claim that the district court failed to make an adequate inquiry into
the allegation of a breakdown in the lawyer-client relationship between
Wells and Fields.
       AFFIRMED.




       8To  prove a “total breakdown,” the defendant must show a “ ‘severe and pervasive
conflict with his attorney or evidence that he had such minimal contact with the attorney
that meaningful communication was not possible.’ ” Tejeda, 677 N.W.2d at 752 (quoting
United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).
