                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1925
                             Filed January 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NASSER MUHAMED SAHIR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      The defendant appeals his convictions for sexual abuse in the third degree

and assault with intent to commit sexual abuse. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., McDonald, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BLANE, Senior Judge.

       Nasser Sahir was convicted of third-degree sexual abuse and assault with

the intent to commit sexual abuse. On appeal, Sahir argues the convictions were

contrary to the weight of the evidence and his trial counsel was ineffective for failing

to adequately challenge the sufficiency of the evidence to convict him and for

failing to adequately assert evidentiary challenges at trial.

   I. Background Facts and Proceedings

       In 2012, T.O.C. (born 1996) was living with her mother and Sahir. One

evening, Sahir came into T.O.C.’s bedroom while she was in bed and told her

“there’s things [she] can do to make [herself] feel better so [she’s] not so mad and

so [she doesn’t] go have sex.” Sahir put his hand on her, put his hand into her

pants, and penetrated her vagina with his fingers, “moving them in a circle inside

of [her] vagina.” On Father’s Day, a similar incident occurred, although Sahir’s

hand was above T.O.C.’s clothing.

       Shortly thereafter, T.O.C. went to stay with her mother’s sister in California

for the summer. The relative observed Sahir made frequent late night phone calls

to T.O.C. while she was in California. The relative asked T.O.C. if Sahir abused

her, and, after an initial denial, T.O.C. said Sahir had abused her. Soon thereafter,

the relative and T.O.C. returned to Iowa. T.O.C.’s mother questioned her about

the allegation against Sahir. T.O.C. was not allowed to return home. She first

went to live with her grandmother and was then placed in foster care. In August

2012, T.O.C. gave an interview with a child protection center about the abuse.

       In July 2013, Sahir was charged with sexual abuse in the third degree, a

class “C” felony, in violation of Iowa Code section 709.4 (2011); and assault with
                                          3


the intent to commit sexual abuse, an aggravated misdemeanor, in violation of

section 709.11. Sahir pleaded not guilty. Throughout the proceedings, Sahir

wholly denied the allegations made against him. He stated the incident on Father’s

Day could not have happened because he had a severe toothache that day. He

also argued the allegations against him only surfaced once he and T.O.C.’s mother

threatened to send T.O.C. to Mexico as punishment for her behavior.

       Sahir went to trial and was ultimately found guilty as charged by a jury.

Sahir filed a motion for new trial on the following grounds: (1) the verdict returned

was contrary to the law and evidence in several respects; (2) the court erred in

granting the State’s motion to amend the trial information, which prejudiced Sahir;

and (3) the district court erred in ruling on several evidentiary issues at trial. The

trial judge denied the motion and sentenced Sahir to concurrent sentences of ten

years and two years in prison, along with fines, a lifetime special sentence

pursuant to section 903B.1, a sex offender treatment program, and registration as

a sex offender. Sahir now appeals.

   II. Weight of the Evidence

       We review rulings on motions for new trial for abuse of discretion. See State

v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). Trial courts have wide discretion in

ruling on motions for new trial. See Iowa R. App. P. 6.904(3)(c). A court only

abuses its discretion in denying a motion for new trial when “the evidence

preponderates heavily against the verdict.” State v. Reeves, 670 N.W.2d 199, 202

(Iowa 2003).

       Sahir argues T.O.C.’s testimony was not credible.              He points to

inconsistencies between her trial testimony and earlier deposition testimony. For
                                             4


example, T.O.C. gave conflicting testimony about whether Sahir’s hand was above

or under her clothing during the Father’s Day incident.1 He also notes T.O.C.’s

admission she disliked Sahir. Sahir also points to other witnesses’ testimony

containing some minor inconsistencies and some witnesses who testified T.O.C.

did not give them the full account of what happened with Sahir.

       All of the evidence of inconsistency to which Sahir points was brought out

at trial and heard by the jury. It is generally for the jury to decide the credibility of

a witness. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). The jury, by its

verdicts, found T.O.C. to be credible. Trial courts have been cautioned “to exercise

[their] discretion carefully and sparingly when deciding motions for new trial based

on the ground that the verdict of conviction is contrary to the weight of the

evidence” because of the deference due to the jury’s credibility determinations.

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

       That several witnesses gave slightly differing accounts of what happened is

unsurprising given the number of witnesses who testified and the amount of time

between the incidents and trial. But the inconsistencies are altogether minor and

do not at all suggest the evidence “preponderates heavily against the verdict” in

this matter. The district court did not abuse its discretion in denying Sahir’s motion

for new trial. This claim fails.

    III. Ineffective Assistance



1
  Sahir cites a thirteen-page swath of testimony for the contention “T.O.C. admitted that
she has testified differently at trial than she did in her deposition.” No specific
inconsistencies are alleged, and this is the one inconsistency we can find in those thirteen
pages. Where Iowa Rule of Appellate Procedure 6.903(2)(g)(3) requires “references to
the pertinent parts of the record,” we assume it means meaningful references, enabling
our review. Broad omnibus references are profoundly unhelpful.
                                          5


         Sahir raises several claims of ineffective assistance of counsel. We review

claims of ineffective assistance de novo. Everett v. State, 789 N.W.2d 151, 155

(Iowa 2010).

         To prevail on an ineffective-assistance claim, Sahir must show that “(1)

counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.”

State v. Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010). We presume counsel’s

conduct fell within the range of reasonable professional assistance. Anfinson v.

State, 758 N.W.2d 496, 499 (Iowa 2008). “The crux of the prejudice component

rests on whether the defendant has shown ‘that there is a reasonable probability

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

have been different.’” Whitsel v. State, 439 N.W.2d 871, 873 (Iowa Ct. App. 1989)

(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). If we determine the

defendant has failed to prove prejudice, we do not need to consider whether

counsel breached an essential duty. See Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001).

         Normally, we preserve claims of ineffective assistance for possible

postconviction relief. See State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We

may review such claims on direct appeal if “the record is adequate to address the

claim.” Iowa Code § 814.7(2); see also State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012).

         Sahir’s trial counsel made broad motions for judgment of acquittal during

trial. When a general motion for judgment of acquittal does not identify the specific

elements of the charge alleged to lack sufficient evidence to support a conviction,

we have held such a motion does not preserve a sufficiency-of-the-evidence claim
                                           6

for our review. See State v. Green, 592 N.W.2d 24, 29 (Iowa 1999). Ineffective-

assistance claims are exceptions to the normal rules of error preservation. See

State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006); State v. Truesdell, 679

N.W.2d 611, 615–16 (Iowa 2004). Sahir now claims on appeal that his trial counsel

was ineffective for failing to adequately challenge the sufficiency of the evidence

supporting his conviction.

       When a defendant challenges the sufficiency of the evidence against him,

we will uphold a jury verdict if substantial evidence supports it. State v. Bash, 670

N.W.2d 135, 137 (Iowa 2003). Evidence is considered substantial if it would

convince a rational fact finder the defendant is guilty beyond a reasonable doubt.

Id. We review the evidence in the light most favorable to the State. Id.

       Under this rubric, we find no prejudice from the failure of Sahir’s trial counsel

to argue his motion with more specificity. There was substantial evidence to

support conviction. Sahir cites the same evidence here as he did in arguing his

weight-of-the-evidence claim.     This evidence roughly boils down to credibility

determinations.    “In determining the correctness of a ruling on a motion for

judgment of acquittal, we do not resolve conflicts in the evidence, pass upon the

credibility of witnesses, or weigh the evidence.” State v. Hutchison, 721 N.W.2d

776, 780 (Iowa 2006). The jury is free to credit or reject evidence as it sees fit.

Sanford, 814 N.W.2d at 615. A more specific motion would not have succeeded.

We therefore find no prejudice.

       Sahir also argues his counsel was ineffective for failing to make offers of

proof with respect to certain evidence—dental records, text messages, and phone

records—to attempt to admit this evidence. The district court denied admission of
                                         7


the dental records and phone records because of a lack of foundation. The district

court denied admission of the text messages because of a lack of reliability.

       Sahir wanted to admit the dental records to show the extent of his tooth

ache on Father’s Day. However, the State stipulated he received treatment and

admitting the dental records would have added nothing to his argument. He was

not prejudiced by the failure to have the dental records admitted.

       The text messages were printed records prepared by T.O.C.’s mother. The

district court denied their admission because of a risk of tampering and their lack

of reliability. A foundational witness or offer of proof would not have overcome this

issue. Sahir’s counsel did not breach any duty in failing to obtain admission of

these records.

       The phone records relate to the question of when and how often Sahir was

calling T.O.C. while she was in California. Sahir testified he knew exact dates and

times from looking at the relevant phone records and that he made six phone calls

to T.O.C. over four days while she was in California, with the latest at 10:35 p.m.

California time, two others around 8:00 or 9:00 p.m., and the rest in the afternoon

or earlier. T.O.C. testified, “Typically, he would call me late. I remember it was

always, ‘Oh, your mom’s with the kids’ or ‘your mom’s asleep.’” She further

testified she “only recall[ed] [calls] happening a couple of times.” Sahir contends

admission of the phone records with proper foundation would have corroborated

his story and damaged T.O.C.’s credibility. Sahir argues T.O.C.’s credibility was

the key factor in his conviction and documentary evidence undermining her

credibility would have significantly strengthened his case.
                                            8


       We find no prejudice from the failure to lay foundation and offer the phone

records. Sahir’s testimony is not necessarily inconsistent with T.O.C.’s testimony.

She testified she only recalled phone calls happening “a couple of times,” which

could encompass six times. She said the calls occurred “[t]ypically . . . late,” and

if three of the six calls occurred after 11:00 p.m. on the east coast—where Sahir

was then located—those could reasonably be categorized as “late.”           Even if

considered inconsistent, such evidence relates to a minor, collateral point. The

testimony by T.O.C.’s aunt was her concern that Sahir was the one frequently

calling T.O.C. If anything, the phone records would have corroborated the aunt’s

testimony that Sahir was calling T.O.C., which his own testimony admitted. In any

event, from reviewing Sahir’s trial testimony, he made several references to

reviewing the phone records prior to testifying. Admission of the records would not

have changed the outcome of the proceeding. See Whitsel, 439 N.W.2d at 873.

       Finally, Sahir makes an argument regarding trial counsel’s failure to present

reputation or opinion evidence as to T.O.C.’s untruthfulness. We preserve this

claim for possible postconviction relief.

       AFFIRMED.
