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Case No. 18-0685

State of Iowa
v.
Anthony Gomez

Appellee

State of Iowa

Appellant

Anthony Gomez

Attorney for the Appellee

Genevieve Reinkoester, Assistant Attorney General

Attorney for the Appellant

Bradley M. Bender, Assistant Appellate Defender

Court of Appeals

Court of Appeals Opinion

Opinion Number:
18-0685
Date Published:
Apr 17, 2019
Summary

            Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, District Associate Judge.  CONVICTIONS AFFIRMED IN PART, REVERSED IN PART, AND REMANDED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.  Considered by Tabor, P.J., Bower, J., and Scott, S.J.  Opinion by Scott, S.J. (17 pages)

            Anthony Gomez appeals his convictions of (1) third-degree sexual abuse, (2) willful injury causing bodily injury, (3) domestic abuse assault causing bodily injury by impeding breathing or circulation, (4) domestic abuse assault causing bodily injury or mental illness, and (5) third-degree theft.  He also challenges the imposition of consecutive sentences on counts one and two.  Specifically, he argues (1) his counsel rendered ineffective assistance in failing to (a) request definitional jury instructions in relation to the willful-injury charge and the two domestic-abuse-assault charges and (b) object to hearsay testimony relative to the theft charge; (2) the evidence was insufficient to support all charges; and (3) the court improperly failed to provide reasons for imposing consecutive sentences.  OPINION HOLDS: We find defense counsel rendered ineffective assistance in failing to request a definitional jury instruction relative to the final element of each of the domestic-abuse-assault charges.  As such, we vacate the sentences and reverse judgment and conviction on counts three and four and remand for a new trial on those charges.  We find Gomez was not prejudiced by counsel’s failures to request a jury instruction defining serious injury in relation to the willful-injury charge or object to alleged hearsay evidence in relation to the theft charge.  We reject Gomez’s claim of cumulative error.  We find the evidence sufficient to support Gomez’s convictions of third-degree sexual abuse, willful injury causing bodily injury, and third-degree theft.  We find the record is insufficient to allow appellate review of the district court’s discretionary action in imposing consecutive sentences on counts one and two.  As such, we vacate only the portion of the sentencing order imposing consecutive sentences, and we remand the matter to the district court.  On remand, the district court should determine whether the sentences should run consecutively or concurrently and provide reasons for its decision.  Finally, having found Gomez’s ineffective-assistance argument concerning the weight of the evidence insufficient to facilitate our review, we preserve that claim for postconviction-relief proceedings.  

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