IN THE COURT OF APPEALS OF IOWA
No. 15-1841
Filed November 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
XAVIER AMBRIC GORDON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James D. Coil,
District Associate Judge.
Defendant appeals his conviction for domestic abuse assault causing
bodily injury. AFFIRMED.
Christine E. Branstad and Nathan A. Olson of Branstad Law, P.L.L.C.,
Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger and Kevin
Cmelik, Assistant Attorneys General, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Xavier Gordon appeals his conviction for domestic abuse assault causing
bodily injury. Gordon claims the district court did not apply the proper standard of
review in determining if he forfeited his right to confront a witness against him.
We conclude Gordon did not properly preserve this claim. Gordon also claims
there was insufficient evidence to find he had procured the unavailability of the
witness through wrongdoing. We agree with the district court and find the
evidence was sufficient. We find Gordon has not shown he received ineffective
assistance of counsel because defense counsel did not object to the standard of
review for forfeiture by wrongdoing. Gordon’s final claim, that defense counsel
failed to present evidence Gordon claims was exculpatory, must be preserved for
possible postconviction proceedings. We affirm.
I. Background Facts and Proceedings
S.T. managed to stop a passing car around 6:30 a.m. on April 4, 2015.
Crying, she asked the driver to call the police, stating she had been attacked by
her boyfriend and had been hiding in a dumpster to get away from him. S.T. was
bleeding, had “claw marks” on her arms, and seemed terrified. The driver called
911 and waited with S.T. at her relative’s house. S.T., still crying and distraught,
related the same story of being attacked by her boyfriend, whom she identified as
Xavier Gordon to a police officer who responded to the call. However, S.T.
refused to go to the police station or cooperate with the investigation.
Gordon was contacted by police, and his identification listed the same
address as S.T. After Gordon was arrested for domestic abuse assault causing
bodily injury, in violation of Iowa Code section 708.2A(3)(b) (2015), many calls
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from the jail were made to S.T.’s telephone number, some with Gordon’s
assigned PIN1 and some with other PINs. The female voice was always the
same and responded as S.T.; the male voice was almost always consistent.
During a call, made through a PIN other than Gordon’s, a male voice asked,
“what’s it going to take to get this [case] thrown out?” The male voice also said
another inmate’s case for domestic abuse was dismissed when the victim failed
to show up for court. In a separate call the female voice, again responding as
S.T., stated she was trying to get him “out of this situation” and the male voice
said he did not “want them to subpoena [his] old girl.” The male voice suggested
S.T. “call the county and tell them you’re moving.”
Gordon’s trial was held in September 2015. S.T. was not present. The
district court found Gordon had forfeited his right to confrontation, and allowed
S.T.’s statements to the officer responding to the initial 911 call, as well as her
statements she was no longer willing to cooperate with the investigation, before
the jury. Gordon was found guilty of domestic abuse assault causing bodily
injury. Gordon appeals.
II. Standard of Review
“We review the trial court's admission of hearsay evidence for correction of
errors of law. However, to the extent constitutional issues are raised, our review
is de novo.” State v. Heuser, 661 N.W.2d 157, 162 (Iowa 2003). We also review
ineffective assistance of counsel claims de novo. Id. at 166. Challenges to the
sufficiency of evidence presented at trial are reviewed for correction of errors at
law and we will uphold a verdict if it is supported by substantial evidence. State
1
Personal Identification Number
4
v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view all evidence in the light
most favorable to the State. State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002).
III. Right of Confrontation
Gordon claims the district court violated his constitutional right to confront
the witnesses against him. The State claims the issue is actually which
evidentiary standard to apply to claims of forfeiture by wrongdoing, a claim
Gordon failed to preserve below.
In order to preserve error issues must be raised and decided before the
district court in order to be considered on appeal. State v. Talbert, 622 N.W.2d
297, 299 (Iowa 2001). Additionally, “a party attempting to exclude evidence has
the duty to indicate the specific grounds to the court so as to alert the judge to
the question raised and enable opposing counsel to take proper corrective
measures to remedy the defect, if possible.” State v. Decker, 744 N.W.2d 346,
353 (Iowa 2008) (citing State v. Clay, 213 N.W.2d 473, 476-77 (Iowa 1973)).
Gordon’s trial counsel did move to exclude S.T.’s statements as hearsay
and as a violation of Gordon’s right to confrontation, but never challenged the
evidentiary standard, which is the basis for the appeal. In fact, Gordon’s counsel
provided a case to the district court correctly stating the evidentiary standard as a
preponderance of the evidence. Additionally, the State referenced the
evidentiary standard applicable to forfeiture by wrongdoing several times during
arguments on the motion.
Gordon has not properly preserved this issue for our review. His
resistance to S.T.’s statements being used was put before the court on the basis
of hearsay and a violation of his right to confront the witness, not on the basis of
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the correct evidentiary standard. Therefore, we will not address the merits on
this claim.
IV. Sufficiency of Evidence
Gordon further claims the evidence was not sufficient to find he forfeited
his right to confront the witness. In order to apply the doctrine of forfeiture by
wrongdoing the court is required to find “the defendant intended to prevent a
witness from testifying. A mere showing that the defendant caused the person to
be absent is not sufficient.” State v. Harper, 770 N.W.2d 316, 322 (Iowa 2009)
(internal quotation marks and citations omitted) (citing Giles v. California, 554
U.S. 353 (2008)).
Gordon claims the only evidence supporting a finding he intended to
prevent the witness from testifying are vague mentions that other inmates had
charges dropped when witnesses refused to testify. Additionally, those calls
were made from PINs not associated with Gordon. Gordon also claims S.T.
made statements during those calls that show it was solely her decision not to
testify. Gordon claims the male inmate made no threats, promises, or
instructions to S.T. concerning testifying.
However, the jail administrator testified many inmates share their PIN in
order to circumvent no-contact orders.2 While Gordon asserts there were no
threats, promises, or instructions, the male caller told S.T. “the best way is not to
come” and told her to “call the county and tell them you’re moving.” The male
caller also related to S.T. that other inmates had charges dropped when the
victim refused to testify and responded approvingly when S.T. stated she did not
2
A no-contact order was previously issued in this case.
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want to testify. When viewed in the light most favorable to the State, we find the
evidence sufficient to support the district court’s finding Gordon intended to
prevent the witness from testifying.
V. Ineffective Assistance of Counsel
To establish his ineffective-assistance-of-counsel claim, Gordon must
show (1) the attorney failed to perform an essential duty, and (2) prejudice
resulted. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “We will address
on direct appeal claims of ineffective assistance of counsel only if we determine
the development of an additional factual record would not be helpful and these
elements can be decided as a matter of law.” Id. Where the record is not
adequate to address a claim of ineffective assistance of counsel, we must
preserve the claim for possible postconviction proceedings. See State v.
Fountain, 786 N.W.2d 260, 267 (Iowa 2010).
A. Failure to Argue for a Stricter Standard of Review
Gordon claims his trial counsel breached their duty by failing to object to
the evidentiary standard governing a claim of forfeiture by wrongdoing. “Trial
counsel has no duty to raise an issue that has no merit. In situations where the
merit of a particular issue is not clear from Iowa law, the test is whether a
normally competent attorney would have concluded that the question . . . was not
worth raising.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003) (internal
quotation marks and citations omitted).
Our supreme court has adopted a preponderance of the evidence
standard for resolving claims of forfeiture by wrongdoing, aligning Iowa with the
majority of sister states, and declining to adopt a clear and convincing evidence
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standard. State v. Hallum, 606 N.W.2d 351, 356 (Iowa 2000). We find Gordon’s
trial counsel did not breach any duty by failing to object to the evidentiary
standard which was clearly established in Hallum. Such an objection had no
merit against clearly controlling precedent with no identifiable trend against the
standard among other jurisdictions. Because no duty was breached we need not
address prejudice.
B. Failure to present Evidence
Gordon claims trial counsel failed to present evidence S.T. avoided trial on
her own volition, and was not influenced at all by Gordon. The record does not
reveal if the evidence was not admitted through oversight or as a matter of trial
strategy. “Even a lawyer is entitled to his day in court, especially when his
professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa
1978). We determine this issue must be preserved for possible postconviction
proceedings in order to more fully develop the record.
We affirm Gordon’s conviction.
AFFIRMED.