State of Iowa v. Marco Carrillo

IN THE COURT OF APPEALS OF IOWA

No. 19-1245
Filed September 22, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MARCO CARRILLO,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.

Marco Carrillo appeals his convictions of two counts of sexual abuse in the

second degree. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by Mullins, P.J., and May and Ahlers, JJ.
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MULLINS, Presiding Judge.

Marco Carrillo appeals his convictions of two counts of sexual abuse in the

second degree in violation of Iowa Code section 709.3(1)(b) (2016). He argues

the State failed to prove beyond a reasonable doubt that a sex act occurred,

contends a video interview was improperly admitted into the record, and raises

multiple ineffective-assistance-of-counsel claims.

I. Background Facts and Proceedings

This case arises from allegations of sexual abuse suffered by the child of

E.S. E.S. and Carrillo met at their mutual place of employment in Davenport and

began dating. During that time, Carrillo met and interacted with the child of E.S.,

both in the presence of E.S. and separately when Carrillo would babysit the child.

On July 5, 2016, the child, E.S., and Carrillo were watching a movie at the

home E.S. and the child shared with E.S.’s parents. Carrillo was sitting between

E.S. and the child, covered by blankets, with his arm around each. E.S. noticed

the child move, and saw what she believed to be Carrillo’s hand positioned over

the child’s genital region while under the blanket. The child then got up from the

couch and left the room. E.S. followed and shortly thereafter questioned the child.

When asked if Carrillo touched the child’s “hoo-hoo,”1 the child’s demeanor

immediately changed. The mother testified that the child initially did not answer

but eventually said “yes.”

Approximately one year later, the child told an aunt about the allegations

against Carrillo. The aunt contacted E.S. and the Iowa Department of Human

1 This is the term the family used to reference the child’s genitals.
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Services (DHS), and law enforcement became involved. Over the course of

investigation, the child reported other incidents of touching. The incidents occurred

at the child’s family home and Carrillo’s home. When Carrillo appeared for an

interview with the Davenport police, he consistently alleged that the child was the

“aggressor.” He said the incident on July 5 involved the child moving his hand

toward her genitals, which he alleged happened on multiple prior occasions.

Carrillo acknowledged that he should have reported the child’s conduct to the

mother, but he was not sure if E.S. would believe him or involve law enforcement.

The case proceeded to trial in December 2018 and ended in a mistrial. The

case was tried a second time in May 2019. The jury convicted Carrillo of both

counts of sexual abuse in the second degree. Carrillo appealed following the

imposition of 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). When a defendant

challenges a guilty jury verdict, we view the record “in the light most favorable to

the State, including all reasonable inferences that may be fairly drawn from the

evidence.” Id. (quoting State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002)).

Our review asks if substantial evidence supports the jury verdict. State v. Nitcher,

720 N.W.2d 547, 556 (Iowa 2006). “Evidence is considered substantial if, 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.

Evidentiary rulings are reviewed for abuse of discretion. State v. Nelson,

791 N.W.2d 414, 419 (Iowa 2010). “When a trial court admits evidence on grounds
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or for reasons clearly untenable or to an extent clearly unreasonable, the court has

abused its discretion.” Id. It is also an abuse of discretion for a court to engage in

“erroneous application of the law.” State v. Harrington, 800 N.W.2d 46, 48 (Iowa

2011).

III. Discussion

A. Ineffective-Assistance Claims

Carrillo argues his trial counsel was ineffective in failing to (1) request a

limiting instruction barring the jury from considering statements made by the

detective during his video interview and (2) failing to object to alleged prosecutorial

misconduct. Carrillo argues both claims should be heard on direct appeal pursuant

to his right to counsel under the Sixth Amendment to the United States

Constitution.

An ineffective assistance of counsel claim in a criminal case shall be
determined by filing an application for postconviction relief pursuant
to chapter 822. The claim need not be raised on direct appeal from
the criminal proceedings in order to preserve the claim for
postconviction relief purposes, and the claim shall not be decided on
direct appeal from the criminal proceedings.

Iowa Code § 814.7 (Supp. 2019). Our supreme court has instructed that we must

look to the date of judgment and sentence in a criminal case to determine whether

the 2019 amendment to section 814.7, which took effect July 1, is applicable. State

v. Damme, 944 N.W.2d 98, 109 (Iowa 2020). Here, although Carrillo’s verdict was

rendered in May 2019, judgment and sentence were not entered until July 19,

2019, making the amendment applicable. See id. Accordingly, we do not have

the authority to consider Carrillo’s ineffective-assistance claims on direct appeal.
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B. Sufficiency of the Evidence

Carrillo argues the State failed to prove he committed a sex act with the

child. Pursuant to Iowa Code section 709.3(1)(b), sexual abuse in the second

degree occurs “when the person commits sexual abuse” and “[t]he other person is

under the age of twelve.”2 The jurors were instructed that the requisite sex-act

element would be proved if the jury found beyond a reasonable doubt that there

was “any sexual contact between the finger or hand of one person and the genitals

or anus of another person.” See Iowa Code § 702.17(3).3 The jury was instructed

to “consider the type of contact and the circumstances surrounding it in deciding

whether the contact was sexual in nature.” As the factfinder, it was the jury’s job

to determine whether a sex act occurred. State v. Madsen, 813 N.W.2d 714, 728

(Iowa 2012).

There is no dispute that Carrillo’s hand came in contact with the child’s

genitals. Carrillo has never denied that fact. Even if the jury found Carrillo’s

testimony was credible, his own testimony was that his hand was placed on the

child’s genitals. If the jury found the child was the most credible witness, then the

jury could accept the child’s testimony that Carrillo intentionally touched the child

underneath clothing with no appropriate explanation. The evidence presented at

trial was sufficient to “convince a rational jury that [Carrillo was] guilty beyond a

reasonable doubt.” Nitcher, 720 N.W.2d at 556.

2 Section 709.3(1)(b) was amended, effective July 1, 2021, to provide second-
degree sexual abuse occurs when “the other person is a child” as opposed to a
person under the age of twelve. 2021 Iowa Acts ch. 37, § 3.
3 Section 702.17(3) was also amended, effective July 1, 2021, to add contact of

any other body part of one person with the genitalia or anus of another amounts to
a sex act. 2021 Iowa Acts ch. 36, § 1.
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C. Video Interview Evidence

Carrillo argues the district court abused its discretion in admitting the video

of his interview, which included inadmissible statements of the interviewing officer

that were unnecessary to provide context to his own statements. The State argues

Carrillo failed to preserve error on the argument that the statements are

unnecessary to provide context to his own statements, pursuant to Iowa Rule of

Evidence 5.106. During the first trial, Carrillo’s counsel argued the interviewing

officer’s statements were hearsay, inappropriate, and bolstered the child’s

testimony. During the second trial, Carrillo’s counsel incorporated the prior

arguments by reference. It does not appear that any objection related to the

contextual aspect of the detective’s statements was ever made. “It is a

fundamental doctrine of appellate review that issues must ordinarily be both raised

and decided by the district court before we will decide them on appeal.” Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Although the district court received

and ruled on the admissibility of the detective’s statements on other grounds, no

argument or ruling was made pursuant to Iowa Rule of Evidence 5.106.

Accordingly, it is not preserved for our review. Id.

Carrillo otherwise targets the detective’s statements in three ways: the

statements (1) constituted misconduct, (2) are impermissible because there was

no foundation to support the detective’s status as an expert, and (3) led the jury to

consider Carrillo’s ultimate punishment.

Prosecutorial-error claims are subject to a two-part test requiring both

(1) proof of misconduct and (2) proof that “the misconduct resulted in prejudice to

such an extent that the defendant was denied a fair trial.” State v. Graves, 668
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N.W.2d 860, 869 (Iowa 2003). Our supreme court has said it is improper for a

prosecutor to ask a defendant whether another witness is lying. Id. at 873–74.

But, Carrillo is asking this court to apply the standard of prosecutorial error to a

witness and not a prosecutor. Carrillo argues the detective’s statements regarding

his veracity in the video should not have been admitted because they would have

been impermissible for a prosecutor to ask during in camera examination. This

court has said “[a]n officer’s stated opinion that a defendant was not being truthful

during an interview” that was not offered for impeachment does not invade the role

of a jury. State v. Vance, No. 13-0082, 2014 WL 1714327, at *1 (Iowa Ct. App.

Apr. 30, 2014). The detective’s questions and statements on the video were to

engage with Carrillo as a part of the investigation into the allegations against him.

We find nothing clearly untenable or unreasonable with admitting the video.

Nelson, 791 N.W.2d at 419.

Carrillo argues no foundation was provided to support the detective’s status

as an expert witness. The record does not reveal that the detective ever presented

herself as an expert, nor did the prosecutor. It is true that there is “a real danger

the jury will be unfairly influenced by [a government] agency finding, which gives

the ‘imprimatur’ of a purportedly unbiased state agency on a conclusion.” State v.

Huston, 825 N.W.2d 531, 537–38 (Iowa 2013) (altered for readability). But,

statements made by a detective during an investigation are explicitly targeted at

obtaining information. That common knowledge couples with the jury instructions,

which instructed jurors they were to determine the credibility of witnesses, and we

find nothing clearly untenable or unreasonable with admitting the detective’s

statements. Nelson, 791 N.W.2d at 419.
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Carrillo also targets a question posed to him during the interview that was

shown to the jury on the video. The detective asked, “What do you think should

happen to adults who touch little children?” Carrillo insists that the question led

the jury to improperly consider what punishment may ultimately be imposed upon

his conviction. “The issue of punishment is not for the jury to consider or speculate

about and knowledge about punishment can serve to confuse or distract the jury.”

State v. Hanes, 790 N.W.2d 545, 549 (Iowa 2010). The detective’s question was

posted to elicit information from Carrillo and was not presented to the jury for the

purpose of confusion or to distract from the issues of the trial. The video had one

consistent setting and the purpose of the interview was to obtain information.

Furthermore, jury instruction number five told the jurors that, “The duty of the jury

is to determine if the defendant is guilty or not guilty. In the event of a guilty verdict,

you have nothing to do with the punishment.” Again, we find nothing clearly

untenable or unreasonable with admitting the detective’s question on the video.

Nelson, 791 N.W.2d at 419. Having found none of the district court’s findings

related to admission of the video interview clearly untenable or unreasonable, no

abuse of discretion resulted. Id.

IV. Conclusion

We have no authority to consider Carrillo’s ineffective-assistance claims.

The evidence presented at trial was sufficient to convince a rational jury of

Carrillo’s guilt. There is nothing clearly untenable or unreasonable with the district

court’s evidentiary determinations leading to the admission of the video interview,

and we find no abuse of discretion.

AFFIRMED.