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IN THE SUPREME COURT OF IOWA
No. 87 / 04-1247 Filed October 20, 2006 STATE OF IOWA, Appellee, vs. REYNOLD RAYNALDO ONDAYOG, Appellant. ________________________________________________________________________ On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Webster County, Gary L. McMinimee, Judge.

State seeks further review of court of appeals decision finding defendant received ineffective assistance of counsel. APPEALS DECISION VACATED; DISTRICT COURT COURT OF JUDGMENT

AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn and John Beaty, Assistant County Attorneys, for appellee.

2 STREIT, Justice. Reynold Ondayog appeals from his conviction for assault with intent to commit sexual abuse causing bodily injury, a class "D" felony in violation of Iowa Code section 709.11 (2003). Ondayog contends his trial attorney rendered ineffective assistance of counsel by failing to object to the jury instruction which included this charge as a lesser-included offense to the charge of kidnapping in the first degree (resulting in sexual abuse). The court of appeals determined Ondayog's trial counsel

provided ineffective assistance and reversed his conviction, vacated his judgment and sentence, and remanded the case back to the district court for a new trial. The court of appeals also concluded double jeopardy

principles precluded retrial of the submitted greater offenses of firstdegree kidnapping, third-degree kidnapping, and third-degree sexual abuse. Upon further review, we find Ondayog did not satisfy both We vacate the

elements of his ineffective assistance of counsel claim.

decision of the court of appeals, affirm the decision of the district court, and preserve Ondayog's ineffective assistance claim for postconviction relief proceedings. I. Facts and Prior Proceedings The charges in this case arose from events that happened in Fort Dodge on the night of October 23, 2003. R.H., an eighteen-year-old

college student, started the night drinking beer and vodka while driving around country roads with friends. Later, she went to a local bar called "Big Reds." She met Ondayog outside of the bar and asked him for a cigarette. She had never met Ondayog prior to this encounter. They

spoke briefly, and Ondayog invited her to go back to his apartment to pick up something. She agreed and got into Ondayog's car. On the way

3 to the apartment, she rebuffed Ondayog's repeated sexual overtures. Once they reached Ondayog's apartment, she claims he unlocked the door and pushed her inside and onto the floor, scraping her knee in the process. She claims he forced her onto a mattress, removed her pants and underwear, and had sexual intercourse with her. After he was done, she ran back to Big Reds. Ondayog also returned to the bar. R.H. told her friends what happened, and someone called the police. The police arrived and questioned Ondayog. He allowed the

police to search both his car and his apartment. underwear in his apartment.

Police found R.H.'s

R.H. was taken to the hospital for a physical and pelvic examination. The doctor observed an abrasion in the area between her vagina and rectum. The doctor opined the injury was fresh and could have been caused by some sort of penetration of the vagina. A DNA test did not reveal Ondayog's DNA on R.H., her clothing, or on his bed sheets. However, Ondayog's seminal fluid was found on his own pants. R.H.'s blood was also found on her own pants. Ondayog was charged by trial information on December 4, 2003 with kidnapping in the first degree (resulting in sexual abuse), in violation of Iowa Code section 710.2 (2003), and sexual abuse in the third degree, in violation of Iowa Code section 709.4. The charge of

third-degree sexual abuse was stricken from the trial information before trial per mutual agreement the third-degree sexual abuse charge was a lesser-included offense of first-degree kidnapping. At the conclusion of trial, the district court instructed the jury the charge of kidnapping in the first degree included the following six lesser offenses: (1) Kidnapping in the third degree;

4 (2) Sexual abuse in the third degree; (3) Assault with the intent to commit sexual abuse causing bodily injury; (4) Assault with the intent to commit sexual abuse not causing bodily injury; (5) False imprisonment; and (6) Assault. Ondayog's trial counsel did not object to the court's instruction. The jury returned a verdict of guilty on the offense of assault with the intent to commit sexual abuse causing bodily injury. After the verdict was entered, Ondayog's trial counsel, James Koll, made a motion for new trial based on the court's error in instructing the jury. He argued the crime of assault with the intent to commit sexual abuse causing injury was not a lesser-included offense of first-degree kidnapping and therefore the conviction was a "nullity." See State v.

Adcock, 426 N.W.2d 639, 640 (Iowa Ct. App. 1998) (stating willful injury was not lesser-included offense of attempted murder and therefore conviction for willful injury was nullity because the indictment charged defendant with attempted murder but not with willful injury). In

response to the State's argument he had not objected to the jury instructions, Koll indicated his failure to object to the jury instructions did not eliminate his grounds for a new trial. Citing Iowa Rule of

Criminal Procedure 23.2 (now 2.24(2)), Koll argued the court must grant a new trial because the court had "misdirected the jury in a material matter of law." Koll argued this rule indicates an objection was not Finally, Koll stated, if the

necessary when the court made the error. court did not grant his motion, then

5 it goes on appeal, the court rules that we failed to object and it will come right back to this Court on a PCR and say was there any prejudice. . . . So I think my client is entitled to have this conviction thrown out [because] he is entitled to that both on the grounds that the Court has misinstructed the jury and on the grounds he has not received a fair and impartial trial because of my mistake, if I did make one.[ 1 ] The district court overruled the motion, stating Koll had not made a timely objection to the disputed jury instruction, and therefore, the instruction had become the law of the case. The court did not address the issue of whether Ondayog received ineffective assistance of counsel. Rather than challenge the court's ruling on the motion for new trial, Ondayog frames this appeal as a claim of ineffective assistance of counsel. II. Scope of Review We review ineffective-assistance-of-counsel claims de novo. State v. Martin, 704 N.W.2d 665, 668 (Iowa 2005). III. The Merits Ondayog argues the crime for which he was convicted was improperly submitted to the jury as a lesser-included offense of the original charges of kidnapping in the first degree and sexual abuse in the third degree. He asserts his trial counsel rendered ineffective assistance by failing to timely object to the jury instruction that submitted this charge to the jury. We first analyze whether sexual abuse causing bodily injury is a lesser-included offense to kidnapping in the first degree, and

1Later,

Koll went on to argue:

if you grant our Motion for New Trial, I think the State could charge him with the crime he has been found guilty of but was not charged with so it doesn't get my client out of this crime that he was convicted of. It just gives him an opportunity to contest that crime that he has not had the opportunity to in terms of the strategy that was designed in the trial to confront the charges that he was charged with.

6 then discuss the "law of the case" doctrine and Ondayog's ineffectiveassistance claim. A. Lesser-Included Offenses Iowa Rule of Criminal Procedure 2.22(3) allows the jury to find the defendant guilty of "any offense the commission of which is necessarily included in that with which the defendant is charged." To determine

whether one crime is a lesser-included offense of another, we apply the impossibility test and look to the elements of the offenses in question. State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990). The impossibility test provides one offense is a lesser-included offense of the greater when the greater offense cannot be committed without also committing the lesser. Id. In the case at hand, the two greater offenses do not necessarily

include bodily injury, which is an element of the assault for which Ondayog was convicted. See Iowa Code

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