State of Iowa v. Ajamu Manu El-Amin ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 19–0925
Submitted November 18, 2020—Filed December 18, 2020
STATE OF IOWA,
Appellee,
vs.
AJAMU MANU EL-AMIN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, William P.
Kelly, Judge.
Defendant seeks further review of court of appeals decision affirming
his conviction on two counts of sexual abuse in the third degree.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all justices
joined.
Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
2
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, John P. Sarcone, County Attorney, and Michael A. Salvner and
Jaki L. Livingston, Assistant County Attorneys, for appellee.
3
WATERMAN, Justice.
In this appeal, we must decide whether the defendant’s guilty plea
was supported by a factual basis. According to the minutes of testimony,
the defendant raped a woman, G.S., and then forced his companion, J.C.,
to have sex with the same woman against both of their wills. The
defendant pled guilty to two counts of sexual abuse in the third degree in
violation of Iowa Code sections 709.1(1) and 709.4(1)(a) (2017), and the
district court sentenced him to consecutive prison terms of up to ten years
on each count. The defendant appealed.
The victim in count I is identified as G.S., and the defendant does
not challenge his conviction on that count. As to count II, however, the
victim is identified as J.C., and the defendant argues there is no evidence
that he committed a sex act against J.C. Accordingly, he argues his trial
counsel was ineffective for allowing him to plead guilty to count II without
a factual basis. We transferred the case to the court of appeals, which
affirmed his conviction based on an aiding-and-abetting theory. The
defendant applied for further review, and we granted his application.
On our review, we determine that J.C. is also a victim because the
defendant forced him to commit a sex act against his will. Accordingly,
count II is supported by a factual basis. We therefore affirm the decision
of the court of appeals and the district court’s judgment.
I. Background Facts and Proceedings.
At dusk on April 4, 2017, G.S., age fifty, and two companions met
behind the Salvation Army building and walked down an alley near Sixth
Avenue and Forest Avenue in Des Moines. They carried a box of donated
items Catholic Worker House staff had given one of them. They had
stopped in the alley to drink Four Loko when Ajamu El-Amin approached
with another man, J.C. El-Amin was yelling at J.C. and gripping him by
4
the arm. El-Amin knew G.S. and threatened her with a large stick,
claiming she owed him $40 for protection. Her companions fled.
El-Amin grabbed G.S. and led her further down the alley. He told
G.S. to take off her coat and put it on the ground. She complied. He told
her to take off her pants, which she did. He pushed her over a retaining
wall and forced her to have oral and vaginal sex with him. G.S. believed
El-Amin had a knife in his hand and feared for her life. After El-Amin
raped her, he told her to get on the ground and ordered J.C. to take off his
pants, “get down and do her.” J.C. complied, while El-Amin looked “crazy”
and was “screaming really violently.” Before J.C. and El-Amin departed,
G.S. saw El-Amin take J.C.’s wallet.
After the men left, G.S. walked away crying in the opposite direction,
and vomited. She went to the hospital the next day and also reported the
assaults to police, who found condoms in the alley—one with the DNA of
El-Amin. A few weeks later, G.S. encountered J.C. near Bethel Mission.
He apologized and told her that El-Amin had stolen his wallet that night.
G.S. later testified in her deposition that J.C. had been “terrified” during
the assault and that she told him in their second encounter, “I know he
didn’t mean – wasn’t doing it on his own account basically” and that she
gave him the number for victim assistance.
The State filed a trial information charging El-Amin with sexual
abuse in the second degree, in violation of Iowa Code sections 709.1 and
709.3(1)(c), “by engaging in a sex act by force or against the will of G.S.
and when aided or abetted by one person[].” After beginning jury selection
and pursuant to a negotiated plea agreement, El-Amin pled guilty to two
counts of third-degree sexual abuse, in violation of Iowa Code sections
709.1(1) and 709.4(1)(a). The victim in count I was identified as G.S. and
the victim in count II was identified as J.C.
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During the plea colloquy, the judge described the elements of the
offense and explained that it included aiding and abetting:
THE COURT: Okay. Now, we’re talking about
third-degree sexual abuse under Iowa Code section 709.4, so
I want to just go over those elements with you.
So the State would have to prove that in Polk County,
Iowa, on or about April 4th of 2017, either individually or by
joint criminal conduct, or by aiding and abetting another, you
committed sexual abuse in the third degree by performing a
sex act by force or against the will of another person and you
weren’t cohabitating as husband and wife.
Mr. Salvner, what am I leaving out here?
MR. SALVNER: I don’t think you are leaving anything
out. It’s essentially -- and, Your Honor, I submitted one order
and then I submitted another one that’s marked, “Use this
one,” because I think it’s really important with my Amended
Trial Information to include -- I missed a really important
subsection.
So sex abuse in the third degree has many ways that it
can occur. 709.4(1)(a) is the one that Mr. El-Amin is pleading
guilty to, which is a crime against an adult, by force or against
the will of that individual. So those are the elements.
....
THE COURT: All right. Do you understand each and
every element of the crime charged?
[EL-AMIN]: Yes.
After confirming El-Amin understood the elements of the crime charged,
the judge continued the colloquy to establish the factual basis:
THE COURT: Can you tell me in your own words exactly
what you did to commit those two charges.
[EL-AMIN]: Forced [G.S.] to have sex and then
intimidated that other guy and made sure he had sex with her
too.
....
THE COURT: All right. And would you agree you did
engage in a sex act against the will of [G.S.]?
[EL-AMIN]: Yes.
THE COURT: And you had another gentleman that was
there with you?
[EL-AMIN]: Yes.
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THE COURT: Do you remember his name?
[EL-AMIN]: [J.C.]
THE COURT: All right. What did you do to [J.C.]?
[EL-AMIN]: Intimidated him to have sex, too.
THE COURT: And who did he have sex with?
[EL-AMIN]: [G.S.]
....
THE COURT: And can you tell me how you used
intimidation to get him to do that.
[EL-AMIN]: He says it was a knife, but it wasn’t a knife.
It was a stick. A stick – a thick one, like [G.S.] said it was. He
said a knife. [G.S.] said a stick. It was a stick.
THE COURT: All right. So you have a big stick. And
what was – what were you doing with the big stick?
[EL-AMIN]: Threatening him with it, to have sex with
her. Like, I was going to poke him with it.
THE COURT: And did he in fact have sex?
[EL-AMIN]: Yes.
THE COURT: And did you in fact have sex with [G.S.]?
[EL-AMIN]: Yes.
The court accepted the guilty plea, entered judgment, and sentenced
him to a term of imprisonment not to exceed ten years on each count, with
the sentences to run consecutively to each other and to a previously
imposed prison sentence.
El-Amin appealed, arguing that he was denied effective assistance
of counsel because his counsel allowed him to enter a guilty plea to
count II without a factual basis. El-Amin conceded there was a factual
basis to support his guilty plea to count I with G.S. as the victim, but he
argues he could not be found guilty under count II because there was no
evidence he committed a sex act against J.C. We transferred the case to
the court of appeals, which affirmed El-Amin’s conviction, concluding that
there was “a sufficient factual basis to sustain El-Amin’s guilty plea to
count II based on an aiding-and-abetting theory.” The court of appeals
7
noted that El-Amin admitted he had “threatened and intimidated J.C. into
performing a sex act on G.S. by force or against her will.” We granted
El-Amin’s application for further review.
II. Standard of Review.
While generally a defendant must file a motion in arrest of judgment
to challenge a guilty plea on appeal, an exception exists “when a defendant
alleges trial counsel was ineffective for permitting him to plead guilty to a
charge for which there is no factual basis and for failing to thereafter file
a motion in arrest of judgment.” State v. Finney, 834 N.W.2d 46, 49 (Iowa
2013). “Our review of claims of ineffective assistance of counsel is
de novo.” State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017).1
III. Analysis.
We must decide whether a factual basis supports El-Amin’s plea of
guilty to count II when he did not have sexual contact with the named
victim, J.C., but rather forced J.C. to have sex with G.S. against both of
their wills. If a factual basis is lacking, then his counsel provided
constitutionally deficient representation by allowing El-Amin to plead
guilty to count II.
El-Amin must show he received ineffective assistance of counsel.
“The [C]onstitutions of the United States and Iowa guarantee a criminal
defendant the right to effective assistance of counsel.” State v. Kuhse, 937
N.W.2d 622, 628 (Iowa 2020). A defendant proves ineffective assistance of
counsel when he establishes: “(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.” State v. Straw,
709 N.W.2d 128, 133 (Iowa 2006). A guilty plea must have a factual basis.
1Because the district court entered El-Amin’s judgment of conviction and sentence
before July 1, 2019, this case is not governed by the amendments that year to Iowa Code
sections 814.6 and 814.7 restricting appeals from guilty pleas and ineffective-assistance-
of-counsel claims. State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019).
8
Iowa R. Crim. P. 2.8(2)(b). “Defense counsel violates an essential duty
when counsel permits defendant to plead guilty and waive his right to file
a motion in arrest of judgment when there is no factual basis to support
defendant’s guilty plea.” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).
“Prejudice is presumed under these circumstances.” Id. at 764–65.
“[T]o succeed on the essential duty prong, [the defendant] must
demonstrate the record lacks a factual basis to support his guilty plea to
[the crime charged].” Id. at 765. El-Amin does not contest the factual
basis as to count I, but he does challenge his plea to count II. More
specifically, El-Amin argues there was no evidence that he performed a sex
act on J.C.2 Iowa Code section 709.4(1)(a), the statute El-Amin pled guilty
to violating, provides:
1. A person commits sexual abuse in the third degree
when the person performs a sex act under any of the following
circumstances:
a. The act is done by force or against the will of the
other person, whether or not the other person is the person’s
spouse or is cohabiting with the person.
2Sex Act is defined in Iowa Code section 702.17 as follows:
The term “sex act” or “sexual activity” means any sexual contact
between two or more persons by any of the following:
1. Penetration of the penis into the vagina or anus.
2. Contact between the mouth and genitalia or by contact between
the genitalia of one person and the genitalia or anus of another person.
3. Contact between the finger or hand of one person and the
genitalia or anus of another person, except in the course of examination
or treatment by a person licensed pursuant to chapter 148, 148C, 151, or
152.
4. Ejaculation onto the person of another.
5. By use of artificial sexual organs or substitutes therefor in
contact with the genitalia or anus.
9
While section 709.3(1)(c), the statute that the State originally charged
El-Amin under, explicitly includes aiding and abetting, section 709.4(1)(a)
does not. However, under Iowa Code section 703.1:
All persons concerned in the commission of a public
offense, whether they directly commit the act constituting the
offense or aid and abet its commission, shall be charged, tried
and punished as principals. The guilt of a person who aids
and abets the commission of a crime must be determined
upon the facts which show the part the person had in it, and
does not depend upon the degree of another person’s guilt.
Moreover, both the trial information and plea colloquy mentioned theories
of accomplice liability. As such, these charges “embraced the concept of
joint criminal conduct.” State v. Rodriguez, 804 N.W.2d 844, 853 (Iowa
2011) (holding the factual basis was sufficient because, despite the joint
criminal conduct theory not being mentioned in the guilty plea colloquy, it
was included in the trial information and preliminary hearing, so “the
charge to which [the defendant] pled guilty embraced the concept of joint
criminal conduct”). The court of appeals concluded that a factual basis
exists for El-Amin’s conviction under count II under an aiding and abetting
theory. We agree the factual basis exists, although for different reasons.
First, El-Amin does not avoid culpability under count II merely
because he personally committed no sex act on J.C. State v. Finnigan is
instructive. 478 N.W.2d 630, 632 (Iowa 1991). There, the defendant,
Mary Finnigan, was convicted of second-degree sexual abuse under Iowa
Code section 709.3(3) (1989), even though she did not commit the sex acts
herself. Id. at 631–32. Rather, she had “initiated the sexual acts [between
her daughter and her husband] by demanding that the victim go into the
bedroom and then directing her in specific ways to engage in sexual acts.”
Id. at 631. She had threatened to hit her daughter if she did not listen
10
and had followed through on this threat often. Id. She took photographs
of some of the sex acts. Id.
Finnigan argued that she was erroneously charged under section
709.3(3) and the court had to acquit her. Id. at 632. Sexual abuse under
section 709.3(3) is sexual abuse in which “[t]he person is aided or abetted
by one or more persons and the sex act is committed by force or against
the will of the other participant.” Id. (alteration in original) (quoting Iowa
Code § 709.3(3)). Finnigan argued that under the plain language of section
709.3(3), only the principal could be convicted and her husband was the
principal. Id. We disagreed, noting that “Iowa does not distinguish
between principals who perpetrate a crime and those who aid and abet
them. All concerned are charged, tried and punished as principals.” Id.
(citing Iowa Code § 703.1). Accordingly, we held that “there is nothing in
[section 709.3(3)] which prevents an aider and abettor from being charged,
tried and punished as a principal under Iowa Code section 703.1.” Id.
Similarly, while Iowa Code section 709.4(1)(a) (2017) does not
mention aiding and abetting, we determine that “there is nothing in the
section which prevents an aider and abettor from being charged, tried and
punished as a principal under Iowa Code section 703.1.” Id. In any event,
El-Amin is equally culpable under section 703.1 whether he is the
principal or an aider and abettor.
[W]hen [a] crime is accomplished by the use of an innocent or
irresponsible agent, . . . or a person he has coerced to engage
in conduct[,] . . . the intermediary is regarded as a mere
instrument and the originating actor is the principal in the
first degree.
2 Wayne R. LaFave, Substantive Criminal Law § 13.1(a), at 443–44 (3d ed.
2018) (footnotes omitted).
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In State v. Thomas, the defendant threatened a married couple at
gunpoint to engage in sexual conduct. 619 S.W.2d 513, 513–14 (Tenn.
1981). The Tennessee Supreme Court held that the defendant was
“criminally liable as a principal.” Id. at 514. The Thomas court noted that
he could not be convicted as an aider or abettor, because he was the “only
criminal actor.” Id. The court held that a “defendant who forces an
innocent party to commit [a crime] is guilty as the only principal, even
though the defendant does not commit the crime with his own hand.” Id.;
see also Daniels v. State, 35 So. 3d 7, 10–11 (Ala. Crim. App. 2009) (noting
Alabama no longer distinguishes between principals and accessories and
holding the defendant “was properly charged with sodomy because he
acted with the necessary intent and caused innocent persons to engage in
deviate sexual intercourse with one another”); Morrisey v. State, 620 A.2d
207, 211 (Del. 1993) (affirming conviction for unlawful sexual intercourse
when defendant forced two people at gunpoint to have sex with each other
against their will, stating, “the innocence of the intermediary is irrelevant
in determining the guilt of the defendant who causes the innocent
intermediary to act, because the latter is viewed legally as only an
instrumentality of the crime”).
The court of appeals did not address whether J.C. is also a victim.
In our view, J.C. indeed is a victim of El-Amin’s criminal wrongdoing.
J.C.’s own lack of criminal culpability under a duress or compulsion
defense3 in no way precludes El-Amin’s criminal liability for abetting J.C.’s
3Iowa Code section 704.10 defines a “compulsion” defense as:
No act, other than an act by which one intentionally or recklessly
causes physical injury to another, is a public offense if the person so acting
is compelled to do so by another’s threat or menace of serious injury,
provided that the person reasonably believes that such injury is imminent
and can be averted only by the person doing such act.
12
sex act with G.S. See Iowa Code § 703.1 (“The guilt of a person who aids
and abets the commission of a crime . . . does not depend upon the degree
of another person’s guilt.”).
Under similar circumstances, other courts have determined that
each person forced by the defendant to commit a sex act with another
person is a victim. For example, the Thomas court held that “both [the]
husband and wife were victims” when forced by the defendant to have sex.
619 S.W.2d at 514. And in Yeager v. State, the defendant argued that
while he admittedly “forced the two victims to sodomize each other,” that
was insufficient to convict him under the sodomy statute because he
personally didn’t sodomize either victim. 786 S.W.2d 210, 210 (Mo. Ct.
App. 1990). The appellate court rejected his argument and held there was
a factual basis for his guilty plea, noting that “causing an innocent person
to commit the proscribed conduct renders the one who causes the conduct
liable.” Id. The Yeager court determined that the defendant was
“criminally liable for the conduct of the innocent person he caused to
commit the offense.” Id. (emphasis added); see also Parnell v. State, 912
S.W.2d 422, 423–25 (Ark. 1996) (affirming conviction of the defendant who
forced his children to have sex with each other and noting “the universally
recognized principle that one is no less guilty of the commission of a crime
because he uses the overt conduct of an innocent agent” (emphasis
added)); Henry v. State, 229 So. 3d 390, 393–94 (Fla. Dist. Ct. App. 2017)
(affirming conviction on multiple counts of sexual battery for compelling
four victims at gunpoint “to perform nonconsensual sexual acts upon each
other”); State v. Bobenhouse, 214 P.3d 907, 908, 910 (Wash. 2009)
(en banc) (affirming convictions of the defendant who “can be held legally
See also State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981) (discussing defenses of
necessity and compulsion or duress).
13
accountable for child molestation based on causing conduct by one [child]
against another, even though the defendant did not personally touch the
victims”).
We find these authorities persuasive. Because J.C. was a victim as
well as G.S., there is a factual basis for El-Amin’s plea of guilty to count II.
El-Amin’s ineffective-assistance-of-counsel claim fails.
IV. Disposition.
For those reasons, we affirm the decision of the court of appeals and
the district court’s judgment of conviction and sentence.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.