State of Iowa v. Cedric R. Whitmire ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1526
Filed March 20, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CEDRIC R. WHITMIRE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Cedric Whitmire appeals his convictions for sexual abuse in the third
degree, pimping, willful injury causing bodily injury, domestic abuse assault by
strangulation causing bodily injury, and possession of marijuana. AFFIRMED.
Katherine Kaminsky Murphy of Kate Murphy Law, PLC, Glenwood, for
appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MAHAN, Senior Judge.
Cedric Whitmire appeals his convictions for sexual abuse in the third
degree, pimping, willful injury causing bodily injury, domestic abuse assault by
strangulation causing bodily injury, and possession of marijuana. Upon our review,
we affirm.
I. Background Facts and Proceedings
From the evidence presented at trial, the jury could have found the
following. M.C. lived with her “boyfriend,” Cedric Whitmire. M.C. worked as a
prostitute, and Whitmire was her pimp. They posted ads on the internet, and
clients (“johns”) would arrange to meet M.C. for “dates.”1 M.C. “had sex with johns
for money and then [she] would give all [the] money to [Whitmire].”
On November 7, 2016, M.C. told Whitmire she “didn’t want to do it
anymore.” Whitmire got upset and punched her in the face. M.C. was “bleeding
everywhere.” She asked Whitmire to take her to the hospital because she knew
her nose was broken, but Whitmire refused and “hit [her] harder.” M.C. used a
blanket to try to stop the bleeding and laid down on the bed and “kind of passed
out a little bit.” She woke up to Whitmire on top of her, “having anal sex with [her].”
He said she “had been a bad girl” and needed to be punished. M.C. told him to
stop, but he refused.
When he finished, Whitmire took M.C.’s phone and told her, “[D]on’t go
anywhere, you’re locked in.” Whitmire left to go to work at his job at a roofing
company. M.C. got up and “cleaned the blood up”; “the blood was everywhere.”
1
Whitmire drove M.C. to hotels, and he waited in his truck or in the lobby while M.C. met
the john for a date.
3
When Whitmire came home, “he was mad” because he had lost money at the
casino, and he told M.C. she “had to work.” M.C. “didn’t want to,” and they “got
into another fight.”
Eventually, they arranged for M.C. to meet with Greg Jones. Because
M.C.’s face “was a mess,” Whitmire came up with the idea to have the contact take
place at his apartment. Whitmire gave M.C. tattoo-covering makeup to apply to
her face to cover the bruises. Jones recalled M.C. appeared to have bruises under
her eyes and a swollen nose; M.C. told him she had been in a car accident. Jones
and M.C. had sex, and he left money on the counter before leaving. Whitmire
came back, took the money, and told M.C. “good job.” Then M.C. showered and
they “went and got dope” at a friend’s house. 2 When M.C. went inside the house
to get drugs, people made comments about her face looking “like that guy off of
Goonies.” She “lied to them and said [she] was in a car accident” because she
“didn’t want them to go out to the car and beat [Whitmire] up.”
Whitmire and M.C. had sex at some point the next day. M.C. told him to
stop, and Whitmire “got really angry.” He called her a “meth whore,” said she had
“sex with animals,” and told her “no man will ever want [her].” Whitmire kicked her
while she was on the ground crying, and he “was just laughing.”
Later, they got into another fight because M.C. “wanted to leave.” Whitmire
hit her in the face, choked her, and kicked her while she was on the ground. When
M.C. grabbed her stuff and piled it up, Whitmire grabbed her by the throat so hard
she “could not breathe.” M.C. was “really, really scared” and “didn’t know if [she]
2
M.C. testified she was “addicted to methamphetamines.”
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was gonna get out of there alive.” She started screaming, and Whitmire told her
to take a shower to “get all those demons off you.” Whitmire told M.C. to “hurry up
and get ready” because she “had to go on a call at the Super 8 motel.” M.C. tried
“to talk him out of it” because she “didn’t want to go.” Whitmire grabbed her by the
hair and told her, “You’re gonna make this money,” “you’re gonna do this call.”
Whitmire drove M.C. to the Super 8, gave her a condom, and said he would
“be out here waiting.” M.C. walked in and “acted like [she] was gonna walk up the
stairs.” Then she went to the hotel clerk and asked if she could call the police.
M.C. called 911 and her grandmother. An ambulance took her to the hospital. She
said Whitmire had assaulted her. Initially, M.C. denied that she had been sexually
assaulted, but then she realized that even though she loved and cared about
Whitmire, she “said no” and she “didn’t want to have sex with him.”
M.C. spent “four, maybe five” days in the hospital after being admitted on
November 10. Upon her admittance, officers observed she was “scared,” “crying,”
“very fearful, shaken,” and in “a lot of physical pain.” She had injuries to her ribs,
back, face, shoulder, neck, leg, and arms. Her nose was broken. Seminal fluid
was found near her rectum and in her vagina.
Police found M.C.’s phone in Whitmire’s vehicle. The phone records
showed arrangements for meetings and sexually-explicit texts. Marijuana and
drug paraphernalia were found inside his apartment. The apartment also
contained blood splattered on the walls and floor, bloody paper towels in the trash,
and a bloody towel in a hamper.
Whitmire told police M.C. had lived with him for “about . . . two weeks,” and
he was “trying to help her out, get her out of the prostitution/drug game.” Whitmire
5
said the Super 8 arrangement was a “ruse” to get M.C. out of the apartment. He
said M.C.’s money “was her money,” but she gave him “a couple bucks here or
there from the prostitution.” Whitmire mentioned that M.C. “had been beat up in
the past.”
The State filed a trial information setting forth a number of charges against
Whitmire. Following a four-day trial, a jury found Whitmire guilty of sexual abuse
in the third degree, pimping, willful injury causing bodily injury, domestic abuse
assault by strangulation causing bodily injury, and possession of marijuana. A jury
subsequently found him to be a habitual offender. The trial court denied Whitmire’s
motions for new trial and arrest of judgment and entered judgment and sentence.
Whitmire appeals. Additional facts specific to the claims raised on appeal
will be set forth below.
II. Scope and Standards of Review
“Our review is de novo when the defendant alleges a conflict of interest
implicating the right to counsel.” State v. Smitherman, 733 N.W.2d 341, 345 (Iowa
2007). However, “[w]hether the facts show an actual conflict of interest or a serious
potential for conflict is a matter for trial court discretion.” State v. McKinley, 860
N.W.2d 874, 878 (Iowa 2015) (citation omitted). “We review these conflict-of-
interest determinations for an abuse of discretion.” Id.We review ineffective-assistance-of-counsel claims de novo. Nguyen v.
State, 878 N.W.2d 744, 750 (Iowa 2016). Whitmire must show (1) counsel
breached an essential duty and (2) prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
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The district court’s evidentiary rulings are reviewed for abuse of discretion.
State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). “In reviewing
challenges to the sufficiency of evidence supporting a guilty verdict, courts
consider all of the record evidence viewed in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.”
State v. Showens, 845 N.W.2d 436, 439–40 (Iowa 2014) (citation omitted). The
jury’s verdict is binding on appeal unless there is an absence of substantial
evidence in the record to sustain it. State v. Leckington, 713 N.W.2d 208, 213
(Iowa 2006). Evidence is substantial if it would convince a rational trier of fact the
defendant is guilty beyond a reasonable doubt. See Howse, 875 N.W.2d at 688.
III. Effective-Counsel Challenges
The Council Bluffs public defender’s office was initially appointed to
represent Whitmire but was relieved due to a conflict of interest because it had
represented M.C.3 The Sioux County public defender’s office was then appointed
to represent Whitmire, and he was represented by attorneys Jennifer Solberg,
Sharese Manker, and Jason Dunn. Through counsel, Whitmire pled not guilty and
asserted his right to speedy trial. He filed a motion to suppress, which the district
court denied. He filed a motion to dismiss and motion in limine, which the district
court also denied. He waived, and then reasserted, his right to speedy trial. Trial
was set for April 25, 2017.
3
An appointed attorney, Michael Hooper, was also allowed to withdraw.
7
On March 6, 2017, attorney Solberg alerted the court that Whitmire no
longer wanted Solberg and Manker to represent him.4 Following a hearing, the
district court denied the motion. On April 10, Solberg moved to withdraw citing a
conflict of interest. At the hearing, Solberg explained that a recent deposition
revealed that M.C. was represented by the Council Bluffs public defender’s office
at a time when Solberg had also worked in the office. Solberg stated she “had
zero contact with [M.C.] when the office here in Council Bluffs represented her.
She was represented by a misdemeanor attorney. I didn’t even know her name
existed.” However, according to Solberg, the deposition shed light on M.C.’s
involvement “with the FBI and her credibility,” which Solberg believed created an
“integral issue” and “a conflict as being a part of that office.” Manker, although she
had not worked in the Council Bluffs office, felt that she was also conflicted
because she had been working closely on the case with Solberg. Ultimately, the
district court allowed the Sioux City public defender’s office to withdraw and, on
April 11, entered an order appointing attorney Chad Primmer.
Attorney Primmer requested trial be continued to May 16, 2017, the last day
within the 90-day speedy trial limit, in order to prepare and “climb through” “the
sheer volume of discovery” and also to file additional motions on behalf of
Whitmire. Primmer acknowledged Whitmire did not want to continue trial but
stated, “[I]f he wants to find a sooner date that his lawyer will not be as prepared
4
Attorney Jason Dunn of the Sioux County public defender’s office also represented
Whitmire, but Whitmire does not appear to challenge Dunn’s representation.
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as he can be and it would be in his best interests to not have a trial date any sooner
than May 16th.” The court granted Primmer’s request, and trial began on May 16.5
On appeal, Whitmire contends he was denied effective assistance of
counsel because Solberg and Manker represented him for “nearly five months”
while under a conflict of interest. Whitmire points out that Solberg had previously
been employed in the Council Bluffs public defender’s office, which was initially
appointed to represent him but was relieved due to a conflict of interest. According
to Whitmire, because Solberg had worked at the Council Bluffs public defender’s
office, “[s]he had a conflict of interest from the beginning of the case, and her
association with her co-counsel [Manker] poisoned her as well.” As a result, he
claims he was “prejudiced by not having attorneys who were well-prepared, who
had honed a positive relationship with him, who knew his case, and who were
ready to proceed.”
We disagree. Solberg informed the court she neither knew nor represented
M.C. when she was employed by the Council Bluffs public defender’s office. When
Solberg later realized M.C. may have had more involvement with that office than
merely a misdemeanor offense, Solberg, in an abundance of caution, relayed her
concerns to the court. Moreover, at all times during her representation of Whitmire,
Solberg was employed by the Sioux County public defender’s office—not the
Council Bluffs public defender’s office. But see State v. Watson, 620 N.W.2d 233,
239 (Iowa 2000) (concluding concurrent representation of a defendant and an
5
Following trial, at Whitmire’s request, Primmer was allowed to withdraw, and the court
appointed attorney Drew Kouris to represent Whitmire for the habitual-offender sentencing
enhancement. Kouris moved to withdraw, stating he was “unable to explain the
defendant’s legal situation to the defendant’s satisfaction.” The court denied the motion.
9
adverse witness in a criminal case created divided loyalties and burdened the
defense’s pretrial investigation and trial strategy). There was no actual or serious
potential for a conflict of interest. Cf. McKinley, 860 N.W.2d 874, 882 (Iowa 2015)
(finding “other public defenders’ past representation of the witnesses on matters
unrelated to the crime charged . . . presents no risk of materially limiting [different
public defenders’] representation”).
In any event, Whitmire had conflict-free counsel for trial. Attorney Primmer
was appointed on April 11, and trial began on May 16. See State v. Vaughan, 859
N.W.2d 492, 502 (Iowa 2015) (“It is undisputed that Vaughan received conflict-free
counsel well before trial. Thus, even assuming his prior counsel labored under an
actual conflict, Vaughan must show that this arrangement was somehow
insufficient to cure the prior conflict. He has not done that.”); State v. Hicks, 277
N.W.2d 889, 896 (Iowa 1979) (“Hicks was represented for over two months before
trial and at trial by experienced, independent counsel; any conflicts of interest
vanished once new counsel was appointed.”).
But Whitmire claims as a result of the conflict of interest, “[i]t was impossible
for [Primmer] to be prepared for trial, and he wasn’t.” 6 At the outset, we note that
Whitmire refused to waive speedy trial, even after Primmer was appointed. We
further conclude Whitmire has not shown Primmer was adversely affected by the
alleged conflict of interest. There is nothing in the record to suggest Primmer’s
performance was affected by a conflict of interest. Whitmire alleges a more
zealous defense would have exploited the weaknesses in the State’s case or
6
We view this claim as one of ineffective assistance of counsel with regard to Primmer.
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produced more defense witnesses. “This, however, is not a showing that his
counsel was adversely affected by a conflict of interest. There is simply no
connection between the alleged conflict and the alleged deficiencies in [Whitmire’s]
defense.” Smitherman, 733 N.W.2d at 349.
Whitmire also contends Primmer was ineffective in denying him the right to
testify on his own behalf. We find the record inadequate to resolve this claim.
Accordingly, we preserve it for possible postconviction relief proceedings. See
State v. McNeal, 867 N.W.2d 91, 105 (Iowa 2015).
IV. Evidentiary Rulings
Prior to trial, Whitmire filed a motion pursuant to Iowa Rule of Evidence
5.412 seeking to admit evidence of “specific instances of the alleged victim’s past
sexual behavior,” including evidence that M.C. “was working” for “at least three
separate pimps” before and after she met Whitmire and while she was on probation
for a prostitution conviction, and that Whitmire “contracted a sexually transmitted
disease [(STD)] from [M.C.]” See Iowa R. Evid. 5.412(a) (providing that evidence
of the past sexual behavior of the alleged victim of sexual abuse is not admissible).
According to Whitmire, the proffered evidence was “constitutionally necessary to
his right to confront [M.C.] and to challenge her credibility.” See Iowa R. Evid.
5.412(b)(1)(C) (providing exception for “[e]vidence whose exclusion would violate
the defendant’s constitutional rights”). The State resisted Whitmire’s motion.
Following a hearing, the district court entered an order excluding most of
the requested evidence, determining:
Whitmire has not established that this evidence is relevant. [It] is not
evidence of a fact of consequence in determining the action with a
tendency to make the fact more or less probable than it would be
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without the evidence. The risk of unfair prejudice arising from
presentation of this evidence to the jury is far greater than any
probative value that it could arguably carry. This proffered evidence
does not bear on [M.C.]’s credibility.
However, the court concluded Whitmire “may present evidence that [M.C.]
had other pimps working with her during the time frame of November 7, 2016
through November 11, 2016,” determining it “may be evidence of a fact of
consequence in determining the action with a tendency to make the fact more or
less probable than it would be without the evidence.”
Whitmire challenges both facets of the court’s ruling on appeal. He claims
his “entire theory of the case concerned [M.C.’s] decision to lie to officers because
she was violating her probation.” He further contends evidence that M.C. had an
STD was relevant because Whitmire “admonished [her] not to engage in sexual
activity as a result.” Whitmire argues the court “permitted only such evidence
under rule 5.412 that the State needed to make its case.”
We disagree. Whether M.C. worked for different pimps before and after she
met Whitmire was not relevant to whether she worked for Whitmire during the times
alleged. M.C. testified she sometimes made her own arrangements to meet with
clients, and she acknowledged working a job for someone other than Whitmire
during the times alleged. And the court’s ruling to allow evidence that M.C. worked
with other pimps between November 7 and 11, 2016, further dispelled Whitmire’s
concern in that regard. Finally, whether M.C. had an STD is highly inflammatory
and has little relevance to the issues before the jury. Upon our review, we conclude
the district court did not abuse its discretion in excluding the challenged evidence.
See generally State v. Ogilvie, 310 N.W.2d 192, 195 (Iowa 1981) (noting the
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purposes of rule 5.412 are to (1) protect the privacy of victims; (2) encourage the
reporting and prosecuting of sex offenses; and (3) prevent time-consuming and
distracting inquiry into collateral matters).
V. Sufficiency of the Evidence
Whitmire challenges the sufficiency of the evidence to support the jury’s
verdicts. He claims, “[T]he only nexus for evidence identifying [him] was the
testimony of the alleged victim and her statements to others.” He argues, “Much
of the State’s case relied on [M.C.’s] word that [Whitmire] had used her phone
because all of prostitution ‘dates’ were made using [M.C.’s] phone” and “that
[Whitmire] was actually the operator of [M.C.’s] phone.” According to Whitmire,
“The jury could not have found her testimony reasonable, and it could not have
reasonably reached its verdicts.”
The jury was presented with evidence that M.C. lived with Whitmire and she
worked as a prostitute. The two posted ads on the internet, and clients would
arrange to meet M.C. for sex by text message. According to M.C., Whitmire’s
phone did not work because the battery was “swollen.” Whitmire used M.C.’s
phone “a lot,” “[a]lmost all the time.” M.C. used the phone “sometimes,” “like, one
time [she] got to use the phone for a few hours, but otherwise, he used it almost
all the time.” M.C. acknowledged she occasionally set up her own meetings
because “[she] was told [she] had to.” When M.C. told Whitmire she did not want
to do a job, he assaulted her. He helped cover her bruises with tattoo-covering
makeup so she could go on her next call.
In denying Whitmire’s motion for judgment of acquittal, the district court
noted the “conflicting evidence,” observing, “There’s evidence on both sides.”
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However, the trial court concluded, “[I]t’s the jury’s job to sort out conflicting
evidence and make assessments of credibility.” See State v. Laffey, 600 N.W.2d
57, 59 (Iowa 1999) (“[I]t is for the jury to judge the credibility of the witnesses and
weigh the evidence.”). We, like the district court, determine the record contains
substantial evidence to support the jury’s findings of guilt. We affirm on this issue.
VI. Pro Se Claims
Whitmire challenges the circumstances surrounding the admission of
defense exhibit 200, an “extraction report” from M.C.’s cellphone for the period
between November 7 and November 10, 2016. The State initially objected to the
admission of exhibit 200, stating, “[I]t could be used to impeach her, but it’s hearsay
. . . .” The district court admitted the exhibit, finding, “[I]t’s not offered to prove the
truth of the hearsay that’s asserted. It’s simply a record of what he took off the
phone.” Whitmire takes issue with the fact the State “continued to prosecute [him]
while knowing [M.C.]’s phone contained information that could exonerate [him]”
and the fact the State, defense counsel, and the court discussed the contents of
exhibit 200 outside the presence of the jury. Whitmire’s claim is not supported by
law, and he suffered no prejudice because exhibit 200 was admitted.
Whitmire next challenges certain statements made by attorney Primmer
during closing argument, claiming they made the jury believe he “is a bad person
which honestly is the farthest thing from the truth.”7 The State counters, arguing
the statements were counsel’s tactical choice: “Counsel evidently believed his
7
Specifically, Whitmire challenges the following statements by Primmer: “Folks, I’m not
asking you to say that this is a good guy. I’m not asking you to invite him over for dinner.
I’m not asking you to tell him that he deserves an award. He has a collectable lifestyle.
He’s out hiring hookers. He did some drugs with her.”
14
client’s best chance at an acquittal lay in not ‘overselling’ his virtue. Whitmire may
have preferred a different approach. This is not the same as conceding guilt on
the charged offense.” Because we find the record inadequate to resolve this claim,
we preserve it for postconviction relief. See McNeal, 867 N.W.2d at 105.
Whitmire takes issue with Detective Greg Chase’s statements that he was
“initially lied to by [M.C.]” and that it is “kind of common” for females to lie about
having sex for money. Whitmire challenges the fact that the detective “knew that
it was a possibility that she could be lying yet he labels her reliable.” As the district
court observed, “conflicting evidence” was presented at trial, particularly on M.C.’s
credibility. But again, it was for the jury to decide the credibility of the witnesses.
See Laffey, 600 N.W.2d at 59.
VII. Conclusion
Upon consideration of the issues raised on appeal, we affirm Whitmire’s
convictions for sexual abuse in the third degree, pimping, willful injury causing
bodily injury, domestic abuse assault by strangulation causing bodily injury, and
possession of marijuana.
AFFIRMED.