IN THE COURT OF APPEALS OF IOWA

No. 19-1047

Filed April 15, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

FRANCISCO M. CARDONA,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes, 

Judge.

A man appeals from felony sexual abuse convictions. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
2

SCHUMACHER, Judge.

Francisco Cardona appeals from two sexual abuse convictions. He argues 

the witness testimony lacked detail and contained inconsistencies such that the

testimony was insufficient to support a conviction. He further contends he received

ineffective assistance of trial counsel due to counsel’s failure to make a motion for 

a new trial or a motion in arrest of judgment based on the weight of the evidence 

standard. We find substantial evidence to support the verdict, and we reject the 

ineffective-assistance claim in light of the overwhelming evidence of Cardona’s 

guilt.

I. Background Facts and Proceedings

Based on the record, a rational jury could find the following facts beyond a 

reasonable doubt. Cardona frequently subjected N.C. to sexual abuse for a period 

of several years prior to 2009. N.C. testified that the abuse began when she was 

approximately nine years old. Cardona would fondle N.C. and digitally penetrate 

her. Cardona attempted to have intercourse with N.C. and would use force to 

prevent N.C. from crying out. Cardona would condition N.C.’s time with friends on 

her participation in his sexually abusive acts. In 2009, N.C. told a friend Cardona 

was doing bad things to her and she planned to commit suicide. The friend made 

N.C. report the abuse. An investigation was undertaken but was ultimately closed 

without charges being filed. L.C., N.C.’s sibling, was elementary-school age at the 

time and did not supplement N.C.’s allegations when interviewed as part of the 

investigation into N.C.’s allegations.

In May 2016, L.C. told school officials about abuse she suffered at 

Cardona’s hands during the same period in which N.C. had been abused. L.C. 
3

testified that the abuse began when she was six years old. Cardona touched L.C.’s 

genital area, digitally penetrated her, and had sexual intercourse with her. During 

its duration, Cardona’s abuse of L.C. occurred at least every other day.

Following L.C.’s 2016 report, a second investigation ensued, resulting in the 

issuance of a warrant for Cardona’s arrest. After he was apprehended in 

September 2018, Cardona was charged with two counts of second-degree sexual 

abuse, Class “B” felonies. The case proceeded to trial in April 2019. After the 

State rested its case, the defense moved for a judgment of acquittal on both 

counts, alleging there was insufficient evidence that the defendant committed a 

sex act. The defense renewed this motion after the defense rested. Both motions 

were denied. The defense did not move for a new trial or a make a motion in arrest 

of judgment. Cardona timely appealed, arguing the evidence was insufficient to 

support his convictions and that he received ineffective assistance of counsel due 

to trial counsel’s failure to make a motion for a new trial or a motion in arrest of 

judgment based on the weight of the evidence standard.

II. Standard of Review

We review ineffective-assistance-of-counsel claims de novo. State v. 

Straw, 709 N.W.2d 128, 133 (Iowa 2006). “[W]e review challenges to the 

sufficiency of evidence for correction of errors at law.” State v. Dullard, 668 N.W.2d 

585, 589 (Iowa 2003). “On a weight-of-the-evidence claim, appellate review is 

limited to a review of the exercise of discretion by the trial court, not of the 

underlying question of whether the verdict is against the weight of the evidence.” 

State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). If a defendant makes a motion 

for a new trial on the ground that the verdict is contrary to the weight of the 
4

evidence, we review the court’s ruling for abuse of discretion. State v. Neiderbach, 

837 N.W.2d 180, 190 (Iowa 2013).

III. Discussion

a. Insufficiency of the Evidence

We disagree that the evidence is insufficient to support Cardona’s 

convictions for second-degree sexual abuse. Challenges to the sufficiency of the 

evidence are reviewed the correction of errors at law. State v. Keopasaeuth, 645 

N.W.2d 637, 639–40 (Iowa 2002). We view “the evidence in the light most 

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

from the evidence.” Id. at 640. “We uphold the verdict if there is substantial 

evidence in the record supporting it.” Neiderbach, 837 N.W.2d at 216. “Evidence 

is considered substantial if, when viewed in the light most favorable to the State, it 

can convince a rational jury that the defendant is guilty beyond a reasonable 

doubt.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

L.C. testified that Cardona sexually abused her by touching her genital area 

both over and under her clothes, by digitally penetrating her, forcing fellatio upon 

her, and having sexual intercourse with her. N.C. testified that her abuse consisted 

of Cardona groping and fondling her, digitally penetrating her, rubbing his penis on 

her, and attempting to have sexual intercourse with her. Viewing this evidence in 

the light most favorable to the State, we conclude the victims’ testimony is sufficient 

to convince a rational jury that Cardona was guilty of the crimes charged beyond 

a reasonable doubt.
5

In arguing the evidence is insufficient to support his convictions, Cardona 

relies on our decision in State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993).1 

Smith involved sexual-abuse allegations by the defendant’s two step-daughters. 

Based on the complaining witnesses’ self-contradictory statements, pervasive use 

of hedging language, and inability to recall significant details of the incidents, we 

found the evidence insufficient to support the defendant’s convictions. Id. at 103–

05. We determined the accounts were so inconsistent and self-contradictory that 

the testimony lacked the probative value needed to support a guilty verdict. Id. at 

104–05. 

The Smith decision relied on a narrow doctrine developed by our supreme 

court in Graham v. Chicago & Nw. Ry. Co., 119 N.W. 708 (Iowa 1909) and State 

ex rel. Mochnick v. Andrioli, 249 N.W. 379 (Iowa 1933). Under this doctrine, the 

court adopted a limitation on the general rule that “the jury is empowered to resolve 

[evidentiary] conflicts in accordance with its own views as to the credibility of the 

witnesses.” State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984). The limitation 

applies only where “[t]he testimony of a witness may be so impossible and absurd 

and self-contradictory that it should be deemed a nullity by the court.” Smith, 508 

 

1 The State, in part, asks us to overrule Smith, arguing that Smith erroneously 

limited the rule that credibility determinations are exclusively the province of 

factfinders and that Smith denigrated the testimony of sexual abuse victims, 

including by ignoring the phenomenon of victim grooming, requiring unrealistic 

descriptions of sex acts from child victims, and crediting an absence of enduring 

genital injury as more probative than a victim’s testimony. As will be discussed, 

the inconsistencies raised in this appeal are of the kind commonly found in 

prosecutions for child sex abuse, and they do not render the substance of the 

testimony impossible, as we found was the case in Smith. Given the substantial 

evidence of Cardona’s brazen actions, we leave for another day the question of 

Smith’s continued salience.
6

N.W.2d at 103 (quoting Graham, 119 N.W. at 615). We found application of the 

doctrine appropriate in Smith; however, the use of this doctrine to vacate a 

conviction “is exceedingly rare.” See State v. Hobbs, No. 12-0730, 2013 WL 

988860, at *3 (Iowa Ct. App. Mar. 13, 2013). We decline Cardona’s invitation to 

employ the impossibility doctrine found in Smith on these facts to vacate his 

conviction.

Cardona notes a contradiction with respect to whether L.C. told her mother 

of the abuse prior to reporting it at school; but whether L.C. told her mother of the 

abuse is not an “operative fact” with respect to the charged crimes. See State v. 

Mitchell, 568 N.W.2d 493, 503 (Iowa 1997) (“[The victim] was somewhat 

inconsistent with her story about how she was abused by Mitchell, but she never 

changed the operative fact that she and Mitchell had sexual intercourse.”); see 

also State v. Thorndike, No. 13-1403, 2014 WL 3931873, at *1 (Iowa Ct. App. 

Aug. 13, 2014) (“While there are some minor differences in the victims’ respective 

accounts regarding details immaterial to the offense, the victims’ respective 

testimony does not deviate on the operative facts.”). As we said in a factually 

similar case, “given the amount and duration of abuse, it is hardly surprising that 

the girls’ testimony would contain some minor inconsistencies.” See State v. 

Davis, No. 02-0355, 2003 WL 21544491, at *2 (Iowa Ct. App. July 10, 2003).

Cardona also highlights that during the 2009 investigation N.C. told a 

representative of the Iowa Department of Human Services that Cardona “only 

touched her groin area over her clothing.” Given N.C.’s substantial detailed 

testimony regarding the abuse at trial and her young age during the 2009 

investigation, her prior partial disclosure can be considered the type of minor 
7

inconsistency in a sex abuse case that may be “attributable to her young age.” 

See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); accord Thorndike, 2014 

WL 3931873, at *1; In re J.M.S., No. 11-1307, 2012 WL 1612024, at *2 (Iowa Ct. 

App. May 9, 2012); State v. Paulsen, No. 10-1287, 2011 WL 3925699, at *4 (Iowa 

Ct. App. Sept. 8, 2011). N.C.’s failure to give full disclosure in 2009 is further 

explained by Cardona’s threats to hurt N.C.’s mother if N.C. disclosed the abuse, 

a threat N.C. took seriously in light of Cardona already having abused her mother

in N.C.’s presence. 

Finally, Cardona asserts confusion at trial regarding the extent to which the 

girls’ younger brother, I.C., witnessed the abuse. However, I.C.’s testimony was 

not necessary to convict Cardona because a victim’s accusation need not be 

corroborated. See Iowa R. Crim. P. 2.21(3) (“Corroboration of the testimony of 

victims shall not be required.”); State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995)

(“The law has abandoned any notion that a rape victim’s accusation must be 

corroborated.”). Regardless, I.C.’s testimony as a whole supported the conviction. 

Disregarding the inquiry of whether or not I.C. saw the abuse occur, he testified to 

having heard N.C. screaming for help during Cardona’s abuse, and Cardona takes 

no issue with that testimony. 

The Iowa Supreme Court “ha[s] said numerous times it is the province of 

the jury to assess the credibility of witnesses.” State v. Hickman, 576 N.W.2d 364, 

367 (Iowa 1998). “Based on all of this evidence, we see no need to depart from 

our general rule of leaving the credibility of witnesses to the jury and allowing it to 

resolve inconsistencies as it sees fit.” Mitchell, 568 N.W.2d at 504. We conclude 

the evidence was sufficient for a rational jury to conclude, as the jury here did, that 
8

Cardona was guilty beyond a reasonable doubt of two counts of sexual abuse in 

the second degree.

b. Ineffective Assistance of Counsel

Cardona claims he received ineffective assistance of counsel because his 

trial counsel neglected to file either a motion in arrest of judgment or a motion for 

a new trial based on a weight-of-the-evidence standard. We hold that the 

overwhelming evidence of Cardona’s guilt precludes us from finding Cardona’s 

trial counsel ineffective for failing to make such motions.

“[C]laims of ineffective assistance of counsel raised on direct appeal are 

ordinarily reserved for postconviction proceedings to allow full development of the 

facts surrounding counsel's conduct.” State v. Atley, 564 N.W.2d 817, 833 (Iowa 

1997). “Only in rare cases will the trial record alone be sufficient to resolve the 

claim.” Id. Because Cardona’s ineffective-assistance claim rests entirely on trial 

counsel’s failure to file a motion in arrest of judgment or motion for a new trial on 

a weight-of-the-evidence standard, we can resolve his claim on direct appeal, as 

the evidence shows such a motion would have been meritless.

To prevail on an ineffective-assistance-of-counsel claim, a defendant “must 

show by a preponderance of the evidence that his trial counsel failed to perform 

an essential duty and prejudice resulted.” State v. Ondayogi, 722 N.W.2d 778,

784 (Iowa 2006). The claim will fail if the defendant “is unable to prove either 

element of this test.” Id. When considering whether counsel breached an essential 

duty, “we measure counsel’s performance against the standard of a reasonably 

competent practitioner.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). We 

ask whether the counsel has made such serious errors that he or she “was not 
9

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010) (quoting Strickland v. 

Washington, 466 U.S. 668, 687 (1984)). “Prejudice exists where the claimant 

proves by ‘a reasonable probability that, but for the counsel’s unprofessional 

errors, the result of the proceeding would have been different.’” Maxwell, 743 

N.W.2d at 196 (quoting Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)). “We 

will not find counsel incompetent for failing to pursue a meritless issue.” State v. 

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). 

Here, Cardona cannot succeed on either prong, and his ineffectiveassistance-of-counsel claim therefore fails. Cardona argues his trial counsel 

should have filed a motion for a new trial under Iowa Rule of Criminal Procedure

2.24(2)(b)(6) or a motion in arrest of judgment under rule 2.24(3). Under rule 

2.24(2)(b)(6), a new trial may be granted “[w]hen the verdict is contrary to law or 

evidence.” The phrase “contrary to . . . evidence” means “contrary to the weight 

of the evidence.” Reeves, 670 N.W.2d at 201 (quoting State v. Ellis, 578 N.W.2d 

655, 659 (Iowa 1998)). “The ‘weight of the evidence’ refers to ‘a determination [by] 

the trier of fact that a greater amount of credible evidence supports one side of an 

issue or cause than the other.’” Ellis, 578 N.W.2d at 658 (quoting Tibbs v. Florida, 

457 U.S. 31, 102 (1982)). A motion in arrest of judgment shall be granted “when 

upon the whole record no legal judgment can be pronounced.” Iowa R. Crim. P. 

2.24(3)(c).

The court denied trial counsel’s several motions for a directed verdict in light 

of the detailed victim accounts of recurring sexual abuse. The defense presented 

three witnesses whose testimony was short and focused on minor inconsistencies 
10

in the victims’ and their brother’s accounts of the abuse. Under such 

circumstances, there was no reasonable probability the court would have granted 

either a motion in arrest of judgment or a motion for a new trial on the grounds 

asserted by Cardona. Trial counsel had no duty to make a meritless motion. See 

State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005) (“[T]rial counsel has no duty to 

raise an issue that has no merit.”). 

IV. Conclusion

The record contains substantial evidence of Cardona’s guilt, and we reject 

his insufficiency-of-the-evidence claim. Because of the ample evidence of his guilt, 

we also reject the contention that Cardona received ineffective assistance of 

counsel when his counsel failed to file a motion in arrest of judgement or motion 

for new trial on the ground that the greater amount of credible evidence was 

contrary to the verdict. Accordingly, we affirm the convictions.

AFFIRMED.