State v. Hivento

1

STATE OF IOWA, Plaintiff-Appellee, v. CARLOS ALLEN HIVENTO, Defendant-Appellant.

No. 21-1445

Court of Appeals of Iowa

March 8, 2023

Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.

Carlos Hivento appeals his convictions for third-degree sexual abuse. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Nan Jennisch Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee.

Considered by Vaitheswaran, P.J., Tabor, J., and Mullins S.J. ^[*] MULLINS, Senior Judge.

The overall purpose of Iowa's sexual abuse statute is to protect the freedom of choice to engage in sex acts. The sex abuse statute exists to protect a person's freedom of choice and to punish unwanted and coerced intimacy. A person who imposes a sex act on another by force or compulsion under any circumstance violates the other's protected interest. Yet, nonconsent includes both consent that is nonexistent and consent that is ineffectual, and these circumstances have been largely assimilated into the statute to account for its present expanded categories of rape. Nevertheless, the unifying principle among this diversity of conduct is the idea of meaningful consent.

State v. Meyers, 799 N.W.2d 132, 143 (Iowa 2011) (emphasis added) (cleaned up).

In this case, we are tasked with assessing the presence or absence of meaningful consent. A nineteen-year-old freshman at the University of Iowa planned on a night out with friends in downtown Iowa City. The friends drank heavily-as college kids do-and the young co-ed, A.H., became heavily intoxicated. She testified at Carlos Hivento's criminal trial that she had never met him before and did not remember meeting him that night. All she could remember was "the staircase," where she hit her head and back against the stairs. The next thing she knew, she woke up naked in a hotel room bed with Hivento, also naked, kneeling over her and filming her with his phone. Turns out, the two shared various sex acts in the stairwell and the hotel room throughout the night in question, and Hivento took several videos of those acts on his phone for his later viewing pleasure. A.H. did not remember any of it. Despite A.H.'s demeanor in the videos aligning with one witness's characterization of her as lethargic and "just like . . . a zombie," Hivento later told police that "she wanted it."

The jury found Hivento guilty on five counts of third-degree sexual abuse.^[1]Hivento appeals, challenging the sufficiency of the evidence supporting those convictions. Specifically, he argues the evidence was insufficient to support either of the dual alternative theories that the sex acts were done either: (1) "by force or against the will of the other person" or (2) "while the other person [was] mentally incapacitated, physically incapacitated, or physically helpless." See Iowa Code § 709.4(1)(a), (b)(1), (d) (2018). In relation to his challenge, he also contests the constitutionality of Iowa Code section 814.28 (Supp. 2019) on general verdicts.

Finding each alternative has substantial evidentiary support, we affirm the convictions. Because section 814.28 is not implicated, we leave the question of its constitutionality for another day.

I. Background A. The Night Out

On the evening of November 17, 2018, several college-aged individuals attended a "pregame" party at A.M.'s^[2] Iowa City apartment. The purpose of a pregame was described as "[g]etting drunk at home, that way you don't have to pay for as many drinks at the bars." It was a reunion of sorts proximate to Thanksgiving break from classes among friends and acquaintances who grew up in the Iowa City area. The group consisted of seven people: A.M., J.B., L.S., M.M., A.H., and two others. Everyone consumed alcohol at the apartment before they went to downtown Iowa City to consume more alcohol. A.H. arrived at A.M.'s shortly after 8:30 p.m. A.M. testified A.H. was the last to arrive and, when she did, she already had a "Tall Boy drink" in hand. L.S. recalled A.H. "immediately started drinking with the rest of us" when she arrived. A.M. could not recall how much A.H. drank at the apartment, but she recalled that everyone was doing shots, and "[w]e wouldn't leave someone out." M.M. specifically recalled everyone was taking shots of "hard liquor" at the apartment.

After arriving downtown at roughly 10:00 p.m.,^[3] the group went to various bars, at each of which members of the group were "buying rounds" for each other. The evidence suggests A.H. was separated from the group between roughly 11:00 p.m. and 12:00 a.m. However, she reconvened with the group at the last bar the group went to, the Union. At some point after midnight on November 18, everyone in the group except A.H. left the Union.^[4] A.H. remained at the Union with some friends of hers from high school.

No one in the group recalled anyone using drugs, but all who testified pretty much agreed everyone was intoxicated, which aligned with everyone's goal that night-"to go out with friends and get drunk." As to A.H.'s condition when A.M. left the Union, A.M. testified: "I knew she was drunk, I thought she was drunk, but it seemed like she was safe with her friends." J.B. testified everyone was consuming alcohol at the apartment and downtown, but nothing stuck out in his mind concerning A.H. being unable to have a conversation or walk on her own. M.M. opined A.H. was intoxicated and "[n]ot completely aware of her surroundings." D.C., who has been friends with A.H. since elementary school, testified he saw A.H. outside the Union sometime between 11:00 p.m. and 1:00 a.m. the following morning. He recalled she was intoxicated to an extent that he decided to check on her later.

B. Encounter with Hivento

Footage captured by the surveillance system of another downtown bar, DC's, depicts that, at 1:07 a.m., A.H. was outside of the bar with friends, apparently including D.C. At 1:09 a.m. A.H.'s group entered the bar, while she remained outside by herself, as she had lost her fake ID by that point. The video shows A.H. had trouble maintaining her balance by this point in the evening. Roughly forty seconds later, Hivento passed by A.H. standing outside the bar alone and then entered the bar. He returned to the entry of the bar about fifteen seconds later, apparently said something to A.H., and she briefly followed him inside. About twenty seconds later, both returned outside and started a conversation. After conversing momentarily, at 1:11 a.m., they proceeded north together outside of this camera's view. Another camera then shows them taking a hard right into a stairwell leading to apartments above another bar just seconds later.

The nine recordings Hivento took on his phone in the stairwell and hotel room were admitted as evidence at trial. The first five videos-recording more than eleven minutes of events-were taken in the stairwell between the time they entered the stairwell and roughly 1:30 a.m. They show a series of genital-to-genital and genital-to-oral sex acts, always showing Hivento in a dominating, controlling position. A.H.'s eyes appear to have been closed almost the entire time. Some of the videos show her head and face buried in the stairs with Hivento behind her. Others show him clearly directing or moving her head with his hand. In the middle of at least one of the videos, Hivento turned the camera to his face and stuck his tongue out.

There are times A.H. can be heard groaning and sniffling. On another occasion while Hivento is performing sex acts, A.H. remains with her head down until Hivento grabs her hair and pulls her head back to him and begins kissing the side of her face and ear. A.H.'s eyes never appear to be open during this video either.

In another video, while Hivento was committing a sex act, he directed A.H. several times: "Let me see those pretty eyes." A.H. opens her eyes momentarily and then closes them again. The state of A.H.'s eyes can be described as unfocused and glazed over. The video concludes with Hivento ejaculating on A.H.

Footage captured by a nearby bank's surveillance system showed A.H. and Hivento walking through an alley at 2:23 a.m. and then entering into the back of the building that houses the Blue Moose Tap. At around bar closing time, cab driver Thomas Bane was dispatched to the Blue Moose Tap in response to a call for service. The evidence discloses the call for service was made at 2:31 a.m., and Bane picked up the passengers at 2:42 a.m. Bane picked up a male and a female, and the male directed him to transport them to the Iowa House Hotel. Bane recalled the female did not speak during the roughly five-minute transport, she was lethargic, and "[s]he couldn't even keep her head up." He later added: "[S]he was not right. She was aloof." Although he could not tell if she was intoxicated, he opined: "She was just like . . . a zombie. I mean, you know, it could be pills, it could have been anything." Bane recalled when he got near the hotel that the male directed him to drop them off in the back of the hotel, which Bane thought "was odd." The male paid for his fare in cash.

John Hogan was working the overnight shift at the Iowa House Hotel on November 17 and into November 18. He testified that between 3:00 and 3:30 a.m. on November 18, a young gentleman came to the front desk and requested a room. Hogan recalled that, from the direction the man came, he did not use the main entrance to the hotel. He was by himself and did not have any luggage or bags. According to the guest registration form, the man told Hogan his name was "Carlos Evanto." The man paid for his room in cash, and Hogan placed him in room 230. The booking receipt shows the room booking was made...