State of Iowa v. Joseph Khadori Awino

IN THE COURT OF APPEALS OF IOWA

No. 23-0928
Filed September 18, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JOSEPH KHADORI AWINO,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Adria Kester (trial and

post-trial motions) and Amy M. Moore (sentencing), Judges.

The defendant appeals his convictions and sentences for four counts of

willful injury causing serious injury. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Katherine Wenman, Assistant Attorney

General, for appellee.

Considered by Tabor, C.J., Schumacher, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

POTTERFIELD, Senior Judge.

A jury found Joseph Awino guilty of four counts of willful injury causing

serious injury, and the district court sentenced Awino to four ten-year terms of

incarceration to be served consecutively, for a total term of incarceration not to

exceed forty years. Awino appeals his convictions and sentences, arguing

(1) there is insufficient evidence to support the convictions; (2) the district court

erred by admitting hearsay testimony; (3) his motion for substitute counsel for

sentencing should have been granted; (4) the district court abused its discretion in

denying his motion to continue sentencing, and (5) the district court abused its

discretion in imposing consecutive sentences.

I. Background Facts and Proceedings.

The State charged Awino by trial information with four counts of willful injury

causing serious injury, alleging he perpetrated the crimes against his teenaged

son between September 2019 and May 2021. Awino pled not guilty, and the case

proceeded to a jury trial.

The State presented undisputed evidence that the teen came to Iowa to live

with Awino in September 2019. Almost immediately, Awino began “disciplining”

the child by stabbing him with pens and markers. Then Awino began using other

instruments as well, including a ruler and a small cutting board, before ultimately

using a rope to whip the teen. By the time the teen’s stepmother went to the local

police in May 2021, Awino was forcing the teen to fully disrobe before flogging him.

At trial, the teen testified the whippings took place about four times per week—

sometimes for “a few minutes” and other times longer. The State introduced

pictures that the teen took of his injuries at various times between September 2019
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and May 2021, photos taken of the teen by various professionals once the police

became involved, and ten videos recorded by the stepmother as she stood at the

top of the stairs while Awino whipped the teen in the basement. The pediatric

nurse practitioner who treated the teen at the STAR center estimated that “at least

75 percent of his body had injuries” when she saw him in May 2021. And at the

criminal trial in July 2023, the teen testified, “I have most of [the scars] on my hands

and the back and my chest, and then also some on my legs and feet, some around

the ankles.” He showed his arms and hands to the jury at the prosecutor’s request.

The jury found Awino guilty of all four counts of willful injury causing serious injury.

Before sentencing, Awino requested new counsel and moved for a

continuance. Both of his requests were denied. The district court sentenced

Awino to four consecutive ten-year terms of imprisonment. Awino appeals.

II. Discussion.

A. Sufficiency of the Evidence.

Awino challenges the sufficiency of the evidence to support each of his four

convictions, arguing the State failed to prove that the teen suffered serious injuries,

as defined by the law.1 See State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004)

(“[T]he State must prove every element of the crime charged beyond a reasonable

doubt.”).

“Substantial evidence is evidence sufficient to convince a rational
trier of fact the defendant is guilty beyond a reasonable doubt.”

1 Awino asks us to review this claim de novo, arguing a constitutional right is

implicated. But we are bound by current case law that requires us to review for
correction of errors at law. See State v. Schwartz, 7 N.W.3d 756, 763 (Iowa 2024)
(“This court reviews sufficiency-of-evidence claims for the correction of errors at
law.”); State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not
at liberty to overturn Iowa Supreme Court precedent.”).
4

“Substantial evidence must do more than raise suspicion or
speculation.” In determining whether the verdict is supported by
substantial evidence, this court views the evidence “in the light most
favorable to the State, including all ‘legitimate inferences and
presumptions that may fairly and reasonably be deduced from the
record evidence.’”

Schwartz, 7 N.W.3d at 764 (internal citations omitted).

For the jury to find Awino guilty of willful injury causing serious injury, the

State had to prove:

1. That between the dates of September 1, 2019 and May 22,
2021, [Awino] assaulted [the teen].
2. [Awino] specifically intended to cause a serious injury to
[the teen.]
3. [Awino’s] acts caused a serious injury to [the teen] . . . .

The jury was further instructed:

The term “serious injury” as used in these instructions means
a bodily injury which creates a substantial risk of death or which
causes serious permanent disfigurement or extended loss or
impairment of the function of any bodily part or organ.
The skin is the largest organ of the body. The skin and its
derivatives (hair, nails, sweat and oil glands) make up the
integumentary system. One of the main functions of the skin is
protection. It protects the body from external factors such as
bacteria, chemicals, and temperature.

Here, Awino argues the scarring the teen suffered does not rise to the

standard of “serious permanent disfigurement.” He points to the testimony of

several State witnesses who opined that the injuries the teen suffered did not

create a substantial risk of death or extended loss of impairment—other

alternatives for meeting the “serious injury” standard. But that is not a compelling

argument.

“Serious permanent disfigurement . . . is a question for the jury to decide.”

State v. Hanes, 790 N.W.2d 545, 554 (Iowa 2010). And “[s]carring may in some
5

circumstances rise to the level of serious permanent disfigurement.” Id. “Iowa

cases have contrasted serious permanent disfigurement with minor and temporary

defects such as black eyes and bloody noses.” State v. Triplett, No. 11-1528, 2012

WL 4900468, at *3 (Iowa Ct. App. Oct. 17, 2012) (citing State v. Phams, 342

N.W.2d 792, 796 (Iowa 1983)). The jury saw approximately 100 photos of the

teen’s injuries and scars—taken on various days beginning in May 2020 and

following the final beating the teen endured in May 2021—and was able to see the

teen’s hands and arms at the time of the May 2023 trial. Reasonable jurors could

conclude the scars reached the level of serious permanent disfigurement. Cf. id.

(concluding “visible scar on the victim’s forehead rose to the level of a serious

permanent disfigurement”); State v. Curry, No. 19-1524, 2020 WL 4207402, at *2

(Iowa Ct. App. July 22, 2020) (concluding a scar from being shot, which was two

to three inches long, could reasonably meet the threshold for serious permanent

disfigurement). So substantial evidence supports Awino’s convictions.

B. Hearsay.

Awino argues the district court wrongly allowed the admission of hearsay

testimony when the State asked a witness—a child protective worker for the Iowa

Department of Health and Human Services—whether the teen “suffer[ed] from any

skin condition,” and the witness testified, “No.” Awino maintains he preserved error

because he filed an uncontested motion in limine, in which he broadly asked that

“the State be prohibited from offering any hearsay statements of the witnesses.”

We recognize it might not have been immediately clear to Awino whether

the State’s question to the witness was eliciting hearsay. But on cross-
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examination, the following exchange took place between defense counsel and the

witness:

Q. You were asked by the State if you were able to verify that
[the teen] does not have a skin condition and you indicated that you
were able to verify that [he] does not have a skin condition; correct?
A. Yes. That is correct.
Q. Proving a negative tends to be difficult, so I am curious,
how did you go about proving that [he] did not have a skin condition?
A. I asked [the teen] himself and then I called the nurse that
completed his physical when he arrived here, which I think was
through Mary Greeley or McFarland Clinic.
Q. So you asked the 17 year-old whether he knew about any
medical diagnoses? A. A rash.
Q. And he said he did not? A. Correct.
Q. And then you asked a nurse who had seen [the teen] two
years prior? A. Yes.
Q. Did that nurse remember speaking with [the teen] at that
time? A. The nurse looked in his medical chart and said there was
no noted rashes or any condition of the skin in his chart.
Q. Okay. But did the—did that nurse actually recall the
specific interaction with [the teen]? A. I don’t recall if I asked that
question or not.
Q. And did the nurse's report specifically say we have verified
that [the teen] does not have a skin condition? A. No.
Q. So would it be fair to say that we have—that you have not
been able to show that [the teen] does not have a skin condition but,
rather, that you did not find evidence of a skin condition? A. I guess.

Awino did not challenge the witness’s statement as improper hearsay either at the

time it was made or after he obtained more background information about the

source of the information on cross-examination. Because a hearsay objection was

never made to or decided by the district court, we conclude this issue was not

preserved for our review and do not reach the merits. See Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002).

C. Substitute Counsel.

After his motions for new trial and in arrest of judgment were denied but

before sentencing, Awino moved for substitute counsel. The district court took up
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the motion at the beginning of the scheduled sentencing hearing, asking Awino

and defense counsel to weigh in. Defense counsel did not object to new counsel

being appointed, noting there “ha[d] been a breakdown of how the case could—

should proceed.” Awino added, “[W]e did have a disagreement and [defense

counsel] suggested that it’s not in good faith for us to continue together, so we

have an agreement to part ways.” The court responded: “Understood, sir, but that

isn’t sufficient for the Court to grant your request at this time. Do you believe that

there’s been a breakdown in communication with [defense counsel]? What is your

reasoning for the request, sir?” Awino claimed defense counsel failed to properly

prepare him for the post-trial hearings, stating in part, “Even when I came to the

last hearing, I was just ambushed that was a hearing.” Defense counsel disagreed,

reporting that Awino was notified of the sentencing hearing, had participated in the

presentence investigation (PSI), and that the completed PSI report was sent to

him. He pointed out that the disagreement about how to proceed centered on the

fact that Awino wanted him to file another motion for new trial, which defense

counsel believed was frivolous and refused to file.2 The State resisted the

appointment of substitute counsel, arguing it would cause delay, which was

unnecessary because there was no basis for further post-trial motions more than

four months after the jury rendered a verdict. The district court denied Awino’s

motion, finding there was not sufficient cause to justify appointing substitute

counsel.

2 Defense counsel told the court that Awino wanted him to file a motion for new

trial on the grounds that it was improper that the judge assigned to sentence him
was different than the judge who presided over his criminal trial.
8

A defendant has the right to counsel at all critical stages of the criminal

process, which includes sentencing. State v. Boggs, 741 N.W.2d 492, 506 (Iowa

2007). But the Sixth Amendment “does not guarantee a ‘meaningful relationship

between an accused and his counsel.’” State v. Lopez, 633 N.W.2d 774, 778 (Iowa

2001) (quoting Morris v. Slappy, 461 U.S. 1, 14 (1983)). So, “[w]here a defendant

represented by a court-appointed attorney requests the court appoint substitute

counsel, sufficient cause must be shown to justify replacement.” State v. Tejada,

677 N.W.2d 744, 749 (Iowa 2004). “Sufficient cause includes a conflict of interest,

irreconcilable conflict, or a complete breakdown in communication between the

attorney and the defendant.”3 Tejada, 677 N.W.2d at 749–50 (citation omitted).

“In determining whether to grant a request for substitute counsel, the court must

balance the defendant’s right to counsel of his choice and the public’s interest in

the prompt and efficient administration of justice.” Lopez, 633 N.W.2d at 779

(cleaned up). That said, “[t]he court has considerable discretion whether to grant

3 In his appellate brief, Awino asserts that he “establish[ed] that his trial counsel

had a conflict of interest,” so prejudice is presumed. But Awino seems to conflate
a “conflict of interest” and an “irreconcilable conflict.” Cf. United States v. Moore,
159 F.3d 1154, 1158 (9th Cir. 1998) (distinguishing a “conflict of interest” as “the
existence of competing interests potentially affecting counsel’s capacity to give
undivided loyalty to his client’s interests” with “irreconcilable conflict between client
and lawyer,” such as when the defense attorney verbally assaulted the defendant
with racial epithets); see also State v. Watson, 620 N.W.2d 233 (Iowa 2000)
(reversing defendant’s conviction and remanding for new trial where the defense
attorney “had an actual conflict of interest that the trial court knew or should have
known existed when the court became aware of counsel’s dual representation of
the defendant and a key prosecution witness”). As there is no indication Awino’s
counsel had an actual—or even a potential—conflict of interest, and Awino
recognizes (in his reply brief) that his “conflict and breakdown in communication
arguments are closely connected,” we consider Awino’s claim for substitute
counsel under our usual “breakdown in communication” case law.
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substitute counsel, and eleventh-hour requests for substitute counsel are generally

disfavored.” Boggs, 741 N.W.2d at 506.

“A complete breakdown in communication supports the appointment of

substitute counsel because it deprives counsel of a critical component to an

adequate defense—attorney-client communication.” Id. But a defendant

expressing “general frustration and dissatisfaction” with counsel is not enough—

“[t]he focus of the inquiry is not on the defendant’s relationship with his or her

attorney, but ‘the adequacy of counsel in the adversarial process.’” Id. (citation

omitted). “[T]o prove a total breakdown in communication, a defendant must put

forth evidence of a severe and pervasive conflict with his attorney or evidence that

he had such minimal contact with the attorney that meaningful communication was

not possible.” Tejada, 677 N.W.2d at 752 (citation omitted). And even if there was

a complete breakdown in communication, to gain relief from this court, Awino must

show he was prejudiced by the denial of his request for substitute counsel. See

State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995) (“A defendant [challenging the

denial of a motion to substitute counsel] must ordinarily show prejudice, unless he

has been denied counsel or counsel has a conflict of interest.”).

We conclude Awino failed to show a complete breakdown in communication

warranting substitute counsel. We recognize that Awino and defense counsel

reached an impasse about filing a second motion for new trial. But while the two

may have disagreed about the relative merits of the motion, it was past the window

to file another post-trial motion, as nearly four months elapsed between the date

the jury rendered its verdicts (January 26, 2023) and when Awino filed his motion

for substitute counsel (May 18, 2023) and then, later, a pro se motion for new trial
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(May 31, 2023). See Iowa R. Crim. P. 2.24(2)(a) (requiring a motion for new trial

to be filed “not later than 45 days after verdict of guilty or special verdict upon which

a judgment of conviction may be rendered and not later than 5 days before the

date set for pronouncing judgment”). Plus, there was no indication the two were

unable to communicate about how to proceed at sentencing. Awino testified at

sentencing, with his counsel examining him, so he could tell the court about his

medical issues, which he argued merited leniency. And counsel both argued for

the minimum sentence and challenged what he understood to be the State’s

request to leave the issue of restitution open. We cannot say the district court

abused its discretion in denying Awino’s motion for substitute counsel.

D. Motion to Continue Sentencing Hearing.

Awino argues the district court abused its discretion in denying his oral

motion to continue the sentencing hearing, pointing to counsel’s argument that

Awino

made [him] aware of several medical conditions he has, which the
Court having documentary evidence of those may affect the
sentencing that the Court wants to hand down.
He’s obviously able to testify about two of them, but having
them in writing and actually summon a physician saying that these
are the issues he’s facing carries more weight, so we would ask for
a motion—we’d ask to continue sentencing in order to get those
official documents.

The State resisted the motion to continue, which the district court denied. After

which, Awino testified about his health. He explained he previously underwent

surgery to remove his adrenal gland and place a medical device in his stomach

that screens for cancer; because of this, he was “not able to walk for long distance

without any help” and continued to experience left leg and butt pain. He continued
11

to require regular medical checkups and still had “traces” of cancer that doctors

wanted to study. Awino finished his testimony by “request[ing], if there’s anything

other than prison, due to a medical condition and the fact that I’m not able to do

some stuff, I would like to request the Court to find another option because I believe

prison may not be the best thing for me.” Awino also told the PSI preparer about

his medical issues, explaining about the surgery and that he was “not physically

capable to do some of the vigorous activities [he] did before the surgery.”

Awino contends he should have been granted a continuance to secure

mitigating evidence that was pertinent to sentencing, such as medical records. But

it was not unreasonable for the court to deny the continuance when there were

other means available to present that information without additional delay—

through the PSI report and Awino’s testimony. And Awino was given the

opportunity to and did present evidence of his medical conditions. The State did

not challenge the truth of Awino’s health claims, nor was he asked any questions

on cross-examination. With these facts, the district court did not abuse its

discretion in denying Awino’s motion to continue.

E. Sentence Imposed.

Awino challenges the sentence imposed by the district court. He argues

the district court abused its discretion by deciding to impose four consecutive

sentences after placing too much weight on the nature of the offenses and Awino’s

perceived lack of remorse.4

4 Awino asks us to overrule Iowa case law that allows the sentencing court to

consider lack of remorse as an aggravating factor. He argues that it is unfair to
hold a defendant’s lack of expressed remorse against them because “even at the
time of sentencing, a defendant has ‘not been finally and irrevocably adjudged
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The court orally explained:

As all four of these charges are forcible felonies, my discretion
in sentencing is limited to determining whether to impose
consecutive or concurrent sentences. Any alternative to prison is not
an option available to me under Iowa law.
....
I have thoroughly reviewed the presentence investigation
report as well as the court file. I do note that the State has asked the
Court to consider specific exhibits in determining sentence, and I’ve
also had the opportunity to review the entirety of the evidentiary
record up to this point in this matter, and utilizing all of those items
I’ve just identified in determining appropriate sentence, I’ve
considered Mr. Awino’s age and education, his lack of any prior
criminal history, his prior employment, family . . . circumstances, the
nature of the offenses committed, and the harm to [his child], the
facts upon which these charges were based, whether a weapon or
force was used in the commission of those offenses, the need to
protect the community, the State’s recommendation, his defense
counsel’s recommendation, the recommendation of the PSI, Mr.
Awino’s statement here today, as well as those that are contained in
the PSI, the propensities, needs, and the potential for rehabilitation
of Mr. Awino, and again, the need for deterrence of Mr. Awino and
others similarly situated to him from committing offenses of this
nature, the lack of any documented evidence of substance abuse
history, and other permissible factors supported by the record.
It is now the order and judgment of the Court that you be and
you are hereby committed to the custody of the Iowa Department of
Corrections for an indeterminate prison term not to exceed ten years
as to each count. You shall be given credit for any time served.
As to the manner in which these sentences shall be served,
again, the Court has the discretion to order whether these sentences
are to be served concurrently or consecutively to one another. I find
that the record overwhelmingly supports serving these sentences
consecutively to one another.
The nature of these offenses is utterly horrific. They occurred
over the course of years, and [the teen] will have, no doubt,
permanent scars of physical and mental variety for the rest of his life.
Your statements here today continue to represent the fact that
you take almost no accountability for your actions. I’ve listened to
you here today. Your statements regarding [the teen] were very

guilty’ since still available to the defendant is an appeal which ‘is now an integral
part of the trial system for finally adjudicating the guilt or innocence of a
defendant.’” (quoting Thomas v. United States, 368 F.2d 941, 945 (5th Cir. 1966)).
But we are not at liberty to overturn the Iowa Supreme Court precedent Awino
challenges. See Hastings, 466 N.W.2d at 700.
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telling. You stated that he came to this country in 2019, and the first
thing that you stated that you wanted out of him—and that was your
words—was obedience. And you used the term “obedience”
repeatedly in your statements here today, and it is abundantly clear
that it was a top priority for you as [the teen’s] parent and that you
were going to secure obedience through any means possible, which
you did.
You spent the majority of your time addressing me here today
discussing your problems and how prison would be a poor choice for
you considering your health conditions. I respect and understand
that you may be in ill health and may have conditions that are not
conducive to spending this time in prison, but what was more telling
to me was you spent almost no time expressing any remorse for
specifically what you've done to [the child].
You stated, and I quote, “I’m really sorry for whatever
happened.” Again, not acknowledging what it is that you did
specifically. You alluded to cultural differences that [the teen], unlike
your other child, perhaps ascribed to a more American teen
approach in watching TV before homework, as if somehow that
transgression would even remotely, in any universe, justify your
behavior.
You also stated, and I quote, “I messed up,” and again, that
you’re responsible for, and I quote, “whatever happened.” And you
believe whatever's happened to you up to this point has been a
lesson sufficient to be a deterrent for you going forward for this
behavior.
You also interestingly repeatedly said that you never hit a
teenager, as though you needed to somehow distinguish between
ages of children as to whom you may have hit or what may be
appropriate.
In short, your behavior and statements clearly reflect that you
do not take responsibility for what you’ve done and have little, if any,
remorse for [the teen] or your family other than mostly the impact that
this has on you personally. I also find consecutive sentences are
appropriate . . . for the fact that each of these constitutes a separate
and distinct offense, as well as other permissible factors that are
supported by the record.

Here, as the court recognized, because Awino was convicted of all forcible

felonies, the court’s discretion was limited to whether it would impose consecutive

or concurrent sentences. See Iowa Code § 907.3 (2023) (preventing the court

from granting a suspended sentence for a forcible felony). So the court only

needed to provide adequate reasons to explain that decision. Cf. State v. Hill, 878
14

N.W.2d 269, 274 (Iowa 2016) (requiring court to give adequate reasons on the

record to explain its exercise of discretion—including the decision to impose

consecutive sentences). And here, we are able to review the court’s exercise of

discretion. See State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015) (recognizing

that to meet the requirement of adequately stating the reasons for a sentence, “a

‘terse and succinct’ statement may be sufficient, ‘so long as the brevity of the

court’s statement does not prevent review of the exercise of the trial court's

sentencing discretion.’” (citation omitted)). We cannot say the district court placed

too much weight on the nature of the offenses. See State v. Hopkins, 860 N.W.2d

550, 555 (Iowa 2015) (“When considering whether a court abuses its discretion by

imposing a sentence of incarceration, we recognize the nature of the offense alone

is not determinative. On the other hand, the seriousness and gravity of the offense

is an important factor.” (internal citation omitted)). And neither did it cross the “fine

line between considering a defendant’s lack of remorse and penalizing a defendant

for refusing to plead guilty and insisting on [going] to trial.” State v. Knight, 701

N.W.2d 83, 87 (Iowa 2005). So, we affirm Awino’s sentences. See State v. Goble,

4 N.W.3d 700, 708 (Iowa 2024) (affirming when the defendant failed to “overcome

the presumption [of validity] in favor of the sentence by affirmatively demonstrating

the court relied on an improper factor” (alteration in original) (citation omitted)).

III. Conclusion.

Because it was not properly preserved, we do not consider Awino’s hearsay

claim. We affirm his convictions because they are supported by substantial

evidence. And because the district court did not abuse its discretion in denying his
15

motion for substitute counsel for sentencing, his motion to continue sentencing, or

in imposing sentence, we also affirm his sentences.

AFFIRMED.