*1 need to decide whether that is the court denying now a new trial on the Jacks’ This situation is unlike correct outcome. claims against Dr. Booth. We doctor cases which both defendants appeals vacate the court of decision as to to the provided medical assistance stricken Booth; however, Dr. the court of appeals Reome, 558; juror. 543 N.Y.S.2d at decision will stand as to Dr. John Sweet- Haukedahl, 1993 WL at *1. Yet man. We remand this case to the district argue the Jacks new trial also court for further proceedings consistent as should been ordered to Dr. Booth with this opinion.
because “Dr. Sweetman’s humanitarian ef DECISION OF THE COURT OF AP- benefit anyone profession.”7
forts IN PEALS AFFIRMED PART AND VA- single enough This assertion is not PART; CATED IN DISTRICT COURT us conclude that district court PART, JUDGMENT AFFIRMED IN deny- abused its considerable discretion in PART, REVERSED IN AND CASE RE- plaintiffs against a new Dr. MANDED. Dr. only person Booth. Sweetman was the actually helped ailing juror. who court, which witnessed entire
scene, found in Dr. “nothing Booth’s be- during
havior the incident that could have any good will in
engendered particular her
favor.”
Normally, judge we as individu- people als, not as or group, members of a at least Iowa, Appellee, STATE of try to approach. just we follow that It is possible as that Dr. failure Booth’s to ren- against der care would be her held as that LOVE, Appellant. Darion Aubrea
Dr. Sweetman’s sym- acts would transfer to Dr. pathy Booth.8 And what about the No. 13-0738. physician expert who as an testified wit- Supreme of Iowa. Court against By plaintiffs’ ness Dr. Booth? log- ic, jury’s feelings warm would have 23, 2015. Jan. extended to him as For all well. these reasons, we cannot find the district court denying
abused its discretion in the plain- against
tiffs new trial on their claims Dr.
Booth.
IV. Conclusion. reasons, foregoing
For the we affirm part of judgment the district above, appeals 7. As noted proceedings rea- have tainted the fairness of the soned that the assistance rendered Dr. to Dr. Booth. "compromise[d] integrity Sweetman compromise the trial" and "[s]uch 8. We do not mean to criticize Dr. Booth’s tegrity of the trial cannot cured retrial appears courtroom It the situation behavior. some, all, against but not defendants." Yet began was under Dr. control once Sweetman how, beg these statements rendering aid. exactly, Dr. Sweetman’s assistance would *2 Smith, Appellate
Mark Defend- C. er, Nye, Appel- Melinda J. Assistant Defender, for appellant. late Miller, General, Attorney J. Thomas Hall, Attorney Sharon K. Assistant Gener- Wilber, al, County Attorney, Matthew D. Zacharias, Amy County Assistant At- torney, appellee.
APPEL, Justice. case, we
In this are called con- sider whether offense of assault with injury merges intent to inflict serious injury causing the offense of willful bodily the instructions involving a a case violent domestic alterca- specific After considering tion. in- trial, given to at this structions legal which established the framework for deliberations, jury’s we con- merge. the offenses clude must I. Factual and Procedural Back- ground. charged
The State Darion Love I three-count information. Count al- leged of Iowa 710.1
violation Code sections (2011). 710.2 II charged Count in violation of Iowa sections 707.1 and 707.11. Count III Code charged causing Love with willful injury in bodily violation of Iowa Code 708.4(2). charges Love denied the section and raised affirmative defenses toxication, responsibility, diminished justification. proceeded
The case to trial. The evi- 1. On or about day May, the 5th 2012, the revealed that Jennifer Pruett and Defendant assaulted dence Pruett. dating approximately Love had been years together.
five and had a minor son 2. The specifically Defendant intend- *3 4, 2012, May they night ed to cause a to spent injury On serious Pruett. in drinking They Omaha. returned to in
Pruett’s house Council Bluffs at about 3. Jennifer Pruett bodily sustained a injury. p.m. drinking. They 10:30 and resumed to
had sex. When Love tried initiate sex justified. The Defendant was not again, got upset Pruett refused. Love The jury acquitted Love wall, living at weight threw a a room shat- in the first tering Frightened, a mirror. Pruett ran him guilty found of the lesser included into the bedroom and locked the door. charge of assault with intent to inflict seri- door, pounded threatening Love injury. ous The also convicted Love out of car if she break windows her did injury of willful causing bodily injury. The not let him in. Pruett relented. When district court sentenced Love to concur- door, opened swing Love took a she prison rent indeterminate terms of five her and missed. Love’s errant blow years for injury years willful and two for punched a hole in the wall. Pruett ran to the assault conviction. bed, her, and when Love came after timely Love appealed. The claim grabbed mug she ceramic coffee appeal raised on was that the district him, hitting threw it at Love in the fore- court’s sentence of Love for two cutting head scalp. Love then illegal crimes was because the assault con- Pruett, her, punched and kicked bit hit her viction merged should have with the willful legs TV tray, of broken burned conviction under Iowa’s cigarette, poured fingernail her with a § statute. See Iowa (stating Code 701.9 on polish remover her wounds. person be public “[n]o shall convicted of a offense which necessarily in included morning, In the Love Pruett drove another public person offense of which the She for hospital. hospitalized convicted”). We transferred the case to days eyes with both bruised and swollen of appeals, which affirmed. We nose shut. She had fractured and addi- granted application Love’s for further re- back, legs,
tional on bruising her and arms. view. The jury was instructed II. Standard of Review and Issue murder, degree, attempted first Preservation. injury causing bodily injury. willful The attempted murder instruction included as- A district court’s failure to sault with intent to inflict merge serious required by convictions as statute a lesser included offense. results in an illegal sentence. Such claims bemay any raised at time. See State v. Specifically, No. relating Instruction Halliburton, 339, 343 injury causing bodily injury, to willful stat- 1995). an illegal Review of sentence for in pertinent part: ed lack of correction errors III; Anderson, Count State must at law. State v. prove all of the elements following (citing P. R.App. Iowa [6.907]). Injury Causing Bodily Injury: Willful tion, Merger example, asking deter- Issue.
III. Discussion “break mine whether there was a sufficient of the Parties. Love A. Positions a find- the action” argument that straightforward makes the multiple assaults under Velez. there might never instructed previously id. “[w]e crime. convictions used a break-in-the-action to deter- test argues this case mine if acts have been commit- find him instructed it could ted”); included offense of at- injury as a lesser cf. (Iowa 2014) (considering applica- murder, it also could find him tempted tion in case multi- involving of Velez tests with intent. But the in- guilty of assault ple context of intimidation with asked the deter- structions never *4 weapon); v. dangerous Copenhaver, State separate if were two or more mine there 442, (Iowa 2014) (con- 844 N.W.2d 447-49 distinct criminal acts. and sidering question of whether the defendant notwithstanding The State counters that separate committed two and rob- distinct instructions, the the evidence offered at beries). may While the factual record plainly support sufficient to mul- determination, a the have such v. tiple criminal acts under State Velez and this simply not asked consider progeny. its N.W.2d 581-84 Folck, factual issue. In State v. we said: (Iowa 2013) basis (finding sup- factual under port guilty plea defendant’s either case, present subjected In the defendant the completed-acts the test or break-in- victim to of sexual three incidents inju- the-action to two counts of willful test time, period abuse within a short all causing one victim ry injury serious who the of his within confines automobile. injuries two serious from suffered at least fellatio, an two One was act of the other strikes). result, As the State Assuming, were sexual intercourse. jury could well have found that reasons the that these as- deciding, without different crimes, two one committed parts body different saults distinct, sepa- crime willful and a finding have could formed basis rate crime of assault with intent. had and committed 2.6(1) crimes, ], distinct R.Crim. P. [Iowa Analysis. B. There is substantial this man- precluded by we hold agreement points. in this case two basic tried, ner in which the case was submit- First, agree there was sufficient sides ted, and decided. support sep evidence in record Second, arate assaults under Velez. (Iowa 1982); 325 N.W.2d accord seriously dispute State that as does not
sault with is a lesser included of intent (Iowa (“The Ct.App.1996) State can convict injury. fense willful kidnapping defendant of both competing principles pro which of these degree sepa- abuse are sexual if vides the rule of decision in this case. rate and distinct occurrences of sexual man- abuse and case is in a argument. We think Love has the better requires ner that the fact make case, finder to by In this the instructions developed parties approved [that] (Em- happened.” engage court did in the distinct occurrences not ask added.)); Newman, phasis see State fact-finding sup- under Velez to (Iowa 1982) port separate acts of assault. See 829 N.W.2d was no that from start to finish the treated N.W.2d 576-77. There instruc- event, continuing offense willful injury the crime as cluded [and as] such, depart State cannot from trial court should merged “[t]he now”); verdicts”); Winstead, see v. Morgan, course also State see also State v. (same). (same). instructions,
Instead, under the the unique pre- circumstances was to whether Love determine sented the serial list of beginning convicted of a crimes case, we conclude crimes must merge the most serious crime of instructions, under different serious crime of descending to least might evidence have been sufficient to began assault with intent. The under Velez top its worked down instruc- result, theory. break-in-the-action As a tions, guilty the defendant not finding judgment imposed upon and sentence at- first Love for assault with intent is unlawful murder, tempted de- and must be vacated. See Iowa R.Crim. P. fendant and assault 2.6(2) (prohibiting being defendant from however, Again, intent. greater convicted of both and lesser in- fact-finding never asked to do the neces- offenses); Belken, cluded *5 sary assaults. 2001). 786, (Iowa N.W.2d 802 The convic- however, injury, tion related to willful is result, with agree As a we cannot valid and remains undisturbed. argument evi State’s that because the have might supported dence such a deter IV. Conclusion. jury guilty mination the found Love of two reasons, For the above Love’s conviction in assault. of assault with intent is and vacated ease, jury only in this structions case remanded asked proceed serially through a list sentencing on the willful injury conviction. determine, crimes and which crime totality the record. DECISION OF AP- OF COURT unique Under the circumstances of the VACATED; PEALS COURT DISTRICT case, instructions in and after PART, JUDGMENT AFFIRMED IN comparing marshaling and PART, AND RE- REVERSED IN CASE statutory elements of willful and MANDED WITH INSTRUCTIONS. intent, assault with we conclude the of Mansfield, J., except All concur merge. justices
fenses should See State v. Hick (Iowa 2001) man, 847, specially. 623 N.W.2d 850 who concurs purely the test of MANSFIELD, (concurring spe- Justice legal review of elements and does cially). case); particular consider the facts of a join opin- I in the court’s well-reasoned 728, Jeffries, State v. 430 N.W.2d separately my ion but write to set forth (Iowa 1988) (same). question There no on how court’s views decision should general proposition, that as a the crime of in our district courts in implemented completed cannot be without the future. completing also the crime assault with See, Blanks, e.g., recently intent. v. State 479 We have decided a series (Iowa (not 601, cases, 606 multiplicity presenting N.W.2d one “assault intent a lesser-in whether the defendant committed or 726 We was evi- agree act. State v. State there than one criminal (Iowa both in 2014); place dence sexual abuse took
Ross,
698
N.W.2d
845
each act
pick-up
bar and
Copenhaver, 844 N.W.2d
447
State v.
could have formed
basis for
Gines,
(Iowa 2014);
N.W.2d
of a count of sexual
distinct
(Iowa 2014);
Velez,
v.
However,
abuse.
was instruct-
2013).
Gines and
N.W.2d
ed
the course of conduct and not
Velez, however,
guilty pleas
involved
to find two distinct and
asked
which
issue
acts.
to conclude the defen
was a
basis
Id.;
Newman,
accord State v.
326 N.W.2d
multiple crimes. See
dant had committed
(Iowa 1982) (“We
do not foreclose
Gines,
441; Velez,
at
N.W.2d
right
State’s
convict defendant
Copenhaver
576-77. Ross
the first
trials,
the issue raised
were
sexual abuse if the case
cases was
stat
the defendants
those
in that
makes find-
prosecution,
unit of
not the
utory
possibili
ings accordingly. A
should not
were
ty
that both convictions
repeatedly
be allowed to
assault his victim
the same conduct. See
argument
fall back
his conduct
698; Copenhaver,
convict the defendant twice of the same (“Assuming, deciding, without these (or of and a offense an offense lesser parts assaults different different offense) conduct, cluded based on body formed the basis returned, are and two verdicts defendant had committed must follow. In State crimes, ... hold this was distinct we *6 appeals explained, the court of precluded by the manner in which the case submitted, decided.”). tried, was The State can convict defendant of proposi- The reiterates court this basic degree and today, rightly generally tion See so. separate sexual abuse if there are State, 931, 933, Simmons P.2d distinct occurrences of sexual abuse and (Alaska Ct.App.1995) (finding that the case is in a that manner being of two in possession counts of felon requires the to make separate fact finder required of a was “al- firearm because separate and dis- though presented at the evidence tinct happened. occurrences might theoretically a find- interrupted possession, jury added). (emphasis In the in- never required to consider or decide the structions did separate not the sexual issue”); Perry, 266 Kan. abuse that the basis for the defen- (1998) P.2d (merging aggravated dant’s sexual abuse conviction from the with battery conviction sexual abuse that was basis for the conviction when instructions “do first-degree defendant’s require jury to distinguish between Therefore, merger struction. Id. re- pistol whipping shooting and the to deter- quired jury could have oecurred[, separate mine whether acts separate found two acts of sexual if distinguish abuse verdict do the forms n]or asked to do so. id. As the put separate violence claimed it, State”); State, Nicolas v. 426 Md. (2012) remover, (holding A.3d that this could have supported multi- (or ambiguous ple where the factual record is assault multiple convictions convictions, to whether the the defendant separate injuries found if re- sulted). guilty of and resisting assault arrest based acts, required); Once proposes the State Commonwealth, Harp see also possibility eliminate the the same con- (“We (Ky.2008) again S.W.3d in- duct will be to used convict the defendant struct the bench and bar of the Common- twice for the same offense or convict the involving
wealth that
in a case
greater
defendant of both a
offense and a
offense,
counts of the
a trial court
same
offense,
lesser included
the ball is in the
obliged to include some
of identifying
sort
If
defendant’s court.
the defendant be-
characteristic in each instruction that will
lieves
convictions still cannot be
require
to
whether it
determine
is pursued
only
because
one unit of
satisfied
from
evidence the existence of prosecution, then the burden shifts to the
separately
facts
that each of the
proving
object
the instructions and
occurred.”).
charged offenses
verdict
forms.
district court would
If the State wishes to avoid this out-
consider
objection.
the defendant’s
If the
come, it must ensure the defendant
court found as a
of law
matter
charged
and the
is instructed in a
the separate counts involve
crimi-
acts,
that requires
finding
conduct nal
objection
it would overrule the
for each
example,
conviction. For
jury.
submit the
counts
case, the
evidence showed that
defen-
If the
agreed
district court
defen-
victim,
dant,
dant brutally kicked the
it
had
would allow
one of
counts
calls,
phone
one or
go
more
then beat her
jury.
And if the court was
repeatedly
leg,
broken end table
uncertain
more
potential
than one
calls,
phone
involved,
then had
and finally
criminal act was
it could ask the
picked
polish
issue,
up
poured jury
nail
remover
make a
on this
it into her face. Had
been in-
legislature’s definition
the of-
separately
using
structed
inci-
fense and
we have
standards
Velez,
dents of
kicking,
beating
579-84,
with the
discussed in
829 N.W.2d at
table leg,
pouring
polish
and the
of the nail
ny, 600 N.W.2d event, occur so would not
long as substantial evidence criminal
determination that Merrett, had occurred. See