State v. Pearson

our constitutionally deficient does not end 17A.19(8) pro- section

inquiry. Iowa Code Iowa, Appellee, STATE part: vides in agency may affirm the 8. The court PEARSON, Appellant. Lynn agency further Rebecca to the

action or remand reverse, proceedings. The court shall No. 94-1891. any appropriate modify, grant other action, agency equitable or relief from the Appeals Iowa. Court of relief, declaratory if legal including Feb. rights petitioner of the have substantial agency action prejudiced been because

is: In of constitutional or stat-

a. violation

utory provisions. rights language of Iowa Code

The substantial 17A.19(8) to the court

section “is direction agency’s an action should not be tam-

that complaining party has

pered with unless the City in fact harmed.” Des Moines v. been Etc., Employment,

Public provision аnalogous This applied ‍​​‌‌‌‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌​‌‌‌​‌​‌‌‌‌‍the harmless error rule in other

contexts. Id. produce failure “to

The ALJ noted Silva’s to substantiate his claim other witnesses

he was fired.” It is not unreasonable to infer

from this statement that the result of

hearing may if had have been different Silva did not

called witnesses on his behalf. Silva

present additional evidence on this issue be- fairly that volun-

cause he was not notified

tarily quitting was an issue. rights substantial

We hold Silva’s process prejudiced because he

due have been scope adequate receive notice of the

did not

of the issues to be considered at his adminis- hearing

trative and he was afforded

meaningful opportunity present his evi-

dence on the issues raised. He is therefore from the

entitled to relief actions

Employment Appeal Board. Employment Appeal

The decision of the vacated, and this case is remanded

Board is proceedings con-

for further administrative opinion. with this

sistent AND REMANDED.

VACATED Gallo, Defender, Appellate

Linda Del Ap- Hennesy, E. Assistant State and Sarah Defender, pellate appellant. for Miller, General, Attorney Thomas J. Rob- General, Ewald, Attorney ert P. Assistant Davis, County Attorney, E. and Juliе William Walton, Attorney, ap- County Assistant for pellee. P.J., SACKETT, by

Heard and CADY and HUITINK, JJ.

HUITINK, Judge. judg- Lynn appeals

Rebecca Pearson sentences, trial, jury following ment and en- upon tered her convictions of two counts resulting bodily injury one going affirm court with intent. We part part. and reverse in drinking Rebecca Pearson at Zeke’s was Iowa, April in Davenport, Birdland tavern on arrived, she was 1994. When first shе accompanied by Vincent Harland. Harland pizza for then left. ordered Pearson and left, after Earl “Zeke” Sometime Harland tavern, Cunningham, the asked owner identification, before allow- to see Pearson’s ing her to order another drink. Pearson her refused to show identification and minutes, argued exchanging two several obscеnities. Pearson then left the bar but told Zeke she would be back. later,

About ten minutes Harland returned bar, ap- to the followed Pearson. He asked, proached Zeke and “You Zeke?” responded affirmatively, Zeke and Harland hit proceeded to Zeke in the face with stick, causing injuries. Matt wooden severe Baughman sitting at at the time the bar attempted the assault and to intervene. ting stop hitting did an act which was meant to cause Baughman told Harland to When injury Zeke, Baughman pain Cunningham. face to Zeke Harland struck stick, injuries. inflicting severe the same apparent 2. The defendant had the left the to- and Harland then bar ability to do the act. gether. 3. That defendant’s act was committed injury of charged with willful Pearson was without the intent to inflict a serious (Count I), resulting in Baughman (Count II), bodily injury Zeke bodily 4. The defendant’s act caused a III). (Count The State armed with intent Cunningham to Zeke as defined on a prosecuted Pearson based No. 21. Instruction in the com- and abetted Harland she aided these offenses. The State did mission of 26 INSTRUCTION NO. vicаriously responsible claim Pearson joint criminal III, actions based on a Harland’s prove ‍​​‌‌‌‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌​‌‌‌​‌​‌‌‌‌‍the must Under Count State jury theory. The was instructed as conduct following Going all of of the elements follows: Intent: Armed With NO. 16

INSTRUCTION day April, of 1. On or about the 28th 1994, abet the defendant did aid and I, prove must all Under Count object. with an another who was armed Injury: following of of the еlements Willful object dangerous weapon 2. The was a day April, of 1. On or the 28th about in No. as defined Instruction 28. 1994, by aiding and abet- the defendant Baughman. ting, assaulted Matt 3. The defendant was with by aiding object against 2. The defendant and abet- specific intent to use specifically to cause a seri- ting intended person. another injury Baughman. ous to Matt Bаughman a serious

3. Matt sustained NO. 28 INSTRUCTION in injury as defined Instruction 18. any “dangerous weapon” A is device or in designed primarily for use instrument 20 INSTRUCTION NO. in inflicting injury, and when used death I, must all Under Count inflicting designed capable manner of its is following of Assault With- of the elements of instrument or death. It is also sort Resulting Bodily Injury: in out Intent way actually used in such a device which is day April, or about the 28th of intended to inflict On as to indicate user 1994, by aiding injury, the defendant and abet- when so used or serious and death meant to cause ting inflicting did an act which was death. capable of pain injury Baughman. to Matt jury guilty of assault The found Pearson apparent 2. The defendant had the injury Baughman, a causing bodily to lesser- ability act. to do the injury of willful under Count ineluded offеnse 3. That defendant’s act was committed guilty of jury also found Pearson I. The without the intent to inflict a serious bodily injury under causing Zeke’s injury. intent under going armed with II and Count bodily act caused a 4. The defendant’s Count III. No. 21. as defined Instruction Pearson contends appeal On III, going armed guilty verdict as Count 24NO. INSTRUCTION intent, its reversibly inconsistent with with II, must Count the State Under II, I and guilty verdicts as to Counts following

all of the elements Assault claims her resulting bodily She Resulting Bodily Injury: he failed ineffective because trial counsel was challenge in district court. day April, the verdicts 28th 1.On or about the of assault 1994, argues her conviction by aiding and abet- She also the defendant 240 facts, however, in addition to injury Baughman lacks suf- Proof of these

causing bodily suрport. presence, such evidentiary circumstantial evidence as ficient after

companionship, and conduct before and I. Assistance of Counsel. Ineffective committed, may offense is be sufficient support participated an inference appellant a violation When an asserts “[g]uilt Id. The or inno- these offеnses. safeguards as ineffec of constitutional —such person charged aiding cence of our own counsel —we make tive assistance of abetting upon facts must be determined cir totality on the evaluation based person’s] part crime [the show in the which State, Hinkle v. cumstances. depend upon degree and does another’s equivalent of de This is 30 Fetters, guilt.” N.W.2d novo review. Id. specific an element If intent is prevail To on her ineffective assis person charged, may “a be of the crime Pearson must show tance of counsel claim abetting on a convicted (1) that preponderance evidence person with the participates if the eithеr duty perform an essential counsel failed requisite intent ... or with the (2) v. Ris prejudice resulted. in- principal possess required (Iowa 1987); dal, Ed Lott, tent.” 255 N.W.2d at 109. these With (Iowa State, 99, 444 101 man v. N.W.2d to principals mind we turn to the record evaluating perfor App.1989). In counsel’s of evaluate ‍​​‌‌‌‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌​‌‌‌​‌​‌‌‌‌‍merits Pearson’s claims. mance, presume competent we counsel aсted first Pearson’s that the We consider claim Risdal, Preju ly. See 404 N.W.2d at 131. rationally jury’s multiple guilty verdicts are requires proof dice that but for counsel’s going If her of inconsistent. convictions unprofessional errors there is a reasonable bodily causing with intent and of probability proceedings that the result inconsistent, injury are ineffective her v. would have different. Strickland been of claim v. assistance counsel fails. See State 668, 694, Washington, 466 U.S. 104 S.Ct. 1995). (Iowa 218, Spurgeon, N.W.2d 533 220 (1984). 2052, 2068, 674, A 80 L.Ed.2d 694 probability probability reasonable is suffi Multiple of offenses which arise out in the out cient to undermine confidence may and be same transaction occurrence come. Id. charged prosecuted separatе and as counts of earlier, charged As stated Pearson was the same trial information. Iowa R.Crim.P. aiding abetting in these with and Harland 6(1). Multiple to separate verdicts as counts charged, offenses. An and abettor is aider legal are inconsistent if the factual and con tried, punished principal. and as a Iowa rationally implicit in one clusions verdict are § Code 703.1. incompatible implicit jury’s those in the with findings as other W.E. to the counts. See Under this the State Annotation, Shipley, Inconsistency Crimi of prove required to Pearson to or lent assented nal Verdict as Between Counts Different of approval countenance to Harland’s crimi and Information, or A.L.R.3d 259 Indictment 18 by participation nal acts active in them either (1968); Spurgeon, see State v. 533 also encouraging prior some manner them (Iowa 218, 1995); v. N.W.2d 220 to or at the time of their commission. State (Iowa McKettrick, 1992); 52 480 N.W.2d 1977). Cf. Lott, (Iowa 105, v. 255 N.W.2d 107 264, Delap, v. 466 N.W.2d 267 abetting may Proof of either and be 1990) (defendant guilty could be found Buttolph, direct or circumstantial. v. to inflict intent serious (Iowa 1972). 824, 825 and assault intent to inflict serious without Although knowledge of Pearson’s injury where a series convictions arose from prior to or at time of their these offenses incident). a single of assaults rather than essential, commission neither proximity standing argues jury, by find nor to the scene is alone Pearson weap enough prove aiding abetting. ing dangerous to thе wooden stick was a 888, III, Vesey, implicitly 241 under Count determined N.W.2d 891 on

241 Harland, actually argues principal, used it The State also that incon multiple sistent verdicts on do not way to indicate Harland intended counts such a as inconsistencies, if injury. implicit This find- necessitate reversal. Such to serious inflict rationally incompatible they result from the exеrcise of its ing, argues, she findings power leniency, require do jury’s implicit that the as- reversal. with the States, 390, Dunn charged in I and II were com- See v. United 284 U.S. 52 saults Counts (1932); 189, to commit serious S.Ct. 76 L.Ed. 356 State v. mitted without the intent 1181, 210, argues Stump, that Harland’s 254 Iowa 222 injury. The State (1963). appears general relevant This to be the rule of the wooden stick is actual use dangerous weaрon applied involving acquittal in cases of a only element to offense, According greater of a intent. conviction lesser armed with Powell, State, only consider whether there offense. United States v. U.S. we need 471, 8,105 indicating n. S.Ct. 479 n. 83 L.Ed.2d is substantial evidence (1984). dispensing 471 n. The rule specific Harland’s intent to use the shared necessity person consistency that she with the does not object against another (element necessarily apply multiple No. 3 of where there are knew of his intent to do so is, convictions, mutually according acquittal, without an instruction No. There State, inconsistency because the State exclusive offenses. Id. no Pearson knew of or did not need case, inconsistency In this be object intent to use the shared Harland’s (assault I tween the verdicts as to Count on disagree. inflict serious We Baughman) (going and Count III armed with Upon charge election to Pearson as an its intent) disregarded. should This is so be assumed the aider and abettor the State inju acquitted because Pearson was of willful Pearson either shared burden ry convicted of the lesser-included of requisite specific intent or knew of Harland’s causing bodily injury. The fense of assault before or at the time the offense mental state III, inconsistency between Counts II and dangerous weapon The ele- was committed. however, disregarded cannot be because nei intent, going under the ment of armed acquittal greater ther conviction followed of ease, required proof the circumstances of this charged offense in the same count. specific in- used with the wooden stick was Despite these ver our determination inflict serious We believe the tent to inconsistent, to reverse dicts are we decline required to Pearson knew of State was grounds. these Pearson’s convictions on specific intent at the or shared Harland’s preserve to error on this Pearson has failed object against Baughman was used time the not in the district issue because it was raised Cunningham. To hold otherwise would and Smith, 111, 112 court. State v. 228 N.W.2d going Pearson’s conviction of allow 1975). (Iowa accordingly only con We will proof dangerous with intent without if of inconsistent verdicts the sider the issue weapon element of that offense. in court failure to raise the issue district determination confirms the inconsis- This of coun from ineffective assistance resulted tency of the verdicts. Both of the assault Schoelerman, 67, 315 N.W.2d sel. Stаte v. charges going and the armed with intent (Iowa 1982). 71-72 acts, charge are based on Harland’s common Generally, ineffective assistance Although the assault of each of the victims. victims, posteon- preserved are of counsel claims these assaults involve different opportunity acts, allow trial counsel an necessarily, hаd to be commit- viction to common Mulder, charge. 313 statutory to State v. required intent. It is defend ted with (Iowa 885, 1981); v. Ne 890 simply impossible for a defendant to have the N.W.2d (Iowa 180, App. binger, 412 191-92 necessary satisfy the defini- N.W.2d specific intent to 1987). if the depart preference from this weapon weap- We dangerous tion of and use evalu appeаl is sufficient to inflict serious if record on direct on without intent to merits of a defendant’s ineffective weapon charged as a ate the defendant’s use of the is not, If we of counsel claim. Id. separate assault. assistance 242 pro postconviction nothing there is the record to indicate the claim for

preserve enсouraged on may developed. Pearson Harland’s attack ceedings so facts be 237, Although Baughman. Pearson witnessed the 356 238 Koenighain, v. N.W.2d assault, any has not (Iowa alleg shown she also App.1984). gives This way participated, encouraged, or even knew edly-ineffective attorney opportunity Baugh- Coil, intent general of Harland’s to assault 264 v. explain his or her conduct. State earlier, 1978). not a man. As stated this is case 293, (Iowa conclude N.W.2d 296 We involving joint According criminal conduct. adju us to inadequate is an record for there vicariously re ly, be held Pearson cannot ex claim without counsel’s dicate Pearson’s resulting sponsible for a second or crime that prеserve Pearson’s planation. We therefore unplanned reasonably expected is or of claim for ineffective counsel assistance originally intended of furtherance of the proceedings. postconviction Saterm, 839, 516 fense. State v. N.W.2d 843 Sufficiency (Iowa 1994) Irvin, II. the Evidence of (citing 334 N.W.2d (Iowa App.1983)). 314-15 Because the chаllenges also the suffi joint principles of criminal conduct are not supporting ciency of the her convic evidence case, insuffi applicable this and there is aiding abetting on the assault tion encouragement, cient of Pearson’s evidence Baughman. reviewing In Matt unplanned participation in the verdict, light we the evidеnce in the view Baughman, compelled on we are v. La- most favorable to the State. State presence as to I. at reverse Count Pearson’s Pointe, The N.W.2d simply crime is the scene insufficient finding upon this guilt binding court’s she aided and abetted the assault. substantia] unless evidence court there is Lott, Accordingly, at finding support in the record it or such reverse we Pearson’s conviction weight clearly against the of the evidence. abetting Baughman. the assault on Matt Direct evidence are Id. and circumstantial summary, jury’s guilty ver- In we find equally probative long evidence so as the dicts armed with intent guilt more raises a fair inference of and does bodily injury commit without intent are conjеc speculation, suspicion, than create however, We, inconsistent. are unable to 14(f)(16); R.App.P. Iowa State v. ture. on make determination Pearson’s ineffec- Hamilton, tive of counsel claim trial assistance without review, find evidence On our we insufficient We, therefore, pre- explanation. counsel’s support jury’s guilty the verdict as to serve Pearson’s ineffective assistance of Baughman. assault Matt postconviction proceedings. counsel claim for To convict a defendant on the sup- further insufficient We find evidence abetting, the State must port guilty verdict as to assault of beyond a doubt defendant reasonable Baughman. part, affirm Matt We in revеrse approval or assented to lent countenance and proceedings. part, in remand for further by criminal participation to a act either active IN AND RE- AFFIRMED PART encouraging in it in it or some manner AND REMANDED IN PART. VERSED ‍​​‌‌‌‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌​‌‌‌​‌​‌‌‌‌‍prior to or at the time of its commission. (Iowa Lewis, v. 514 N.W.2d P.J., SACKETT, concurs. 1994). The must also the aider CADY, J., part concurs and dissents in participatiоn encouragement and abettor’s part. act. was done with the of the Jones, v. CADY, Judge. respectfully part. I dissent I would sup We insufficient find evidence not hold the verdicts are inconsistent and do jury’s finding port the aided and a grounds Pearson establish claim of ineffec- Baughman. Therefore, abetted the assault on While it tive assistance of cоunsel. unnecessary preserve to show assented to the claim for further able encouraged Cunningham, assault on consideration. weapon majority dangerous The holds the crime of armed becomes

element of dangerous specific intent element when

a portion from the catch-all

weapon is derived statutory definition of device actually in such a “which is used

instrument

manner as to indicate that the defendant injury upоn to inflict death or serious

intends used, which, capable

the other and when so upon being.” human See inflicting death a (1993). § I

Iowa 702.7 do believe Code specific intent language establishes a

this

element. statute, any device or instru-

Under dangerous into a

ment can be transformed in a manner to “indi-

weapon when “used” or serious

cate” an intent to inflict death sug-

injury. The word “indicate” means to ordinary Ragin

gest person. (2nd Co., 923 F.2d

New York Times

Cir.1991). Thus, adopts objec- the statute an test, eyes using

tive reasonable

observer, not the mind of the user. The broad,

legislature sought to establish a ‍​​‌‌‌‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌‌‌‌​‌‌‌​‌​‌‌‌‌‍flexi- dangerous weapon, not cre-

ble definition spe- specific

ate a second intent element for involving dangerous

cific intent crimes Moreover, an

weapon. a defendant can use place other

instrument or device so as to that it has become an instrument of fear injury, specific have no

death or serious but injury. The

intent to inflict death or serious case, therefore, were not

verdicts this

inconsistent.

In re the OF Jeanice Elaine MARRIAGE Ricky Dean Pundt.

PUNDT

Upon the Petition of Jeanice Pundt, Appellee,

Elaine Concerning Ricky

And Dean

Pundt, Appellant.

No. 95-0740. Appeals of Iowa.

Court of

Feb.

Case Details

Case Name: State v. Pearson

Court Name: Court of Appeals of Iowa

Date Published: Feb 28, 1996

Citation: 547 N.W.2d 236

Docket Number: 94-1891

Court Abbreviation: Iowa Ct. App.