State v. Benesh, No. 0-065/09-0951 (Iowa App. 3/10/2010)

• Decision Date: 10 March 2010
• Docket Number: No. 0-065/09-0951.,0-065/09-0951.
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. CHAD ALLEN BENESH, Defendant-Appellant.
• Court: Iowa Court of Appeals

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STATE OF IOWA, Plaintiff-Appellee, v. CHAD ALLEN BENESH, Defendant-Appellant.

No. 0-065/09-0951.

Court of Appeals of Iowa.

Filed March 10, 2010.

Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.

Chad Allen Benesh appeals from his conviction for the offense of assault domestic abuse causing bodily injury. REVERSED AND REMANDED.

Aaron D. Hamrock of McCarthy & Hamrock, P.C., West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brian J. Williams, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Doyle and Danilson, JJ.

DOYLE, J.

Chad Allen Benesh appeals from his conviction for the offense of assault domestic abuse causing bodily injury (Count II). He contends the district court erred in denying (1) his motion for judgment of acquittal because the jury's finding of guilt on Count II was inconsistent with the jury's acquittal on his charge of assault domestic abuse with intent to cause serious injury (Count I); (2) his motion for a mistrial, asserting the court improperly questioned a defense witness displaying bias to the jury; and (3) his motion for judgment of acquittal because there was insufficient evidence on the cohabitation element to support the domestic abuse conviction. We reverse and remand the case to the district court to enter judgment on the lesser-included offense of assault causing bodily injury.

I. Background Facts and Proceedings.

Chad Benesh and Kim Neelans met on the Internet sometime in late March or April 2007. Benesh subsequently moved in with Neelans in the fall of 2007. Their intimate relationship ended, but they continued living together in Neelans's house. Neelans later moved to a condominium, and Benesh moved with her.

On November 13, 2008, Neelans returned home and discovered Benesh in bed with Maureece McDuffee. A fight ensued between Neelans and Benesh, and the police were called to the residence. Neelans was ultimately treated for a broken rib following the incident.

Thereafter, the State filed a two-count trial information charging Chad Benesh with assault domestic abuse with intent to cause serious injury, in violation of Iowa Code section 708.2A(2)(c) (2007) (Count I), and assault domestic abuse causing bodily injury, in violation of section 708.2A(2)(b) (Count II). Benesh pled not guilty.

A jury trial commenced on March 24, 2009. Neelans, the victim, first testified the intimate relationship with Benesh "just seemed to `die on the vine'. . . I would have to say the winter of '07." When pinned down to a specific time period, she testified the intimate part of the relationship had been over since October 2007. Benesh similarly testified he had not been intimate with Neelans during the year prior to November 2008.

Maureece McDuffee testified as a defense witness. After the State and Benesh's counsel were done examining the witness, the court asked the witness a few questions. The following exchange occurred:

[THE COURT]: Ma'am, you testified . . . that you were, quote, "so ashamed." What were you ashamed of? A. I just—felt like the other woman, and I felt—I was humiliated and ashamed, because I knew I hadn't done anything wrong, but yet I felt, the way [Neelans] was talking, that I was guilty of something.

[THE COURT]: Ma'am, once it became clear to you that [Benesh] either had been arrested or had been charged, you did not go to the police to give them a statement? A. I didn't know I had to. I thought they would contact me if they needed me.

[THE COURT]: How would they have information as to how to get in touch with you? You didn't volunteer who you were.

[BENESH'S TRIAL COUNSEL]: Your honor, I'm going to object to the questions—

[THE COURT]: The objection is noted, for the record. It's in the record.

[BENESH'S TRIAL COUNSEL]: No. With respect to that particular question, a separate objection, your honor.

[THE WITNESS]: Would you repeat it, please?

[THE COURT]: You said that you did not give the police a statement. Would there have been some other way they could have otherwise identified you, without you coming over, as far as you know? A. I thought when they took [Benesh's] statement, they would get ahold of me.

The court then asked if either party had further examination of the witness based upon its questions, and both the State and Benesh's counsel asked McDuffee a few questions.

At the close of the evidence, Benesh made a motion for a judgment of acquittal, asserting insufficiency of the evidence. The district court denied Benesh's motion. The parties proceeded to discuss jury instructions in the case. Thereafter, Benesh moved for a mistrial on the basis that the court's earlier questioning of McDuffee was improper. Specifically, Benesh argued that three questions asked by the court were intended to impeach his witness. The court denied the motion, stating:

The nature and the text of the questions asked were designed to clarify statements that that witness made, or to clarify statements, if she knew, that were based upon other evidence presented. Your request for a mistrial is absolutely denied.

The jury was then instructed in the matter. Instruction fourteen, regarding Count I, instructed the jury:

The State must prove all of the following elements of the crime of assault domestic abuse with intent to cause serious injury:

1. On or about the 14th day of November, 2008, [Benesh] did, without justification, an act which was meant¹ to cause pain or injury; result[ing] in physical contact which was insulting or offensive; or place[d] [Neelans] in fear of immediate physical contact which would have been painful, injurious, insulting, or offensive to her.

2. [Benesh] had the apparent ability to do the act.

3. At the time, [Benesh] intended to cause a serious injury to [Neelans], as defined in Instruction [number eighteen].²

4. The act occurred between family or household members who resided together at the time or the incident or during the year previous to the incident. . . .

If the State has proven all of these numbered elements, [Benesh] is guilty of assault domestic abuse with intent to inflict serious injury. If the State has proven only elements 1, 2, and 3, [Benesh] is guilty of assault with intent to inflict serious injury. If the State has proven only elements 1, 2, and 4, [Benesh] is guilty of assault domestic abuse. If the State has proven only elements 1 and 2, [Benesh] is guilty of assault. If the State has failed to prove either element 1 or 2, [Benesh] is not guilty.

(Emphasis added.) Instruction fifteen, regarding Count II, instructed the jury:

The State must prove all of the following elements of the crime of assault domestic abuse causing bodily injury:

1. On or about the 14th day of November, 2008, [Benesh] did, without justification, an act which was specifically intended³ to cause pain or injury; result[ing] in physical contact which was insulting or offensive; or place[d] [Neelans] in fear of immediate physical contact which would have been painful, injurious, insulting, or offensive to her.

2. [Benesh] had the apparent ability to do the act.

3. [Benesh]'s act caused a bodily injury to [Neelans], as defined in Instruction [number nineteen].⁴

4. The act occurred between family or household members who resided together at the time or the incident or during the year previous to the incident.

If the State has proven all of these numbered elements, [Benesh] is guilty of assault domestic abuse causing bodily injury. If the State has proven only elements 1, 2, and 3, [Benesh] is guilty of assault causing bodily injury. If the State has proven only elements 1, 2, and 4, [Benesh] is guilty of assault domestic abuse. If the State has proven only elements 1 and 2, [Benesh] is guilty of assault. If the State has failed to prove either element 1 or 2, [Benesh] is not guilty.

(Emphasis added.) The jury returned a verdict finding Benesh guilty of Count II, assault domestic abuse causing bodily injury, and acquitting Benesh of Count I, assault domestic abuse with intent to cause serious injury.

After trial, Benesh filed an amended and supplemental objection challenging the guilty verdict on Count II as inconsistent with his acquittal on Count I. The district court overruled Benesh's objection.

Benesh now appeals.⁵

II. Scope and Standards of Review.

Our review of the district court's ruling on the motion for judgment of acquittal and sufficiency of the evidence is for correction of errors at law. Iowa R. App. P. 6.907 (2009). In reviewing challenges to the sufficiency of the evidence supporting a guilty verdict, we consider all of the evidence in the record in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence. State v. Keeton, 710 N.W.2d 531, 532 (Iowa 2006). We review the denial of a motion for a mistrial and challenges to interrogation by the trial court for an abuse of discretion. See State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003); State v. Cuevas, 288 N.W.2d 525, 531 (Iowa 1980).

III. Discussion.

On appeal, Benesh contends the district court erred in denying (1) his motion for judgment of acquittal because the jury's finding of guilt on Count II was inconsistent with the jury's acquittal on Count I; (2) his motion for a mistrial asserting the court improperly questioned a defense witness displaying bias to the jury; and (3) his motion for judgment of acquittal because there was insufficient evidence on the cohabitation element to support the domestic abuse conviction.

A. Inconsistent Verdicts.

Benesh argues the district court erred in denying his motion for a judgment of acquittal because the jury's finding of guilt on Count II was factually and legally inconsistent with the jury's acquittal on Count I. Specifically, he asserts that

[s]ince the first two elements [of both crimes] are...