State v. Bragg, 85-85

• Decision Date: 31 March 1986
• Docket Number: No. 85-85,85-85
• Citation: 388 N.W.2d 187
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Joe Dean BRAGG, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 187

388 N.W.2d 187

STATE of Iowa, Plaintiff-Appellee, v. Joe Dean BRAGG, Defendant-Appellant.

No. 85-85.

Court of Appeals of Iowa.

March 31, 1986.

Thomas M. Walter, of Johnson, Bauerle, Hester & Walter, Ottumwa, for defendant-appellant.

Thomas J. Miller, Atty. Gen., and Christie J. Scase, Asst. Atty. Gen., and R. Kurt Swaim, Davis Co. Atty., for plaintiff-appellee.

Heard by DONIELSON, P.J., and SCHLEGEL and SACKETT, JJ., but considered en banc.

SCHLEGEL, Judge.

During a rather heated neighborhood confrontation with name-calling and threats from both sides, the defendant hit one Saner with a pipe fracturing Saner's elbow.

As a result of the altercation, defendant was charged with willful injury in violation of Iowa Code section 708.4 and intent to commit serious injury in violation of section 708.2. The defendant pleaded not guilty and gave notice of reliance upon his defense of self-defense.

Defendant was tried to a jury who found him guilty of intent to inflict a serious injury in violation of sections 708.1 and 708.2(1).

I.

Defendant claims the trial court erred in submitting the two charges to the jury. We agree with the state that we need not address the issue of whether there was substantial evidence to support a finding that the victim was seriously injured.

Defendant was convicted of the lesser offense and proof of intent to inflict serious injury is sufficient to support that charge. Actual serious injury need not be proven. Iowa Code § 708.2(1)(1983). Defendant argues the court's failure to dismiss the higher charge was not proper and that by instructing on the willful injury charge the court may have prejudicially influenced the jury. We disagree.

In the absence of some showing of prejudice, or at least the likelihood of error in instructions as to a greater offense or high degree of crime where the accused is convicted of a lesser offense or lower degree, there are no grounds for reversal. See State v. Sharpe, 304 N.W.2d 220, 225 (Iowa 1981). There being no claim made that any evidence received on the greater offense would not be admissible on the lesser offense we fail to find any prejudice occurred.

II.

Defendant was committed to the custody of the director of adult corrections for a term not to exceed two years, ordered to pay costs including those of his court-appointed attorney, and make restitution to the victim of $522.85.

Defendant contends the court abused its discretion in imposing the sentence and considered inappropriate matters in determining defendant's sentence and relied on factors which are the equivalent of unprosecuted higher charges. See State v. Messer, 306 N.W.2d 731, 732 (Iowa 1981).

This case is subject to limited review. See State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983). The Iowa Supreme Court has said:

[D]ecisions of the trial court are cloaked with 'a strong presumption in [their] favor'.... [T]o overcome this presumption of regularity requires an affirmative showing of abuse and the burden rests upon the party complaining.

This burden is heavy, indeed, for it can only be sustained by showing abuse and prejudice. In the words of a leading treatise on discretion: '... the action complained of must have been unreasonable in the light of attendant circumstances--the discretion must have been exercised for reasons clearly untenable or to an extent clearly unreasonable'.

Id. at 494; (quoting State v. Gartin, 271 N.W.2d 902, 910 (Iowa 1978) (emphasis in original)).

In sentencing a defendant, the trial court ... should weigh; and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to the defendant in determining a proper sentence. The punishment should fit both the crime and the individual.

State v. Carey, 306 N.W.2d 740, 742 (Iowa 1981) (emphasis added) (quoting State v. Kendall, 167 N.W.2d 909 (Iowa 1969)).

At sentencing the trial court made the following statement:

The law requires, Mr. Bragg, that I tell you why I have imposed the type of sentence that I have. The court has considered your situation carefully for the past several weeks since the jury returned its verdict of guilty. I must tell you that I totally agree with the jury's decision. They did not believe your version of the facts any more than I do.

The jury found that you assaulted a fellow human being with the intent to cause a serious injury to him. You brutally broke another man's arm during an attack that was unprovoked and uncalled for. And if you have reached the age of 29 and have just today learned that it's a wrong thing to do, I feel very sorry not only for you, but the other people who are around you. But bad enough as that was, Mr. Bragg, and it was plenty bad, it pales into insignificance with your behavior after the assault itself took place.

After the assault took place, you then concocted a bald-faced lie to try to cover your tracks. And if that were not bad enough, you then even prevailed upon your wife and your two employees to come into this Court and support your lie by deliberately lying themselves. I am today asking the County Attorney to investigate their behavior and determine if charges of perjury should be filed against them, and if additional charges of perjury and subordination of perjury should be filed against you.

The law requires nothing of a person in a trial case, Mr. Bragg, except that they appear in Court. You were not required to testify. You did not need to prove your innocence. To the contrary, the law presumed that you were innocent. The State must prove your guilt, and its burden is a very heavy one, that of beyond a reasonable doubt. If a person decides to give up their right to remain silent and to testify, the law, however, insists that he tell the truth about what happened and not deliberately and intentionally lie about it.

But your unlawful actions did not even stop there, Mr. Bragg. Even during the very trial of this case you sat right in front of me and that jury and committed yet another crime, the attempted intimidation of witnesses who were called by the State to testify. You used facial gestures and eye contact in an aggressive threatening manner to attempt to frighten, intimidate, and possibly silence some of the people who were called here to testify. That was a performance this Court cannot and will not overlook and ignore.

It appears to this Court that you seem to think that you are a tough guy, the kind of person who can and does do what he pleases regardless of how it may affect those around them. You tried to pretend on the witness stand that you were upset about the health of one of your children. But you also sat there and forced your wife to commit perjury for you, an act which could send her to prison and away from the very child you claim to care so much about.

You demonstrated to this Court's satisfaction, Mr. Bragg, that your real concern was not for your child or your wife, but yourself. Where you are going, you will find out about tough, Mr. Bragg. You will see people whose behavior is so repulsive and antisocial that it will scare even you. You will see people who have killed another for a cigarette, people who have raped, cheated, lied, killed and stolen their way into prison. You will find out that you are a lamb among the lions Mr. Bragg, and not nearly so tough as you think you are today. And then, maybe for the first time in your life, you will feel the same fear that you have caused in others. You will discover how it feels to be a victim or a potential victim for a change. I hope that you will find the time in confinement a sobering, life-altering experience. The purpose of the sentence is to assist you to learn to modify your behavior so that you may be a productive, useful citizen in society and not one who's a menace and a threat to his neighbors.

I have considered probation as a possible sentence, but the whole purpose of probation is to help someone who acknowledges that they broke the law and intend to lead a new life. You, to this very minute, deny any wrong doing. You renewed your story to the preparer of the presentence investigation report. Furthermore, I feel that your life is so out of control that you need more help than John Howard can give you by seeing you once a week for the next year. And I think that the facts in this case, the unprovoked assault itself, the lying under oath, and the attempted intimidation of witnesses during the trial of your case would be unduly diminished by a sentence of probation, particularly where you do not acknowledge that you have done anything wrong.

You will notice that the sentence I have rendered is for an indeterminate term not to exceed two years. How much actual time you will spend in confinement is entirely up to you. If you behave yourself, you will be out in a fairly short period of time. If you do not, it will be longer. The length of your confinement, therefore, is entirely up to you.

The defendant contends the trial court abused its discretion.

The decisions of the trial court are cloaked with a strong presumption in their favor, and until the contrary appears, the presumption is the discretion of the trial court was rightfully exercised. To overcome this presumption of regularity requires an affirmative showing of abuse, and the burden of so showing rests upon the defendant. The burden is heavy and can be sustained by showing abuse and prejudice. See State v. Stanley, 344 N.W.2d 564, 568 (Iowa App.1983).

We do not believe defendant has met this burden.

Section 901.5 spells out what a criminal sentence should accomplish:

After receiving and examining all pertinent information, including the presentence investigation report, if any, the court shall consider the following sentencing options. The court shall determine which of them is authorized by law...