State v. Hennings, No. 9-594/08-1845 (Iowa App. 9/2/2009)
| Decision Date | 02 September 2009 |
| Docket Number | No. 9-594/08-1845,9-594/08-1845 |
| Court | Iowa Court of Appeals |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. MARK THOMAS HENNINGS, Defendant-Appellant. |
Appeal from the Iowa District Court for Webster County, Joel E. Swanson, Judge.
Mark Hennings appeals from his conviction for assault in violation of individual rights with the intent to commit a serious injury and from the sentences imposed on his convictions.
CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn & Jennifer Bonzer, Assistant County Attorneys, for appellee.
Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J.*
Mark Thomas Hennings appeals his conviction following a jury trial for assault in violation of individual rights with intent to commit a serious injury. Hennings challenges the adequacy of the State's proof that his actions were committed "because of" the race of his victim. Hennings also claims the trial court failed to provide reasons for imposing consecutive rather than concurrent sentences on this conviction and the separate conviction for willful injury causing bodily injury. We affirm Hennings's convictions, but vacate the sentences and remand for resentencing.
Based on the trial evidence, a rational juror could have found the following facts: On the morning of Saturday, June 2, 2007, twelve-year-old Aerean, thirteen-year-old Jalen, fourteen-year-old Darquell, eleven-year-old Darwin, and thirteen-year-old Kwane, met at the Frontier Days Parade in Fort Dodge. Aerean and Jalen are brothers, their cousins Darquell and Darwin are brothers, and those four boys are friends with Kwane. All five boys are African-American.
The boys decided to go swimming at the Expo Pool in Fort Dodge following the parade. They walked to Aerean and Jalen's home to pick up swim trunks, and then planned to walk to the home of Aerean and Jalen's grandmother to pick up money for the pool. On the way to the grandmother's home, the boys cut through a bank parking lot and began walking east in the 300 block of Central Avenue. They walked in the street instead of the sidewalk so they could spread out and walk side-by-side. At the time, traffic was light, and there were few parked cars in the area.
The boys soon heard a pickup truck approach from behind. Hennings, a Caucasian, was later identified as the truck's driver and sole occupant. Darwin testified that the boys were walking in the middle of the street, but Aerean testified that they were off to the side and the truck had room to go around them. Regardless, they moved to the side when they realized the truck was behind them. Some of the boys testified the truck honked at them. Darquell testified that some of them cussed at the truck. Aerean testified that Hennings told them to "get the f___ off the road." All of the boys testified that Kwane talked back. According to Aerean, Kwane said that he "ain't scared of him." Kwane testified that the only thing he said was "we don't have to get the f___ off the street."
After passing the boys, Hennings stopped his truck near a stop sign at the end of the block. Hennings emerged from the truck carrying a pocket knife with a blue handle and a serrated blade between three and four inches long. Hennings took several steps toward the boys, and Jalen testified that Hennings verbally threatened to use it. After standing still for a second, the boys ran away toward the parking lot they had cut through a minute ago. Kwane, however, stopped running after a couple of steps and stood his ground. Kwane testified that he knew Hennings was outnumbered, and asked, "Why are we running?" He also testified that he told Hennings "to drop the knife, we'll beat his ass." Hennings remained standing near his truck this time, and Kwane testified that he did not hear Hennings say anything back to him.
When the boys realized that Kwane had stayed behind, they ran back toward him to get him to run away too. Some of the boys testified that Kwane and Hennings were arguing back and forth at this time, but they could not understand what was said. As the boys arrived at Kwane's side, Hennings turned around and walked back to his truck. Darwin testified that Hennings called the boys "f___ing niggers" as he re-entered his truck. No one else heard the racial slur. Kwane, who was closest to Hennings, testified that the word "nigger" infuriates him, and he would remember it if he heard it. Darwin's testimony is the only evidence of anyone using racial slurs during the incident.
Hennings sped off in his truck, turning right to head south on Fourth Street, and then left to head east by the Fort Dodge Public Library along the south side of the town square. The boys, believing the encounter was over, continued walking east along Central. Aerean quickly realized he had dropped his swim trunks back by the parking lot. He turned to retrieve his trunks while the other boys continued walking ahead.
Meanwhile, Hennings was circling around the town square. The boys saw him again when he turned left from the north end of the town square to drive south on Fourth Street. Some of the boys testified that Hennings drove through the stop sign at this intersection. At this time the four boys were crossing the street at the intersection of Central Avenue and Fourth Street, directly in the truck's path. Aerean was a short distance behind the other boys after retrieving his trunks.
When the four boys saw the truck drive toward them, they ran. Hennings adjusted his direction as they ran across the intersection, continuously aiming straight for the boys. Witnesses testified that Hennings drove his truck in the center of the street as he aimed for the boys. Some witnesses testified that his truck went onto the sidewalk and grass, but no marks were found in the grass afterwards. Witnesses estimated his speed between twenty-five and thirty-five miles per hour. The four boys made it to the town square before Hennings reached them, and some of them hopped onto a brick retaining wall in front of the library for protection.
When the four boys reached safety, Hennings changed direction again, this time aiming for Aerean as he lagged behind. Aerean ran toward the other boys, but soon realized he could not reach them in time. He ran south away from Hennings, and ran evasively side-to-side hoping to fool Hennings, but Hennings swerved his truck to follow Aerean's maneuvers. Aerean quickly fell to the ground, either because he tripped and fell on his own or because the truck hit him, and the truck's passenger-side tires drove over him. Hennings then left the scene without ever slowing down.
Two bystanders, both Caucasian, observed the incident and testified at trial. The first bystander, Beth Cox, was working that morning at Builder's Showcase, located at the corner of Fourth Street and Central Avenue just to the west of the library. From her desk in the building's window, she witnessed Hennings stop, threaten the boys, and drive away. When Cox later saw Hennings turn back onto Fourth, she went to the phone to dial 911, and then looked back out her window to see Aerean injured in the street. The second bystander, Daryl Beall, witnessed the incident from his car parked along Fourth Street twenty-five to thirty feet north of Central Avenue. He saw the truck drive toward the boys during the first incident. A couple minutes later he saw Hennings drive past him, aim for the four boys, and then strike Aerean. He was the first person to reach a 911 operator.
After Hennings left the area, Aerean stood and began to walk, but could only take two steps before collapsing. Witnesses stayed with Aerean as they waited for an ambulance, comforting him in his obvious pain.
Aerean arrived at the hospital frightened and in distress. He had "road rash" abrasions on his face, head, shoulders, elbows, and thigh. He also had pain in his abdomen, which was caused by a laceration to his liver. Internal bleeding from a liver laceration is potentially fatal, but Aerean's liver healed without treatment. He spent two days in the hospital for observation. Aerean's wounds had healed by the time of the trial, but the abrasions left permanent scarring and discoloration across his body, including on his face.
Fort Dodge Police Officer Brad Wilkins investigated the scene. He interviewed witnesses and obtained descriptions of the truck and the driver and a license plate number. When Wilkins ran the number, he found it matched a truck registered to Hennings. Wilkins was already familiar with Hennings, and knew he matched the description of the driver.
Early the next morning, Wilkins and another officer drove to Hennings's home in Rinard, about twenty minutes west of Fort Dodge. They found a truck matching witness descriptions parked outside the home, took pictures of it, and returned to Fort Dodge. The boys identified Hennings from a photo lineup, and Cox identified the truck from the pictures taken that morning. The officers used that information to obtain a warrant.
Later that afternoon, Wilkins, another Fort Dodge police officer, and a Calhoun County deputy returned to Hennings's home to seize the truck and search for the knife. Upon arrival, they first encountered Hennings's father, Bill outside Hennings's home. Bill lives next door to his son. Hennings's mother soon joined them. Wilkins told them they were there to investigate an accident, and Hennings's mother went into his home to get her son. Hennings emerged from his home with clenched fists, which he relaxed after his father told him to put them down.
Officer Wilkins recorded the encounter on a digital recorder. Part of the recording was played for the jury at trial, and a...
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