State v. Love

• Decision Date: 23 January 2015
• Docket Number: No. 13–0738.,13–0738.
• Citation: 858 N.W.2d 721
• Parties: STATE of Iowa, Appellee, v. Darion Aubrea LOVE, Appellant.
• Court: Iowa Supreme Court

858 N.W.2d 721

STATE of Iowa, Appellee

v.Darion Aubrea LOVE, Appellant.

No. 13–0738.

Supreme Court of Iowa.

Jan. 23, 2015.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Amy Zacharias, Assistant County Attorney, for appellee.

Opinion

APPEL, Justice.

In this case, we are called upon to consider whether the offense of assault with intent to inflict serious injury merges with the offense of willful injury causing bodily injury based upon the instructions given in a case involving a violent domestic altercation. After considering the specific instructions given to the jury at this trial, which established the legal framework for the jury's factual deliberations, we conclude the offenses must merge.

I. Factual and Procedural Background.

The State charged Darion Love in a three-count trial information. Count I alleged kidnapping in the first degree in violation of Iowa Code sections 710.1 and 710.2 (2011). Count II charged Love with attempted murder in violation of Iowa Code sections 707.1 and 707.11. Count III charged Love with willful injury causing bodily injury in violation of Iowa Code section 708.4(2). Love denied the charges and raised the affirmative defenses of intoxication, diminished responsibility, and justification.

The case proceeded to trial. The evidence revealed that Jennifer Pruett and Love had been dating for approximately five years and had a minor son together. On May 4, 2012, they spent the night drinking in Omaha. They returned to Pruett's house in Council Bluffs at about 10:30 p.m. and resumed drinking. They had sex. When Love tried to initiate sex again, Pruett refused. Love got upset and threw a weight at a living room wall, shattering a mirror. Frightened, Pruett ran into the bedroom and locked the door. Love pounded on the door, threatening to break the windows out of her car if she did not let him in. Pruett relented. When she opened the door, Love took a swing at her and missed. Love's errant blow punched a hole in the wall. Pruett ran to the bed, and when Love came after her, she grabbed a ceramic coffee mug and threw it at him, hitting Love in the forehead and cutting his scalp. Love then punched and kicked Pruett, bit her, hit her with the legs of a broken TV tray, burned her with a cigarette, and poured fingernail polish remover on her wounds

.

In the morning, Love drove Pruett to the hospital. She was hospitalized for two days with both eyes bruised

and swollen shut. She had a fractured nose and additional bruising on her legs, back, and arms.

The jury was instructed on kidnapping in the first degree, attempted murder, and willful injury causing bodily injury. The attempted murder instruction included assault with intent to inflict serious injury as a lesser included offense.

Specifically, Instruction No. 26 relating to willful injury causing bodily injury, stated in pertinent part:

Under Count III; The State must prove all of the following elements of Willful Injury Causing Bodily Injury:

1. On or about the 5th day of May, 2012, the Defendant assaulted Jennifer Pruett.

2. The Defendant specifically intended to cause a serious injury to Jennifer Pruett.

3. Jennifer Pruett sustained a bodily injury.

4. The Defendant was not justified.

The jury acquitted Love of kidnapping in the first degree and attempted murder but found him guilty of the lesser included charge of assault with intent to inflict serious injury. The jury also convicted Love of willful injury causing bodily injury. The district court sentenced Love to concurrent indeterminate prison terms of five years for willful injury and two years for the assault conviction.

Love timely appealed. The only claim raised on appeal was that the district court's sentence of Love for two separate crimes was illegal because the assault conviction should have merged with the willful injury conviction under Iowa's merger statute. See Iowa Code § 701.9 (stating “[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted”). We transferred the case to the court of appeals, which affirmed. We granted Love's application for further review.

II. Standard of Review and Issue Preservation.

A district court's failure to merge convictions as required by statute results in an illegal sentence. Such claims may be raised at any time. See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995). Review of an illegal sentence for lack of merger is for correction of errors at law. State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997) (citing Iowa R.App. P. [6.907] ).

III. Discussion of Merger Issue.

A. Positions of the Parties. Love makes the straightforward argument that the jury was never instructed there might be multiple convictions of the same crime. Love argues that in this case the jury was instructed it could find him guilty of willful injury as a lesser included offense of attempted murder, and it also could find him guilty of assault with intent. But the instructions never asked the jury to determine if there were two or more separate and distinct criminal acts.

The State counters that notwithstanding the instructions, the evidence offered at trial was plainly sufficient to support multiple criminal acts under State v. Velez and its progeny. See 829 N.W.2d 572, 581–84 (Iowa 2013) (finding factual basis to support defendant's guilty plea under either the completed-acts test or the break-in-the-action test to two counts of willful injury causing serious injury to one victim who suffered at least two serious injuries from multiple strikes). As a result, the State reasons the jury could well have found that Love committed two separate crimes, one crime of willful injury and a distinct, separate crime of assault with intent.

B. Analysis. There is substantial agreement in this case on two basic points. First, both sides agree there was sufficient evidence in the record to support two separate assaults under Velez. Second, the State does not seriously dispute that assault with intent is a lesser included offense of willful injury. The question is which of these competing principles provides the rule of decision in this case.

We think Love has the better argument. In this case, the instructions developed by the parties and approved by the district court did not ask the jury to engage in the fact-finding necessary under Velez to support separate acts of assault. See 829 N.W.2d at 576–77. There was no instruction, for example, asking the jury to determine whether there was a sufficient “break in the action” necessary to support a finding of multiple assaults under Velez. See id. at 582–83 (noting “[w]e have previously used a break-in-the-action test to determine if separate acts have been committed”); cf. State v. Ross, 845 N.W.2d 692, 701–06 (Iowa 2014) (considering application of Velez tests in case involving multiple crimes in context of intimidation with a dangerous weapon); State v. Copenhaver, 844 N.W.2d 442, 447–49 (Iowa 2014) (considering question of whether the defendant committed two separate and distinct robberies). While the factual record may have supported such a determination, the jury simply was not asked to consider this factual issue. In State v. Folck, we said:

In the present case, defendant subjected his victim to three incidents of sexual abuse within a short period of time, all within the confines of his automobile. One was an act of fellatio, the other two were sexual intercourse. Assuming, without deciding, that these different assaults upon different parts of the body could have formed the basis for finding defendant had committed separate and distinct crimes, [Iowa R.Crim. P. 2.6(1) ], we hold this was precluded by the manner in which the case was tried, submitted, and decided.

325 N.W.2d 368, 376 (Iowa 1982) ; accord State v. Flanders, 546 N.W.2d 221, 225 (Iowa Ct.App.1996) (“The State can convict a defendant of both kidnapping in the first degree and sexual abuse if there are separate and distinct occurrences of sexual abuse and the case is presented in a manner that requires the fact finder to make separate factual findings [that] separate and distinct occurrences happened.” (Emphasis added.)); see State v. Newman, 326 N.W.2d 788, 792–93 (Iowa 1982) (noting that from start to finish the State treated the crime as one continuing event, and “[t]he State cannot depart from that course now”); see also State v. Morgan, 559 N.W.2d 603, 611–12 (Iowa 1997) (same).

Instead, under the instructions, the jury was to determine whether Love could be convicted of a list of crimes beginning with the most serious crime of kidnapping and descending to the least serious crime of assault with intent. The jury began at the top and worked its way down the instructions, finding the defendant not guilty of kidnapping in the first degree and attempted murder, but then finding the defendant guilty of willful injury and assault with intent. Again, however, the jury was never asked to do the fact-finding necessary to support two separate assaults.

As a result, we cannot agree with the State's argument that because the evidence might have supported such a determination the jury found Love guilty of two separate acts of assault. Under the instructions in this case, the jury was only asked to proceed serially through a list of crimes and determine which crime was supported by the totality of the record. Under the unique circumstances of the instructions given in this case, and after comparing the marshaling instructions and statutory elements of willful injury and assault with intent, we conclude the offenses should merge. See State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001) (noting the test of merger is purely a review of the legal elements and does not consider the facts of a particular case); State v. Jeffries, 430 N.W.2d 728,...