Opinion
No. 1-506 / 99-1099
Filed April 4, 2003
Appeal from the Iowa District Court for Winneshiek County, John Bauercamper, Judge.
The defendant appeals from convictions for two counts of attempted murder, two counts of willful injury while in possession of a firearm, assault with intent to inflict serious injury, reckless use of fire, and unauthorized possession of an offensive weapon. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Andrew Van Der Maaten, County Attorney, for appellee.
Heard by Huitink, P.J., and Zimmer, J., and Habhab, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Dana White appeals from his convictions following a jury trial for two counts of attempted murder, two counts of willful injury while in possession of a firearm, assault with intent to inflict serious injury, reckless use of fire, and unauthorized possession of an offensive weapon. He argues the trial court erred in (1) denying his motion to dismiss based upon a violation of his right to speedy indictment, (2) treating single episodic acts of attempted murder and willful injury as multiple separate offenses, (3) admitting evidence that he possessed adult material, and (4) failing to give specific reasons for imposing consecutive sentences. We affirm his convictions for one count of attempted murder, one count of willful injury, reckless use of fire, and unauthorized possession of a dangerous weapon. We vacate his other convictions and remand for resentencing.
I. BACKGROUND FACTS.
A jury could have found the following facts from the evidence presented at trial.
In 1995, Dana White began working as a hired hand on James Wenthold's dairy farm near Ossian, Iowa. White lived in a small house on the Wenthold farm with his wife and young child, and the Wenthold family lived in the main farmhouse.
On August 17, 1998, Wenthold's nineteen-year-old daughter, Joy, was home alone at the main farmhouse. White knocked on the door of the farmhouse and asked Joy for assistance in locating some medication for livestock. Joy could not find one of the medications White was looking for and he left. White subsequently returned to the Wenthold's house on several occasions with questions or information about medications. The last time White came to the main farmhouse, he pointed a rifle at Joy's face and entered the house. White ordered Joy to lie down on the floor and put her hands behind her head.
Joy began talking to White in an effort to calm him down. She persuaded him to sit at a table and talk with her. At some point, Joy offered White a glass of water. After she got water out of the faucet, she turned and saw White pointing the rifle at her. She asked, "Dana, what are you doing?" White laughed and said, "Oh, I'm just kidding." He then lowered the rifle, and Joy stated, "Don't do that, Dana. It is not funny." White then raised the rifle again and said, "Sorry, I have to do this." He had a very serious look on his face. Joy started to run. As soon as she did, White shot her in the left arm. Joy kept running toward a door. As she approached and began opening a door to the garage, White shot her again, this time in her right arm and side.
Despite being shot a second time, Joy was able to exit the door. After leaving the house, she fell by the front left tire of her father's pickup truck in the garage. She pretended to be dead so White would not shoot her anymore. White entered the garage briefly, ran to a window, looked outside, and then returned to the house. Once inside, he fired multiple shots and then threw his rifle onto the washer and dryer in the laundry room. Joy heard White going through her father's desk. From her position in the garage, Joy observed White open the basement door. She then heard him go down the basement steps.
In an effort to escape, Joy got up, entered the truck and turned the key. Because the truck was a diesel, she had to wait about thirty seconds before firing the engine. Joy started the truck, pushed the garage door opener button, and put the truck in reverse. At that point, she saw White looking at where she had been laying with an expression of shock on his face.
Joy gunned the truck and backed out of the garage. White ran after her. He grabbed onto the side of the truck and got into the truck bed. Joy shifted into drive and tried to drive away from the farmyard. She swerved the truck back and forth in an effort to shake White off her vehicle. At some point, White was able to open the driver's side door. He then struck Joy in the face breaking her glasses. The door swung shut and Joy continued to drive as fast as she could. White was thrown from the vehicle into a ditch. Joy drove to a relative's house and got help. She sustained serious injuries, which required numerous, extensive surgeries.
Meanwhile, White drove off in another truck with his infant son and got stuck in the mud. He called for an ambulance from a nearby farm requesting help for his son. Officers eventually arrived and arrested White at the farm without incident. The Wenthold farmhouse was later found engulfed in flames. The farmhouse burned to the ground. An accelerant was used to start the fire. White's gun was found on the washer and dryer.
On August 25, 1998, White was charged by trial information in Case No. FECR06594 with the following criminal offenses: attempted murder, first-degree arson, willful injury, assault while participating in a felony, unauthorized possession of an offensive weapon, and going armed with intent. On December 8, 1998, the State filed a motion to amend the trial information, seeking to add the following charges: two additional counts of attempted murder, one count of first-degree robbery, one count of first-degree burglary, and one additional count of willful injury. The State later withdrew its motion to amend.
On December 18, the State filed a new trial information under a new case number, FECR06889, charging White with two counts of attempted murder, one count of willful injury, first-degree robbery, and first-degree burglary. That same date, the State filed a bill of particulars, which indicated the charges of attempted murder and willful injury, set forth in the original trial information filed August 25, were based on allegations White shot his victim in the left side and arm. The State also moved to consolidate the two cases filed as FECR06594 and FECR06889. On January 11, 1999, the defendant filed a motion to dismiss in Case No., FECR06889 alleging his right to speedy indictment had been violated. On January 29, 1999, the district court denied White's motion to dismiss and granted the State's motion to consolidate Case No. FECR06889 with Case No. FECR06594.
On March 19, 1999, the State filed a motion to dismiss and amend the trial information. The State dismissed the charges of robbery, burglary, assault while participating in a felony, and going armed with intent. In its final form, the amended trial information for the two consolidated cases charged White with the following offenses: three counts of attempted murder (for shooting the victim in the left arm/side, for shooting the victim in the right arm/side, and for assaulting the victim as she tried to escape), two counts of willful injury (for shooting the victim in the left arm/side and for shooting the victim in the right arm/side), second-degree arson, and unauthorized use of an offensive weapon.
At trial, White's theory of defense centered on his mental condition. White testified at trial. He could offer no reason for his actions and his motive for the shooting spree remains unclear. Following a three week trial, the jury found White guilty of: two counts of attempted murder based on the shots fired inside the farmhouse; assault with intent to inflict serious injury, as a lesser included offense of attempted murder, based on the assault as the victim attempted to leave the property; reckless use of fire as a lesser included offense of second-degree arson; two counts of willful injury while in possession of a firearm; and unauthorized possession of an offensive weapon. The district court sentenced White to two indeterminate, twenty-five year prison terms for attempted murder, two indeterminate, ten-year prison terms for willful injury, a five-year indeterminate prison term for unauthorized use of an offensive weapon, an indeterminate two-year term for assault with intent to inflict serious injury, and one year for reckless use of a firearm, to be served consecutively. His total prison term was not to exceed seventy-eight years. White appeals.
II. SPEEDY INDICTMENT.
White first argues his right to speedy indictment under Iowa Rule of Criminal Procedure 2.33(2)( a) (formerly Iowa Rule of Criminal Procedure 27(2)( a)) was violated when the State filed a new trial information under a new case number on December 18, 1998, adding two additional counts of attempted murder and one additional count of willful injury to the charges of attempted murder and willful injury which had already been filed.
Our review of a district court's interpretation of Iowa Rule of Criminal Procedure 2.33(2)( a) is for errors at law. State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997). We are bound by findings of fact supported by sufficient evidence. State v. Waters, 515 N.W.2d 562, 566 (Iowa Ct.App. 1994).
Iowa Rule of Criminal Procedure 2.33(2)( a) provides that when an adult is arrested and an indictment is not found against the defendant within forty-five days, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown or the defendant waives his right to speedy indictment. The term indictment in this rule includes a trial information. Iowa R.Crim.P. 2.5(5) (formerly Iowa R.Crim.P. 5(5)); State v. Schuessler, 561 N.W.2d 40, 41 (Iowa 1997). If the State fails to comply with this forty-five day mandate and no good cause or waiver exception applies, the prosecution is barred and the trial information must be dismissed. SeeIowa R.Crim.P. 2.33(2)( a). The speedy indictment mandate is restricted to the offense or offenses for which the defendant was arrested, and does not extend to a different offense not charged in the complaint related to the arrest. State v. Edwards, 571 N.W.2d 497, 499 (Iowa Ct.App. 1997).
The definition of "arrest" for purposes of rule 2.33(2)( a) is governed by the law of arrest provided in Iowa Code chapter 804, specifically Iowa Code sections 804.5 and 804.14 (1999). Dennison, 571 N.W.2d at 494. Section 804.5 provides: "Arrest is the taking of a person into custody when and in the manner authorized by law, including restraint of the person or the person's submission to custody." Section 804.14 reads:
The person making the arrest must inform the person to be arrested of the intention to arrest the person, the reason for arrest, and that the person making the arrest is a peace officer, if such be the case, and require the person being arrested to submit to the person's custody. . . .
An assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. Dennison, 571 N.W.2d at 495. The court looks to whether the officers had a purpose to arrest or whether a reasonable person would have believed otherwise. Id.
White was arrested on August 17, 1998. The following day, a deputy sheriff filed a complaint charging him with attempting to commit murder. The State filed a trial information on August 25 charging White with several crimes including one count of attempted murder and one count of willful injury. The charges in the information were based on the events which occurred on August 17. This trial information was filed well within the forty-five day limit contained in rule 2.33(2)( a) and is not challenged by the defendant.
The second trial information was filed well beyond forty-five days from the date of defendant's arrest. The charges in the second trial information all were based on the events of August 17. White did not waive speedy indictment. He argues that any additional counts of attempted murder and willful injury arising from the events of August 17 were not new or different charges and should have been filed within the forty-five day time limit established by our speedy indictment rule. He also contends there was no good cause for the delay in filing the trial information which added the additional counts of attempted murder and willful injury.
The State suggests that the second trial information, which specifically alleged that White shot his victim on the right side of her body, contained new and different charges from those alleged in the August 25 information. This argument implies the defendant was initially arrested, and then charged by trial information on August 25, for shooting his victim only once. The record demonstrates that the material facts, which formed the basis for the charges in the trial information filed December 18, were known to the State at the time the original trial information was filed three months earlier. The minutes of evidence filed with the original trial information refer to the two shots fired by White as well as to the location of the wounds on the victim's body. The minutes also describe White's assault on the victim as she attempted to escape. The State was obviously relying on these facts to support the charges of attempted murder and willful injury which it filed in August. The trial information filed in December was not based on any new facts. We conclude White's right to speedy indictment was violated when the second trial information was filed.
The State contends that even if all charges were required to be filed within the initial forty-five days, it has presented good cause to avoid dismissal of the additional charges which were filed. If the State has presented good cause or White has waived his right to speedy indictment, then the information need not be dismissed. See Iowa R.Crim.P. 2.33(2)( a). We have explained the considerations in finding good cause for delay as follows:
Whether there is good cause depends on the reason for the delay. The surrounding circumstances affect the strength of the reason for the delay. If the delay has been short and the defendant was not prejudiced by it and the defendant has not demanded a speedy trial, a weaker reason will constitute good cause. Nonetheless, if the reason for the delay is insufficient, these other factors will not avoid dismissal. The arbitrary forty-five day limit cannot be violated, even "a little bit" without a showing of good cause.
State v. O'Bryan, 522 N.W.2d 103, 106 (Iowa Ct.App. 1994) (citations omitted).
At a hearing before the district court concerning the additional charges, the State suggested it filed additional charges in December after developing a more full appreciation of the emotional damage the defendant caused the victim. However, the State also acknowledged that when it filed the first trial information in August, it had the bulk of the information it possessed at the time the second information was filed on December 18. We conclude the record does not reveal good cause to justify departure from the speedy indictment rule. Therefore, because the reason for the delay is insufficient, other factors do not avoid dismissal.
We conclude the additional charges of attempted murder and willful injury cannot stand.
III. MULTIPLE OFFENSE ISSUE.
White contends the evidence was insufficient as a matter of law to prove multiple crimes of attempted murder and willful injury. He claims the evidence is sufficient to support only one crime of attempted murder and one crime of willful injury because he shot his victim in quick succession within the confines of her home. White also contends the district court improperly instructed the jury regarding the legal requirements for finding multiple crimes of attempted murder and willful injury. White's arguments raise some interesting issues regarding whether each shot fired by White was a discrete event, propelled by an independent intent to commit a criminal act. However, our resolution of White's speedy indictment claim in Division II of this opinion renders these assignments of error moot. Therefore, we do not address them.
See generally Kelly v. State, 552 So.2d 206 (Fla.Dist.Ct.App. 1989) (discussing whether three shots were sufficiently segregated by time and location to conclude that the defendant formed a separate, independent intent for each shot). See also State v. Yeo, ___ N.W.2d ___ (Iowa 2003) (discussing time and place requirements to support separate acts of child endangerment).
IV. ADULT MATERIAL.
White contends the district court erred in admitting photographic evidence of his apparent possession of a sexually explicit video and an adult magazine. He asserts the evidence was irrelevant, inflammatory, and unduly prejudicial citing Iowa Rules of Evidence 5.401, 5.402, and 5.403. He also claims the evidence should have been excluded under Rule 5.404( b) (excluding evidence of other crimes, or prior bad acts, except under certain circumstances).
The scope of review is for correction of errors at law. Iowa R.App.P. 6.4. We generally review evidentiary rulings for abuse of discretion. Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997). An abuse of discretion occurs when a trial court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
We find White has not preserved error on his claim that the evidence was inadmissible under Iowa Rule of Evidence 5.404( b). He did not present this as a ground before the trial court. See State v. Hansen, 286 N.W.2d 163, 165-66 (Iowa 1979) (stating that issues not raised before trial court cannot be raised for the first time on appeal).
Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. If the evidence is relevant, the court must then assess whether the evidence's "probative value is substantially outweighed by the danger of unfair prejudice." Iowa R. Evid. 5.403. "`Probative value' gauges the strength and force of" the tendency of evidence "to make a consequential fact more or less probable." State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Unfairly prejudicial evidence is evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.
Id. (quoting 1 Jack B. Weinstein et al., Weinstein's Evidence¶ 403[03], at 403-33 to 403-40 (1986)).
During a search of White's home, law enforcement officers found an adult video inside a video recorder. An adult magazine was also found on the floor of an upstairs bedroom. The window overlooked the main farmhouse.
The State contends this evidence is relevant (1) as part of the circumstances surrounding the crimes committed, (2) evidence of motive, and (3) as it bore on White's mental state. During the encounter at the farmhouse, the defendant made no sexual advances of any sort. The victim's testimony also dispelled the notion that the crime was sexually motivated. Nothing in the record connects the adult material to the defendant's status during the crime. We find the adult material is not relevant, and thus, is not admissible.
While we find the evidence inadmissible, we find the error harmless. For alleged errors not of a constitutional magnitude, the test of prejudice for harmless error purposes is "whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice." State v. Traywick, 468 N.W.2d 452, 454-55 (Iowa 1991) (quoting State v. Massey, 275 N.W.2d 436, 439 (Iowa 1979)).
The jury saw only pictures of the magazine and videotape. The actual items were not placed into evidence nor shown to the jury. None of the State's witnesses described what the items depicted. These were items that were not illegal to possess. Any error in admitting the photographs was harmless. Accordingly, we reject this assignment of error.
V. CONSECUTIVE SENTENCES.
White contends the district court abused its discretion in failing to give specific reasons for imposing consecutive sentences. See State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). Because we are remanding to the district court for resentencing on the four convictions affirmed by this opinion, we find it unnecessary to address this assignment of error.
VI. CONCLUSION.
We affirm White's convictions for one count of attempted murder, one count of willful injury, reckless use of fire, and one count of unauthorized possession of a dangerous weapon. We vacate his other convictions and remand for resentencing.