Opinion
No. 6-158 / 05-0733
Filed March 29, 2006
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
Defendant appeals his sentences for intimidation with a dangerous weapon, second-degree criminal mischief, and two counts of assault with a dangerous weapon. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Eisenhauer, J., and Beeghly, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Elias Burke and a juvenile friend, Cody, threw small rocks from an interstate overpass. A rock hit the windshield of a car driven by Jamar Harris, causing the windshield to shatter. Harris's car also received a dent on top. The estimated cost to repair Harris's vehicle was $1,222.20.
After a bench trial, Burke was convicted of intimidation with a dangerous weapon, in violation of Iowa Code section 708.6 (2003); criminal mischief in the second degree, in violation of section 716.4; and two counts of assault with a dangerous weapon, in violation of section 708.2(3). The district court specifically found that Burke and/or Cody committed two separate assaults against Harris because two rocks were dropped on the vehicle.
The district court denied Burke's post-trial motions. Burke was sentenced to a term of imprisonment not to exceed ten years on the charge of intimidation with a dangerous weapon, five years on the charge of criminal mischief, and two years on each of the charges of assault with a dangerous weapon. All of these charges are to be served concurrently. Burke now appeals his sentences.
II. Standard of Review
We review sentencing challenges for errors at law. Iowa R. App. P. 6.4; State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). A sentence will not be reversed unless there had been an abuse of discretion or a defect in the sentencing procedure. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
III. Merits
Burke asserts that his sentence for intimidation with a dangerous weapon should be merged with his sentence on one charge of assault with a dangerous weapon. Burke was convicted of intimidation with a dangerous weapon, in violation of section 708.6. He also received two convictions for assault with a dangerous weapon under section 708.2(3), which provides:
A person who commits an assault, as defined in section 708.1, and uses or displays a dangerous weapon in connection with the assault, is guilty of an aggravated misdemeanor. This subsection does not apply if section 708.6 or 708.8 applies.
The legislature has specifically determined that the crimes of intimidation with a dangerous weapon and assault with a dangerous weapon are "sufficiently similar to merit freedom from duplicate punishment." State v. Ray, 516 N.W.2d 863, 867 (Iowa 1994).
The district court decision makes it clear that only two rocks were thrown at Harris's vehicle. One of Burke's convictions for assault with a dangerous weapon must be subsumed within his conviction for intimidation with a dangerous weapon. The State concedes that these convictions should be merged. We remand for a new judgment order and resentencing.