Opinion
No. 5-029 / 04-0773
Filed February 24, 2005
Appeal from the Iowa District Court for Dubuque County, Richard Gleason, District Associate Judge.
Darron Wayne Dean appeals his conviction and sentence, following a jury trial, for domestic abuse assault, second offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Fred H. McCaw, County Attorney, and Alisha Stach, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Defendant Darron Wayne Dean appeals from the judgment and sentence imposed following his conviction for domestic abuse assault, second offense, in violation of Iowa Code sections 708.2A(2)(a) and 708.2A(3)(a) (2003). He claims the district court erred in: (1) overruling his hearsay objection to the testimony of a witness and (2) improperly considering his prior arrests in imposing sentence. We affirm Dean's conviction and sentence.
I. Background Facts Proceedings
On July 23, 2003, at approximately 1:39 a.m., Dubuque Police Officer Scott Koch was dispatched to the residence of Tina McGonigle. When Officer Koch arrived at the residence two minutes later, he found McGonigle waiting on her front steps. McGonigle was shouting and yelling because she was angry with her boyfriend, Darron Dean, over an incident that had just occurred.
McGonigle and Dean have an intimate relationship, but do not live together.
When Officer Koch asked McGonigle what was going on she told him that Dean had held her down on the bed causing pain to her stomach, slapped her in the face, punched her in the ribs, and then drove off in her car which contained her cell phone. Since McGonigle did not have a telephone in her house, she ran about a block and a half to a pay phone to call police. McGonigle told Officer Koch that she was "tired of the abuse." Dean called police later that morning to ask if he would be arrested.
McGonigle and Dean had one child in common at the time of this incident. McGonigle gave birth to a second child fathered by Dean about two months prior to Dean's trial. The record suggests McGonigle would have been approximately three months pregnant on July 23, 2003.
A female officer photographed McGonigle the day after the incident. Those photographs show bruises on McGonigle's inner thigh and buttocks, as well as fingertip marks on her arm. McGonigle told the officer performing the follow-up investigation that she wanted to have the abuse documented in case she decided to leave Dean, but that she did not want to see him charged with a crime.
On August 18, 2003, the State filed a trial information charging Dean with domestic abuse, second offense. On March 29, 2004, a jury trial commenced. At trial, McGonigle claimed that she lied to the police, and denied being held down, slapped, or punched by Dean. McGonigle did acknowledge that she and Dean had an argument, but she described herself as the aggressor stating that she threw a lamp at Dean and ordered him out of her home. The district court allowed Officer Koch to testify, over Dean's hearsay objection, regarding what McGonigle told the officer when he first arrived at her residence. The jury found Dean guilty as charged. Dean stipulated that he had a prior domestic abuse conviction, and was subsequently sentenced to a jail term of 180 days, with 170 days suspended. Dean was also placed on probation for two years and was ordered to enroll in a Batterer's Education Program. This appeal followed.
II. Scope of Review
We review the admission of hearsay evidence for errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000). We give deference to the trial court's factual findings and will uphold such findings if they are supported by substantial evidence. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001).
A sentence imposed by the district court is reviewed for errors at law. Iowa R. App. P. 6.4. Sentencing decisions are cloaked with a strong presumption in their favor. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." Id.
III. Discussion
On appeal, Dean first argues that the trial court erred by allowing Officer Koch to testify regarding McGonigle's out of court statements. The State responds that the court correctly allowed the testimony under the excited utterance exception to the hearsay rule because McGonigle was upset by Dean's violent actions and was still under the stress of those events when she told Officer Koch what happened. Iowa R. Evid. 5.803(2).
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Iowa R. Evid. 5.801( c). Hearsay is not admissible unless provided by the Iowa Constitution, statute, rules of evidence, or other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802.
At trial, Officer Koch was permitted to testify that McGonigle told him Dean held her down on the bed causing pain to her stomach, slapped her in the face, and punched her in the ribs. This testimony was clearly offered by the State to prove the truth of the matter asserted, by someone other than McGonigle. Therefore, we must decide whether the testimony is admissible as an exception to the hearsay rule.
Iowa Rule of Evidence 5.803(2) provides an exception to the hearsay rule for an excited utterance, which is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Iowa R. Evid. 5.803(2). This exception is generally applicable to spontaneous statements made under the excitement of an event or condition, rather than upon deliberation or reflection. State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004). The application of the excited utterance exception "lies largely within the discretion of the trial court," which should consider:
(1) the time lapse between the event and the statement, (2) the extent to which questioning elicited the statements that otherwise would not have been volunteered, (3) the age and condition of the declarant, (4) the characteristics of the event being described, and (5) the subject matter of the statement.
State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999) (quoting State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986)).
For the reasons which follow, we conclude the trial court acted properly in admitting testimony concerning the victim's statements as excited utterances. Iowa R. Evid. 5.803(2). First, the statements by McGonigle were made within one-half hour of the time she was assaulted and Dean left her residence. Atwood, 602 N.W.2d at 782 (statement made at the hospital two or two and one-half hours after a serious accident resulting in the death of two children was an excited utterance). Second, Officer Koch did not extensively question McGonigle to elicit her statements. Instead, her statements were volunteered after Officer Koch simply asked her what was going on. Third, McGonigle was a young mother who was approximately three months pregnant with Dean's child at the time of the incident, and was highly emotional when Officer Koch responded to her 911 call. State v. Augustine, 458 N.W.2d 859, 861 (Iowa Ct.App. 1990) (statements made while declarant was "understandably excited and outraged at defendant" were admissible as excited utterances). Fourth, the event being described was a physical assault on McGonigle herself. Finally, the subject matter of the statement was clearly probative. McGonigle told Officer Koch that Dean had held her down on the bed causing pain to her stomach, slapped her in the face, and punched her in the ribs. The district court acted properly in admitting the victim's statements.
Dean also claims that the district court erred because it improperly considered his prior arrests in imposing sentence. His argument is based on the fact that the sentencing judge noted that Dean had a significant criminal record that included over forty arrests during his sentencing hearing. Dean's criminal history was documented in a two-page presentence investigation report prepared by the Department of Correctional Services for the sentencing judge. The written report details Dean's criminal history in chronological order. The report lists fifty-four criminal offenses. Nineteen of those criminal offenses resulted in a plea or verdict of guilty, no disposition was shown for twenty-six of the offenses, two of the offenses resulted in a dismissal, and seven of the offenses listed were pending. The report stated that Dean was not eligible for a deferred judgment because of a prior felony conviction in the United States District Court.
The report also separately lists a total of twenty-seven traffic related convictions, suspensions, or revocations.
We agree with Dean that the district court may not consider an unproven or unprosecuted offense when sentencing a defendant unless (1) the facts before the court show the defendant committed the offense, or (2) the defendant admits it. State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). However, the fact a sentencing court is aware of unproven charges is not sufficient to overcome the presumption that it properly exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990). The defendant must affirmatively show that the court relied upon the unproven offenses. State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001).
We are unable to discern any reliance on improper factors which would overcome the presumption that the district court properly exercised its discretion. After the sentencing judge referred to Dean's extensive criminal record, he specifically stated the reasons for the sentence he imposed. The court cited: "the second nature of the [domestic abuse] offense and prior criminal history and hopefully protection of the community from here on out." The court did not refer to the defendant's prior arrests or any unproven charges as a reason for imposing the sentence it selected. In addition, the court's written judgment entry refers to the defendant's "significant prior record" but does not mention the defendant's arrests. Viewed as a whole, we believe the sentencing court considered Dean's prior convictions and not his arrests in determining his sentence. Accordingly, we conclude the judgment and sentence of the district court should be affirmed.