Opinion
No. 1-609 / 99-2062.
Filed January 28, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge.
Loby Lovan appeals his convictions and sentences for assault causing serious injury, second-degree burglary, two counts of assault with intent to inflict serious injury, and fourth-degree criminal mischief in violation of Iowa Code sections 708.2(2), 713.5, 708.2(1) and 716.6 (1999). AFFIRMED.
Maria Ruhtenberg of the Ruhtenberg Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Loby Lovan appeals his convictions and sentences for assault causing serious injury, second-degree burglary, two counts of assault with intent to inflict serious injury, and fourth-degree criminal mischief in violation of Iowa Code sections 708.2(2), 713.5, 708.2(1) and 716.6 (1999). We affirm.
I. Factual and Procedural Background. A reasonable fact-finder could find the following facts from the record in the case. On the evening of July 3, 1999, Loby Lovan and three of his companions, Hac Lemvan, Kongsavanh Keopasaeuth, and Sourisack Praseuth, patronized a Des Moines liquor store, purchasing a case of bottled beer. Also at the store were Morgan and Morris Wright, twin brothers, and their friend Michael Smith. While Morgan Wright was in the store buying liquor, Smith and Morris Wright made sexually degrading comments to Lovan's sister, who was in the area with her uncle. The sister informed Lovan and his friends about the comments, and they confronted the Wrights and Smith in the parking lot. Lovan jumped on the hood of the Wrights' truck and kicked the windshield several times. In addition, Lemvan and Keopasaueth reached into the passenger side of the truck, attempting to punch Morris Wright through the vehicle's open window.
Following this altercation, the Wrights and Smith exited the liquor store parking lot, then circled back and rammed Keopasauth's car, breaking a rear taillight. Lovan and his companions sped away pursued by the Wrights and Smith, who encountered them again at a grocery store parking lot. A fight ensued between the two groups of men with Lovan and his friends throwing their beer bottles at the Wrights and Smith. One of the bottles knocked out Smith's front teeth. Morgan Wright was hit in the forehead causing an injury that required twenty-two stitches. Lemvan stabbed Morris Wright twice with a broken bottle during the fight.
Lovan was charged in a six count trial information with willful injury, second-degree burglary, going armed with intent, two counts of assault with intent to commit serious injury, and fourth-degree criminal mischief. He was convicted by a jury of the lesser included offense of assault causing serious injury and was acquitted of going armed with intent. Lovan was otherwise convicted as charged and given the following indeterminate sentences to be served consecutively: five years on the assault causing bodily injury charge, ten years on the burglary charge, two years for each assault-with-intent charge, and one year for the criminal mischief charge. On appeal, Lovan contends (1) the evidence was insufficient to support his convictions for assault causing serious injury and assault with intent to cause serious injury and (2) the trial court abused its discretion in imposing consecutive terms of imprisonment.
II. Sufficiency of the Evidence. We review claims of insufficiency of the evidence for errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The trial court's findings of guilt are binding on appeal if supported by substantial evidence. Iowa R. App. P. 14(f)(1). Substantial evidence is evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). In reviewing challenges to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, "including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record." State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). All evidence is considered, "not just that of an inculpatory nature." Id. Evidence that merely raises suspicion, speculation, or conjecture is not substantial evidence. Id.
Lovan challenges the sufficiency of the evidence to support his convictions for assault causing serious injury and assault with intent to cause serious injury. The Iowa Code allows a conviction for assault where a person commits "any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act." Iowa Code § 708.1(1). Alternatively, a conviction for assault may stand where one commits "[a]ny act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act." Iowa Code § 708.1(2).
Lovan contends the evidence is insufficient to convict him of assault under an aiding and abetting theory. Aiding and abetting in a crime occurs when a person assents to or lends countenance and approval to another's criminal act either by active participation or by encouraging it in some manner prior to or at the time of commission. State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct.App. 1999) (citing State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977)). The State must also prove the aider and abettor's participation or encouragement was done with the knowledge of the act. State v. Speaks, 576 N.W.2d 629, 632 (Iowa Ct.App. 1998).
We find sufficient evidence in the record from which a jury could reasonably find Lovan aided and abetted in the assault of the Wrights and Smith. It is clear from the record Lovan actively participated in encounters at the liquor store and at the grocery store parking lot. At the liquor store, Lovan participated in the confrontation by smashing the Wrights' windshield. Moreover, Morgan Wright testified Lovan actively participated in the fracas at the grocery store parking lot throwing beer bottles at the Wrights and Smith. Furthermore, two disinterested witnesses testified at trial four Asian men were involved in the fighting at the grocery store parking lot. A reasonable jury could conclude Lovan assented to the acts committed by his companions by partaking in the fight.
Moreover, Lovan argues there was insufficient evidence to demonstrate his actions were unjustified. We disagree. As fact-finder, the jury was free to find the Wrights' and Smith's testimony more credible and reject testimony regarding his defense. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994) (holding "jury is free to reject certain evidence, and credit other evidence"). Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate it. State v. Weaver, 608 N.W.2d 797, 804 (Iowa 2000). Accordingly, we affirm on this issue.
III. Sentencing. Lovan contends the district court abused its discretion by sentencing him to consecutive terms of imprisonment. In particular, he argues the district court improperly focused on his criminal history and failed to consider all relevant factors. In addition, Lovan contends the twenty-year sentence is an extremely harsh penalty considering his role in the crimes charged.
Sentencing decisions of the district court are reviewed for errors at law. Iowa R. App. P. 4; 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 district court discretion or a defect in the sentencing procedure. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983).
Iowa Rule of Criminal Procedure 22(3)(d) requires the district court to state its reasons for selecting a particular sentence on the record. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). Although the reasons do not need to be detailed, at least a cursory explanation must be provided to allow appellate review of the district court's discretionary action. Id. The district court must also give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000).
In applying its discretion, the district court should weigh and consider all pertinent matters in determining a proper sentence, including the nature of the offense, the attending circumstances, and the defendant's age, character, propensities, and chances of his reform. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999). Iowa Code section 901.5 also requires the court to determine which sentence will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others. Id. We look at the entire record to determine if the reasons articulated by the district court are sufficient to enable us to determine if an abuse of discretion occurred. State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.App. 1995).
During the sentencing colloquy, the court made the following statement explaining his imposition of consecutive sentences:
The Court presided over this trial and heard the evidence. This was a crime of violence precipitated by this Defendant and his companions, continued by this Defendant and his companions, and it was this Defendant and his companions who opted to use weapons in the course of the ongoing assault.
The fact that not even a year before this incident, apparently six months before this incident, this Defendant was convicted — well, actually he pleaded guilty and was given a deferred judgment, informal probation, and then that was later revoked, but it is at least some indication there's a propensity for violence here and that was clearly demonstrated by the evidence in this trial.
* * * *
These sentences shall run consecutive to one another. That decision is made in large measure because the Court having heard the evidence was impressed with the fact that this Defendant had the opportunity to make independent choice as to each and every one of these acts. He could have curtailed the ongoing violence. He could have opted at any point not to continue it. He did not do so. Specifically, that assaults were done on different individuals and the damage to the vehicle was a separate and distinct act.
This statement evidences the district court's consideration of several relevant factors when imposing consecutive sentences. The court considered Lovan's past criminal history, which includes a prior weapons conviction. In addition, the court examined the seriousness of the offense which resulted in severe injuries to the Wrights and Smith. Morgan Wright's head wound required twenty-two stitches, and Michael Smith's front teeth were knocked out. Morris Wright suffered a near fatal stab wound, going into shock and arriving at the hospital in grave risk of death. Furthermore, the physical altercation began when Lovan jumped on the hood of the Wrights' truck and smashed in the windshield.
Considering these relevant factors, we find the district court provided minimally sufficient reasons for the consecutive sentences. We conclude the imposition of a twenty-year sentence for the offenses was not the product of an abuse of discretion. Having found no abuse of discretion by the district court, we affirm Lovan's convictions and sentences.
AFFIRMED.