Opinion
No. 2-984 / 01-1878.
Filed March 12, 2003.
Appeal from the Iowa District Court for Jackson County, NANCY S. TABOR, Judge.
The defendant appeals his conviction and sentence for assault causing serious injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, and John Kies, County Attorney, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Jason Ralston appeals his conviction and sentence, following a jury trial, for assault causing serious injury in violation of Iowa Code sections 708.1(2) and 708.2(4) (2001). Ralston contends (1) there was insufficient evidence to support the jury's verdict, (2) trial counsel was ineffective, and (3) the district court erred in ordering him to pay victim restitution. We affirm.
I. Background Facts and Proceedings. On August 2, 2001, Joe Clary and Jason Ralston were guests in the apartment of Susan Morris. Ralston lived in the apartment next door. Sometime during the evening, Clary and Ralston became embroiled in a dispute after Ralston said Clary was a child molester. Morris and her fiancé, Brian Foreman, told the two men to take the dispute out into the hall. Several minutes later, Morris looked into the hall and observed Ralston gesturing toward Clary and telling him to "come on." As Clary advanced toward Ralston, Ralston picked up a log and struck Clary on the left side of the head. Morris did not observe Clary with any weapon.
Foreman heard Morris scream, and looked out into the dark hallway to see Ralston drag an unconscious Clary into his apartment. Ralston stated he was attempting to revive him. A few minutes later, Foreman again looked into the hallway and saw Clary sitting at the top of the dark, steep stairs that leads to a cement landing. Clary suffered a large contusion to the left eye, and began to experience numbness in his right arm and leg. Clary attempted to leave and had difficulty maneuvering the dark stairway. It is uncertain whether Clary fell down the stairs.
Clary later went to the hospital for treatment. Dr. Eric Petersen examined Clary and observed damage to his left eye and other abrasions on the left side of his head. He further observed Clary had difficulty using his right arm and leg. A CAT scan revealed Clary had a fractured and bleeding skull. Clary informed Dr. Petersen he had fallen down some stairs. Dr. Petersen was unable to determine the cause of the injury.
Officer Craig Jackson interviewed Ralston, who maintained Clary came after him first. Ralston admitted to Officer Jackson he hit Clary in the head with the log. It was never established who actually threw the first punch. Officer Jackson observed the dark, steep stairs leading to the cement landing.
The State charged Ralston with assault causing serious injury, and Ralston filed a notice of self-defense. Dr. Petersen testified Clary's injuries were such that they were capable of causing death. He stated Clary's injuries could have been caused by falling down the stairs, but noted Clary did not have further injuries to the rest of his body consistent with such a fall. Dr. Petersen opined Clary's head injuries were caused by a blunt instrument, but could not determine what actually caused them.
Clary testified he could not remember who struck the first blow, but remembered the argument began after Ralston accused him of being a child molester. He admitted he had been drinking prior to the incident. He testified after he was struck, the first thing he remembered was waking in Ralston's apartment. He stated he left the apartment but did not remember what happened next. Clary testified at some point he got up from the bottom of the stairs but couldn't remember whether he fell. He stated he had difficulty seeing because he didn't have his eyeglasses and one eye was swollen shut.
Morris testified she observed Clary fall back from the blow. She testified Clary had no weapons in his hands. Foreman testified he observed Ralston dragging Clary into his apartment, and stated he told Ralston to put Clary down. Morris testified they observed Clary's injuries and concluded Clary was going to be okay.
The jury found Ralston guilty as charged, and the district court sentenced him to an indeterminate term of imprisonment not to exceed five years. The court also imposed the minimum fine of $750, and ordered him to pay victim restitution of $35,740.05. A separate restitution order was filed reflecting the court's sentence. Ralston has appealed.
II. Sufficiency of the Evidence. Ralston contends there was insufficient evidence to support the jury's verdict. In the alternative, he contends he proved a case of justification. The scope and standards of review in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 76-77 (Iowa 2002) and need not be repeated here. Inherent in out standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony it chooses and to give as much weight to such evidence as it should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996).
The record reveals both Ralston and Clary had been drinking prior to the incident. While in Morris's apartment, Ralston made a comment regarding Clary being a child molester. The two began arguing, and Morris told them to take it out into the hall. When Morris looked out, she heard Ralston incite Clary to come for him. Ralston testified he did so only after Clary attacked him. Morris saw Ralston pick up a log and strike Clary on the left side of the head. She did not observe Clary having any weapon at the time. Morris later observed Clary's speech was impaired and that he had a problem moving his right hand. Foreman observed Ralston drag Clary into his apartment and later saw Clary sitting at the top of the stairs.
Clary did not remember falling down the stairs, but remembered sitting at the bottom prior to leaving the building. He testified he may have fallen because it was dark and he did not have his eyeglasses. Dr. Petersen observed contusions to the left side of Clary's head consistent with being struck by a blunt instrument. He concluded such injuries were severe enough to be life threatening. Although Clary informed Dr. Petersen he had fallen down stairs, Dr. Petersen concluded that while such a fall could have produced such head trauma, there were no other injuries consistent with such a fall. However, Dr. Petersen was unable to determine the exact cause of Clary's injuries.
Viewing the evidence in a light most favorable to the State, we conclude the jury could fairly infer that Ralston's blow was the proximate cause of Clary's injuries. Even assuming Clary fell down the stairs, the jury could reasonably infer that such a fall was caused by the head injuries suffered by Clary, and not merely because it was dark and that Clary did not have his eyeglasses on. It was within the jury's province to weigh such evidence. We find no error here.
We likewise reject Ralston's claim of justification. Both men were drinking, and Ralston accused Clary of being a child molester. The argument escalated, and both men appeared willing to fight over the matter. While the record is unclear who struck the first blow, there is no evidence Clary attacked Ralston in the hallway, and no evidence Clary had any weapon. Despite Clary's statements of regret at Ralston's sentencing, the record does not support Ralston's claim the force used was reasonably necessary to defend himself.
III. Ineffective Assistance. Ralston contends trial counsel was ineffective in (1) failing to request waiver of the minimum fine, (2) failing to challenge the supplemental restitution order, (3) advising him against testifying, (4) failing to withdraw based on a conflict of interest, and (5) failing to challenge the weight of the evidence. To establish a claim of ineffective assistance of counsel, Ralston has the burden to prove (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To establish prejudice, Ralston must show there is a reasonably probability, but for counsel's alleged errors, the result of the proceedings would have been different. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
An ineffective assistance claim may be disposed of if the defendant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to afford a more full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 835 (Iowa 1997). However, we will resolve ineffective assistance claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Ralston first contends trial counsel was ineffective in failing to argue for a waiver of the minimum fine. Even assuming trial counsel had a duty to request a waiver of the fine, we find Ralston has shown no prejudice. He has failed to show the sentencing court would have been more sympathetic to waiving the fine had counsel raised the claim. The record indicates Ralston had a previous criminal history of failed probation, and owed over $9000 in previous fines, costs, and restitution. Pursuant to Iowa Code section 902.9(5) (2001), the district court had discretion to impose the minimum fine. Ralston can show no prejudice on this ground.
Ralston next contends trial counsel was ineffective in failing to challenge the district court's supplemental order requiring him to pay $225 for expert witness fees. He contends this order violates Iowa Code section 622.72 (2001). He further argues he would have been entitled to court-appointed counsel if trial counsel had challenged the supplemental order within thirty days pursuant to section 910.7.
The State's application for supplemental fees indicates the fees were sought for Dr. Petersen's deposition on September 18, 2001, and his trial appearance on October 15, 2001. Section 622.72 authorizes the district court to order expert witness fees, with reference to the time employed and the degree of learning or skill required. Section 622.72 provides that such additional compensation shall not exceed $150 per day. We do not believe the $225 supplemental payment was unreasonable under the circumstances.
While Ralston was entitled under section 910.3 to raise a challenge to the restitution order on reasonableness grounds within thirty days, Ralston may raise objections to his restitution plan at any time pursuant to section 910.7. Section 910.7 provides the court may, at any time prior to the expiration of the offender's sentence, modify the restitution plan following a hearing. While Ralston is not entitled of right to court-appointed counsel in a section 910.7 hearing as compared to a timely challenge under section 910.3, he has failed to set forth how he would suffer actual prejudice since there is no evidence the fees were unreasonable. See State v. Jose, 636 N.W.2d 38, 45-46 (Iowa 2001).
Ralston further contends trial counsel was ineffective in advising him not to testify, in failing to withdraw due to a conflict of interest, and in failing to file a motion for new trial. We conclude, however, the record is insufficient to address these issues and preserve them for postconviction proceedings.
IV. Victim Restitution. Ralston lastly asserts the district court abused its discretion in ordering him to pay victim restitution. He contends the State failed to establish a causal connection between the alleged criminal act and the victim's injury. In the alternative, Ralston maintains the State failed to prove whether an offset for insurance was necessary in determining the appropriate amount of restitution.
Restitution is ordered in all criminal cases in which a defendant pleads guilty or is found guilty. Iowa Code § 910.2 (2001). The restitution order must rest on a causal connection between the established criminal act and the injury to the victim. State v. Wagner, 484 N.W.2d 212, 216 (Iowa Ct.App. 1992). The State, not the defendant, has the burden to prove the amount of damages causally connected to the criminal act. State v. Tutor, 538 N.W.2d 894, 897 (Iowa Ct.App. 1995). Once the causal connection is established, the statute allows recovery of all damages the State can prove by a preponderance of the evidence. Wagner, 484 N.W.2d at 216. A restitution order is not excessive if it bears a reasonable relationship to the damage caused by the defendant's criminal act. State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).
We have already concluded there was sufficient evidence to support the jury's verdict that Ralston's actions were the proximate cause of Clary's injuries. Thus the only remaining issue is whether the restitution amount ordered by the district court was reasonable. We will affirm a restitution award if it is within a reasonable range of the evidence. State v. Watts, 587 N.W.2d 750, 752 (Iowa 1998).
At sentencing, the State requested victim restitution as set forth in the presentence investigation report (PSI). The PSI stated Clary's medical bills totaled $40,218.49. The State requested the court leave the restitution amount open because Clary might incur additional medical expenses. The district court ordered Ralston to pay Clary $35,740.05 in restitution and $4478.44 to the crime victim assistance program.
Although the State did not provide a detailed statement of pecuniary damages pursuant to section 910.3, Ralston voiced no challenge to these amounts at the hearing. Even assuming trial counsel had a duty to challenge the restitution amounts because the State failed to file exact proof of damages, Ralston can show no prejudice. The only significant costs and fees added to the restitution order were the ones ordered for Dr. Petersen. We have already concluded those costs were reasonable. We find no abuse of discretion here.
V. Summary. We conclude there was substantial evidence to support the jury's verdict. We reject Ralston's claim there was sufficient evidence to establish justification. We further conclude Ralston failed to prove trial counsel was ineffective in failing to file a request for waiver of the minimum fine or in failing to challenge the supplemental restitution order. The remaining ineffective assistance issues we preserve for postconviction relief. We lastly reject Ralston's claim the district court erred in ordering him to pay restitution.