Opinion
No. 3-391 / 02-1268.
Filed January 14, 2004.
Appeal from the Iowa District Court for StoryCounty, Carl D. Baker (trial) and John S. Mackey (post-trial motion), Judges.
Defendant appeals from his convictions, in an action tried without a jury, for domestic abuse assault causing bodily injury and burglary in the first degree. The State seeks discretionary review of that part of the final judgment which acquitted defendant on a charge of criminal mischief. CONVICTIONS AFFIRMED; DISCRETIONARY REVIEW DENIED.
Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Moss, Dunn, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Stephen Holmes, County Attorney, and Timothy C. Meals, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Miller and Hecht, JJ.
We filed an opinion in this case on December 10, 2003. The appellant/cross-appellee Taylor thereafter filed a petition for rehearing. We granted the petition, doing so for the limited purpose of correcting a scrivener's or typographical error in one word on page twenty-seven of that opinion. There, in addressing one of Taylor's numerous claims of ineffective assistance of trial counsel, we stated: "Thus, if such a pretrial motion had been made the trial court would presumably have ruled the evidence was inadmissible. . . ." (Emphasis added). However, when that sentence is viewed in the context of the paragraph in which it appears, it is readily apparent that we intended to instead state that the trial court would presumably have ruled the evidence was admissible. Our December 10, 2003 opinion is therefore vacated and this opinion replaces it.
Nathaniel Taylor appeals from his convictions, in an action tried without a jury, for domestic abuse assault causing bodily injury and burglary in the first degree. He contends (1) there was insufficient evidence to support either of these convictions, (2) the court abused its discretion in admitting prior bad acts evidence, (3) the court abused its discretion in denying his motion for new trial, and (4) his trial counsel was ineffective in several respects. The State filed a notice of cross-appeal. It contends the trial court erred in granting Taylor's motion for new trial on a charge of criminal mischief, and substituting a verdict of not guilty for a verdict of guilty. Because it cannot as a matter of right appeal from the trial court's judgment on the criminal mischief charge the State now seeks discretionary review of the trial court's action on that charge. We affirm the convictions and deny the State's application for discretionary review.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS.
Susan Taylor (Susan) obtained a no-contact order against her husband, Nathaniel Taylor (Taylor) and moved into her friend Michelle Vincent's (Michelle) home. The petition for relief from domestic abuse filed by Susan alleged that in September 2001 Taylor pushed Susan into a door, causing her to fall while she was holding their daughter and was also pregnant. It further alleged that in October 2001 Taylor became upset when Susan was not home when he wanted her to be. When she did return home Taylor was angry, had placed a gun with bullets on the table, told Susan to put the kids to bed, and that he wanted to take her out to the garage to kill her.
After staying with Michelle for five days, Susan, Michelle, and their children attended evening church in Michelle's van. After church they were planning to stop at the store when they saw Taylor drive by. Michelle was driving the van, Susan was seated in the front passenger seat, and Michelle's three children and Susan's two children were in the back of the van. Michelle followed Taylor for awhile to see if he knew where she lived, but then went back to the church parking lot because she thought there would be people there who could help. Michelle also called the police on her cell phone to tell them what was going on. Once back at the church lot Taylor confronted Susan, in violation of the protective order.
According to Michelle's testimony, Taylor got out of his vehicle and began pounding on the passenger window with is hand saying "I just want five f____ing minutes, you f____ing bitch." When Michelle attempted to drive away Taylor got back into his vehicle and tried to ram or block the van from driving away. At that point Michelle again called the police. While Michelle was talking to Detective Pote on her cell phone Taylor continued demanding that Susan talk to him and jumped on the hood of the van, denting the fender. He pounded on the windshield and cracked it. He hit the passenger side window and it shattered. Taylor then proceeded to pull his five-month pregnant wife out through the broken window. He pushed her into his vehicle and drove away. Taylor drove behind some storage units where they could not be seen from the street. A short time later, Taylor and Susan walked to the police station and he turned himself in to the police for violating the no-contact order. Susan did not file a written report on the incident but only wrote one word and stopped. Detective Pote believed she stopped because she was "in a state of shock" and she just "kept looking straight ahead."
As detailed below, the testimony differed greatly regarding whether Susan's seatbelt was still latched when Taylor pulled her out through the broken window.
Dr. Becky Davis-Kramer examined Susan at the hospital. Dr. Davis-Kramer described Susan as very tearful and withdrawn and reluctant to say anything at all. After discussing the potential risks to her pregnancy from such an incident, Susan eventually told Dr. Davis-Kramer that Taylor had pulled her out the broken van window without unbuckling her seatbelt. Michelle also testified at trial that Susan was still buckled into her seatbelt when Taylor pulled her out the window. However, at trial both Susan and Taylor testified that Susan did not in fact have her seatbelt buckled when Taylor pulled her out the van window. Dr. Davis-Kramer testified that Susan had a bruise and abrasion over the right part of her shoulder and chest and a bruise over her right scapula. Although Susan told the doctor she had no pain, when the doctor palpated the injured area Susan admitted there was some pain. Dr. Davis-Kramer opined at trial that some of Susan's injuries were consistent with Susan's statement to her that Taylor pulled her out of the van while her seatbelt was still fastened.
Taylor was charged with kidnapping in the third degree (Count I), in violation of Iowa Code sections 710.1 and 710.4 (2001), domestic abuse assault causing bodily injury (Count II), in violation of Iowa Code sections 708.1(1) and 708.2A, fourth-degree criminal mischief (Count III) in violation of sections 716.1 and 716.6, burglary in the first degree (Count IV), in violation of sections 713.1 and 713.3, and assault while participating in a felony, (Count V) in violation of section 708.3. The State later amended the trial information to change Count III from fourth-degree criminal mischief to second-degree criminal mischief. Taylor waived jury trial and following a non-jury trial Judge Baker found Taylor not guilty of kidnapping and guilty of the domestic abuse assault causing bodily injury, burglary, and criminal mischief charges. The court concluded the doctrine of merger precluded the defendant from also being convicted on the assault while participating in a felony charge because it would merge with the burglary conviction.
Taylor filed a motion for new trial, and a different judge, Judge Mackey, concluded there was not substantial evidence to support the trial court's finding that Taylor had a specific intent to damage Michelle's van. Judge Mackey held that Taylor "kept pounding on the van with the sole purpose of having Susan relent and talk with him," and there was no indication Taylor specifically intended to cause damage to the van. Judge Mackey ruled the criminal mischief verdict was contrary to the evidence pursuant to Iowa Rule of Criminal Procedure 2.24(2)( b)(6), amended the findings of fact and conclusions of law, and substituted a verdict of not guilty on the criminal mischief charge pursuant to rule 2.24(2)( c). Taylor was sentenced to a twenty-five year term of incarceration on the burglary conviction and to time served on the domestic abuse assault conviction.
At Taylor's request Judge Baker recused himself from hearing any of Taylor's post-trial motions and sentencing Taylor for reasons not relevant to this appeal.
Both Taylor and the State filed notices of appeal. Taylor challenges the sufficiency of the evidence to support his conviction for domestic abuse assault. He claims there was insufficient evidence he did an act which was intended to cause pain or injury to Susan or which was intended to result in physical contact which would be insulting or offensive to her. Taylor also claims there was insufficient evidence to establish he inflicted a bodily injury on Susan. Taylor challenges the burglary conviction, claiming there was insufficient evidence that his entry into the van was with an intent to assault Susan, and there was insufficient evidence he inflicted bodily injury on her. He argues the van window broke unexpectedly and, therefore, his entry of the occupied structure (the van) was not made with an intent to commit an assault.
Taylor claims the court abused its discretion in admitting evidence of his prior bad acts which consisted of prior acts of domestic abuse toward Susan. He contends their probative value was outweighed by their prejudicial impact. He further claims the district court erred in denying his motion for new trial with respect to the burglary and domestic abuse assault charges as those verdicts were against the weight of the greater amount of the credible evidence. Taylor argues he was denied the effective assistance of trial counsel because his attorney: did not file a motion in limine to exclude evidence of his prior bad acts; advised him to waive a jury trial; failed to properly advise him regarding a plea bargain; failed to properly object to the admission of prior bad acts evidence; failed to move for a judgment of acquittal based on the insufficiency of the evidence to establish a bodily injury; and failed to adequately prepare for trial.
The State filed a notice of appeal, but in its brief acknowledges it was not entitled to appeal as a matter of right and that it should have instead filed an application for discretionary review. The State concedes it cannot retry the defendant on the criminal mischief conviction vacated by Judge Mackey. However, the State contends this case presents a significant legal issue regarding the specific intent necessary to prove the crime of criminal mischief. Specifically, the State alleges the district court confused the defendant's motive for his actions with his intent. The State argues the defendant's actions may have been motivated by his desire to talk to his wife, but his intent, as evidenced from his actions in pounding on the passenger-side window until it broke, after having cracked the van's windshield, was to damage the vehicle. The State argues an actor is presumed to intend the natural consequences of his act, and the district court should not have vacated the verdict of guilt on the criminal mischief charge.
Taylor argues in his reply brief that a verdict of acquittal cannot be reviewed for any reason without violating the Double Jeopardy Clause of both the federal and state constitutions. He concludes that any review by this court of the district court's not guilty verdict would violate his rights protected by the Double Jeopardy clause. Accordingly, he contends we should not consider the State's cross-appeal and it should be dismissed.
II. MERITS.
A. State's Cross-Appeal.
Before we address the substantive issues in this case we consider the propriety of the State's cross-appeal. The State concedes it should have filed an application for discretionary review pursuant to Iowa Rule of Appellate Procedure 6.201 and Iowa Code section 814.5(2), because section 814.5(1) did not provide a right of appeal from the district court's ruling on Taylor's motion for new trial. The State correctly acknowledges that Taylor cannot be retried on the criminal mischief charge because he has already once been put in jeopardy for that crime and thus reprosecution of the charge would violate Taylor's right to be free from double jeopardy under the state and federal constitutions.
We also agree with the State that an appellate court can review an issue of law in a discretionary appeal by the State from a judgment of acquittal if the appeal presents a legal question the determination of which will be beneficial, or a guide to trial courts in the future. State v. Flack, 251 Iowa 529, 530, 101 N.W.2d 535, 536 (1960). Although the judgment of acquittal on the criminal mischief charge is final as to Taylor, it is well established that we would not be putting Taylor in double jeopardy if we were to reverse the trial court's judgment on that charge, if appropriate, provided we do not remand the case. See State v. McCoy, 618 N.W.2d 324, 326 (Iowa 2000); State v. Grice, 515 N.W.2d 20, 23 (Iowa 1994).
Our rules of appellate procedure provide that if a case is erroneously brought as an appeal but should have been brought as an application for discretionary review, the appellate court shall not dismiss the case but "shall proceed as though the proper form of review had been sought." Iowa R. App. P. 6.304; State v. Bullock, 638 N.W.2d 728, 731 (Iowa 2002). Therefore, we will treat the State's cross-appeal as an application for discretionary review and consider whether discretionary review should be granted.
One basis for discretionary review is "[a] final judgment or order raising a question of law important to the judiciary and the profession." Iowa Code § 814.5(2)(d); see also Bullock, 638 N.W.2d at 731 (granting State discretionary review because the issue presented in the State's appeal was a matter of importance to judges and attorneys). The State argues that the district court erred in granting Taylor a new trial and substituting a verdict of not guilty on the criminal mischief charge and urges we grant discretionary review here to answer the important legal issue of what specific intent is necessary to prove criminal mischief. Specifically, the State asserts that "[t]he particular legal issue of importance to the bench and bar is whether the defendant's intent to gain access to his victim inside a closed vehicle — coupled with his action of pounding on the windows of the vehicle — gave rise to a sufficient inference that he had the specific intent to damage the vehicle."
Our law is clear that the crime of criminal mischief requires proof of specific intent, and that the relevant intent is an intent to damage, deface, alter or destroy property. See Iowa Code § 716.1; State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998). The State is required to establish that the defendant intended to cause the damage to the property, and intent to do the act that damaged the property is not sufficient. Chang, 587 N.W.2d at 461. Thus, the only remaining issue here is whether the State proved beyond a reasonable doubt that Taylor had the specific intent to damage Michelle's van. This was a question of fact for the trial court, as the fact finder, to determine. Therefore, we conclude the State's application for discretionary review does not present an important legal question for the judiciary and the profession, but instead challenges what is essentially a factual determination made by the trial court. Accordingly, we deny the State's application for discretionary review and move on to address Taylor's issues on appeal.
B. Sufficiency of the Evidence.
Our scope of review is on assigned error. Iowa R. App. P. 6.4; State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995). It is the same on a defendant's appeal from a criminal conviction whether the court or a jury is the fact finder. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988).
The standard of review in a challenge to the sufficiency of the evidence is well established. Dible, 538 N.W.2d at 270. We will uphold a verdict where substantial evidence in the record tends to support the charge. Id. A trial court's finding of guilt is binding on appeal if supported by substantial evidence. Iowa R. App. P. 6.14(6)( a); State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
In a criminal case tried to the court, as in a civil case tried to the court at law, the court's verdict is like a jury verdict. Upon review of the sufficiency of evidence to support the verdict, we view the evidence in the light most favorable to the verdict, and we accept as established all reasonable inferences tending to support it. Findings of the trial court are to be broadly and liberally construed, rather than narrowly or technically, and, in case of ambiguity, we will construe findings to uphold, rather than defeat, the judgment. Direct and circumstantial evidence are equally probative so long as the evidence raises a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture. It is necessary to consider all the evidence in the record and not just the evidence supporting the verdict to determine whether there is substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt.
Dible, 538 N.W.2d at 270 (internal quotations and citations omitted). When a criminal case is tried to the court, the defendant may challenge the sufficiency of the evidence on appeal regardless of whether the defendant moved for judgment of acquittal. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). Because this case was tried to the court error is preserved regardless of whether Taylor raised any sufficiency claims below.
1. Domestic abuse assault conviction.
Taylor first contends there was insufficient evidence to support his conviction for domestic abuse assault. He argues that pursuant to State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001), the assault alternative under section 708.1(1) is a specific intent crime and the evidence here does not support a finding that he did an act which was intended to cause pain or injury to Susan or which was intended to result in physical contact which would be insulting or offensive to Susan. He asserts the evidence shows he neither harmed nor intended to harm his wife, but only wanted to speak with her. Taylor relies on both his and Susan's testimony at trial that he did not hurt her or intend to hurt her, and that she did not complain of pain after the incident.
"Specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result. General intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of any subjective desire to have accomplished such result." Eggman v. Scurr, 311 N.W.2d 77, 80 (Iowa 1981) (quoting State v. Redmon, 244 N.W.2d 792, 797 (Iowa 1976)).
The State argues that Taylor's reliance on Heard is misplaced because the court in Heard specifically limited its holding to the assault alternative in section 708.1(2) but did not hold that section 708.1(1), the alternative Taylor was convicted under, is a specific intent crime.
The State charged defendant with domestic abuse assault causing bodily injury under Iowa Code sections 708.1(1) and 708.2A. Domestic abuse assault requires an assault as defined in section 708.1. Iowa Code § 708.2A(1). A person commits an "assault" under section 708.1(1) when, without justification, the person does 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). Domestic abuse assault is any assault which is defined as domestic abuse under section 236.2(2)(a), (b), (c), or (d). Iowa Code § 708.2A(1). One such situation in which domestic abuse assault occurs is when an assault takes place between separated spouses. See Iowa Code §§ 236.2(2)(b), 708.2A(1). Domestic abuse assault is a serious misdemeanor if the assault caused bodily injury. Iowa Code § 708.2A(2)(b).
Taylor is correct that the State based the assault charge exclusively on the assault alternative in section 708.1(1) and it was under this provision the district court found him guilty. The State did not charge Taylor with the assault alternative under section 708.1(2) and thus this section is irrelevant for purposes of our analysis here.
The trial court set forth what the State was required to prove in order to find Taylor guilty of domestic abuse assault: (1) on December 2, 2001 Taylor did an act which was intended to cause pain or injury to, or which was intended to result in physical contact which would be insulting or offensive to another, (2) Taylor had the apparent ability to do the act, and (3) the act occurred between separated spouses. Without determining whether specific intent was in fact required under the assault alternative in section 708.1(1), Judge Baker found Taylor in fact had the specific intent to assault Susan as defined in section 708.1(1). The court found Taylor's "stated intent was to talk to his wife. His conduct demonstrates that he intended to do what was necessary to accomplish his goal, including dragging Susan out through the van's shattered window."
The court also found that Taylor's conduct made it clear he had the apparent ability to do the act and he clearly intended to complete the act which was painful, insulting or offensive to Susan; and that Taylor and Susan were separated spouses at the time the assault occurred. However, these second and third elements of the crime are not at issue here.
Judge Baker's conclusions regarding the domestic abuse assault charge were found to be supported by substantial evidence in Judge Mackey's ruling on Taylor's motion for new trial. In making this determination Judge Mackey concluded that Taylor had "confused his `motive' with his `intent.' While his motive might have been simply to speak with his wife, his intent was to use physical force to accomplish that result."
We agree with the findings and conclusions of the district court on this issue. We need not determine whether the State was required to prove specific intent under section 708.1(1) because substantial evidence supports the district court's determination that Taylor did in fact do an act with specific intent to cause pain or injury to Susan or to result in physical contact which would be insulting or offensive to her.
"The element of intent is seldom susceptible to proof by direct evidence. It often depends upon circumstantial evidence and inferences drawn from such evidence." State v. Hernandez, 538 N.W.2d 884, 887-88 (Iowa Ct. App. 1995). Taylor argues his intent was simply to talk to Susan, not to assault her or harm her in any way. In judging Taylor's conduct we are guided by the maxim that generally we may infer a defendant intended the natural and probable consequences that ordinarily follow from his or her actions. State v, Rinehart, 283 N.W.2d 319, 322-23 (Iowa 1979). The undisputed evidence in the record reveals Taylor was upset at the time of the incident, he hit the van's windshield and it cracked, he hit the passenger-side window of the van until it shattered, and he then pulled Susan through the van's broken window. The evidence further shows that Taylor's actions were in violation of a court order Susan had secured prohibiting him from having any contact with her. Considering all of the evidence in the light most favorable to the State, we conclude a reasonable trier of fact could have concluded that Taylor's actions were intended to cause pain or injury to Susan or result in physical contact which would be insulting or offensive to her. See State v. Olson, 373 N.W.2d 135, 137 (Iowa 1985) (finding that defendant's violent entry into apartment, his agitated mental state, and the violent conduct which followed permitted jury to infer it was more-likely-than-not that the defendant had an intent to assault); State v. McFarland, 598 N.W.2d 318, 320-21 (Iowa Ct. App. 1999) (finding circumstances of defendant's entry into victim's home, including the time, manner, and nature of the entry, could have led jury to conclude defendant had the specific intent to assault when he broke down victim's front door); State v. Hernandez, 538 N.W.2d 884, 887-88 (Iowa Ct. App. 1995) (holding that despite defendant's assertion he simply wanted to talk to the victim, the jury could properly infer defendant intended an assault based on forced, violent entry and subsequent actions).
Furthermore, a factfinder could have concluded Taylor knew any contact between him and Susan would be offensive to Susan because of his knowledge of the no contact order. See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (noting that evidence to support inference defendant intended to commit assault included his violent, nonconsensual entry into victim's apartment, his knowledge that any physical contact between him and victim would be offensive to her, and his assaultive actions once inside.) Accordingly, we reject Taylor's argument there was insufficient evidence to support his conviction for domestic abuse assault.
Moreover, the court was not required to accept either Taylor or Susan's version of the facts or their testimony regarding Taylor's intent. See State v. Trammell, 458 N.W.2d 862, 863 (Iowa Ct. App. 1990) (noting the jury is at liberty to believe or disbelieve the testimony of witnesses as it chooses); see also State v. Spaulding, 313 N.W.2d 878, 882 (Iowa 1981) ("The credibility of witnesses is for the fact finder."). The court as fact finder could believe some of the testimony, all of the testimony, or none of it. State v. Lopez, 633 N.W.2d 774, 786 (Iowa 2001). We find the court's determination that Taylor's actions demonstrated his intent to do an act intended to cause pain or injury to Susan or result in physical contact which would be insulting or offensive to her is supported by substantial evidence. Thus, we conclude there is sufficient evidence to support Taylor's conviction for domestic abuse assault.
Taylor also claims that Susan did not receive "bodily injury" from him and thus there was insufficient evidence to charge and sentence him pursuant to the serious misdemeanor domestic abuse assault option under section 708.2A(2)(b). A "bodily injury" is defined as "physical pain, illness, or any impairment of physical condition." State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997); State v. McKee, 312 N.W.2d 907, 913 (Iowa 1981). "Injury includes `an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm. . . .'" Gordon, 560 N.W.2d at 6 (quoting McKee, 312 N.W.2d at 913). Thus, physical pain is sufficient to constitute a bodily injury. Our case law has never imposed a temporal requirement that a bodily injury last for a certain amount of time. State v. Canas, 597 N.W.2d 488, 495 (Iowa 1999). Thus, even if the physical pain lasts for only a short time it is sufficient to support a finding of bodily injury. Id.
Dr. Davis-Kramer testified that when she examined Susan at the hospital she discovered bruises and abrasions on Susan's chest, shoulder, and scapula. She further testified that although Susan initially did not complain of any pain, she indicated she had some pain when palpated by the doctor. Michelle testified that she stayed home with Susan the day after the incident because Susan was "really stiff and sore." Michelle also stated that Susan asked her to rub her back and in doing so she noticed Susan had multiple bruises on her back, as well as cuts and abrasions on her hands. While welts, bruises and similar markings are not physical injuries per se, they are frequently evidence from which the existence of a physical injury can be found. Gordon, 560 N.W.2d at 6.
We conclude the testimony in the record provides substantial evidence from which a reasonable fact finder could conclude that Susan did in fact suffer physical pain as a result of Taylor's actions. Evidence of her bruises and abrasions coupled with the testimony indicating she was in physical pain, both at the hospital the evening of the incident and at home the next day, provides substantial evidence that Taylor inflicted bodily injury on Susan. See Canas, 597 N.W.2d at 495 (holding that although any pain by victim lasted only a few seconds and he did not have any visible injuries or require medical treatment, because there was evidence the defendant clearly inflicted pain on the victim there was sufficient evidence to support the defendant's conviction for assault causing bodily injury); State v. Brown, 569 N.W.2d 113, 115-16 (Iowa 1997) (holding that from evidence the victim had welts and scratches under her eyes, and evidence they were caused by the defendant, a rational jury could find beyond a reasonable doubt that defendant committed assault causing bodily injury). Accordingly, viewing the facts in the light most favorable to the State, we conclude a rational factfinder could find beyond a reasonable doubt that Taylor assaulted Susan causing bodily injury, a serious misdemeanor under section 708.2A(2)(b).
2. First-degree burglary conviction.
"A person commits burglary in the first degree if, while perpetrating a burglary in or upon an occupied structure in which one or more persons are present . . . [t]he person intentionally or recklessly inflicts bodily injury on any person." Iowa Code § 713.3(1)(c). The district court set out the elements the State was required to prove for first-degree burglary as follows:
1. On December 2, 2001, the defendant entered an occupied structure, the 1999 Chevrolet Venture van, in which persons were present.
2. The defendant did so with the intent to commit a felony, assault or theft therein.
3. The defendant did not have permission or authority to enter the van.
4. While perpetrating the burglary, the defendant intentionally or recklessly inflicted bodily injury on an occupant of the van.
Taylor challenges the sufficiency of the evidence on the second and fourth elements listed by the court. Specifically, he contends the State failed to prove he had formed the intent to assault Susan at the time of his entry into the van because his decision to remove her through the window of the van occurred only after his hands were in the van. He also claims there was not sufficient evidence he inflicted bodily injury on Susan.
We note that this case appears to be distinguishable from State v. Keopasaeuth, 645 N.W.2d 637, 641 (Iowa 2002) in which our supreme court was divided on the issue of whether the defendant's actions inassaulting a person through an open window of a vehicle constituted second-degree burglary. Here it is undisputed that the window of the van was closed when Taylor first approached it, and that he hit the closed window with his hand until the window shattered. However, we need not decide this issue because Taylor is not challenging the sufficiency of the evidence on the trial court's finding that he entered an occupied structure.
A factfinder may infer an intent to commit an assault from the circumstance of the defendant's entry into the premises and his acts preceding and following the entry. Finnel, 515 N.W.2d at 42. The requirement of proof beyond a reasonable doubt is satisfied if it is more likely than not that the inference of intent is true. Id. The element of intent in burglary is seldom susceptible to proof by direct evidence. Id.; Olson, 373 N.W.2d at 136. For all of the reasons detailed above, including the evidence of Taylor's violent and nonconsensual entry into Michelle's van, his knowledge of the no contact order, and his other actions both preceding and following the entry into the van, we conclude substantial evidence supports the district court's finding that Taylor harbored an intent to assault Susan at the time he entered the van.
Taylor also again argues that there was insufficient evidence to prove he inflicted bodily injury on Susan. In arguing this issue he simply incorporates by reference all of his arguments set forth in his argument on the sufficiency of the evidence for bodily injury under the domestic abuse assault conviction. For all of the reasons we set forth above in addressing the bodily injury under the domestic assault conviction, we find there was sufficient evidence for a reasonable fact finder to conclude Taylor did in fact inflict bodily injury on Susan. Accordingly, we conclude there was sufficient evidence to prove the challenged elements and to support Taylor's conviction for burglary in the first degree.
C. Prior Bad Acts Evidence.
Taylor next argues the district court abused its discretion in admitting evidence that he pushed Susan and threatened to kill her in September and October of 2001, including Susan's testimony relating to these incidents and the domestic abuse complaint and no-contact order that was the result of these events. Specifically, he contends this prior bad acts evidence was not relevant because he and Susan both denied that he assaulted her during the December 2, 2001 incident so there is no need to rely on prior acts to prove intent, the prior acts were dissimilar to the incident in question here, and Judge Mackey found Taylor did not have the specific intent to break the window. Taylor further argues that even if the evidence is relevant, it should have been excluded because its probative value did not outweigh its prejudicial effect. The State sought to introduce the evidence of these prior bad acts as evidence to prove Taylor's specific intent to assault Susan, his intent being the main issue in dispute at trial, to rebut Taylor's and Susan's claim that he only wanted to talk to Susan and never intended to assault her, and to rebut Taylor's claim he did not intend to break the van window.
A challenge to the admission of prior bad acts evidence is reviewed for an abuse of discretion. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). If evidence of crimes, wrongs, or acts is relevant to issues other than the defendant's propensity to commit crime, it may be admissible. Iowa R. Evid. 5.404( b). For example, it may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. To be admissible, the evidence must first be relevant to prove some fact or element in issue other than the defendant's criminal disposition. Rodriquez, 636 N.W.2d at 239. The second requirement for admissibility of prior bad acts is that the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. Id. at 239-40.
We must first analyze whether the challenged evidence was relevant to the crimes charged. The most strongly contested issues at trial were whether Taylor had the specific intent to assault Susan, an essential element of the burglary charge, and whether he intended his acts to cause pain or injury to her or to result in physical contact which would be insulting or offensive to her, an essential element of the domestic abuse assault charge. Taylor's prior acts of pushing Susan down while she was holding their daughter and pregnant, and laying a gun and bullets on the dining room table and threatening to take her to the garage to kill her because she was late getting home, are both undoubtedly relevant to the charges against Taylor. Evidence of Taylor's prior, intentional acts toward Susan, aggravated by his prior threat to kill her, makes it more probable than not that Taylor intended his actions on the day in question to cause pain or injury to Susan or to result in physical contact which would be insulting or offensive to her. See Rodriquez, 636 N.W.2d at 242 (finding evidence of prior assaults against victim relevant to specific intent of defendant charged with willful injury).
Having found the evidence is relevant to the charges against Taylor, we now turn to the question of whether the probative value of the challenged evidence is outweighed by the prejudicial effect. However, as the purpose of all evidence is to sway the fact finder, rule 5.403 does not preclude the admission of all prejudicial evidence but only that which is unfairly prejudicial. Unfairly prejudicial evidence is that which [a]ppeals 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.
2 Joseph C. McLaughlin, Weinstein's Federal Evidence § 403.04(1)(c), at 403-40 to 403-44 (2d ed. 2001). A proper weighing of probative value and unfair prejudice requires that the court consider on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
Rodriquez, 636 N.W.2d at 240 (quoting State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991)).
Taylor has contended throughout the trial and appeal that he did not have the specific intent to assault Susan and that his acts were not intended to cause her pain or injury or to result in physical contact that would be insulting or offensive to her, but that he only wanted to talk to her. As evidence of this he points to the fact Susan herself denied at trial that he assaulted her, and she never testified that he did any act which was intended to cause her pain or injury or to result in physical contact which would be insulting or offensive to her. He argues that if he, Susan, and the police officers all denied there was an assault or intent to assault it is "clearly untenable and unreasonable" to use the prior bad acts to create an intent for an assault that is denied by the witnesses. However, Taylor fails to acknowledge the substantial physical evidence that an assault occurred. More importantly, he fails to acknowledge Michelle's testimony, which clearly supports the finding that Taylor assaulted Susan. As with any witness testimony at a criminal trial, the trier of fact is free to believe or disbelieve whatever testimony it chooses. See Trammell, 458 N.W.2d at 863. The court as fact finder could believe some of the testimony, all of the testimony, or none of it. Lopez, 633 N.W.2d at 786.
We note that it was reasonable for the court to determine that Michelle's testimony was more credible and reliable than either Taylor's or Susan's. Taylor as the defendant clearly has a vested interest here that Michelle did not. Furthermore, unlike Susan (who was reconciled and still married to Taylor at the time of trial) Michelle had no incentive to protect Taylor. In addition, it is clear Susan sought help from the courts and her friend Michelle to get away from Taylor and keep him away from her by obtaining a no contact order and moving in with Michelle. However, despite her efforts Taylor managed to find Susan and drag her out of a van window to force her to "talk" to him. Under these circumstances, it was more than reasonable for the court to question to credibility of Susan's testimony and determine Michelle was the more credible witness.
Evidence of Taylor's prior assaultive acts against Susan is extrinsic evidence the fact finder could consider in determining whether Taylor had formed the requisite specific intents in the later incident. The evidence is of a nature that has a tendency to make the existence of the required specific intents on December 2, 2001, more probable than it would be without the evidence of his prior violent acts and verbal threats. See Rodriquez, 636 N.W.2d at 239. Accordingly, we conclude that on balance we cannot say the trial court did not fairly weigh the relevant factors in deciding whether to admit the prior bad acts evidence. The trial court's resolution of this difficult balancing process was reasonable and did not constitute an abuse of discretion.
D. Motion for New Trial.
Taylor incorporates his sufficiency and prior bad acts arguments into his argument here that, based on the less stringent standard applied in motions for new trial, the court abused its discretion in denying his motion for new trial on the domestic abuse assault and burglary convictions because these verdicts were contrary to the weight of the evidence. When a defendant argues the trial court erred in denying a motion for new trial based on a claim that the verdict is contrary to the weight of the evidence our standard of review is for abuse of discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).
Iowa Rule of Criminal Procedure 2.24(2)( b)(6) provides that the court may grant a new trial when the verdict is contrary to law or the evidence. Our supreme court has interpreted "contrary to . . . the evidence" as meaning "contrary to the weight of the evidence." Id. "The `weight of the evidence' refers to `a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.'" Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 1025 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)). A motion for judgment of acquittal, on the other hand, is to be granted whenever "the evidence is insufficient to sustain a conviction" for the charged offense. Iowa R. Crim. P. 2.19(8); State v. Geier, 484 N.W.2d 167, 170 (Iowa 1992). The court made it clear in Ellis that the contrary to the weight of the evidence standard was not the same as the sufficiency of the evidence standard, contrary to a previous holding. Ellis, 578 N.W.2d at 659.
The power of the trial court is much broader in a motion for new trial than a motion for judgment of acquittal. Id. at 658. In applying the weight of the evidence standard If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted.
. . . The motion [for new trial] is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Id. at 658-59 (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553, at 245-48 (2d ed. 1982)).
Based on the evidence summarized in preceding portions of this opinion we conclude this is not a case in which the testimony of a witness which otherwise supports conviction is so lacking in credibility that the testimony cannot support the guilty verdicts on the domestic abuse assault and burglary charges. Neither is it a case in which the evidence supporting the guilty verdicts is so scanty, or the evidence opposed to the guilty verdicts so compelling, that the verdicts can be seen as contrary to the evidence. The evidence is this case does not preponderate heavily against these verdicts. The trial court did not abuse its discretion in overruling Taylor's motion for new trial on the domestic abuse assault and burglary charges.
E. Ineffective Assistance of Counsel.
Finally, Taylor contends he was denied his right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. Specifically, he alleges his counsel was ineffective for (1) failing to file a motion in limine to keep out the prior bad acts evidence, (2) advising Taylor to waive his right to a jury trial, (3) failing to properly advise Taylor regarding a plea bargain, (4) failing to properly object to the admission of the prior bad acts evidence, (5) failing to move for judgment of acquittal on the domestic abuse assault and burglary charges based on the fact there was no "bodily injury," and (6) failing to adequately prepare for trial.
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 141-44 (Iowa 2001). When there is an alleged denial of constitutional rights, such as an assertion of ineffective assistance of counsel, we review the totality of the circumstances in the record de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma, 626 N.W.2d at 142. We need not decide whether counsel's performance was deficient before examining the prejudice prong. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). A defendant is not entitled to perfect representation, but rather only that which is within the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). While we often preserve ineffective assistance of counsel claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).
Three of Taylor's ineffective assistance claims deal with the challenged prior bad acts evidence discussed and decided above. First, he contends his counsel was ineffective for failing to file a pretrial motion in limine to keep out his prior incidents of abuse against Susan which occurred in September and October of 2001. He alleges if counsel would have filed such a motion the prior bad acts would have most likely been excluded and the outcome of the trial would have been different. Second, in a related claim, Taylor contends his counsel was ineffective in failing to secure a ruling on whether Taylor's prior bad acts would be admitted in evidence before advising Taylor whether to waive his right to a jury trial. He argues his waiver could not have been knowing and voluntary unless he knew whether a jury would be hearing the challenged prior bad acts evidence, and there is a reasonable probability that he would not have waived his right to a jury trial if the court had ruled the prior bad acts were inadmissible. Third, Taylor claims his counsel was ineffective for failing to object to the admission of the prior bad acts evidence at trial based on the State's failure to provide Taylor notice through the minutes of evidence that the State was going to offer evidence of his prior bad acts. He further contends counsel should have objected to the prior bad acts evidence based on due process grounds because the admission of such evidence infected the trial with unfairness and thus denied his constitutional right to a fair trial.
We conclude Taylor's trial counsel was not ineffective for not filing a motion in limine concerning the prior bad acts evidence and not objecting to such evidence on due process grounds because, as we have already determined, the prior bad acts evidence was admissible. Counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999); State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998).
Furthermore, we conclude trial counsel was not ineffective for allowing Taylor to waive a jury trial before securing a ruling on the admissibility of the prior bad acts evidence. Taylor asserts there is a reasonable probability he would not have waived his right to a jury trial if the district court had ruled the prior bad acts were inadmissible in a jury trial. However, the trial court admitted the challenged evidence over Taylor's objections, and we have determined it did not abuse its discretion in doing so. Thus, if such a pretrial motion had been made the trial court would presumably have ruled the evidence was admissible and, according to his argument, Taylor therefore would have waived jury trial just as he in fact did. Accordingly, Taylor cannot show that he was prejudiced by counsel not securing a pre-trial ruling.
Taylor complains the minutes of evidence did not provide notice that Susan or Michelle would testify about his prior bad acts. The minutes indicated Susan would testify "that there was a valid no contact order on [Taylor]" at the time of the incident that led to the charges in this case, and that Susan would testify "as to the facts and circumstances related hereto." This was sufficient to notify Taylor that Susan would testify about the no contact order and the acts which led to its issuance. Counsel did not breach an essential duty by not objecting to Susan's testimony concerning Taylor's prior bad acts.
Although the minutes did not provide notice that Michelle would also testify about Taylor's prior bad acts, she testified only that she was aware that Susan had secured an order that Taylor have no contact with her, and that it was based on previous harmful acts. Her testimony concerning prior bad acts was substantially more limited than Susan's, did not provide any of the detail that Susan's did, and was merely cumulative to Susan's. Under these circumstances Taylor suffered no prejudice as a result of counsel not objecting to this testimony by Michelle, and counsel was therefore not ineffective for not objecting.
We find all three of Taylor's ineffective assistance of counsel claims relating to the prior bad acts evidence to be meritless.
Taylor also claims his counsel was ineffective for failing to move for judgment of acquittal on the domestic abuse assault and burglary charges based on the fact there was no "bodily injury" to support these charges. We have already determined there was sufficient evidence to prove Taylor did in fact inflict bodily injury on Susan. Accordingly, we conclude Taylor's counsel could not have been ineffective for failing to file such a motion as it would have been without merit. See Greene, 592 N.W.2d at 29; Hochmuth, 585 N.W.2d at 238.
Taylor claims his trial counsel was also ineffective for failing to properly advise him regarding a possible plea bargain for a five-year sentence. He again rests this claim on counsel's failure to secure a pretrial ruling on whether the prior bad acts evidence was admissible, and contends this failure affected his decision on whether or not to accept the purported plea offer. Taylor argues that had the court ruled the prior bad acts were admissible a reasonably competent attorney would have advised him to take the plea bargain. Taylor asserts he has been prejudiced by this because he now has to spend more time in prison than he would have had he accepted the plea bargain.
The carefully couched wording of this claim by Taylor leaves very unclear what he asserts the facts to be. However, his claim can arguably be read as alleging that the State offered a plea bargain for a five-year sentence, his counsel did not believe the prior bad acts evidence was admissible, and his counsel advised him to reject the plea offer. The record is unclear as to whether the State offered a plea bargain, what its terms were if such an offer was made, what advice, if any, Taylor's attorney gave concerning admissibility of the prior bad acts evidence, and what advice, if any, Taylor's attorney gave concerning the purported plea offer. We conclude the record is inadequate to decide this issue on direct appeal and thus preserve it for a possible postconviction proceeding. See State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (stating we generally preserve such claims for postconviction relief proceedings where an adequate record can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims).
Finally, Taylor claims his counsel was ineffective for failing to adequately prepare for trial. He asserts counsel failed to adequately prepare in three specific ways: (1) counsel failed to get a pretrial ruling on the admissibility of the prior bad acts evidence, detrimentally affecting Taylor's decisions regarding waiving jury trial and the purported plea offer, (2) counsel failed to take depositions from Michelle and Susan and this was a failure to properly investigate material witnesses, and (3) counsel failed to investigate whether an independent expert witness for the defense could have refuted the testimony of the State's expert, Dr. Davis-Kramer, regarding how and when Susan's injuries occurred.
We have already determined that Taylor was not prejudiced, with respect to his decision to waive a jury trial, by counsel not securing a pretrial ruling on admissibility of the prior bad acts evidence. We preserve his claim that not securing a pretrial ruling constituted ineffective assistance because it detrimentally affected his decision regarding a purported plea offer, just as we have preserved his somewhat related claim that counsel was ineffective for failing to properly advise him regarding a possible plea bargain. We conclude the record before us is insufficient to allow us to address the second and third grounds specified within this ineffective assistance claim. Accordingly, we preserve these claims for a possible postconviction relief proceeding. See Biddle, 652 N.W.2d at 203. No record has yet been made before the trial court on these issues. Trial counsel has not been given an opportunity to explain his actions and the trial court has not considered and ruled on these ineffectiveness claims. Under these circumstances, we pass these specified issues in this direct appeal and reserve them for possible postconviction proceedings. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III. CONCLUSION.
We conclude there is sufficient evidence in the record such that a reasonable fact finder could conclude Taylor had the specific intents that are essential elements of domestic abuse assault and burglary in the first degree, and that Susan suffered bodily injury, and therefore could find beyond a reasonable doubt that Taylor was guilty of domestic abuse assault causing bodily injury and burglary in the first degree. We further find the district court did not abuse its discretion in admitting the challenged prior bad acts evidence, and did not abuse its broad discretion in denying Taylor's motion for new trial. The record is not adequate to address certain claims that defense counsel was ineffective and we preserve them for a possible postconviction proceeding so an adequate record can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to the claims. We find the remainder of Taylor's claims of ineffective assistance of counsel to be without merit. The State's application for discretionary review is denied.
CONVICTIONS AFFIRMED; DISCRETIONARY REVIEW DENIED.
Sackett, C.J., concurs specially.
In following the current law I can find no reason to disagree with the result of the well-written majority opinion. Defendant was convicted of first-degree burglary and domestic abuse assault and received a mandatory twenty-five-year indeterminate term for the burglary. What I seriously question is whether under the facts of this case, this punishment dictated by the legislature serves society, the alleged victim and her family.
Defendant and his wife, Susan, the alleged victim, married when they were both very young. There have been problems in their marriage, including defendant's election to have an affair with another woman. Obviously, this indiscretion on his part as well as other problems resulted in disagreements between the two. Defendant pushed Susan, and she obtained and defendant was served with a court order that said defendant was to have no contact with Susan. Defendant, in violation of the order, approached a car in which Susan was a passenger and beat on the car window, which, much to his surprise, broke. Defendant lifted Susan out of the car through the broken window and put her in his car. He drove a short distance and stopped. The two of them then walked to the police station together, where they were found hugging each other while Susan cried.
Defendant and Susan are young. They have three young children in need of financial support and parental guidance from both of their parents. Defendant testified he did not intend to break the car window. That testimony is supported by Susan's testimony that defendant looked surprised and stopped moving for a short period of time when the window broke. Defendant, and even Officer Pote, testified defendant never intended to hurt Susan. Defendant further testified he was careful in lifting her through the open window. Although a medical examination showed Susan had a bruise and abrasion over her right shoulder and chest, and a bruise on her back over her scapula, these bruises are not apparent from defendant's photographic exhibits. Susan's bruises were not painful until a doctor palpated them, at which point she had a little pain. Testimony indicated defendant's car had been rammed from behind by Michelle Vincent while Susan was in the car. Susan's bruises could well have resulted from that and not from defendant's actions.
Letters from relatives of Susan and defendant as well as their minister described defendant as a loving and devoted father and husband, needed by his children and his wife. They further described him as a productive member of society.
I do not wish to diminish in any respect defendant's actions. But I question whether society is served by filling our state prisons, apparently full beyond capacity, with people like this defendant who have no prior record and who, if they remain in society, can provide both financial and emotional support for their spouse and most importantly, their children. Would it not be better to direct defendant to take anger management classes and have other restrictions but be allowed to remain in society and support his family? Such a choice was not available to the district court in sentencing defendant, and it is not available to us on appeal. Should it not be?
I am authorized to state that Judges Miller and Hecht concur in the views expressed in this special concurrence.