Opinion
No. 5-761 / 05-0128
Filed December 7, 2005
Appeal from the Iowa District Court for Lee County (North), Joel J. Kamp, District Associate Judge.
The defendant appeals from his convictions on various charges, claiming ineffective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Michael Short, County Attorney, and Gordon Liles, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Following a jury trial, Brad Yager, II, was convicted of (1) assault with a dangerous weapon, an aggravated misdemeanor in violation of Iowa Code sections 708.1(2) and 708.2(3) (2003); (2) harassment in the first degree, an aggravated misdemeanor in violation of Iowa Code section 708.7(1)(a)(2); and (3) assault causing bodily injury, a serious misdemeanor in violation of Iowa Code sections 708.1(1) and 708.2(2). On appeal, Yager contends he received ineffective assistance of trial counsel for counsel's failure to object to testimony concerning what he claims are his prior bad acts. We affirm.
I. Background Facts and Proceedings.
The charges against Yager stem from several incidents of alleged violence against his mother, Donna, over the course of several days in September 2004. During this time period Donna alleges Yager punched her, burned her, struck her with tools and a spare tire, bent her legs over her head, put a gun in her mouth, shot holes in the ceiling, and threatened to break all her bones and kill her. The trial information alleged the acts underlying the charges occurred on or about September 10th, 13th and 14th.
II. Discussion.
Our review for constitutional claims of ineffective assistance of counsel is de novo. State v. Martin, 704 N.W.2d 665, 668 (Iowa 2005). To prove his claim of ineffective assistance of counsel, Yager must demonstrate (1) his attorney's performance fell below "an objective standard of reasonableness" and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). However, trial counsel is not under a duty to raise a meritless issue. State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005).
A. Injuries to Donna Yager.
Yager asserts that several statements made during the trial should have been objected to by his counsel, including the following evidence by his mother and her treating physician concerning her injuries allegedly caused by Yager. Dr. Robert Goodwill of the Fort Madison Community Hospital treated Donna at the emergency room on September 14, 2004, and testified as to his observations and treatment of the injuries she suffered. The State introduced several photographs taken at the hospital documenting Donna's injuries, including bruises, abrasions, and a burn on her arm. Dr. Goodwill testified that Donna reported her son had inflicted the injuries by striking her with his hands and other objects. Dr. Goodwill also testified that the injuries were consistent with having occurred at different times, between September 1 and 14, 2004. He stated that the burn also occurred between September 7 and 12, 2004.
Yager also briefly mentions error by the district court for overruling counsel's objection to photographs of Donna's injuries taken on September 14. Yager does not assert that error as a separate ground on appeal, and therefore we do not consider it. Iowa R. App. P. 6.14(1).
Defense counsel did lodge several hearsay objections that were overruled and not at issue on appeal.
Donna also testified at trial that her son struck her with his hands or other objects, burned her with a piece of burning cloth, and placed a loaded gun in her mouth, threatening to kill her. She testified that the bruises and other injuries were inflicted by her son within a "few days" prior to her visit to the emergency room on September 14, 2004. She testified as well to incidents where Yager would discharge a shotgun in the house, shooting holes in the ceiling. This testimony was undefined by dates. Although she stated that Yager had been assaulting her since he moved back home in July 2004, Donna clarified that it had been worse "later on."
Much of the testimony described above and for which Yager now claims describes his "prior bad acts" was not identified as occurring outside the timeframe referenced in the trial information. Rather, the testimony concerns details of the offenses actually charged against Yager and occurring "on or about" September 10th, 13th or 14th and therefore does not come within the realm of prior bad acts. The charge for assault with a dangerous weapon could have been supported by the testimony Yager placed a gun in Donna's mouth or that he was discharging the gun in the house in a threatening manner on or around September 10, 2004. The charge for assault causing bodily injury could have been supported by the testimony concerning Donna's injuries caused by Yager on or around September 13, 2004, as charged in the trial information. Both Donna and Dr. Goodwill testified that her injuries happened in the few days before Donna was treated on September 14. Therefore, allegations concerning Yager's actions in the period and for the charges covered by the trial information are admissible to prove the very crimes for which he was charged. Counsel had no duty to object to this range of testimony as it did not detail prior bad acts and such an objection would have been overruled.
We next review the limited testimony that fell outside the time period charged in the trial information, which were Donna's statements that Yager had abused her since he moved back into his mother's home in July 2004. In general, relevant evidence is admissible. See Iowa R. Evid. 5.402. Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. Even when evidence is relevant, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Iowa R. Evid. 5.403. Rule 5.404( b) sets forth a specific rule governing the admissibility of a person's other crimes, wrongs, or acts. It provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Iowa R. Evid. 5.404( b). Thus, when a prosecutor seeks to introduce evidence of a defendant's prior misconduct, the evidence must be probative of "some fact or element in issue other than the defendant's criminal disposition." State v. Taylor, 689 N.W.2d 116, 123 (Iowa 2004) (quoting State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001)).
If a court determines prior bad acts evidence "is relevant to a legitimate factual issue in dispute, the court must then decide if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant." State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004) (citing Iowa R. Evid. 5.403). Unfair prejudice arises when the evidence would cause the jury to base its decision on something other than the proven facts and applicable law, such as sympathy for one party or a desire to punish a party. Taylor, 689 N.W.2d at 124 (citations omitted). In determining whether unfair prejudice generated by evidence of a defendant's other misconduct substantially outweighs the probative value of the evidence, the court should consider the need for the evidence in light of the issues and the other evidence available to the prosecution, whether there is clear proof the defendant committed the prior bad acts, the strength or weakness of the evidence on the relevant issue, and the degree to which the fact finder will be prompted to decide the case on an improper basis. Id.
It appears from the record that Yager did not dispute causing his mother's injuries, but that he claims he did not intend to harm his mother as his actions were either accidental or not malicious but just "playing around." Prior incidents of domestic abuse between persons with a close emotional attachment are relevant under Iowa Rule of Evidence 5.404( b) to show intent at the time of the crime. Taylor, 689 N.W.2d at 125-30. "[T]he defendant's prior conduct directed to the victim of a crime, whether loving or violent, reveals the emotional relationship between the defendant and the victim and is highly probative of the defendant's probable motivation and intent in subsequent situations." Id. at 125 (citations omitted).
With regard to putting a loaded gun in his mother's mouth, Yager testified:
If I'm just joking with the person, she might have taken it a different way because she's never heard a threat like this. My intent was to joke around and showing her — like my joking is a little different than her joking, but I understood her but she never understood mine. She thought I was very serious when I would just play around with her.
Considered in isolation, a defendant's outward conduct may be ambiguous or entirely lawful. Only by showing that history can the state establish the justifiable inference that a defendant's charged conduct was in fact intended to engender fear on the part of the victim and that defendant knew that it was likely to do so.
Id. at 128 (quoting State v. Andrich, 943 S.W.2d 841, 844 (Mo.Ct.App. 1997)).
In weighing the possible unfair prejudice from admission of such evidence, we look to the actual need for the evidence in light of the issues and other evidence available. Taylor, 689 N.W.2d at 129. When intent is hotly contested and witnesses' accounts of the events are remarkably at odds, the basis for admitting such evidence is very high. Id. (citations omitted). In this case, Yager admitted various prior physical contacts with his mother including placing a lighter on her arm that caused the burn, demonstrating sufficient corroboration of Donna's testimony and the photographic evidence "to prevent the jury from engaging in speculation [about the prior misconduct] or drawing inferences based on mere suspicion." Id. (citing State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997)). Yager's only defense was that he was merely joking or "playing around with someone's fears," and his mother did not understand his sense of humor. The two diametrically opposed renditions of the facts gave rise to the necessity of the use of Yager's prior conduct towards his mother, to debunk his defense of merely "playing around" with her fears. He had been abusive towards his mother for some time, culminating in the serious injuries she sustained in September 2004. We conclude the limited evidence of Yager's prior behavior towards Donna was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. Therefore, counsel did not breach an essential duty as such an objection by trial counsel to this testimony would have been overruled as meritless. We also conclude that trial counsel's failure to request limiting instructions did not prejudice Yager, in light of the State's evidence and case against him. See State v. Reynolds, 670 N.W.2d 405, 415 (Iowa 2003) (noting no prejudice where proposed action by trial counsel would not create a reasonable probability of a different outcome).
Yager also asserts that trial counsel should have requested curative instructions and moved for a mistrial due to the prior bad acts evidence. We do not reach these claims, as we otherwise affirm introduction of the evidence and such requests would have been overruled.
B. Yager's apprehension and arrest.
Investigator J.D. Henshaw of the Lee County Sheriff's Department testified concerning the circumstances surrounding Yager's arrest. Henshaw stated that he observed a hole appearing to be from a 12-gauge shotgun inside the Yager residence. He also testified that Yager asked for Henshaw's name and asked Henshaw if he was scared of him when he was being arrested. Lee County Chief Deputy Sheriff H.D. Jones also testified that the authorities attempted to arrange for assistance from the Iowa State Patrol S.W.A.T. team in arresting Yager, but were only able to secure help from the State Penitentiary C.E.R.T. team in addition to wearing protective gear brought to the scene.
Yager likewise contends that his counsel should have objected to the admission of these facts into evidence as irrelevant and prejudicial. Events and circumstances which immediately surround an offense may be admitted, even though they may incidentally show commission of another crime. State v. Deases, 476 N.W.2d 91, 98 (Iowa Ct.App. 1991). Such evidence is admissible when it is an inseparable part of the whole deed, and the State may show a continuous series of occurrences to complete the story of the crime even if other offenses come to light in doing so. Id. (citing State v. Nowlin, 244 N.W.2d 596, 600 (Iowa 1976)). Although no additional charges resulted from Yager's actions during his arrest, the facts testified to by Henshaw and Jones were the circumstances immediately surrounding the crimes for which Yager was charged. The events surrounding Yager's arrest were inseparable from the 911 call and assault on Donna and relevant to Yager's intent at the time of the assault. As noted above, Yager strongly contested whether he intended to harm his mother or whether she misunderstood his sense of humor. Law enforcement, responding to a 911 call from Donna, had just arrived on the scene to find Donna with visible bruising on her body. She informed them that Yager was likely armed in the residence with several firearms and had just allegedly placed a shotgun in Donna's mouth threatening to kill her. The probative value of the circumstances surrounding Yager's arrest outweigh any prejudice from their admission. We conclude that counsel had no duty to object to this testimony as it was part of the scene to which the Sheriff's office was responding. We affirm Yager's convictions as to all counts and find no basis for his claim of ineffective assistance of counsel.