Opinion
No. 5-239 / 04-1482
Filed May 11, 2005
Appeal from the Iowa District Court for Polk County, Gregory Brandt, District Associate Judge.
The defendant appeals from the judgment and conviction, entered following a trial on the minutes, for domestic abuse assault enhanced, contending the evidence was insufficient. REVERSED AND DISMISSED.
Linda Del Gallo, State Appellate Defender, and David Adams, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Teresa Vens, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Defendant-appellant, Robert Daily, appeals from the judgment and conviction, entered following a trial on the minutes, for domestic abuse assault enhanced, in violation of Iowa Code section 708.2A(3)(b) (2003). He contends the district court erred in finding sufficient evidence to convict. We reverse and dismiss.
Background facts and proceedings.
In May 2004 the defendant and the victim, a former girlfriend, left a bar together, although they were arguing. Their argument continued in his car on the early morning ride home. The defendant wanted to take her to his apartment. She wanted him to take her to her residence or let her out of the car. When she attempted to open the passenger side door, the defendant pulled her back into the car and assaulted her. Eventually the victim was able to get out of the car, and police arrested the defendant.
The original trial information charged the defendant with domestic abuse assault enhanced under Iowa Code section 708.2A(4) (third or subsequent offense, a class D felony). Later, the court approved an amended trial information, charging the violation under section 708.2A(3)(b) (second offense, an aggravated misdemeanor). The defendant filed a pre-printed form entitled "written waiver of jury trial and stipulation to trial on the minutes of testimony." The district court examined the defendant to assure his waiver was knowing and voluntary. The court, having reviewed the minutes of testimony, entered its findings of fact and found the defendant guilty of the offense as charged in the amended trial information. The defendant acknowledged he had been convicted of domestic abuse assault previously. The pre-printed form prison order the district court used was designed for guilty pleas. The court crossed out some of the "plea" language and changed it to "stipulation," but did not cross out "There is a factual basis for the plea and the plea is voluntary."
Scope of review.
Our review of claims of insufficient evidence to support a conviction is for correction of errors at law. Substantial evidence exists to support a verdict when the record reveals evidence that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. In making this determination, "[w]e view the evidence in the light most favorable to the verdict," including all reasonable inferences that may be deduced from the record.
State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) (citations omitted).
Claims on appeal.
Iowa Code section 708.2A(1) defines "domestic abuse assault" as "an assault, as defined in section 708.1, which is domestic abuse as defined in section 236.2, subsection 2, paragraph `a', `b', `c', or `d'." Section 236.2, subsection 2, paragraphs a-d provide an assault as defined in section 708.1 is "domestic abuse" under any of these circumstances:
a. The assault is between family or household members who resided together at the time of the assault.
b. The assault is between separated spouses or persons divorced from each other and not residing together at the time of the assault.
c. The assault is between persons who are parents of the same minor child, regardless of whether they have been married or have lived together at any time.
d. The assault is between persons who have been family or household members residing together within the past year and are not residing together at the time of the assault.
The trial information alleged the defendant assaulted the victim "with whom he was residing with." See Iowa Code § 236.2(2)(a). Among the court's findings was, "that on the date in question that you were in fact residing together. . . ." On appeal, the defendant contends the record before the court does not support such a finding. He argues the minutes of testimony reflect that the defendant and victim had once lived together, but had broken up in February 2004. When leaving the bar, he wanted to take her to his apartment; she wanted him to take her to her home. See Iowa Code § 236.2(2)(d). The defendant argues "this alternative was never pled by the state and the district court made no factual findings under this subsection." He requests that we reverse his conviction and remand for entry of a judgment of not guilty.
The State offers two responses. First, it points to the language in the waiver form stipulating to a trial on the minutes "because the minutes of testimony would suffice for a conviction at trial" and asking the court "to accept this stipulation and to enter a finding of guilt." The State contends this stipulation is equivalent to an Alford plea which, because he waived his right to file a motion in arrest of judgment, the defendant cannot challenge now. See North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-168, 27 L. Ed. 2d 162, 168-172 (1970) (holding accused may plead guilty without express admission of guilt if the record available to the court establishes a factual basis for the plea); Iowa R. Crim. P. 2.8(2)( d) (failing to challenge plea in motion in arrest of judgment precludes challenge on appeal). The State also points to the prison order which notes "there is a factual basis for the plea and the plea is voluntary" in support of its argument the stipulation should be regarded as the equivalent of an Alford plea.
Second, the State contends domestic abuse assault under section 236.2(2)(a) (currently living together) is a different offense for double jeopardy purposes than the alternative under section 236.2(2)(d) (not living together, but did within the past year). The State argues the minutes support the alternative under 236.2(2)(d) and asks that we reverse and remand without prejudice so it can charge the defendant under the alternative supported by the evidence. See State v. Burgess, 639 N.W.2d 564, 570-71 (Iowa 2001) (holding dismissal of initial charge for insufficient evidence does not bar State from re-indicting on a different charge).
Analysis.
Sufficiency of the evidence.
The State concedes that "[n]either the State's charge nor the court's fact finding were supported by the record so far as the element of the defendant and victim residing together at the time of the assault." We therefore reverse the defendant's conviction. The question remains, however, can the State charge the defendant again without violating double jeopardy? While the State may not prosecute a defendant a second time for the same offense after acquittal or reversal for insufficient evidence, it may prosecute a defendant for a different offense. United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556, 568 (1993). The test we apply to determine if two offenses are the same for purposes of double jeopardy is whether each offense requires proof of a fact the other does not. Burgess, 639 N.W.2d at 568.
The State argues each of the circumstances set forth in paragraphs a-d of Iowa Code section 236.2(2) (defining "domestic abuse") is a separate alternative offense. Section 708.1 sets forth the elements of "domestic abuse assault:"
For the purposes of this chapter, "domestic abuse assault" means an assault, as defined in section 708.1, which is domestic abuse as defined in section 236.2, subsection 2, paragraph "a", "b", "c", or "d".
A defendant (1) must commit an assault (2) which is domestic abuse. Uniform Criminal Jury Instruction 830.1 (2003) divides the two elements of assault in section 708.1 and sets forth three elements for domestic abuse assault:
830.1 Domestic Abuse Assault — Elements. The State must prove all of the following elements of the crime of Domestic Abuse Assault:
1. On or about the ____ day of ______, 20__, the defendant did an act which was meant to [cause pain or injury] [result in physical contact which was insulting or offensive] [place (name of victim) in fear of immediate physical contact which would have been painful, injurious, insulting or offensive] to (victim).
2. The defendant had the apparent ability to do the act.
3. The act occurred between [family or household members who resided together at the time of the incident] [separated spouses or persons divorced from each other and not residing together at the time of the incident] [persons who are the parents of the same minor child] [persons who have been family or household members residing together within the past year but not residing together at the time of the incident].
If the State has proved all of these numbered elements, the defendant is guilty of Domestic Abuse Assault. If the State has proved only elements 1 and 2, the defendant is guilty of Assault. If the State has failed to prove either elements 1 or 2, the defendant is not guilty.
The legislature has not chosen to enact separate variations of domestic abuse assault in section 708.2A based on the variations of circumstances listed in paragraphs 236.2(2)(a)-236.2(2)(d). A person may be convicted of domestic abuse assault if the person commits an assault and any of the circumstances listed in section 236.2(2) within the definition of domestic abuse apply. Consequently, our reversal of the defendant's conviction for insufficient evidence bars the State from charging him again on double jeopardy grounds. See State v. Ellis, 578 N.W.2d 655, 657-58 (Iowa 1998) (differentiating between "insufficient evidence" and "weight of the evidence"); see also Tibbs v. Florida, 457 U.S. 31, 32, 102 S. Ct. 2211, 2213, 72 L. Ed. 2d 652, 655 (1982) (allowing reprosecution if reversal or new trial based on weight of the evidence instead of insufficient evidence).
Stipulated trial on the minutes versus Alford plea.
As noted above, an Alford plea allows a defendant not to admit guilt, but to admit the evidence would suffice for a conviction at trial. Alford, 400 U.S. at 32-38, 91 S. Ct. at 164-168, 27 L. Ed. 2d at 168-172. The State argues the language in the preprinted form stipulation, "because the minutes of testimony would suffice for a conviction at trial" and asking the court "to accept this stipulation and to enter a finding of guilt" is the equivalent of an Alford plea, and we should apply a guilty plea analysis to this case instead of a stipulated trial on the minutes analysis. This would prevent the defendant from challenging the proceedings. See Iowa R. Crim. P. 2.8(2)( d). While we agree the language used in the form and in the prison order form muddy the issue, we are not convinced this case should be treated as a plea instead of a stipulated trial. See State v. Nikkel, 597 N.W.2d 486, 488 (Iowa 1999) (proceeding was plea); State v. Sayre, 566 N.W.2d 193, 195-96 (Iowa 1997) (noting court unable to determine whether district court proceeding was guilty plea or stipulated trial); State v. Everett, 372 N.W.2d 235, 236-37 (Iowa 1985) (holding appellate consequences of stipulated trial differ from those of a plea). Consequently, we conclude the proceeding appealed from was a stipulated trial on the minutes of testimony, not an Alford plea.
Conclusion.
Because insufficient evidence supports the district court's findings concerning domestic abuse, we reverse the defendant's conviction. We dismiss the case because double jeopardy prevents the State from prosecuting the defendant, alleging the facts supported by the evidence. The stipulation to a jury trial was not an Alford plea.