Opinion
No. 3-291 / 02-1082.
Filed June 25, 2003.
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
Defendant appeals conviction for assault causing serious injury. AFFIRMED.
Lewis Churbuck, New Hampton, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Sirr Ramon Gardner appeals his conviction of assault causing serious injury, claiming the district court erred in denying his motions for judgment of acquittal and new trial and in not dismissing the trial information. As we find substantial evidence supporting the verdict, we affirm.
Background Facts. On October 14, 2000, the Zuck brothers had a party on their farm in rural Jesup. A confrontation between the Jesup partygoers and partygoers from Waterloo arose concerning payment for beer. The Waterloo partygoers were asked to leave and did so.
Gardner, who was not present at the party and initial confrontation, was later contacted by Cory Adair and told about the incident. Gardner along with about nineteen others from Waterloo decided to return to the party to engage in a physical altercation.
Once at the party, a fight quickly ensued between the two groups. Some involved picked up and began fighting with boards which were on site to fuel the bonfire. Benjamin Steinbron, a Jesup partygoer, was severely beaten with a two-by-four board resulting in a skull fracture, a permanent hearing loss in one ear, and facial reconstructive surgery. Gardner participated in the fight but was not directly involved in the beating of Steinbron.
Gardner and six others were charged with willful injury to Steinbron pursuant to Iowa Code section 708.4 and assault causing serious injury to Steinbron pursuant to Iowa Code section 708.1 and 708.2(4). Gardner was convicted after a jury trial of the lesser offense of assault causing serious injury. Gardner claims the district court erred by denying his motion for judgment of acquittal, motion for a new trial based on improper jury instruction, and motion to dismiss the trial information. Gardner appeals.
Scope of Review. A district court's denial of a motion for judgment of acquittal will be sustained if there is substantial evidence to support the defendant's conviction. State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct.App. 2001) (citing State v. Kirchner, 600 N.W.2d 330, 333 (Iowa Ct.App. 1999)). A verdict is upheld if supported by substantial evidence, which means evidence sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the defendant's guilt. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). Our scope of review of sufficiency-of-evidence challenges is for correction of errors at law. Iowa R.App.P. 6.4; Adney, 639 N.W.2d at 250. We view the totality of the record in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998). Challenges to jury instructions are reviewed for correction of errors at law, Iowa R.App.P. 6.4; State v. Walker, 600 N.W.2d 606, 608 (Iowa 1999), as are challenges to the sufficiency of the trial information. State v. Grice, 515 N.W.2d 20, 22 (Iowa 1994).
Motion for Judgment of Acquittal. Gardner claims he was entitled to a judgment of acquittal as there was insufficient evidence to support his participation in criminal acts as a joint criminal actor and as an aider and abettor. The State argues Gardner did not preserve error on the aider and abettor theory. In his motion for judgment of acquittal, Gardner challenged the State's submission of a theory of aiding and abetting with regards to the specific intent crimes charged but conceded that there was sufficient evidence to go forward with the general intent assault charges, including assault causing serious injury of which he was ultimately convicted. Therefore, Gardner's claim in regards to aiding and abetting was not preserved for appeal. We shall address only the sufficiency of evidence of the joint criminal conduct.
Joint criminal actors are held mutually accountable for their foreseeable criminal acts. Iowa Code § 703.2 (2001); State v. Speaks, 576 N.W.2d 629, 632 (Iowa Ct.App. 1998); State v. Satern, 516 N.W.2d 839, 844 (Iowa 1994).
When two or more persons, acting in concert, knowingly participate in a public offense, each is responsible for the acts of the other done in furtherance of the commission of the offense or escape therefrom, and each person's guilt will be the same as that of the person so acting, unless the act was one which the person could not reasonably expect to be done in the furtherance of the commission of the offense.
Iowa Code § 703.2. There are four elements for imposing joint criminal liability: (1) the defendant must be acting in concert with another, (2) the defendant must knowingly be participating in a public offense, (3) a "different crime" must knowingly be committed by another participant in furtherance of defendant's offense, and (4) the commission of the different crime must be reasonably foreseen. Speaks, 576 N.W.2d at 633 (citing State v. Hohle, 510 N.W.2d 847, 848 (Iowa 1994)).
Gardner asserts he only drove one of the vehicles back to the party because his friend, Cory Adair, was too intoxicated to drive. The jury heard testimony that the several car loads of individuals from Waterloo returned to the party for the very purpose of fighting. Gardner testified he went to "stick up for our friends," that he was expecting a fight, and that the likely result of the impending fight would be injuries on the level of bloody noses, black eyes, and fat lips. Once on the scene, Gardner claims he was trying to slow the rapid attack by his Waterloo friends but almost immediately entered into the chaotic fray himself, fighting and hitting several people. Though the testimony reflected the Waterloo partygoers, including Gardner, did not intend for serious injuries to result, the jury could have concluded it was reasonably foreseeable that someone would be seriously injured, given the tenor of the participants returning to a party with the intended purpose of getting revenge on the Jesup group of partygoers. Nonetheless, Gardner points out that he had not attended the party when the initial confrontation took place and therefore was not equally motivated to participate in a fight and he did not know two-by-four boards were lying around, available as impromptu weapons. The fact that Gardner did not know two-by-fours were in the vicinity of the party is not critical to the resolution. The important question is whether it was reasonably foreseeable that someone could be seriously injured in the planned and anticipated fight, involving a large number of late night partygoers. Although Gardner did not personally fight with or attack Steinbron, the attack on Steinbron was in furtherance of the general assault on the Jesup partygoers, the offense in which Gardner knowingly participated. We find these facts are sufficient to support the jury's verdict under the theory of joint criminal conduct. Motion to Dismiss Trial Information. Prior to trial, Gardner filed a Bill of Particulars and a hearing was held on the motion. The district court found the trial information did not contain specific minutes of testimony indicating Gardner committed the actual assault but there were ample minutes of testimony showing Gardner may have aided and abetted the assault. The district court therefore ordered the trial information be amended to allege "at least that Mr. Gardner . . . aided or abetted one or more of the Defendants in the alleged assault on Mr. Steinbron." The State never amended the trial information as ordered by the court. Gardner now claims this failure to amend was grounds for dismissing the trial information and the district court erred by not granting his motion to do so. The State argues Gardner did not raise the issue prior to trial and it is therefore waived.
Gardner's claim that the district court erred in denying his motion for a new trial based on the submission of joint criminal conduct jury instructions is deemed irrelevant as there was sufficient evidence to support the State's theory of joint criminal conduct.
"Defenses and objections based on defects in the indictment or information" must be raised prior to trial. Iowa R.Crim.P. 2.11(2)( b); see also State v. Hobson, 284 N.W.2d 239, 241 (Iowa 1979). Gardner did not move for dismissal of the trial information prior to trial; instead, at the close of the State's case-in-chief, he moved for a judgment of acquittal based, inter alia, on the failure of the State to amend the information pursuant to the court order. As this is inadequate to preserve error the issue is waived.