Opinion
No. 1-608 / 99-1987.
Filed February 6, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge.
Defendant appeals from the judgment and sentence entered upon his convictions for second-degree burglary, willful injury, going armed with intent, two counts of assault with intent to cause serious injury, and fourth-degree criminal mischief. AFFIRMED.
Alfredo Parrish and Ivy Ross Rivello of Parrish, Kruidenier, Moss, Dunn, Montgomery Boles, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
A jury convicted Hac Lemvan of second-degree burglary, willful injury, going armed with intent, two counts of assault with intent to cause serious injury, and fourth-degree criminal mischief. On appeal, Lemvan argues: (1) the evidence was insufficient to support his conviction; (2) trial counsel was ineffective in failing to insist on reporting voir dire, opening statements, and closing arguments and in failing to move for a new trial on the ground the verdict was contrary to the weight of the evidence; (3) the sentencing court abused its discretion in ordering consecutive sentences; and (4) the sentencing court impermissibly relied on the unprosecuted charge of attempted murder in sentencing him to consecutive prison terms. We affirm.
I. Background Facts and Proceedings.
A jury could have found the following facts. Three sets of cars separately arrived at a Des Moines liquor store. First, Lemvan and his three friends, Kongsovanh Keopaseuth, Loby Lovan, and Sourisack Praseuth, drove into the lot. Then,Morgan Wright, his twin brother Morris, and friend Michael Smith arrived in a pick-up truck. Finally, Loby Lovan's uncle and sister, Lita, drove in.
Smith and Morris began making sexually suggestive comments directed at Lita. Lita told her brother, Loby. Angered, Loby jumped on the hood of the Wright truck and kicked the windshield until it cracked, while Lemvan and Keopaseuth kicked the passenger side of the truck and attempted to punch Morris.
At this point, Morgan drove out of the store lot, circled back, and rammed Lemvan's car. Lemvan and his friends sped out of the parking lot, down a major street, and into a Hy-Vee store parking lot, with the Wright truck on their heels. The truck eventually stopped at an intersection across from the parking lot and the Wrights and Smith got out. They were met with flying beer bottles. A violent fight ensued in which the Wrights and Smith sustained injuries from broken shards of glass.
The State charged Lemvan with willful injury, in violation of Iowa Code section 708.4 (1999), second-degree burglary, in violation of section 713.5, two counts of assault with intent to cause serious injury, in violation of sections 708.1 and 708.2(1), and fourth-degree criminal mischief, in violation of section 716.6. A jury found Lemvan guilty as charged and the district court sentenced him to consecutive prison terms of ten years for willful injury, ten years for burglary, five years for going armed with intent, two years each for assault with intent to cause serious injury, and one year for criminal mischief. Lemvan appeals.
II. Sufficiency of the Evidence .
A. Justification. Lemvan challenges his convictions for willful injury, armed with intent, and assault with intent to inflict serious injury on the ground that the State failed to prove his actions were unjustified. We review such challenges on error. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The jury's findings bind us if supported by substantial evidence. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).
Justification is a statutory defense authorizing the use of reasonable force under certain specified circumstances. See Iowa Code §§ 704.3; 704.4; State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). The crimes of willful injury, armed with intent, and assault with intent to inflict serious injury all require the absence of justification. See Iowa Code §§ 708.4, 708.8, 708.1. Justification, however, is an affirmative defense rather than an element of the crime. State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998); State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982). The defendant, therefore, has the burden of presenting evidence of justification. Delay, 320 N.W.2d at 834. If there is substantial evidence the acts were justified, the State has the burden of proving the defendant was not justified in using force. Stallings, 541 N.W.2d at 857.
The district court instructed the jury that justification is the use of reasonable force to prevent injury to a person or property or to prevent the commission of a crime. The court further instructed the jury that it should find Lemvan's acts were not justified if the State proved: (1) he started or continued the incident which resulted in injury; (2) an alternative course of action was available; (3) Lemvan did not believe he was in imminent danger of death or injury and the use of force was not necessary to save himself; (4) Lemvan did not have reasonable grounds for his belief; or (5) the force used by Lemvan was unreasonable.
Although the record contains conflicting evidence on the justification issue, it was the jury's perogative to sift through this evidence. See State v. Hickman, 623 N.W.2d 847, 849 (Iowa 2001). A jury could have concluded that, after Lemvan reached the Hy-Vee lot, he and his friends precipitated the second confrontation by advancing toward the Wright truck and throwing beer bottles, rather than retreating to the store or calling the police. See Delay, 320 N.W.2d at 835 (stating justification requires defensive rather than retaliatory action). A jury further could have found from the testimony of Morris Wright and Smith that Lemvan initiated the fight with Morris and ultimately stabbed Morris in the back with a broken beer bottle. Finally, a jury could have found that, as a result of Lemvan's actions, Morris lost blood and received two life-threatening wounds. We find this evidence sufficient to establish Lemvan's conduct was unjustified, notwithstanding evidence that Lemvan and his friends fled the scene of the first confrontation after Morgan rammed into their car. Accordingly, we affirm his convictions for willful injury, armed with intent, and assault with intent to commit serious injury.
B. Burglary. The jury was instructed that the State would need to prove the following to support a conviction for second-degree burglary:
1. On or about the 4th day of July, 1999, a Defendant or someone he aided and abetted entered into the motor vehicle of Morgan Wright.
2. The motor vehicle was an occupied structure as defined in [a separate instruction].
The separate instruction advised the jury that a vehicle was an occupied structure whether or not a person was actually present. See Iowa Code § 702.12 (including land vehicle within definition of occupied structure); State v. Buss, 325 N.W.2d 384, 386 (Iowa 1982).
3. A Defendant or someone he aided and abetted did not have permission or authority to enter into the motor vehicle.
4. A Defendant or someone he aided and abetted did so with the specific intent to commit an assault.
5. During the incident, a Defendant, or someone he aided and abetted had possession of a dangerous weapon, or a bodily injury resulted to some person, or persons were present in the occupied structure.
Lemvan contends there was no evidence to show anyone entered the truck. We disagree. Entry occurs when any part of the body enters an occupied structure. State v. Nichols, 572 N.W.2d 163, 164 (Iowa Ct. App. 1997). Morris testified that Lemvan tried to punch him while he was seated on the passenger side of the vehicle. He stated the window was partially down. Smith confirmed that one of the men swung at Morris. There was also evidence that Loby jumped on the hood and smashed the windshield and Keopaseuth attempted to break the passenger side window with some type of instrument. We believe a jury could have found from this evidence that Lemvan entered the truck or aided and abetted others in entering the vehicle. Accordingly, we affirm Lemvan's burglary conviction.
C. Criminal Mischief. Lemvan's brief does not address the sufficiency of the evidence supporting this conviction. Therefore, we deem the matter waived. Iowa R. App. P. 14(a)(3).
III. Ineffective Assistance of Counsel .
Lemvan contends trial counsel was ineffective in failing to have voir dire, opening statements, and closing arguments reported and in failing to file a motion for new trial. Because an ineffective assistance of counsel claim implicates constitutional rights, our scope of review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). A defendant must show: (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
With respect to voir dire, appellate counsel contends pervasive pretrial publicity tainted the proceedings, but counsel does not explain how the taint occurred. Contrast State v. Padavich, 536 N.W.2d 743, 752 (Iowa 1995) (where defendant filed pro se motion advising court that jurors told him they discussed pretrial publicity and newspaper articles). In the absence of greater specificity, we can neither address nor preserve this claim for postconviction relief. See Bugley v. State, 596 N.W.2d 893, 898 (Iowa 1999); Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
During oral arguments, appellate counsel also suggested the jury was not racially balanced. This assertion, however, was not addressed in the briefs. Accordingly, the contention has been waived. Iowa R. App. P. 14(a)(3).
Appellate counsel points to no specific error during opening statements. Therefore, our highest court's holding in State v. Oetken, 613 N.W.2d 679 (Iowa 2000) is controlling. Oetken, 613 N.W.2d at 689 (rejecting identical claim on the ground defendant did not point to anything untoward in the proceeding).
With respect to closing arguments, appellate counsel suggests the assistant county attorney made statements that created a false impression of a material fact. However, counsel does not describe or summarize these statements. Therefore, we again can neither address nor preserve this claim for postconviction relief. See Dunbar, 515 N.W.2d at 15.
Lemvan finally contends trial counsel was ineffective in failing to file a motion for new trial on the ground the verdict was contrary to the law or evidence. He maintains that the weight of the evidence standard for review of new trial motions requires a court to consider witness credibility, a factor not considered by the court in ruling on Lemvan's motion for judgment of acquittal. See State v. Ellis, 578 N.W.2d 655 (Iowa 1998). Therefore, he argues trial counsel should not only have filed a motion for judgment of acquittal but also a motion for new trial.
Assuming without deciding that counsel breached an essential duty by failing to file a new trial motion, we conclude Lemvan cannot establish prejudice. See Strickland v. Washington, 466 U.S. 668, 694-5, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984) (requiring defendant to show reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). We base this conclusion on the evidence summarized above in connection with Lemvan's sufficiency challenges.
IV. Sentencing.
A. Sentencing Factors. A district court must consider numerous factors in sentencing a defendant, including the defendant's age, character, propensities, and chances of reform. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). Lemvan asserts the sentencing court considered only one, the nature of the offense, in sentencing him to consecutive sentences. The sentencing record belies this assertion. The court acknowledged it had received and read the defendant's presentence investigation report which contains a comprehensive description of Lemvan's background. The court also acknowledged reading numerous requests for leniency from friends and family of Lemvan. While the district court did focus on the nature of Lemvan's offense, the court also considered Lemvan's past criminal history as well as mitigating circumstances such as his youth, the violent conduct of the victims, and the fact a gun was not used. After considering these factors, the court stated Lemvan was "the most pivotal in the serious violence that occurred here." We conclude the court's rationale for imposing the sentences is adequately set forth in the sentencing record and the court did not abuse its discretion in sentencing Lemvan to consecutive sentences. See State v. August, 589 N.W.2d 740, 745 (Iowa 1999).
B. Consideration of Unprosecuted Charges. Lemvan contends the district court illegally considered the unprosecuted offense of attempted murder in imposing consecutive sentences. The Iowa Supreme Court has recently held "[t]here is no general prohibition against considering other criminal activities by a defendant as factors that bear on the sentence to be imposed." State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). Rather, "when a challenge is made to a criminal sentence on the basis that the court improperly considered unproven criminal activity, the issue presented is simply one of the sufficiency of the record to establish the matters relied on." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). Cf. State v. Formaro, ___ N.W.2d ___, ___ (Iowa 2002) (stating a court may not rely on unproven, unprosecuted charges unless admitted or facts show the offense was committed).
The district court here stated this was not an attempted murder case but that "elementally and inchoate in this crime are states of mind where risk of death, potential for death, have to be contemplated and had to cross the mind of your client. . . ." This statement was proper in the first instance because it did not implicate other criminal activity. Lemvan was charged with crimes that required proof of intent to cause serious injury. The court's comments clearly were directed at those charged crimes. However, even if the comments could be read to suggest the court considered an unprosecuted attempted murder charge, the record contains sufficient proof to support the court's comments. See Longo, 608 N.W.2d at 474-5 (stating "sentencing judge is not required to deviate from the judge's own characterization of the nature of a crime committed based on sworn testimony simply because the jury has characterized the offense differently."). A trauma surgeon testified Morris Wright was "critically ill" and in "profound shock." He further testified that, had his cuts gone deeper, they could have severed one of his major blood vessels. In light of this testimony, we find the record sufficient to support the court's comments.
We affirm Lemvan's convictions, judgment, and sentences.