Opinion
22-0828
03-06-2024
STATE OF IOWA, Plaintiff-Appellee, v. CARTER DMITRI WOODRUFF, Defendant-Appellant.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant. Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Appeal from the Iowa District Court for Polk County, Coleman McAllister (pretrial rulings) and Jeanie Vaudt (trial and sentencing), Judges.
Defendant appeals his convictions for assault causing bodily injury, lascivious acts with a child, and assault while participating in a felony.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Considered by Tabor, P.J., Schumacher, J., and Carr, S.J. [*]
CARR, Senior Judge
Carter Woodruff appeals his convictions for assault causing bodily injury, lascivious acts with a child, and assault while participating in a felony. We affirm the district court's denial of Woodruff's request for a Franks hearing based on his claim the search warrant application for his tablet contained false and misleading information. We also affirm the denial of his motion to suppress information obtained from the tablet. We determine Woodruff's convictions for assault causing bodily injury and assault while participating in a felony should be merged. We find the district court did not give adequate reasons for making the sentences in this case consecutive to a probation revocation matter. We affirm in part, reverse in part, and remand for resentencing.
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
I. Background Facts &Proceedings
On October 23, 2021, E.H. took her granddaughter, A.P., who was then nine years old, to a swim meet. A.P. and all of the other competitors at the swim meet were wearing swimsuits. E.H. dropped A.P. off with her swim team and then went to sit in the spectator area. During the event, A.P. came to the spectator area to ask for a snack. A.P. then left to go to the area for the swim meet participants by going down a stairwell. After a short time, A.P. returned to the spectator area and told E.H. that a man grabbed her and pulled her to the floor. A.P. stated she kicked the man. She also stated that the man heard people coming and he ran away. A.P. was crying and was quite upset.
E.H. and A.P. went to the front desk to report the incident. Christopher Boshart went up to the front desk at the same time. Boshart stated he was walking up the stairwell when he heard a girl screaming, "Get off me." He saw the girl was on her back and a man was straddling her and trying to hold her hands. He saw the man, identified as Woodruff, leaving the building. Boshart went back to the stairwell, where he found an electronic tablet. He remembered seeing Woodruff sitting in the stairwell using the tablet. Boshart gave the tablet to the front desk staff.
While E.H., A.P., and Boshart were at the front desk, Woodruff entered the building, yelling that someone stole his tablet. The staff did not return the tablet to him. Boshart stated he followed Woodruff, who ran up and down the stairs looking for his tablet. Woodruff then hurriedly left the scene, running through traffic to do so.
Police officers were called to the scene. They were later able to identify, locate, and arrest Woodruff. He was charged with assault with intent to commit sexual abuse-bodily injury, in violation of Iowa Code section 709.11(2) (2021); lascivious acts with a child-inflict pain or discomfort, in violation of section 709.8(1)(c); and assault while participating in a felony, in violation of section 708.3(2). The State also alleged Woodruff was a habitual offender.
Officers took custody of the tablet. Woodruff admitted ownership of the tablet but did not consent to a search. Detective Ben Carter applied for a search warrant for the tablet. A judge granted the search warrant application. The tablet contained images of young girls, between six to ten years old, wearing spandex outfits, such as leotards, similar to the swimsuit A.P. was wearing when she was attacked.
There was also adult pornography on the tablet.
Woodruff filed a motion to suppress. He claimed there was insufficient evidence of a nexus between criminal activity and the tablet. He asserted there was not probable cause to issue the search warrant. Woodruff also asked for a Franks hearing, claiming the officer was purposefully untruthful or acted with reckless disregard for the truth in the search warrant application. The district court denied the motion to suppress and the request for a Franks hearing. Woodruff filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was denied by the district court.
Woodruff filed an application for interlocutory appeal of the district court's rulings. The Iowa Supreme Court denied the application.
The case proceeded to a jury trial. The jury found Woodruff guilty of Count I, assault causing bodily injury, as a lesser included offense of assault with intent to commit sexual abuse; Count II, lascivious acts with a child-inflict pain or discomfort; and Count III, assault while participating in lascivious acts with a child. Woodruff was sentenced to terms of imprisonment not to exceed one year, fifteen years, and fifteen years respectively on these charges. The sentence on Count I was made concurrent to his sentence on Count III, but the sentences in Counts II and III were made consecutive to each other and consecutive as well to a five-year sentence imposed in a probation revocation proceeding. Woodruff's sentences were enhanced on Counts II and III because he was determined to be a habitual offender. Woodruff appeals his convictions and sentences.
II. Franks Hearing
Woodruff asserts the search warrant should not have been granted because Detective Carter made knowingly and intentionally false statements or made statements with a reckless disregard for the truth in the search warrant application. He contends the court should have held a hearing on the merits of his assertions about Detective Carter's statements. Woodruff claims that if the false or reckless statements are eliminated from the search warrant application, the application does not provide probable cause for the search warrant.
The United States Supreme Court has stated:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.Franks, 438 U.S. at 155-56.
"Mere allegations of deliberate falsehood or of reckless disregard for the truth are insufficient to mandate an evidentiary hearing; they must be accompanied by an offer of proof." State v. Robertson, 494 N.W.2d 718, 724-25 (Iowa 1993). "[Allegations of negligence or innocent mistake are insufficient under Franks to constitute a basis for challenging the veracity of an affidavit." State v. Groff, 323 N.W.2d 204, 210 (Iowa 1982). We review the district court's ruling on a request for a Franks hearing de novo. Id. at 209.
Woodruff challenged the veracity of these statements in the search warrant application:
1. Based on my knowledge, training, and experience, which has been gathered over thirteen years of police service, I know
individuals who initiate attacks on young children often take photographs, videos and/or surveil there [sic] whereabouts before attacking. I further know these photographs and videos are often captured on cellular phones and other electronic devices, such as the tablet possess[ed] by Woodruff in this case.
2. I further know these photographs are often preserved for long periods of time for review by the attackers on later date(s). This affiant knows this type of photograph and video preservation is often utilized to satisfy sexual gratifications on later date(s).
3. This affiant believes probable cause exists to search Woodruff's Sky Devices tablet for videos and/or pictures associated with this incident. As explained above, this affiant knows perpetrators of attacks on children, specifically those that are sexual, often are precipitated by suspects taking photographs and videos of the victims.
Woodruff claims Detective Carter did not have knowledge, training, or experience with sexual-assault offenses. While Detective Carter stated he did not have prior training or experience with sexual-assault cases involving children, he obtained knowledge about this type of offense by discussions with fellow police officers over his thirteen years of service. He also stated he gained knowledge from viewing documentaries and reading books. The search warrant affidavit states, "The facts in this affidavit come from my personal observations, my training and experiences, and information obtained from other officers and witnesses."
The district court found:
In sum, the deposition testimony of Detective Carter makes clear to the Court that, while he acknowledged not having firsthand experience dealing with an investigation involving such facts, he did have knowledge of the challenged statements due to his law enforcement experience, his education, including off-duty selfeducation, and his information sharing and learning from fellow law enforcement officers on these topics. The fact that Detective Carter gained some knowledge on these topics by self-education done outside of his official police duties is neither problematic nor unusual.
We conclude Woodruff did not meet his burden for a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth" was made in the application. See Franks, 438 U.S. at 15556. We affirm the district court's ruling denying Woodruff's request for a Franks hearing.
III. Motion to Suppress
Woodruff contends items found in the search of the tablet should have been suppressed because the search warrant was not supported by probable cause. He claims there was insufficient evidence of a nexus between the alleged criminal activity and the tablet. He states, "Just because a person has a tablet and committed an offense does not mean that evidence of that crime will be on the tablet."
Under the Fourth Amendment, a search warrant must be supported by probable cause. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). "The test for probable cause is well established: 'whether a person of reasonable prudence would believe a crime was committed on the premises to be searched or evidence of a crime could be located there.'" Id. (quoting State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987)). The court considers whether (1) the items sought are connected to criminal activity and (2) the items sought will be found in the place to be searched. Id.
"[W]e do not make an independent determination of probable cause; rather, we determine 'whether the issuing judge had a substantial basis for concluding probable cause existed.'" State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015) (quoting Gogg, 561 N.W.2d at 363). An "affidavit of probable cause is interpreted in a common sense, rather than a hypertechnical, manner." Gogg, 561 N.W.2d at 364. "[W]e do not strictly scrutinize the sufficiency of the underlying affidavit." State v. Bracy, 971 N.W.2d 563, 567 (Iowa 2022). "We draw all reasonable inferences to support the judge's finding of probable cause and decide close cases in favor of upholding the validity of the warrant." State v. Baker, 925 N.W.2d 602, 614 (Iowa 2019). On constitutional issues, our review is de novo. State v. McGee, 959 N.W.2d 432, 436 (Iowa 2021).
The search warrant affidavit stated, "perpetrators of attacks on children, specifically those that are sexual, often are precipitated by suspects taking photographs and videos of the victims." The district court found:
There is also sufficient evidence in the search warrant application and affidavit to connect Defendant to the tablet. In particular, that Defendant dropped the tablet on or about the time he allegedly assaulted the victim and he later returned to [the site] seeking to recover the tablet. Consequently, the Court concludes that Defendant's motion to suppress the contents of the computer tablet found after searching the computer tablet is without merit.
We conclude "the issuing judge had a substantial basis for concluding probable cause existed." See McNeal, 867 N.W.2d at 99 (quoting Gogg, 561 N.W.2d at 363). There was information that perpetrators of sexual assault of children often had photographs or videos of the victims, Woodruff was using his tablet while at the swim meet where children were present, he dropped the tablet in the area where the alleged assault of A.P. took place, and he came back to the scene looking for the tablet. When Woodruff walked back into the building, he saw people were present who could identify him, but he spent time looking on the stairwell for the tablet, indicating it might contain incriminating evidence. We affirm the district court's decision denying Woodruff's motion to suppress the information obtained from the search of the tablet.
IV. Merger of Counts
Woodruff contends Count I, assault causing bodily injury, should be merged with Count III, assault while participating in a felony, with the felony being lascivious acts with a child-inflict pain or discomfort. At the sentencing hearing, the prosecutor stated, "The reason why the State is asking for Counts I and III to be run concurrent is because I do believe those merge." The district court made the sentence for Count I run concurrently with the sentence for Count III, but did not merge the convictions. Woodruff was ordered to pay a fine of $430 on Count I and the fine was suspended due to his incarceration, but he was also ordered to pay a fifteen percent surcharge, which was not suspended.
The State contends: (1) Woodruff may have been participating in lascivious acts before the crime was complete, i.e., he may have committed an assault causing bodily injury before he committed lascivious acts; (2) in grabbing A.P. and taking her to the floor, Woodruff may have caused "discomfort" without causing pain; (3) there might have been multiple assaults in the course of the brief contact between Woodruff and A.P., so there might have been up to three assaults, which could amount to the commission of Count I separately from Count III; and (4) the legislature intended multiple punishments for these offenses.
Section 701.9 provides:
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.
To determine if offenses should merge under section 701.9, we first look at "the elements of the two offenses to determine whether it is possible to commit the greater offense without also committing the lesser offense." State v. Goodson, 958 N.W.2d 791, 803 (Iowa 2021) (quoting State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)). "If the greater offense is defined alternatively and the State charges both alternatives, the test for included offenses must be applied to each alternative." Id. (citation omitted). On issues of merger, we review for a correction of errors at law. State v. Love, 858 N.W.2d 721, 723 (Iowa 2015).
The issue here is whether Woodruff could commit assault while participating in lascivious acts with a child-inflict pain or discomfort, without also committing assault causing bodily injury. See Goodson, 958 N.W.2d at 803. The instruction for the greater offense, Instruction No. 25, provides:
Plaintiff must prove all of the following elements of Assault While Participating in Lascivious Acts with a Child-Inflict Pain or Discomfort:
1. On or about October 23, 2021, Defendant committed an assault on A.P. as defined in Instruction No. 21.
2. At the time of the assault, Defendant was participating in the crime of Lascivious Acts with a Child-Inflict Pain or Discomfort, as defined in Instruction No. 23.
Instruction No. 25 refers to Instruction No. 21, which defined "assault," to mean
when a person does an act which is specifically intended to cause pain or injury, result in physical contact which will be insulting or offensive, or place another person in fear or immediate physical contact which will be painful, injurious, insulting or offensive to another person, which coupled with apparent ability to do the act.
It also refers to Instruction 23, which provides:
Plaintiff must prove all of the following elements of Lascivious Acts with a Child-Inflict Pain or Discomfort:
1. On or about October 23, 2021, Defendant with or without A.P.'s consent:
a. Inflicted pain or discomfort upon A.P.
2. Defendant did so with the "specific intent" to arouse or satisfy the sexual desires of Defendant or A.P.
3. Defendant was then 16 years of age or older.
4. A.P. was then under the age of 14 years.
The instruction for the lesser offense, Instruction No. 19, provided:
Plaintiff must prove all of the following elements of Assault Causing Bodily Injury:
1. On or about October 23, 2021, Defendant did an act which was intended to:
a. Cause pain or injury to A.P.; OR
b. Result in physical contact which was insulting or offensive to A.P.; OR
c. Place A.P. in fear of an immediate physical contact which would have been painful, injurious, insulting, or offensive to her;
2. Defendant had the "apparent ability" to do the act.
3. Defendant's act caused a "bodily injury" to A.P.
The term "bodily injury" was defined to mean "physical pain, illness, or any impairment of physical condition."
Both assault while participating in lascivious acts with a child-inflict pain or discomfort and assault causing bodily injury start with the offense of assault, as defined in Instruction No. 21. The instruction for lascivious acts with a child-inflict pain or discomfort, Instruction No. 23, requires evidence Woodruff "inflicted pain or discomfort upon A.P." The offense of assault causing bodily injury has three alternatives that require a showing Woodruff intended to (1) cause pain or injury to A.P.; (2) result in physical contact which was insulting or offensive to A.P.; or (3) place A.P. in fear of an immediate physical contact which would have been painful, injurious, insulting, or offensive to her. Both the first and third alternative refer to pain, which is also an element of lascivious acts with a child-inflict pain or discomfort.
Assault causing bodily injury as an additional element that Woodruff had the "apparent ability" to do the act, which is defined in Instruction No. 21 to mean "a reasonable person in Defendant's position would expect the act to be completed under the existing facts and circumstances." For the offense of lascivious acts with a child-inflict pain or discomfort, the defendant's actions have caused pain or discomfort, which is the fulfillment of an expectation that an act would cause pain. The final element of assault causing bodily injury is a requirement of a bodily injury, which under Instruction No. 22 means "physical pain, illness, or any impairment of physical condition." Again, one of the alternatives is pain.
Here, the jury did not make specific findings as to which alternative was used. It is possible the jury convicted Woodruff of lascivious acts with a child- inflict pain or discomfort, by causing pain and the jury convicted him of assault causing bodily injury under the pain alternative, which would make assault causing bodily injury a lesser included offense of lascivious acts with a child-inflict pain or discomfort. "When alternatives are present and one alternative requires merger, merger is required if it is impossible to determine which alternative the jury used." Bryson v. State, 886 N.W.2d 860, 864 (Iowa Ct. App. 2016). Under these circumstances merger would be required.
As a final step, we must consider whether the legislature intended for there to be multiple punishments for the two offenses. Goodson, 958 N.W.2d at 804. "[W]here the greater offense has a penalty that is not in excess of the lesser included offense, a legislative intent to permit multiple punishments arises. Otherwise, there would be little point to the greater offense." Id. (quoting Halliburton, 539 N.W.2d at 344).
The penalty for assault while participating in lascivious acts with a child- inflict pain or discomfort under section 708.3(2), a class "D" felony, is a term of imprisonment not to exceed five years. Iowa Code § 902.9(1)(e). Because Woodruff was a habitual offender that penalty was increased to fifteen years. See id. § 902.8. The penalty for assault causing bodily injury, a serious misdemeanor, is imprisonment not to exceed one year and a fine of at least $430. Id. § 903.1(1)(b). The greater offense has a penalty that is greater than the lesser offense and we conclude the legislature did not intend to permit multiple punishments. See Goodson, 958 N.W.2d at 804.
We determine the convictions for Counts I and III should have been merged. We reverse Woodruff's conviction for Count I, assault causing bodily injury, and remand to the district court for an order to this effect. Due to our ruling, the assessment of the fine of $430 and its related surcharge under Count I should be eliminated.
V. Consecutive Sentences
Woodruff claims the district court did not give adequate reasons for making the sentences in this case consecutive to his sentence in a probation revocation matter.
Woodruff also asserted that the district court failed to provide adequate reasons for the imposition of consecutive sentences between Counts II and III. The court stated, "The sentences on Counts II and III are consecutive based upon the separate and serious nature of the offenses and the crime was committed while Defendant was on probation or parole." We determine the court gave adequate reasons for these consecutive sentences. The court's statement is sufficient to permit review of the court's sentencing discretion. See State v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015).
Iowa Rule of Criminal Procedure 2.23(2)(g) provides, "The court shall state on the record the basis for the sentence imposed and shall particularly state the reason for imposition of any consecutive sentence." This requirement "affords our appellate courts the opportunity to review the discretion of the sentencing court." State v. Hill, 878 N.W.2d 269, 273 (Iowa 2016). "While the rule requires a statement of reasons on the record, a 'terse and succinct' statement may be sufficient, 'so long as the brevity of the court's statement does not prevent review of the exercise of the trial court's sentencing discretion.'" Thacker, 862 N.W.2d at 408 (quoting State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989)). We review a district court's sentencing decision for an abuse of discretion. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010).
The district court ruled the sentences in this case would be consecutive to Woodruff's sentence in a probation revocation matter. Later in the sentencing colloquy the court listed several factors it considered, including Woodruff's age and criminal history, but did not specifically link the consideration of these factors to the imposition of consecutive sentences.
We determine the court did not give adequate reasons for making the sentences in this case consecutive to the sentence in a probation revocation matter. The court's statement is not sufficient to permit review of the court's sentencing discretion. See Thacker, 862 N.W.2d at 408. We reverse the court's sentencing decision and remand for resentencing.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING.
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2024).