STATE OF IOWA, Plaintiff-Appellee, vs. MARK EMERSON WILLEY, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-588 / 06-1232
Filed September 19, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK EMERSON WILLEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jackson County, John A. Nahra,
Judge.
Mark Willey appeals following his convictions of assault with intent to inflict
serious injury, first degree burglary, and willful injury causing serious injury.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Adams, Assistant
State Appellate Defender, for appellant.
Mark Emerson Willey, pro se.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney
General, and Phil Tabor and John Kies, County Attorneys, for appellee.
Considered by Huitink, P.J., and Vogel and Baker, JJ.
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VOGEL, J.
Mark Willey appeals from his convictions of burglary in the first degree,
willful injury causing serious injury, and assault with intent to inflict serious injury.
Through appellate counsel, Willey asserts, among other issues, that there was
insufficient evidence to sustain his convictions and the district court erred by not
instructing the jury on the defense of self defense. Willey raises additional issues
pro se. We affirm.
I. Facts Presented to the Jury.
Willey’s sister, Emelie Harmon, ended her shift at work at nine o’clock in
the morning and walked home. Upon arriving home, she unlocked and opened
the back doors, and stood in the doorway trying to coax her cat into the house.
As Harmon was standing in the doorway, Willey jumped out of the butler’s pantry
in the kitchen and rushed at Harmon, pointing a stun gun towards her head.
Harmon attempted to flee but was attacked by Willey on the patio outside the
back door. Willey stabbed Harmon multiple times, covered her with a tarp, then
took her keys and locked her house. Harmon made her way to the street where
a motorist stopped to assist.
After being driven by ambulance to a nearby
emergency room, Harmon was taken by air ambulance to the University Hospital
in Iowa City. Shortly after the incident occurred, Willey was arrested. He had a
knife in his pocket and was carrying a bag that contained a stun gun, Harmon’s
keys, a screwdriver, a pry bar, rope, plastic wrap, and other incriminating items.
Willey also had multiple blood stains on his clothes.
Willey was charged with attempted murder, burglary, and willful injury
causing serious injury. He pled not guilty and the case went to trial. The jury
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found Willey guilty of the lesser-included offense of assault with intent to inflict
serious injury in violation of Iowa Code section 708.2(1) (2005), first-degree
burglary in violation of section 713.3, and willful injury causing serious injury in
violation of section 708.4(1). After merging assault with intent to inflict serious
injury with willful injury causing serious injury, the district court sentenced Willey
to consecutive sentences of twenty-five years on the burglary conviction and ten
years on the willful injury conviction
II. Sufficiency of the Evidence.
Willey argues that sufficient evidence does not support his burglary and
willful injury convictions. We review challenges to the sufficiency of the evidence
for correction of errors at law. Iowa R. App. P. 6.4; State v. Bash, 670 N.W.2d
135, 137 (Iowa 2003) (citing State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002)).
A jury verdict is upheld if it is supported by substantial record evidence, which is
evidence that could convince a rational jury that the defendant is guilty of the
crime charged beyond a reasonable doubt. State v. Nitcher, 720 N.W.2d 547,
556 (Iowa 2006); Bash, 670 N.W.2d at 137 (citing Webb, 648 N.W.2d at 75-76).
Substantial evidence must do more than raise suspicion or speculation; it must
raise a fair inference of guilt. Bash, 670 N.W.2d at 137 (citing Webb, 648 N.W.2d
at 75-76). When reviewing the sufficiency of the evidence, we review the entire
record in the light most favorable to the state, including all legitimate inferences
that may be reasonably deduced from the record. State v. Corsi, 686 N.W.2d
215, 218 (2004). “Inherent in our standard of review of jury verdicts in criminal
cases is the recognition that the jury was free to reject certain evidence, and
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credit other evidence.” Nitcher, 720 N.W.2d at 556 (quoting State v. Anderson,
517 N.W.2d 208, 211 (Iowa 1994)).
A. Burglary.
Willey first argues that sufficient evidence does not support his conviction
for first-degree burglary. The Iowa Code defines first-degree burglary as the
following:
A person commits burglary in the first degree if, while perpetrating a
burglary in or upon an occupied structure in which one or more
persons are present, any of the following circumstances apply:
....
b. The person has possession of a dangerous weapon
c. The person intentionally or recklessly inflicts bodily injury on any
person
Iowa Code § 713.3.
Willey contends the State did not offer sufficient evidence that (1) he
entered the house, (2) Harmon was present in the house, and (3) he was armed
with a dangerous weapon in the house or he inflicted any bodily injury in the
house.
As to the first argument, the jury heard testimony that Willey had
previously lived in Harmon’s house for twelve years and that the house had fiftyseven windows.
Harmon also testified that she believed she had left some
windows open that were only secured by a screen. Additionally, Willey was later
found with a screwdriver and pry bar in his possession. From this testimony, the
jury could have determined that Willey gained access to the house.
The record also supports the jury’s finding that Harmon was present in the
house. Harmon testified that she arrived home from work, opened the storm
door, and unlocked and opened the kitchen door that swung into the kitchen.
She further stated that her keys were in the door and she had her “left foot in the
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house” when Willey jumped out of the kitchen pantry at her. Harmon specifically
testified:
Q. You have opened your door? A. Yes.
Q. Have you stepped into your home yet? A. I would have
had my left foot in the house.
Q. You had your left foot in the house? A. Yes.
Willey argues that Harmon’s testimony on cross-examination contradicts her
statements that her left foot was inside the house. Willey points to the following
testimony:
Q. You never actually went inside your house. Is that
actually correct, ma’am? A. That’s correct.
Q. What do you consider a threshold? A. The portion
between the doorjambs.
Q. Did you pass the threshold at all? A. My left foot would
have been inside the house.
....
Q. And did you step a foot at all past the threshold of your
house? A. I don’t think so.
(Emphasis added.)
However, it is the jury’s duty to evaluate the evidence and resolve any
conflicts in the evidence. See State v. Musser, 721 N.W.2d 758, 761 (Iowa
2006) (“It is not the province of the court . . . to resolve conflicts in the evidence,
to pass upon the credibility of witnesses, to determine the plausibility of
explanations, or to weigh the evidence; such matters are for the jury.”); State v.
Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The jury is free to believe or
disbelieve any testimony as it chooses and to give weight to the evidence as in
its judgment such evidence should receive.” (citing State v. Blair, 347 N.W.2d
416, 419 (Iowa 1984))). Based on the evidence presented, the jury could have
determined that Harmon was standing in the doorway with her foot in the house,
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and therefore was present in the house. See State v. Pace, 602 N.W.2d 764,
773 (Iowa 1999) (“[E]ntry includes breaking the plane of the threshold of a
house.”); State v. Sinclair, 622 N.W.2d 722 (Iowa Ct. App. 2000) (finding a
person present in a house when the victim escaped out of the back door as the
defendant was breaking down the front door).
The record also supports the jury’s finding that Willey possessed a
dangerous weapon while committing the burglary.
Iowa Code section 702.7
defines a dangerous weapon to include “any instrument or device of any sort
whatsoever which is actually used in such a manner as to indicate that the
defendant intends to inflict death or serious injury upon the other.” The jury
heard testimony that Willey was armed with a stun gun when he jumped out of
the kitchen pantry and used the stun gun by pointing it at Harmon’s head and
neck. Later while Willey was struggling with Harmon, a knife fell out of Willey’s
clothing. During the attack, Harmon saw the stun gun go off, and Willey used the
knife to stab Harmon several times. The stun gun and knife were also in Willey’s
possession when he was arrested.
From the evidence, the jury could have
determined that Willey possessed the stun gun and knife while inside the house,
and therefore was armed with a dangerous weapon. See State v. Green, 709
N.W.2d 535, 58 (Iowa 2006) (stating that steel shards held in a defendant’s hand
during a confrontation is a dangerous weapon because they would have been
used in a manner indicating an intent to injure or kill); State v. Geier, 484 N.W.2d
167, 171 (Iowa 1992) (finding that a stun gun is a dangerous weapon). Our
review of the entire record leads us to conclude that substantial evidence
supports Willey’s conviction for first-degree burglary.
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B. Willful Injury.
Willey next argues that sufficient evidence does not support his conviction
for willful injury causing serious injury because the State did not offer sufficient
evidence that he caused a serious injury to Harmon.
A serious injury is a
“[b]odily injury that does any of the following: (1) Creates a substantial risk of
death, (2) Creates serious permanent disfigurement, [or] (3) Causes protracted
loss or impairment of the function of any bodily member or organ.” Iowa Code §
702.18(b).
After reviewing the record, we conclude there was substantial
evidence for the jury to conclude that the injuries suffered by Harmon were
serious injuries, and specifically that the injuries created a substantial risk of
death.
“[A] substantial risk of death means more than just any risk of death but
does not mean that death was likely. If there is a ‘real hazard or danger of
death,’ serious injury is established.” State v. Hilpipre, 395 N.W.2d 899, 904
(Iowa Ct. App. 1986) (quoting State v. Phams, 342 N.W.2d 792, 796 (Iowa
1983)). In determining whether a victim has suffered serious injury, the risk of
death may be assessed before the victim receives treatment for their injuries. Id.
(citing State v. Anderson, 308 N.W.2d 42, 47 (Iowa 1981)). In this case, Harmon
testified that Willey attacked her, stabbed her multiple times, and concealed her
body by covering her with a tarp when the attack was over. Harmon, fearing she
was bleeding to death, struggled to get herself out to the street to find help.
Witnesses testified that it was difficult to determine precisely where Harmon was
injured because of the amount of blood visible on her body and running down the
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curb. After the ambulance arrived, Harmon was taken to the emergency room
where doctors found injuries to Harmon’s eye, chin, neck, ear, arms, and
abdomen. The stab wound in her neck penetrated her skin proceeding down to
her trachea. The stab wound in her abdomen required surgery to determine if
internal organs had been affected. An emergency room doctor testified that if
Harmon’s injuries were left untreated, she could have bled to death. He further
testified that the injuries to Harmon’s eye, neck, and abdomen required that
Harmon be transported to the University of Iowa Hospital by air ambulance in
order to be treated by trauma team specialists.
At the University of Iowa
Hospital, Harmon underwent exploratory surgery to her abdomen and spent eight
days in the hospital, three of which were in the intensive care unit. Based on this
evidence, the jury could have concluded that a substantial risk of death existed
for Harmon from the injuries inflicted upon her. See Hilpipre, 395 N.W.2d at 905
(discussing that substantial risk of death existed for the victim without proper
treatment).
III. Self-Defense Instruction.
Willey next argues that the district court erred in failing to give a selfdefense instruction. We review challenges to the district court’s refusal to submit
a jury instruction for errors at law. State v. Ceaser, 585 N.W.2d 192, 193 (Iowa
1998) (citing State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998)). If substantial
evidence exists demonstrating that a justification defense applied, the district
court must instruct on the justification defense.
Rains, 574 N.W.2d at 915.
Substantial evidence triggering the district court’s duty to submit a justification
defense instruction to the jury may come from any source. Id. Although the
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burden to disprove a justification defense rests with the State, the defendant
bears the initial burden of demonstrating that the record contains substantial
evidence to support the instruction. Ceaser, 585 N.W.2d at 194 (citing State v.
Lawler, 571 N.W.2d 486, 489 (Iowa 1997)). Self defense is statutorily designated
as a defense of justification. State v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988).
The Iowa Code provides: “A person is justified in the use of reasonable force
when the person reasonably believes that such force is necessary to defend
oneself or another from any imminent use of unlawful force.” Iowa Code § 704.3.
On cross-examination Harmon admitted that she injured Willey in 2003
during a fight with him. However, her unrefuted testimony in this case is that
Willey startled her as she was entering her home, aggressively lunging at her
with a stun gun. Willey did not present any evidence to suggest that self defense
was applicable, namely that he had a reasonable belief the force he used was
necessary, that it was reasonable, or that he was not the initial aggressor. From
our review of the record, we conclude the district court did not err in declining to
instruct the jury on self defense. See State v. Shanahan, 712 N.W.2d 121, 141
(Iowa 2006) (“A court should not submit an instruction on an issue for which there
is not substantial evidence to support that issue.” (citing Seaway Candy, Inc. v.
Cedar Rapids YMCA, 283 N.W.2d 315, 316 (Iowa 1979))).
Willey raises three additional arguments, that the district court erred: (1)
in responding to a question asked by the jury, (2) by “impermissibly pyramiding
counts I and III,” and (3) by seating a tainted jury. We find that error was either
waived or not preserved on these arguments. However, even if error had been
preserved, we find them to be without merit.
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We therefore affirm Willey’s convictions and the judgment of the district
court.
AFFIRMED.
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