STATE OF IOWA, Plaintiff-Appellee, vs. EDWARD ROE JOHNSTON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-737 / 06-0206
Filed November 15, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
EDWARD ROE JOHNSTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lucas County, Peter A. Keller,
Judge.
Defendant
appeals
his
convictions
and
sentences
for
voluntary
manslaughter and assault causing serious injury. AFFIRMED IN PART AND
VACATED IN PART.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers and Douglas D.
Hammerand, Assistant Attorneys General, and Paul M. Goldsmith, County
Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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ROBINSON, S.J.
I.
Background Facts & Proceedings
Edward Johnston appeals his convictions and sentences for voluntary
manslaughter, in violation of Iowa Code section 707.4 (2005), and assault
causing serious injury, in violation of sections 708.1(1) and 708.2(4). Johnston
was involved in a physical altercation with Don Survis in the early morning hours
of January 1, 2005, at a New Year’s Eve party. Survis died as a result of a blow
struck behind his left ear, which fractured a vertebra and tore the vertebral artery.
Survis lost consciousness within seconds after the blow, and died later that
morning.
Johnston was sentenced to a term of imprisonment not to exceed ten
years on the charge of voluntary manslaughter. He was sentenced to a term of
imprisonment not to exceed five years on the assault charge, to be served
consecutively to the voluntary manslaughter sentence. Johnston now appeals
his convictions and sentences.
II.
Merger
Johnston contends the district court should have merged his convictions
for voluntary manslaughter and assault causing serious injury. He states, “While
a jury could have found the defendant hit the decedent more than one time, there
is only evidence of one blow causing serious injury, which was also the fatal
blow.” He asserts that under the facts of the case, voluntary manslaughter could
not be committed without also committing assault causing serious injury.
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We review defendant’s claims his convictions should be merged under
section 701.9 for the correction of errors at law. State v. Bullock, 638 N.W.2d
728, 731 (Iowa 2002); State v. Caquelin, 702 N.W.2d 510, 511 (Iowa Ct. App.
2005).
Iowa Code 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.
Section 701.9 “codifies the double jeopardy protection against cumulative
punishment.” State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993). The statute
applies if, looking at the elements of two offenses, the greater offense cannot be
committed without also committing the lesser. Caquelin, 702 N.W.2d at 511. If
one offense is a lesser-included offense of the other, the district court may only
enter judgment on the greater offense. State v. Beecher, 616 N.W.2d 532, 537
(Iowa 2000).
If a single assault results in convictions for voluntary manslaughter and
willful injury, the convictions merge under section 701.9. See State v. Walker,
610 N.W.2d 524, 527 (Iowa 2000). If the convictions for voluntary manslaughter
and willful injury arise from two separate crimes, however, the convictions do not
merge. Id. (“Because the record establishes more than one assault, the court
was authorized to impose more than one sentence.”); see also State v. Dittmer,
653 N.W.2d 774, 777 (Iowa Ct. App. 2002) (noting that when two offenses relate
to two separate crimes, they do not merge).
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The State claims there were two separate crimes in this case. It asserts
the jury could reasonably infer Johnston struck one blow which knocked Survis to
the floor and caused him to lose consciousness, and then struck a separate, fatal
blow.
Assuming this to be the case, and losing consciousness itself is a serious
injury, see State v. Sewell, 658 A.2d 598, 600 (Conn. App. Ct. 1995) (finding
evidence that victim was rendered unconscious sufficient to show serious
physical injury), the weakness in the State’s argument is the method by which the
prosecution charged and tried the defendant. The trial information charged one
count of felony murder with willful injury as the underlying felony, and a second
count of willful injury. No distinction was made in the charging document as to
separate assaults to support the different counts. The evidence was presented
as one continuous course of conduct.
Further, the prosecution’s summation to the jury indicated the “serious
injury” which was proved was the one causing the victim’s death. The prosecutor
argued:
Let’s look at serious injury. Had to sustain a serious injury,
that’s the third element. Obviously, folks, he died, that’s about as
serious as you’re going to get. So clearly the State proved the third
element.
The State asserts this case is similar to State v. Walker, 610 N.W.2d 524,
525-26 (Iowa 2000), where the defendant pled guilty to voluntary manslaughter
and willful injury as part of a plea agreement. The defendant had originally been
charged with one count of first-degree murder.
Walker, 610 N.W.2d at 525.
Unlike the instant case, the district court in Walker, made a factual finding that
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there were two separate and distinct acts to support convictions on both counts.
See id. at 526. It was also apparent in Walker, that the defendant knew he was
being charged with two distinct crimes so he could take advantage of a plea
bargain. Id.
The circumstances in this case are more akin to State v. Flanders, 546
N.W.2d 221, 224 (Iowa Ct. App. 1996), where the defendant was charged with
one count of first-degree kidnapping and a separate count of second-degree
sexual abuse. While the evidence indicated there were two separate and distinct
acts of sexual abuse, and two separate convictions might have been sustainable,
the State needed to present the case to the jury on the basis of two distinct
crimes being committed and have separate factual findings as to each. Flanders,
546 N.W.2d at 224-25.
Just as in Flanders, this case was presented to the jury as one continuous
course of conduct, and without the opportunity for findings as to two distinct
crimes. See also State v. Newman, 326 N.W.2d 788, 792-93 (Iowa 1982) (noting
that from start to finish the State treated the crime as a single episode, and “[t]he
State cannot depart from that course now”).
We conclude, under the
circumstances in this case, that the convictions for voluntary manslaughter and
assault causing serious injury should merge.
III.
Ineffective Assistance
Johnston claims he received ineffective assistance because defense
counsel failed (1) to request an instruction specifying that the act and resulting
injury under Count I must be separate and distinct from the act and resulting
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injury under Count II, or (2) to request a jury interrogatory on the same issue.
Due to our decision on the merger issue, we find these issues are moot, and we
need not address them.
We affirm Johnston’s conviction and sentence for voluntary manslaughter.
We vacate the conviction and sentence for assault causing serious injury.
AFFIRMED IN PART AND VACATED IN PART.
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