STATE OF IOWA, Plaintiff-Appellee, vs. MARK THOMAS HENNINGS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-594 / 08-1845
Filed September 2, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK THOMAS HENNINGS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Joel E. Swanson,
Judge.
Mark Hennings appeals from his conviction for assault in violation of
individual rights with the intent to commit a serious injury and from the sentences
imposed on his convictions.
CONVICTIONS AFFIRMED; SENTENCES
VACATED AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Timothy N. Schott, County Attorney, and Ricki Osborn & Jennifer
Bonzer, Assistant County Attorneys, for appellee.
Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MANSFIELD, J.
Mark Thomas Hennings appeals his conviction following a jury trial for
assault in violation of individual rights with intent to commit a serious injury.
Hennings challenges the adequacy of the State‟s proof that his actions were
committed “because of” the race of his victim. Hennings also claims the trial
court failed to provide reasons for imposing consecutive rather than concurrent
sentences on this conviction and the separate conviction for willful injury causing
bodily injury. We affirm Hennings‟s convictions, but vacate the sentences and
remand for resentencing.
I. Background Facts and Proceedings.
Based on the trial evidence, a rational juror could have found the following
facts:
On the morning of Saturday, June 2, 2007, twelve-year-old Aerean,
thirteen-year-old Jalen, fourteen-year-old Darquell, eleven-year-old Darwin, and
thirteen-year-old Kwane, met at the Frontier Days Parade in Fort Dodge. Aerean
and Jalen are brothers, their cousins Darquell and Darwin are brothers, and
those four boys are friends with Kwane. All five boys are African-American.
The boys decided to go swimming at the Expo Pool in Fort Dodge
following the parade. They walked to Aerean and Jalen‟s home to pick up swim
trunks, and then planned to walk to the home of Aerean and Jalen‟s grandmother
to pick up money for the pool. On the way to the grandmother‟s home, the boys
cut through a bank parking lot and began walking east in the 300 block of Central
Avenue. They walked in the street instead of the sidewalk so they could spread
out and walk side-by-side. At the time, traffic was light, and there were few
parked cars in the area.
3
The boys soon heard a pickup truck approach from behind. Hennings, a
Caucasian, was later identified as the truck‟s driver and sole occupant. Darwin
testified that the boys were walking in the middle of the street, but Aerean
testified that they were off to the side and the truck had room to go around them.
Regardless, they moved to the side when they realized the truck was behind
them. Some of the boys testified the truck honked at them. Darquell testified
that some of them cussed at the truck. Aerean testified that Hennings told them
to “get the f___ off the road.” All of the boys testified that Kwane talked back.
According to Aerean, Kwane said that he “ain‟t scared of him.” Kwane testified
that the only thing he said was “we don‟t have to get the f___ off the street.”
After passing the boys, Hennings stopped his truck near a stop sign at the
end of the block. Hennings emerged from the truck carrying a pocket knife with a
blue handle and a serrated blade between three and four inches long. Hennings
took several steps toward the boys, and Jalen testified that Hennings verbally
threatened to use it. After standing still for a second, the boys ran away toward
the parking lot they had cut through a minute ago. Kwane, however, stopped
running after a couple of steps and stood his ground. Kwane testified that he
knew Hennings was outnumbered, and asked, “Why are we running?” He also
testified that he told Hennings “to drop the knife, we‟ll beat his ass.” Hennings
remained standing near his truck this time, and Kwane testified that he did not
hear Hennings say anything back to him.
When the boys realized that Kwane had stayed behind, they ran back
toward him to get him to run away too. Some of the boys testified that Kwane
and Hennings were arguing back and forth at this time, but they could not
4
understand what was said.
As the boys arrived at Kwane‟s side, Hennings
turned around and walked back to his truck.
Darwin testified that Hennings
called the boys “f___ing niggers” as he re-entered his truck. No one else heard
the racial slur. Kwane, who was closest to Hennings, testified that the word
“nigger” infuriates him, and he would remember it if he heard it.
Darwin‟s
testimony is the only evidence of anyone using racial slurs during the incident.
Hennings sped off in his truck, turning right to head south on Fourth
Street, and then left to head east by the Fort Dodge Public Library along the
south side of the town square. The boys, believing the encounter was over,
continued walking east along Central. Aerean quickly realized he had dropped
his swim trunks back by the parking lot. He turned to retrieve his trunks while the
other boys continued walking ahead.
Meanwhile, Hennings was circling around the town square. The boys saw
him again when he turned left from the north end of the town square to drive
south on Fourth Street. Some of the boys testified that Hennings drove through
the stop sign at this intersection. At this time the four boys were crossing the
street at the intersection of Central Avenue and Fourth Street, directly in the
truck‟s path. Aerean was a short distance behind the other boys after retrieving
his trunks.
When the four boys saw the truck drive toward them, they ran. Hennings
adjusted his direction as they ran across the intersection, continuously aiming
straight for the boys. Witnesses testified that Hennings drove his truck in the
center of the street as he aimed for the boys. Some witnesses testified that his
truck went onto the sidewalk and grass, but no marks were found in the grass
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afterwards. Witnesses estimated his speed between twenty-five and thirty-five
miles per hour. The four boys made it to the town square before Hennings
reached them, and some of them hopped onto a brick retaining wall in front of the
library for protection.
When the four boys reached safety, Hennings changed direction again,
this time aiming for Aerean as he lagged behind. Aerean ran toward the other
boys, but soon realized he could not reach them in time. He ran south away from
Hennings, and ran evasively side-to-side hoping to fool Hennings, but Hennings
swerved his truck to follow Aerean‟s maneuvers.
Aerean quickly fell to the
ground, either because he tripped and fell on his own or because the truck hit
him, and the truck‟s passenger-side tires drove over him. Hennings then left the
scene without ever slowing down.
Two bystanders, both Caucasian, observed the incident and testified at
trial.
The first bystander, Beth Cox, was working that morning at Builder‟s
Showcase, located at the corner of Fourth Street and Central Avenue just to the
west of the library.
From her desk in the building‟s window, she witnessed
Hennings stop, threaten the boys, and drive away.
When Cox later saw
Hennings turn back onto Fourth, she went to the phone to dial 911, and then
looked back out her window to see Aerean injured in the street. The second
bystander, Daryl Beall, witnessed the incident from his car parked along Fourth
Street twenty-five to thirty feet north of Central Avenue. He saw the truck drive
toward the boys during the first incident.
A couple minutes later he saw
Hennings drive past him, aim for the four boys, and then strike Aerean. He was
the first person to reach a 911 operator.
6
After Hennings left the area, Aerean stood and began to walk, but could
only take two steps before collapsing. Witnesses stayed with Aerean as they
waited for an ambulance, comforting him in his obvious pain.
Aerean arrived at the hospital frightened and in distress. He had “road
rash” abrasions on his face, head, shoulders, elbows, and thigh. He also had
pain in his abdomen, which was caused by a laceration to his liver. Internal
bleeding from a liver laceration is potentially fatal, but Aerean‟s liver healed
without treatment. He spent two days in the hospital for observation. Aerean‟s
wounds had healed by the time of the trial, but the abrasions left permanent
scarring and discoloration across his body, including on his face.
Fort Dodge Police Officer Brad Wilkins investigated the scene.
He
interviewed witnesses and obtained descriptions of the truck and the driver and a
license plate number. When Wilkins ran the number, he found it matched a truck
registered to Hennings. Wilkins was already familiar with Hennings, and knew he
matched the description of the driver.
Early the next morning, Wilkins and another officer drove to Hennings‟s
home in Rinard, about twenty minutes west of Fort Dodge. They found a truck
matching witness descriptions parked outside the home, took pictures of it, and
returned to Fort Dodge. The boys identified Hennings from a photo lineup, and
Cox identified the truck from the pictures taken that morning. The officers used
that information to obtain a warrant.
Later that afternoon, Wilkins, another Fort Dodge police officer, and a
Calhoun County deputy returned to Hennings‟s home to seize the truck and
search for the knife. Upon arrival, they first encountered Hennings‟s father, Bill,
7
outside Hennings‟s home. Bill lives next door to his son. Hennings‟s mother
soon joined them. Wilkins told them they were there to investigate an accident,
and Hennings‟s mother went into his home to get her son. Hennings emerged
from his home with clenched fists, which he relaxed after his father told him to
put them down.
Officer Wilkins recorded the encounter on a digital recorder. Part of the
recording was played for the jury at trial, and a corresponding transcript of those
recorded conversations was also admitted into evidence. When Wilkins asked
Hennings about an accident the previous day, Hennings said in part,
I came around the corner . . . there‟s a big group of monkeys
standing in the f___in road . . . grabbing every which way . . . I
didn‟t think I hit any of „em . . . I think I hit a pothole in the road . . . .
....
I came around the corner . . . they were all standing out in the road
. . . I beeped my horn and they just fled . . . completely across the
road.
....
Some went that way . . . I started hitting the brake trying to . . . go
for openings but they just . . . keep going like this . . . like a normal
f___in monkey.
....
What . . . f___in nigger don‟t have enough sense to stay out the
f___in road . . . they deserve to get hit.
When Hennings‟s mother asked her son why he did not wait for the boys
to move, he responded, “When they‟re standing in f___in road like stupid
monkeys?”
Hennings‟s father explained that the Hennings family is well known in Fort
Dodge and not well liked because of their racial views. Wilkins thought the family
was making a race issue, and he emphasized that they had both black and white
8
witnesses. Hennings‟s father continued to explain that black children frequently
picked on Hennings as a child.
Wilkins asked Hennings if he threatened the boys with a knife, and he
denied having a knife. When Wilkins informed Hennings that the police had a
warrant to search and seize the truck, Hennings tried entering the passenger
side of his truck. Wilkins grabbed his arm to stop him, and Hennings resisted
violently, cursing and kicking at the officers. The three officers plus Bill held onto
him until he calmed down.
Eventually, Wilkins searched the truck and found a silver-handled knife in
the glove compartment. Hennings denied knowledge of the knife, and claimed it
must belong to the truck‟s previous owner.
Wilkins then entered Hennings‟s
home, and found a knife inside his bedroom dresser. The knife had a blue
handle and serrated blade, consistent with the description given by witnesses.
The officers left the premises, taking the truck with them as evidence.
Wilkins testified that Hennings never asked about Aerean‟s condition or showed
remorse for his actions.
A criminalist for the Iowa Division of Criminal Investigation laboratory later
analyzed the truck and Aerean‟s clothing.
He found marks on the truck‟s
underbody, dust on Aerean‟s shirt, and damage to the truck‟s grille that were
consistent with the truck running over Aerean. The physical evidence supported
the eyewitness testimony that Hennings had swerved his truck to the right, hit
Aerean, and then driven away.
The State charged Hennings with attempted murder in violation of Iowa
Code section 707.11 (2005), willful injury causing serious injury in violation of
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section 708.4(1), and assault in violation of individual rights with the intent to
commit a serious injury in violation of sections 708.2C(1), 708.2C(2), and
729A.2(1).1 On the first two counts, a jury found Hennings guilty of the lesser
offenses of assault with Intent to inflict serious injury in violation of section
708.2(1) and willful injury causing bodily injury in violation of section 708.4(2).
On the third count, a jury found Hennings guilty as charged.
The district court then merged Counts I and II, on the ground that the
Count I conviction involved a lesser-included offense of the Count II conviction.
The court later sentenced Hennings to five years each Counts II and III, with the
terms to run consecutively.
Hennings appeals his conviction for assault in violation of individual rights
with the intent to commit a serious injury. Hennings claims the evidence was
insufficient to allow a jury to conclude beyond a reasonable doubt that he acted
because of Aerean‟s race. Hennings also appeals his sentence. He contends
the district court did not provide reasons on the record for imposing consecutive
terms of imprisonment.
II. Scope and Standard of Review.
We review Hennings‟s insufficiency of evidence claim for errors at law.
State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). The jury‟s verdict is binding
upon a reviewing court unless there is an absence of substantial evidence in the
record to sustain it.
State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981).
“„Substantial evidence‟ is evidence upon which a rational finder of fact could find
1
Chapter 729A is Iowa‟s Hate Crimes chapter.
10
a defendant guilty beyond a reasonable doubt.” Rohm, 609 N.W.2d at 509 (citing
State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999)).
When reviewing a challenge to the sufficiency of the evidence, we
view the evidence in the light most favorable to the State, including
legitimate inferences and presumptions which may fairly and
reasonably be deduced from the evidence in the record.
State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006) (citing State v. Casady,
597 N.W.2d 801, 804 (Iowa 1999)).
We also review Hennings‟s improper sentencing claim for errors at law.
Iowa R. App. P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). A
sentence will not be disturbed on appeal unless the defendant demonstrates an
abuse of discretion or a defect in the sentencing procedure. State v. Sandifer,
570 N.W.2d 256, 257 (Iowa Ct. App. 1997) (citing State v. Loyd, 530 N.W.2d
708, 713 (Iowa 1995)). When a sentence is not mandatory, the district court
must exercise its discretion in determining what sentence to impose. Sandifer,
570 N.W.2d at 257. Further, the district court must demonstrate that it exercised
its discretion by stating on the record its reasons for imposing a particular
sentence. Thomas, 547 N.W.2d at 225; see also State v. Garrow, 480 N.W.2d
256, 259-60 (Iowa 1992) (statement of reasons sufficient if it demonstrates
exercise of discretion and reveals motive for particular sentence imposed).
Failure to do so calls for a vacation of the sentence and a remand for
resentencing. State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996).
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III. Analysis.
A. Sufficiency of the Evidence that Hennings Assaulted the Victim
“Because of” His Race.
The first issue on appeal is whether the evidence was sufficient to convict
Hennings under Iowa‟s Hate Crimes statute. See Iowa Code chapter 729A.2
Under section 729A.2, “hate crime” is defined as an enumerated offense that was
committed because of a person‟s race, color, or other specified status, belief, or
affiliation. Assault in violation of individual rights under section 708.2C is one of
the enumerated offenses. See id. § 729A.2(1).
In order for a jury to convict Hennings under sections 708.2C 3 and
729A.2(1),4 each element of the offense had to be proved beyond a reasonable
doubt. Thus, the State had to establish that there was an underlying assault, that
the assault was conducted with the intent to inflict a serious injury upon another,
and that the assault was committed “because of” the victim‟s race or color. Id.
§§ 708.2C, 729A.2.
2
Our supreme court has previously upheld chapter 729A‟s predecessor against a
constitutional challenge, State v. McKnight, 511 N.W.2d 389 (Iowa 1994), but has not
expressly addressed the quantum of evidence needed to sustain a conviction under that
statute.
3
Iowa Code section 708.2C provides, in part, as follows:
1. For the purpose of this chapter, “assault in violation of
individual rights” means an assault, as defined in section 708.1, which is
a hate crime as defined in section 729A.2.
2. A person who commits an assault in violation of individual
rights, with intent to inflict a serious injury upon another, is guilty of a
class “D” felony.
4
Section 729A.2 provides, in part, as follows:
“Hate crime” means one of the following public offenses when committed
against a person or a person‟s property because of the person‟s race,
color, religion, ancestry, national origin, political affiliation, sex, sexual
orientation, age, or disability, or the person‟s association with a person of
a certain race, color, religion, ancestry, national origin, political affiliation,
sex, sexual orientation, age, or disability:
1. Assault in violation of individual rights under section 708.2C.
12
Hennings‟s appeal does not challenge the first two elements. His sole
argument is that there was insufficient evidence to prove beyond a reasonable
doubt that his assault was motivated by racial hostility.
This requires us to
consider the specific meaning of the words “because of” in section 729A.2.
Hennings concedes that the jury had a basis for concluding he was a
racist. He has made no effort to contest this. However, the hate crime charge
requires more than proof that the defendant was a racist, or that the victim was a
member of a particular protected class.
It must be shown that the assault
occurred “because of” the victim‟s race. Id. § 729A.2. Hennings insists that it is
“just as likely” he assaulted Aerean because the boys had been blocking the
roadway or because of the comments Kwane made to him, rather than because
of Aerean‟s race.
On their face, the common words “because of” are susceptible of several
potential interpretations. Those meanings proceed along a spectrum that ranges
from exclusive causation on one end to a minor contributing factor at the other
extreme. The statutory language could be taken to require that racial animosity
be the sole or exclusive cause, the primary cause, a significant cause, or even a
relatively negligible but determinable cause.
Neither section 708.2C nor section 729A.2 includes any qualifying
language that would require us to apply the most stringent interpretation. If the
General Assembly had wanted to, it could have included limiting language as it
has with certain discrimination laws. See, e.g., Iowa Code §§ 515D.6 (providing
restrictions for denying insurance coverage “solely because of age, residence,
sex, race, color, creed, or occupation” (emphasis added)); 523I.307 (prohibiting
13
denial of internment in a cemetery “solely because of the race, color or national
origin of [a] deceased person” (emphasis added)).
The legislature did not
choose to restrict the scope of the hate crime statute by qualifying it with words
such as “exclusively” or “solely.” Therefore, we conclude that mixed-motivation
or dual-intent assaults are not excluded from the scope of section 729A.2.
California‟s hate crime statutes have similar language to Iowa‟s. See Cal.
Penal Code §§ 422.55, 422.6. They prohibit or provide enhanced punishment for
certain acts committed “because of” the victim‟s race, color, or other listed
characteristic. As in Iowa, the meaning of “because of” is not further defined in
the legislation. Upon reflection, we believe it makes sense to follow the welldeveloped California judicial precedents here. 5
In In re M.S., 896 P.2d 1365 (Cal. 1995), the California Supreme Court
parsed the “because of” terminology in California‟s hate crimes law. It held that
“nothing in the text of the statute suggests the Legislature intended to limit
punishment to offenses committed exclusively or even mainly because of the
prohibited bias.” M.S., 896 P.2d at 1377. Rather, “the Legislature has simply
dictated the bias motivation must be a cause in fact of the offense, whether or not
other causes also exist.” Id. At the same time, the court added that “[w]hen
multiple concurrent motives exist, the prohibited bias must be a substantial factor
in bringing about the crime.” Id.; see also People v. Superior Court (Aishman),
896 P.2d 1387, 1390 (Cal. 1995) (construing the “because of” language in
5
The General Assembly also did not choose to employ the language found in some
other states‟ hate crimes statutes, i.e., that the defendant “intentionally selected” his or
her victim because of race. See 11 Del. Code § 1304; Haw. Rev. Stat. § 846.51; R.I.
Gen. Laws § 12-19-38; Tex. Code Crim. Proc. art. 42.014; Va. Code Ann. § 18.2-57.
That language may pose different interpretation issues that we do not address here.
14
another part of the California hate crimes statute similarly that bias motivation
must be a substantial factor in the offense).
In a concurring opinion in M.S., Justice Kennard elaborated on the
meaning of the majority‟s standard. M.S., 896 P.2d at 1384. Justice Kennard
noted, “Deceptively simple in appearance, the words „because of‟ as used in
these criminal statutes mask a host of difficult problems. These problems may
generally be divided into two categories: problems of proof and problems of
interpretation.” Id. Regarding the proof problems, Justice Kennard noted that
hate crimes prosecutions typically require reliance on the defendant‟s out-ofcourt statements to establish motive. Id. However,
the use of a defendant‟s past statements and associations to prove
motive, if not carefully controlled, may have a chilling effect on First
Amendment freedoms, and thus the inquiry generally must be
confined to statements or conduct of the defendant reasonably
close in time or context to the charged acts.
Id.
Turning to the matter of interpretation, Justice Kennard borrowed from
Restatement (Second) of Torts section 432 to maintain that the “cause in fact”
element of the majority‟s test may be satisfied
if either (1) the conduct would not have occurred in the absence of
the bias motives, or (2) the bias and nonbias motives are
independent of each other and the bias motives would have been
sufficient to produce the conduct even in the absence of all nonbias motives.
Id. at 1386. In other words, if the defendant would not have committed the act
but for the victim‟s race (or other characteristic), or if the defendant‟s feelings
about the victim‟s race (or other characteristic) coincided with other motives and
the racial (or other improper) motivation by itself would have triggered the act, the
“cause in fact” element has been met. Id.
15
To give a crude (and perhaps psychologically inaccurate) numerical
illustration of the California standard, suppose that 100 total units of motivation
were the minimum required to trigger an act of assault by the defendant, i.e., to
tip the defendant over the edge. If non-racial motives provided fifty units and
racial motives provided seventy-five units, then the hate crimes statute would
apply. The accused would not have committed the assault but for the victim‟s
race and race was a substantial factor in the accused‟s commission of the
assault. Similarly, if non-racial motives provided 125 units and racial motives
provided 125 units, the hate crimes statute still would apply. In this instance,
although the accused would have committed the assault anyway, the racial
motives by themselves would have been enough to bring about the assault and
clearly were a substantial factor.6
The M.S. test has been reiterated in a recent California decision. People
v. Lindberg, 190 P.3d 664, 693-95 (Cal. 2008) (applying the M.S. framework and
holding that sufficient evidence supported a hate-murder special circumstance
even though the evidence also supported the jury‟s additional finding that the
defendant murdered the victim because he wanted to eliminate him as a witness
to the attempted robbery).
Iowa has generally embraced the same tort causation principles that the
California Supreme Court relied upon in M.S. In Gerst v. Marshall, 549 N.W.2d
810, 815-18 (Iowa 1996), quoting from Restatement (Second) of Torts section
In the foregoing hypothetical, we suppose that the “substantial factor” requirement
could be used to eliminate the case where the defendant had 99 units of nonracial
motivation and one unit of racial motivation, so that racial motivation was technically a
but-for cause but only a minor consideration.
6
16
432, our supreme court held the plaintiff must prove one of two things to
establish causation-in-fact: (1) the defendant‟s negligence was a but-for cause of
the plaintiff‟s injuries; or (2) there were concurrent causes of those injuries, and
the defendant‟s fault by itself would have produced those injuries. The Gerst
court suggested that tacking a “substantial factor” requirement onto this
framework might no longer be necessary; rather, “substantial factor” could
potentially be viewed as an aspect of the “proximate cause” inquiry. Gerst, 549
N.W.2d at 817.
However, since Gerst, “substantial factor” continues to be
recognized in Iowa as a component of causation-in-fact. See, e.g., Estate of
Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83 (Iowa 2002).
Accordingly, we believe it is appropriate to follow California case law here.
With these legal principles in mind, we now turn to the sufficiency of
evidence in this case. Hennings argues there is only “scant” evidence that he
used a racial slur at the time of the encounter. He points out that the testimony
of Darwin, who claimed to have heard the word “nigger,” was contradicted by that
of the other boys, including Kwane who was nearest to Hennings.
Thus,
Hennings distinguishes this case from others in which one or more racial epithets
were clearly used at the time of the offense. See, e.g., People v. Davis, 674
N.E.2d 895, 898 (Ill. App. Ct. 1996) (upholding a finding that the defendant acted
“by reason of” the victim‟s race given his use of a racial epithet before beating the
victim); In re S.M.J., 556 N.W.2d 4, 6-7 (Minn. Ct. App. 1996) (upholding a
17
finding that defendant acted “because of” the victim‟s race when he called the
victim a “nigger” before and during the assault).7
However, contemporaneous racial epithets aside, there is strong evidence
in this case that Hennings was motivated by racial animus to drive his truck over
Aerean.
When questioned about the incident the next day by the police,
presumably after his emotions had a chance to cool, Hennings in a disturbing
way blamed his twelve-year-old victim, and specifically his victim‟s race. Each
time he referred to the boys he used a racial epithet, thereby dehumanizing
them. Hennings suggested the boys walked the way they did because they were
“monkeys.” He said that a “nigger” who does not have sense to stay out of the
road “deserve[s] to get hit.”
Clearly, Hennings had mastered his emotions
enough to lie about the incident, for example about whether he had a knife, but
he was unable to suppress his racial feelings about the same incident.8
All in all, we believe these after-the-fact statements are perhaps more
persuasive evidence of racial motivation than a single use of a racial slur in the
heat of the moment. See Commonwealth v. Ferino, 640 A.2d 934, 938 (Pa.
Super. 1994) (finding insufficient evidence to convict the defendant of ethnic
7
But see State v. Hendrix, 813 P.2d 1115, 1118 (Or. App. 1991) (holding evidence was
sufficient to convict defendant under hate crimes statute, even though the defendant
personally did not utter racial epithets; other members of his group did use such epithets
during their assault on two minority victims; “the trier of fact could reasonably infer
beyond a reasonable doubt that defendant was motivated to act because of his and the
group's perception of the victims' race or national origin”); In re Vladimir P., 670 N.E.2d
839, 845 (Ill. App. Ct. 1996) (holding similarly that defendant need not have personally
uttered racial epithets during the assault).
8
In some respects, the facts of this case are reminiscent of those in McKnight, which as
noted did not involve a sufficiency of the evidence challenge. That case also began as a
roadway confrontation, turned into an assault, and involved the defendant‟s repeated
use of racial epithets to characterize his victim when later questioned by the officers.
McKnight, 511 N.W.2d at 390.
18
intimidation when the defendant said “I‟m going to kill you, you f___ing nigger”
and then fired the gun in the direction of two potential victims, one of whom was
white; the court observed the defendant‟s conduct was “isolated in nature, brief in
its execution and unattended by any trappings consistent with malicious intent
„motivated by a hatred toward race‟”). In addition to Hennings‟s statements, the
jury was also entitled to consider the nature of this assault.
After the
confrontation was seemingly over, Hennings drove away, only to return and then
intentionally drive his truck at the boys. A jury could reasonably conclude that
conduct with this degree of senselessness was motivated by more than ordinary
“road rage.” Something else had to be present in Hennings‟s mind, and a jury
was entitled to conclude that the “something else” was racial hostility.
We now turn to Hennings‟s primary sufficiency of evidence argument,
namely that he was a belligerent individual who “would have reacted in a similar
way regardless of the race of the boys blocking the road.” Hennings notes that
he “also did not react well when Wilkins attempted to keep him away from his
truck.” According to Hennings, it would require speculation for a jury to conclude
that he ran his truck over Aerean “because of” his race, rather than for other
reasons. We disagree.
As we have previously pointed out, we do not believe the State had to
show Hennings assaulted Aerean solely or exclusively because of his race.
Rather, it had to offer proof from which a rational juror could conclude that
Hennings would not have committed this assault “but for” Aerean‟s race and that
19
race was a “substantial factor.”9
We believe the State met this burden.
Hennings‟s dehumanizing and derogatory rants about the race of the boys, his
implication that the boys walked as they did because of their race, and his
comment that Aerean—a “nigger”—deserved to be hit by the truck all support a
jury finding that the same crime would not have been committed if the boys had
been white. They also support a finding that the boys‟ race was an important
consideration in Hennings‟ decision to steer his truck at them.
To some degree, Hennings‟s real quarrel is with the concept of “hate
crimes” legislation itself. From the large volume of academic literature in this
area, Hennings cites us to one professor‟s critique of hate crimes laws. See
Marc Fleisher, Down the Passage Which We Should Not Take: The Folly of Hate
Crime Legislation, 2 J.L. & Pol‟y 1 (1994).
Fleisher‟s article points out that
ascertaining and weighing “motives” is an exceedingly difficult task:
Proof that the defendant intended harm may be inferred from the
conduct itself. Yet it may often remain a mystery why a particular
act of violence occurred. It may be described as senseless,
gratuitous, or arbitrary. Indeed, up until the very day of sentencing,
the defendant‟s motives may remain enigmatic, even to himself.
Id. at 9-10. Hennings cites an example provided by Professor Fleisher of a white
student who, while drunk at party, observed his former girlfriend with a black
student. Id. at 14. Enraged, the white student hurled racial epithets at the black
student. Id. Later that night, after being evicted from the party, the white student
and his friends stalked and attacked the black student with a baseball bat. Id. In
this case, the white student was prosecuted for both assault and a hate crime.
Or, alternatively, that Hennings‟s racial hostility was such that he would have
committed the assault even if only the racial factors had been present. See M.S., 896
P.2d at 1377, 1384.
9
20
Id. at 14-15. Yet it also turned out that this white student had many black friends
who had slept over at his house.
Id. at 16.
Professor Fleisher (and now
Hennings) ask how a jury can be expected to sort out the potential motives for
this assault, ranging from jealousy and humiliation to racism. Id. at 14-17.
We agree that an accused‟s state of mind is often inscrutable. Yet long
before we had hate crimes legislation, we relied on jurors to make these kinds of
determinations.
For example, a willful and intentional killing that is
“premeditated” becomes first-degree rather than second-degree murder.
“Premeditation” in turn requires the jury not only to consider the motive or
motives for the offense, but when they were formed. We are comfortable with
juries making those decisions, even though some of the lines may be difficult to
draw.
Similarly, the General Assembly has decided to treat assaults that
occurred “because of” of the victim‟s race more severely than other assaults. It
has determined that jurors are capable of distinguishing the two types of
assaults.10 As in the murder example, the conduct is criminal anyway, so the jury
determination effectively relates only to the punishment. In short, we do not see
Iowa‟s hate crimes legislation as crossing a new bridge that has never been
crossed before. Nor are we alarmed by Professor Fleisher‟s (and Hennings‟s)
real-world example, since it turned out the white student there was acquitted of
We note again that the supreme court rejected a constitutional challenge to Iowa‟s
then-current version of the hate crimes law in McKnight, although that challenge was
based on the First Amendment and overbreadth, rather than vagueness. 511 N.W.2d at
390, 396; see M.S., 896 P.2d at 1375-76 (rejecting a vagueness challenge to California‟s
hate crimes law and noting that “because of” is a term in common usage); State v.
Pollard, 906 P.2d 976, 980-82 (Wash. App. 1995) (rejecting a vagueness challenge to
Washington‟s hate crimes law, and finding sufficient evidence to sustain the defendant‟s
hate crimes conviction even assuming the defendant assaulted his victims “in part
because he was blind drunk and insulted by the boys‟ ridicule”).
10
21
the hate crimes charge, even while being convicted of assault.
Id. at 17.
Assuming there was reasonable doubt in that case whether his attack on the
black student occurred because of the victim‟s race, the system worked.
For the foregoing reasons, we hold the evidence was sufficient to convict
Hennings of assault in violation of individual rights with intent to commit a serious
injury.
B. Consecutive Sentencing.
Hennings has also appealed his sentence. He contends the district court
did not give any reasons for imposing consecutive sentences on the two counts.
See Iowa R. Crim. P. 2.23(3)(d).
The State agrees and joins in Hennings‟
request for a resentencing. Upon our review of the record, we agree that while
the district court clearly gave thought to Hennings‟s sentence, it did not explain
why it was sentencing him consecutively on the two counts.
See Uthe, 542
N.W.2d at 816 (holding that where a district court failed to give its reasons for
imposing consecutive sentences, the sentences must be vacated and remanded
for resentencing). Accordingly, we vacate Hennings‟s sentences and remand
this case for resentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED
FOR RESENTENCING.
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