STATE OF IOWA, Plaintiff-Appellee, vs. MARK ALAN HEMINGWAY, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-733 / 08-1041
Filed November 12, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK ALAN HEMINGWAY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Don C. Nickerson,
Judge.
Defendant appeals his convictions and sentencing for willful injury,
domestic abuse assault with intent to cause serious injury, and assault on a
peace officer. AFFIRMED.
Jeffrey Mains, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant
Attorney General, John P. Sarcone, County Attorney, and Mark Sandon,
Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Potterfield, J., and Miller, S.J.*
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
VOGEL, P.J.
Following a jury trial, Mark Hemingway appeals his convictions and
sentencing for willful injury, in violation of Iowa Code section 708.4(2) (2007),
domestic abuse assault with intent to cause serious injury, in violation of Iowa
Code section 708.2A(2)(c), and assault on a peace officer, in violation of Iowa
Code section 708.3A(2). We conclude there was sufficient evidence to support
the convictions.
Further, the district court did not err in determining that an
assault on a peace officer while displaying a dangerous weapon is a forcible
felony, and did not abuse its discretion in not severing the assault on a peace
officer charge from the other charges. We affirm.
I. Background Facts and Proceedings
On Sunday, August 5, 2007, Mark and his wife, Christine, were involved in
a domestic incident.
versions of the events.
Not surprisingly, both offered diametrically opposed
Mark testified he was chasing Christine inside their
home, attempting to calm her down, when she stumbled and fell down the
basement stairs. Christine’s version was that Mark pursued her as she tried to
escape his rage, and he pushed her down the stairs.
Each provided near
minute-by-minute details of the incident. Eventually, Christine locked herself in
an upstairs bathroom and called 911 on her cell phone. According to Mark, when
the police arrived, he greeted them at the front door, and then pulled a cordless
phone out of his pocket. Officer Gary Lang testified Mark drew a semi-automatic
hand gun from his pocket.
injuries.
Christine later sought medical treatment for her
3
II. Scope of Review
Hemingway asserts we should apply a due process analysis to review his
sufficiency of the evidence argument de novo. Such a constitutional argument
was not made below in his motion for judgment of acquittal. We will not consider
a new argument on appeal, even a constitutional issue, if not made and passed
on below. State v. Lewis, 675 N.W.2d 516, 521 (Iowa 2004). Instead, we review
sufficiency-of-the-evidence claims for correction of errors at law. State v. Corsi,
686 N.W.2d 215, 218 (Iowa 2004). We uphold a verdict if substantial evidence
supports it. State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). “Evidence is
substantial if it would convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt.” Id. Substantial evidence must do more than raise
suspicion or speculation. Corsi, 686 N.W.2d at 218. We consider all record
evidence not just the evidence supporting guilt when we make sufficiency-of-theevidence determinations. Id. However, in making such determinations, we also
view the “evidence in the light most favorable to the State, including legitimate
inferences and presumptions that may fairly and reasonably be deduced from the
record evidence.” Biddle, 652 N.W.2d at 197.
III. Sufficiency of the Evidence
After the close of the State’s evidence, Hemingway moved for judgment of
acquittal under Iowa R. Crim P. 2.19(8), which was denied. The district court
found there was “sufficient evidence for a reasonable juror to conclude that Mr.
Hemingway is guilty beyond a reasonable doubt on each and every charge as
contained in the trial information.”
4
On appeal, Hemingway asserts that critical to both the willful injury 1 and
the domestic abuse assault charge,2 the State was required, but failed to prove,
he intended to inflict serious injury on Christine. The jury was instructed that a
“serious injury is a bodily injury which creates a substantial risk of death or which
causes serious permanent disfigurement or extended loss or impairment of the
function of any bodily part or organ.” Iowa Code § 702.18 (defining serious
injury); See also State v. McKee, 312 N.W.2d 907, 912 (Iowa 1981) (setting forth
four possible types of serious injury).
In finding Hemingway guilty, the jury necessarily accepted Christine’s
version of the incident: that Hemingway pursued her, first in the garage, then
inside the home, and upon catching her, threw her down the carpeted stairs as
she tried to escape his hold. She testified that the force was strong enough that
she did not land until her body reached the bottom of the staircase.3 Once able
to reorient herself, the pursuit continued into a lower level office area, and back
upstairs until Christine was able to grab her cell phone, lock herself in a
bathroom, and wait for the police to come to the house. The jury was able to
1
Iowa Code section 708.4. defines willful injury as:
Any person who does an act which is not justified and which is intended
to cause serious injury to another commits the following:
1. A class “C” felony, if the person causes serious injury to another.
2. A class “D” felony, if the person causes bodily injury to another.
2
Iowa Code section 708.2A(2)(c) defines domestic abuse assault as:
An aggravated misdemeanor, if the domestic abuse assault is committed
with the intent to inflict a serious injury upon another, or if the person uses
or displays a dangerous weapon in connection with the assault.
3
Mark testified Christine weighs approximately 110 pounds and he weighs
approximately 165 pounds.
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observe both Mark and Christine as they each offered their recollection of the
details of the incident. From the verdicts rendered, it is clear the jury placed less
credibility on Mark’s version of the events, and chose to accept Christine’s
testimony. Ward v. Loomis Bros., Inc., 532 N.W.2d 807, 812 (Iowa Ct. App.
1995) (“A jury, as a trier of fact, can accept or reject all or part of the testimony of
any witness.”).
Further, from the testimony offered and instructions given, the jury
concluded Mark had the requisite intent to commit serious injury.
Christine
testified Mark picked her up and threw her down the stairs, causing her to suffer
a broken nose, swelling on her face, and bruising on her knee, thigh, hip and
elbows.
On our review of the evidence, we conclude there was substantial
evidence to support the convictions of willful injury, and domestic abuse assault
with intent to cause serious injury. State v. Bush, 518 N.W.2d 778, 779 (Iowa
1994) (noting that when determining the sufficiency of the evidence, we review
the evidence in a light most favorable to the State.).
Hemingway next contends there was insufficient evidence to prove he
displayed a dangerous weapon in the presence of the officers when law
enforcement arrived at the home. He claims he simply drew a cordless phone
out of his pocket, not a handgun. Officer Lang, standing just “a couple feet” from
Hemingway, testified Hemingway brought his right hand up to his chest, holding
a handgun. Officer Lang specifically denied that it could have been a telephone,
and described the movement and sound of Hemingway’s hand as he was
“racking the slide” on the semiautomatic weapon. On cross examination, this
exchange occurred between defense counsel and Officer Lang:
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Q. Now, you say that you’re pretty sure that he had a
handgun in his hand? A. No, I did not.
Q. I’m sorry. You said you were sure? A. I didn’t say “pretty
sure.” I’m positive.
Other officers were not in such close range to view the object, and all took cover
when Officer Lang repeatedly shouted, “gun.” Again, the jury was free to believe
Hemingway’s version of the facts but chose to lend more credibility to the
officer’s testimony, thus providing sufficient evidence to prove Hemingway
“displayed a dangerous weapon” under Iowa Code section 708.3A(2). Ward, 532
N.W.2d at 812.
Therefore, we affirm the district court in finding substantial
evidence to support Hemingway’s conviction.
IV. Motion to Sever
Hemingway next contends the district court erred by denying his motion to
sever the charge of assault on a peace officer from the other charges. We
review for an abuse of discretion. State v. Delaney, 526 N.W.2d 170, 174 (Iowa
Ct. App. 1994). Iowa law permits multiple charges arising from the same or
multiple occurrences constituting parts of a “common scheme or plan” to be
prosecuted in a single trial unless the trial court determines otherwise for good
cause shown. Iowa R. Crim. P. 2.6(1). A “common scheme or plan” requires
more than the commission of two similar crimes by a single person. Delaney,
526 N.W.2d at 174. In short, the offenses must be the products of a single or
continuing motive. State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000). Factors
indicating a common scheme or continuing motive include modus operandi, and
temporal and geographic proximity of the crimes. Id.
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Hemingway asserts he was prejudiced by allowing the jury to hear the
testimony relating to his interaction with the police officers in the same trial as the
domestic related charges. He claims the assault on a peace officer testimony
was not related to what occurred between himself and Christine, and therefore
the jury could have rendered its verdict on the domestic charges on an improper,
emotional basis. The State asserts the events all took place within a short period
of time, and cumulatively tell the full story of Hemingway attempting to keep the
officers out of the home as the domestic incident was unfolding. Officer Lang
testified Hemingway came to the door shouting in a “loud, angry tone,”
attempting to explain the reported domestic incident by saying, “We’re just
arguing.” While the officers were at the front door, Christine remained locked in
the bathroom.
We agree with the State that the officers’ encounter with Hemingway and
the resulting charge of assault on a peace officer stem from the events that
brought the officers to the residence and occurred simultaneous to Christine still
sheltered behind a locked bathroom door. Examining these facts as a whole, we
conclude the charges were part of a continuing incident with a common scheme
or continuing motive. We agree with the State that the district court did not
abuse its discretion when it found “there is no legitimate basis to separate the
three counts for trial.”
V. Forcible Felony
Finally, Hemingway asserts the district court erred in determining the
charge of assault on a peace officer was a forcible felony. The State asserts
error was not preserved, as defense counsel acknowledged at the time of
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sentencing that Hemingway’s conviction under Iowa Code section 708.3A(2) was
a forcible felony. We agree, error was not preserved, but also that defense
counsel was correct in his assessment.
In order for the jury to have found
Hemingway violated Iowa Code section 708.3A(2), they necessarily needed to
find he committed an assault as defined in Iowa Code section 708.1:
A person who commits an assault, as defined in section 708.1,
against a peace officer, . . . , who knows that the person against
whom the assault is committed is a peace officer, . . . , and who
uses or displays a dangerous weapon in connection with the
assault, is guilty of a class “D” felony.
Iowa Code § 708.3A(2) The district court properly instructed the jury to include
the necessary elements under Iowa Code section 708.3A as well as 708.1. At
sentencing the court then applied Iowa Code section 702.11, which describes the
crimes which constitute a forcible felony, including assault.4 See also State v.
Webb, 313 N.W.2d 550, 552 (Iowa 1981).
We find no error in the district court’s determination that Hemingway
committed a forcible felony and was sentenced accordingly. Having considered
all arguments Hemingway raised on appeal, we affirm his convictions and
sentence.
AFFIRMED.
4
“The legislature has not defined felonious assault. This court has determined that a
crime is a form of felonious assault if it is a felony and it necessarily includes an assault.
See State v. Webb, 313 N.W.2d 550, 552 (Iowa 1981).” State v. Long, 490 N.W.2d 52
(Iowa 1992).
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