No. 5-445 / 04-1393Court of Appeals of Iowa.
Filed August 31, 2005
Appeal from the Iowa District Court for Black HawkCounty, Jeffrey L. Harris, District Associate Judge.
Defendant appeals from his convictions for domestic abuse by use or display of a dangerous weapon and domestic abuse assault causing serious injury. AFFIRMED IN PART; REVERSED IN PART ANDREMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Hecht, JJ.
HECHT, J.
Dustin Poynter appeals from his convictions for domestic abuse by use or display of a dangerous weapon, in violation of Iowa Code section 708.2A(2)(c) (2003), and domestic abuse assault causing serious injury, in violation of section 708.2A(2)(b). He contends his trial counsel rendered ineffective assistance in failing to object to certain evidence, and asserts the trial court failed to adequately state its reasons for imposing consecutive sentences. We affirm the conviction but vacate the sentence, and we reject the claim of ineffective assistance of trial counsel because Poynter has failed to prove prejudice.
I. Background Facts and Procedures.
On May 9, 2004, Poynter, his live-in girlfriend, Rae Boenig, and their friend, Jason, drove from Waterloo to Des Moines and back. Although most of the trip was uneventful, Poynter and Boenig began arguing as they traveled back to Waterloo. Poynter, who was driving the vehicle, told Boenig, “It’s too late. You’re dead anyway.” Boenig grabbed the steering wheel and pulled it toward the right side of the road. Poynter then stopped the vehicle and hit Boenig on the left side of her head with a beer bottle.
Poynter exited the vehicle, at which point Boenig threw the beer bottle at him. Poynter went to the passenger side of the vehicle, opened the door, and grabbed Boenig’s right arm in an attempt to pull her from the car. Boenig pulled free and shut the door. Poynter returned to the driver’s seat and returned the vehicle to the highway.
When Boenig realized she was bleeding from the wound to her head, she asked Poynter to take her to the hospital. Poynter responded that she wasn’t going anywhere but the bottom of the river. Boenig then asked Poynter to take her home.
Poynter drove to George Wyth Park. On two occasions, Boenig attempted to open the car door and get out. Poynter told Boenig not to get out and grabbed her arm on one occasion to stop her from exiting the vehicle. He refused to stop the car at Boenig’s request.
Boenig was afraid Poynter was going to hurt her. Although she pleaded with him not to harm her, Poynter repeatedly told her it was too late. Poynter drove to the river, stopped the car, and turned off the engine. While he exited the vehicle and walked toward Boenig’s door, Boenig locked the car. Poynter pulled out a pocket knife and opened it. Jason then exited the vehicle and told Poynter to stop. Poynter looked at the river and said to Boenig, “There’s a swift current out there.”
Jason borrowed Boenig’s cellular telephone and called someone. He told Poynter that someone else was coming to pick him up. Poynter told Boenig that she better get out with Jason. Boenig refused and stated she needed to go to the hospital.
Poynter drove Boenig home. He told her to give him the cellular phone and Boenig complied. Poynter told Boenig to get out and call the police. He said “snitches get stitches” and told Boenig she was “dead anyway.” Poynter then left in the vehicle and Boenig went to her neighbor’s home to call the police.
Poynter was arrested. A pocket knife was found in the front seat of his vehicle. Boenig identified the knife as the one Poynter had pulled out at George Wyth Park.
At trial, Poynter testified he accidentally struck Boenig with a beer bottle when Boenig grabbed the steering wheel. He claimed he did not realize he had injured Boenig until he returned the vehicle to his control and checked to make sure everyone was alright. Poynter testified he offered to take Boenig to the hospital, but that she declined and asked to go home. He stated that instead of taking Boenig home, he took her to a spot by the river in an attempt to calm her down. Poynter denied that he displayed a knife or threatened Boenig during the incident.
The jury found Poynter guilty of both domestic abuse by use or display of a dangerous weapon and domestic abuse causing serious injury. Poynter waived his presence for sentencing. On August 4, 2004, the district court ordered Poynter to serve a two-year term of incarceration for his conviction of domestic abuse by use or display of a dangerous weapon. He was further ordered to serve a 356-day term of incarceration for his conviction of domestic abuse causing serious injury. The court ordered the terms be served consecutively.
II. Ineffective Assistance of Counsel.
Poynter contends his trial counsel rendered ineffective assistance in failing to object to the admission of evidence regarding pending charges against him. We review such claims de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
During his testimony, Poynter stated that he wished Jason, who had been in the vehicle with Poynter and Boenig at the time of the assaults, was available to testify at trial because Jason would verify his version of events. Poynter claimed he did not call Jason to testify because he did know how to contact him. When the prosecutor attempted to challenge Poynter’s claim that he was unable to contact Jason, Poynter explained that, “[he had] been in jail this whole time.” Following a discussion between the court and counsel held off record, the prosecutor asked Poynter, “And I don’t want you to tell me what other charges, but you are being held on other charges in the Black Hawk County jail besides this, aren’t you?” Poynter answered, “Yes, ma’am.”
Poynter contends this evidence was inadmissible pursuant to Iowa Rule of Evidence 5.404(b), which provides “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.” The State contends the evidence was necessary to correct the misimpression that Poynter had been in jail “this whole time” on the charges for which he was being tried. The State contends the misimpression could have caused the jurors to acquit Poynter or convict him of a lesser offense if they believed Poynter had already served enough time for his crimes.
We conclude the evidence that Poynter was jailed before trial as a consequence of other criminal charges was inadmissible. See State v. Taylor, 689 N.W.2d 116, 123-24 (Iowa 2004) (for evidence of other acts to be admissible, it must be probative o a disputed fact or issue other than the defendant’s criminal disposition). We reject as speculative the State’s assertion that the evidence was essential to deter jurors from concluding Poynter should be acquitted of the charges for which he was on trial because he was incarcerated and adequately punished prior to trial. Whether Poynter was in jail before trial as a consequence of the charges which were the subject of the trial or because of other unrelated charges was not probative of any issue in the case. We therefore conclude Poynter’s counsel breached an essential duty in failing to object to the admission of such evidence.
However, we conclude Poynter has failed to prove Strickland
prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) (establishing that the applicant must prove a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). The disclosure that Poynter was jailed on unspecified charges other than those for which he was on trial was limited to one question and answer. After reviewing the record de novo, we do not find a reasonable probability that the trial would have ended with a different result had the challenged question and answer not been published to the jury. Because we conclude Poynter failed to prove prejudice resulting from his counsel’s failure to object to the subject evidence, his claim of ineffective assistance of counsel must fail.
III. Sentencing.
Poynter also contends the court erred in failing to adequately state its reasons for ordering consecutive sentences. Our scope of review is for errors at law. Iowa R. App. P. 6.4. We review the record to determine if the district court abused its discretion in failing to state reasons for the sentence imposed State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). An abuse of discretion will only be found when a court acts on grounds clearly untenable or to an extent clearly unreasonable. Id.
Iowa Rule of Criminal Procedure 2.23(3)(d) requires a trial court to state on the record its reasons for selecting a particular sentence. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). The sentencing judge must also give reasons for imposing consecutive sentences. Id. “Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action.” State v. Keopasaeuth, 645 N.W.2d 637, 641 (Iowa 2002).
The district court’s sentencing order states in pertinent part: “The sentence adjudged in this case was found to be appropriate by the court following full and fair consideration of the plea agreement between the parties; sentencing goals and objectives; and defendant’s prior criminal record.” Here, there was no plea agreement. Poynter was found guilty following a jury trial. We conclude the district court failed to provide sufficient reasons for imposing consecutive sentences. Accordingly, we affirm the conviction, reverse the district court’s sentencing order, and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.