No. 6-061 / 05-0069Court of Appeals of Iowa.
Filed April 12, 2006
Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge.
Jeremy Michael Thomas appeals from his convictions for willful injury causing serious injury and assault with intent to inflict serious injury. AFFIRMED.
Andrea Flanagan, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett and Thomas Tauber, Assistant Attorneys General, Matthew Wilber, County Attorney, and Shelly Sedlak and John Jacobmeier, Assistant County Attorneys, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
ZIMMER, P.J.
Jeremy Michael Thomas appeals from his convictions for willful injury causing serious injury and assault with intent to inflict serious injury in violation of Iowa Code sections 708.4(1) and 708.2(1) (2003). He contends (1) the evidence was insufficient to support his convictions, (2) the court erred in overruling his motion for mistrial, and (3) the court erred in admitting evidence of statements he made in jail prior to trial. We affirm.
I. Background Facts Proceedings
At approximately 10:00 p.m. on May 27, 2004, John Bogdan returned home from work and got out of his truck. As he walked toward his house, two men later identified as David Duncan and Thomas ran toward him. Thomas and Duncan had been drinking together that evening at Shenanigans, a bar located approximately one block from Bogdan’s home. Duncan came to within six inches of Bogdan’s face and threatened to beat Bogdan up. Duncan then hit Bogdan on his shoulder and the top of his head. Bogdan struck back, knocking Duncan to the ground. Thomas hit Bogdan from behind, knocking him down to one hand.
Duncan pulled out a folding knife, opened it, and began to chase Bogdan, who responded by shoving a trash can toward the two men as they came after him. Thomas tackled Bogdan, and Bogdan fell over a gas grill in his yard. When Bogdan tried to get up, Thomas pulled on his shirt and hit him with his fists. Duncan stabbed Bogdan four or five times in his right side and back. Eventually, someone in Bogdan’s house turned on the porch light, and Duncan and Thomas left.
Bogdan entered his home and told his girlfriend, Cindy Huit, he had been stabbed and needed to go to the hospital. Bogdan went back outside while Huit dressed, and he observed Duncan and Thomas running toward Shenanigans. Thomas entered the bar, tapped Duncan’s friend Justin Moore on the shoulder, and said, “[W]e need to get Dave [Duncan] out of here. We got in some trouble.” Moore exited the bar with Thomas and saw Duncan getting up from the bed of a pickup truck in which he had been lying flat. Moore thought Duncan was hiding from someone.
Bogdan told Huit to drive by Shenanigans before they went to the hospital so he could identify his attackers for her.[1]
At the bar, Bogdan exited the car and identified Duncan and Thomas, who were standing in the parking lot, as his two assailants. He informed bystanders that Duncan had stabbed him twenty times and Thomas had assisted in the assault. Huit testified that one man came toward the car and shouted, “Do you want some more?” Huit persuaded Bogdan to get back in the car and drove him to the hospital.
Duncan left Shenanigans on foot and flagged down a passing car driven by Scott Foster. Roland Chapin was a passenger in the vehicle. Duncan got in the car and said, “Man, I just got into a fight. I need a ride out of the neighborhood.” As they drove away, Duncan said, “[M]y cousin got into a fight with this kid. I walked up behind him and stuck him in the neck.”
On May 28, the day after the stabbing, Bogdan identified Duncan from a photo array as the man who had stabbed him. On May 31, Bogdan identified Thomas from a photo array as the man who had hit and tackled him during the attack. The State filed a trial information charging Thomas with attempted murder and willful injury causing serious injury. Duncan was also charged, and the two defendants were tried together.
While Thomas and Duncan were in jail together awaiting trial, Thomas attacked Duncan with his fists. The State filed notices of additional witnesses identifying the law enforcement officers who would testify concerning the fight. Thomas filed a motion in limine, attempting to prevent the State from introducing testimony regarding the incident. The court overruled the motion after concluding that the challenged testimony fell within the co-conspirator exception to the hearsay rule and the potential for unfair prejudice did not outweigh the probative value of the evidence. Two officers testified at trial about statements made by Thomas during and after the fight.
At trial, Bogdan identified Duncan as the man who stabbed him and Thomas as the man who hit and tackled him during the assault. The jury found Thomas guilty of assault with intent to cause serious injury as a lesser included offense of attempted murder, and willful injury causing serious injury.[2] The court sentenced Thomas to a term of ten years’ imprisonment on his willful injury conviction. The court did not impose sentence on the offense of assault with intent because that offense merged with the offense of willful injury. Thomas now appeals.
II. Discussion
Thomas contends the evidence was insufficient to support his convictions, the district court erred in failing to grant a mistrial when Bogdan made comments to the jury as he left the witness stand, and the court erred in admitting evidence of statements he made during and after his altercation with Duncan over hearsay objections.
A. Sufficiency of Evidence
We review sufficiency-of-evidence claims for the correction of errors at law, and we will uphold Thomas’s verdicts if substantial evidence supports them. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We consider evidence substantial if it would convince a rational fact-finder of Thomas’s guilt beyond a reasonable doubt. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). When we make sufficiency-of-evidence determinations, we consider all the evidence in the record, not just the evidence supporting guilt. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). 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.”Id.
Thomas’s own witnesses established that he and Duncan were both at the bar only a block from Bogdan’s home the night of the assault. Within minutes of the stabbing, Bogdan identified Thomas as one of his assailants. He later identified him from a photo array and again at trial. After Bogdan was assaulted, Thomas returned to the bar, and he told one of Duncan’s friends they needed to get Duncan out of there because he and Duncan “got in some trouble.” This statement clearly implies that Thomas had participated in the earlier assault. Furthermore, when Duncan drove away in Foster’s car, he told Foster and his passenger that he and his cousin just got in a fight and stabbed the man they attacked. When we view all the evidence in the light most favorable to the State, we believe a rational jury could find Thomas participated in the assault on Bogdan. Additionally, the jury was not required to believe the testimony of witnesses who claimed Thomas and Duncan did not leave Shenanigans around the time of the assault on Bogdan. We conclude there was sufficient evidence to support Thomas’s convictions.
B. Motion for Mistrial
The bulk of Thomas’s brief on appeal addresses his contention that the district court abused its discretion by overruling his motion for mistrial after Bogdan made comments to the jurors as he left the witness stand. At the end of his testimony, Bogdan asked the court, “May I say one more thing to the jury?” The court informed Bogdan he could not say anything else unless there was a question pending, so Bogdan left the witness stand. On his way out of the courtroom, he said to the jury, “Settle down guys”, and “Don’t fall asleep.”
The trial judge had Bogdan returned to the courtroom so a record could be made regarding Bogdan’s comments. Outside the presence of the jury, the court noted that Bogdan expressed in body language in front of the jury that he was not happy with the court’s instruction to say nothing to the jury unless there was a question pending. Bogdan explained he “just want[ed] them [the jury] to pay attention. That’s all. I just wanted their attention.” Following these comments, Thomas requested a mistrial and argued that Bogdan was attempting to tamper with the jury.[3] The court overruled the motion. The court noted that the State had not “countenanced, invited, or directly caused the remarks.” The court ordered Bogdan to stay away from the jury and the courthouse during the remainder of the trial. Neither party requested that an admonition be given to the jury regarding Bogdan’s remarks.
We generally review a court’s decision to grant or deny a motion for mistrial for abuse of discretion. State v. Tyler, 512 N.W.2d 552, 557 (Iowa 1994). We allow trial courts broad discretion in making the determination to grant or deny a mistrial. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003). We will not find an abuse of discretion unless Thomas shows the court exercised its discretion on grounds clearly untenable or clearly unreasonable. Id. Clearly untenable or unreasonable grounds lack substantial evidentiary support or rest on erroneous application of the law. Id. A mistrial is appropriate when the jury cannot reach an impartial verdict or if we would have to reverse the verdict on appeal due to an obvious procedural error in the trial. Id. at 902. When a party alleges misconduct with respect to the jury, whether it is by a litigant, counsel, or an officer of the court, this is not grounds for a new trial unless prejudice is shown. State v. Carey, 165 N.W.2d 27, 29 (Iowa 1969).
Thomas does not contest the district court’s finding that the State had not “countenanced, invited, or directly caused the remarks.” Furthermore, although Bogdan’s brief comments were clearly inappropriate, he never threatened the jury or commented on Thomas’s guilt or innocence. Nothing in the record suggests that Bogdan’s remarks were calculated to affect the jury’s verdict, and we find no reasonable likelihood that his extraneous comments influenced the jury’s verdict. We conclude the court did not abuse its discretion in overruling Thomas’s motion for mistrial.
C. Hearsay Issue
As part of his sufficiency-of-evidence argument, Thomas contends the court erred in admitting evidence of statements he made to Duncan while in jail over a hearsay objection. The trial court concluded the proposed testimony fell within the co-conspirator exception to the hearsay rule. See Iowa R. Evid. 5.801(d)(2)(E). As a result, Deputy Chad Freeberg testified at trial that Thomas “told him [Duncan] that he would kill him if he testified against him.”
The State contends we should not consider this issue because the appellant’s brief fails to state the issue separately, contains only a perfunctory analysis applying this theory to the facts of this case, and does not cite any authority to support the argument. See Iowa R. App. P. 6.14(1)(c). Although the State’s position is not without merit, we will address the issue briefly.
We consider inadmissible hearsay prejudicial to the nonoffering party unless otherwise established. State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003). Inadmissible hearsay is not prejudicial when the record reveals the challenged evidence did not impact the jury’s finding of guilt. State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984). Even if we assume, without deciding, that the statements at issue were erroneously admitted at trial, we conclude Thomas is not entitled to relief.
The challenged testimony had little evidentiary value because it only established that Duncan and Thomas had a prior connection. The testimony did not definitively establish that this connection arose from the events of this case.[4] In addition, the evidence against Thomas was strong. Thomas’s own witnesses established that he and Duncan were both at the bar only a block from Bogdan’s home the night of the assault. Within minutes after the stabbing, Bogdan drove to the bar and identified Thomas and Duncan as his assailants. Later, he identified them from photo arrays and again at trial. Both defendants made incriminating statements shortly after the incident. The strength of the State’s case and the minimal evidentiary value of the challenged testimony lead us to conclude that even if the testimony was inadmissible hearsay, it was not prejudicial and did not impact the jury’s finding of guilt.
III. Conclusion
Because we find no merit in any of Thomas’s appellate claims, we affirm the judgment and sentence of the district court.
AFFIRMED.