Appeal from the Iowa District Court for Scott County, Thomas H. Preacher, District Associate Judge.
The opinion of the court was delivered by: Huitink, S.J.
Defendant appeals his conviction for assault causing bodily injury. AFFIRMED.
Considered by Vaitheswaran, P.J., Mullins, J., and Huitink, S.J.*fn1
I. Background Facts & Proceedings.
Michael Wailand was charged with assault resulting in bodily injury, in violation of Iowa Code section 708.2(2) (2009).*fn2 Wailand presented a defense of justification. He claimed his actions were reasonably necessary to defend his infant granddaughter. The case proceeded to a jury trial on March 29, 2010, where evidence was presented as follows.
In December 2009, Wailand and his wife, Trudy, were separated. At that time Wailand had physical care of their child, S.W., who was then six years old. Trudy arranged through her adult daughter, Ashley, to have visitation with S.W. at the Northpark Mall in Davenport, Iowa, on December 17, 2009. Trudy's adult son, Christopher, accompanied her for the visit.
At about 4:45 p.m. that day Trudy, Christopher, and S.W. came to the food court area where the child was to be returned to the care of Wailand. Trudy testified Wailand grabbed S.W. by the arm, but she did not want to go with him and started crying. Christopher came over to stand with his arms stretched out between Trudy and Wailand, telling Wailand if he was going to hit somebody he should hit him. Trudy stated Wailand hit Christopher's hand and Christopher's hand accidentally hit Ashley's infant daughter. Ashley then hit Christopher. Trudy was trying to comfort S.W., and she stated the next thing she saw was Christopher on the ground and Wailand was kicking him.
Christopher testified that when he went to stand between Trudy and Wailand he put his hands up in the air and told Wailand, "If you're going to hit me, I ain't swinging back because you're going to go to jail." He stated his hand accidentally hit Ashley's infant daughter when Wailand hit him. Christopher stated Wailand hit him in the face, hit him in the chest, and after he fell on the ground, kicked him in the face.
A couple who was walking through the food court observed the incident. Carissa Bryant testified she heard someone yell, "you just hit my daughter," and this caused her to look in the direction where she saw the incident. She stated:
And the only thing that I really remember after that is the-the gentleman in the red leather jacket was pursuing the younger gentleman, and he-the younger gentleman kept backing up, and the older gentleman was, you know, pursuing him and had his arms up trying to punch him. He pushed him maybe two or three times, and then the younger gentleman went to the ground, and then the older gentleman proceeded to kick him the head.
She identified the defendant in the courtroom as the older gentleman. Carissa stated she never saw Christopher throw any sort of punch, stating he was "backing up, trying to get away from him. He didn't want to fight."
Justin Bryant testified, "the Defendant was striking the young man in the head, and the young man fell on the ground, and the Defendant continued to-to strike him in the head with his boots." When asked if he thought Christopher was attempting to strike Wailand, Justin replied,
I didn't see him attempt to strike. I saw him try to back up and come up into a defensive position (indicating), and then once he was on the ground, he was in the fetal position trying to defend his ...