Appeal from the Iowa District Court for Scott County, Gary D. McKenrick (trial), and Joel W. Barrows (revocation and sentencing), Judges.
The defendant appeals her conviction for willful injury causing bodily injury.
Mark C. Smith, State Appellate Defender, and Melinda Nye, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Michael Walton, County Attorney, and Joseph Grubisich and Kimberly Shepard, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Jessica Christine Burton appeals her conviction for willful injury causing bodily injury in violation of Iowa Code section 708.4(2) (2009). She alleges insufficient evidence to convict, ineffective assistance of counsel, and sentencing error. We find substantial evidence of willful injury as the district court marshaled that offense for the jury. But we find Burton was prejudiced by counsel's failure to object to an incomplete aiding and abetting instruction and remand for a new trial. Because of the remand, we don't need to address the improper sentence.
I. Background Facts and Proceedings
On May 27, 2010, Jessica Burton called Luciano Garcia to complain that his girlfriend, Destiny Castaneda, was "fooling around" with her boyfriend and father of her children, Matt Hernandez. Later that day Burton, her sister Marisa Navarrett, and their friend Monica Morris arrived at the Wendy's restaurant where Garcia worked and told him they were going to go to Castaneda's workplace and "beat her ass."
Castaneda then received a phone call from Burton. Burton called Castaneda a "stupid fucking oompa-loompa fat bitch." That night Burton, Navarrett, and Morris went to the Days Inn where Castaneda worked. Navarrett and Morris went in while Burton stayed in the car. Castaneda did not know either Navarrett or Morris. The two women asked about room rates. After a few minutes, Navarrett and Morris said: "We're not here for room rates, we're here to fuck you up for Jessica." They began knocking over papers and other items. They threw a cordless phone at Castaneda. They hit her face with a flat-screen computer monitor. The two women then opened the door between the lobby and the front desk and pulled Castaneda from the room. The two women began pulling her hair. Castaneda tried to fend them off with a plastic "wet floor" sign but the two women took it from her and began hitting her with it. Eventually, Castaneda ended up curled in a ball on the floor. Morris and Navarrett continued to kick her in the back and head until Castaneda's boss walked into the lobby. Navarrett and Morris walked out the front door, where Burton picked them up. The whole fight lasted two minutes.
Castaneda followed them outside and asked Burton, "[W]hy would they have done this to me?" Navarrett stopped Castaneda and told her, "You've already got your ass beat enough. Do you want me to beat your ass more? Just leave already. Back off." The three women then left. Castaneda sustained head, neck, and back injuries, along with severe facial bruises.
On October 13, 2010, the State charged Burton and her companions with willful injury causing serious injury under Iowa Code section 708.4(1), a class "C" felony. Before trial, the State amended the trial information to charge willful injury causing bodily injury under section 708.4(2), a class "D" felony. The district court tried Burton, Navarrett, and Morris together. The State prosecuted Burton under an aiding and abetting theory, stating in closing argument:
If you determine Jessica Burton, who stayed in the car, knew what was going to happen, drove the other two ladies up there, waited for the assault to end, and left, she is an aider and abetter and she is just as guilty as the person who threw the punches.
A jury found all three defendants guilty of willful injury causing bodily injury. On July 14, 2011, the district court granted Burton a deferred judgment and ordered her to pay a civil penalty of $750. On November 29, 2012, the court revoked Burton's probation due to an unrelated charge, and sentenced her to a term of incarceration not to exceed five years to be ...