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State v. Tigner

Court of Appeals of Iowa

December 5, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
BRIAN JAY TIGNER, Defendant-Appellant

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Defendant challenges the court's sentencing order.

James S. Nelsen, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and David Porter, Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

BOWER, J.

Brian Tigner appeals the prison sentence imposed following his Alford plea[1] to assault with intent to inflict serious injury. See Iowa Code §§ 708.1(1), 708.2(1) (2011). We affirm.

I. Background Facts and Proceedings.

On January 1, 2012, Tigner was involved in a melee at his jointly-owned business, Capital Pub and Hot Dog Company. Tigner and co-defendant Scott Patrick Adamson were both charged, after amendment, with two counts of willful injury (Count I victim—Justin Lancaster, Count II victim—Tom Ramirez). Pursuant to a September plea agreement, Tigner entered an Alford plea on Count II to the lesser-included offense of assault with intent to inflict serious injury. The court accepted the plea and ordered the preparation of a presentence investigation report (PSI). Under the plea agreement, the State agreed to dismiss all other counts at sentencing.

The PSI discussed, in separate paragraphs, the victim impact statements of Lancaster and Ramirez. Ramirez stated he was affected by injuries, medical care, medical expenses, missed work, "fear, depression, sleep problems, and concern for safety." After noting thirty-seven-year-old Tigner is employed full time and living with his wife and children in a house he is purchasing, the PSI listed his prior criminal convictions: domestic assault causing injury, first-degree theft, conspiracy to distribute cocaine and marijuana (federal), possession with intent to deliver, assault causing injury, felon in possession of a firearm, four charges of driving while barred, and two charges of possession of controlled substance. The PSI also discussed the psychological assessment Tigner completed showing (1) immaturity, (2) a low aggression score ("may indicate a lack of awareness of feelings of anger and have been associated with episodic aggressive behavior"), and (3) a low social anxiety score ("may indicate callousness in interactions with others"). The PSI recommended imprisonment, a substance abuse evaluation, and payment of restitution, stating:

During the presentence investigation interview, [Tigner] admitted to his involvement in the assault but lacked accountability and leaned towards blaming the victims for patronizing his bar at a time when he felt there was an ongoing situation involving his brother. His actions and lack of judgment as bar owner resulted in this serious offense. [Tigner] has been given several opportunities in his lifetime for rehabilitation but continues to engage in criminal behavior.

At the November 2012 sentencing hearing, the State asked the court to order imprisonment. Ramirez testified the assault caused his trust in people to be altered, and "looking over my shoulder has become a daily occurrence." He also stated his wife, family, and friends have been impacted "by this unfortunate act of violence . . . . The attack was unprovoked, unnecessary, and brutal."

Defense counsel urged the court to impose a suspended sentence and probation. Tigner's wife testified to Tigner's actions upholding his family and business responsibilities. She acknowledged Tigner's criminal record but asserted he has changed and improved in managing his anger. Further, she testified the Ramirez group refused to leave even though she asked them to leave three times. Specifically: "I feel that the [Ramirez group] came to our place of business and were hostile and refused to leave, and I feel it was a very isolated incident and it was very personal because our family was involved."

Tigner acknowledged his past "is not a great past" but "all I can do is move forward and grow." He accepted full responsibility while having "extreme remorse for what happened ...


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