from the Iowa District Court for Clinton County, Stuart P.
Johnson appeals from his conviction for sexual abuse in the
A. Simmons, Bettendorf, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Vaitheswaran, J., and Mahan,
DANILSON, Chief Judge.
Johnson appeals from his conviction following a bench trial
for sexual abuse in the third degree, in violation of Iowa
Code sections 709.1 and .4(4) (2013). Johnson maintains he is
entitled to a new trial because the district court erred in
granting the State's motion to amend the trial
information and abused its discretion in denying
Johnson's motion for new trial on the same basis. We
conclude the amended trial information presented a wholly new
and different offense and Johnson suffered prejudice as a
result of the amendment. We therefore find the district court
erred in denying the motion for new trial, and we reverse and
remand for a new trial.
Background Facts & Proceedings.
matter arose following an alleged assault N.K. reported had
occurred on the night of October 27, 2013. N.K.-then a
university freshman-stated she was attending a Halloween
party at the home of other university students and had become
intoxicated. N.K. said she felt sick and went outside of the
house with Johnson to get some air. Johnson and N.K. sat on
some steps next to the house while N.K. vomited. When N.K.
stopped vomiting, Johnson asked for a kiss, and N.K. complied
with a "peck." N.K. stated Johnson then forced his
finger into her vagina and she "froze" due to the
pain. N.K. said Johnson removed his finger from her vagina
when another party-goer came outside.
reported the incident to her friends, who took her back to
the dormitory and told her to report the assault to
authorities. She spoke with a campus security guard and a
police officer. She completed a written statement, bagged her
clothing to provide to the police, and went to the hospital
where a sexual assault kit was completed. N.K. stated she
noticed she had blood in her underwear. At the hospital, it
was confirmed N.K. had bruising and an abrasion on the right
labia causing the bleeding. N.K. also had hickeys on her
neck, which were swabbed for DNA. N.K. stated she does not
remember how she got the hickeys.
later interviewed Johnson and obtained the Halloween costume
he was wearing on the night of the incident. A DNA sample
taken from Johnson's costume was a match for N.K.
Additionally, the swab of the hickeys on N.K.'s neck
revealed a match for Johnson's DNA. Johnson maintains he
did not assault N.K.
was charged with third-degree sexual abuse, in violation of
Iowa Code sections 709.1 and 709.4(1). Johnson elected
to waive a jury trial, and the bench trial was held on July
11-12, 2016. At the close of evidence-after the State's
rebuttal evidence was submitted-the State moved to amend the
trial information to charge Johnson with third-degree sexual
abuse, in violation of 709.4(4). Johnson's attorney
objected. The court made its ruling on the motion to amend in
its order and ruling entered on July 29, 2016. The court
granted the motion and found Johnson guilty of the
newly-amended charge of third-degree sexual abuse, in
violation of Iowa Code section 709.4(4).
filed a motion for new trial on September 9, 2016, arguing
the court improperly allowed amendment of the trial
information as that amendment constituted a wholly new and
different offense, affected Johnson's substantial rights,
and resulted in prejudice to Johnson. Johnson argued:
The State chose to proceed on subsection (1) of Section
709.4, and thereby notified the defense the State's case
would require proof beyond a reasonable doubt that a sex act
was "done by force or against the will of the other
person." The decision to reject a plea offer and the
decision to waive a jury were both made upon the
consideration that a trial would address the question of an
overborne will or the use of force. Additionally, had the
defense been on reasonable notice that the theory of
incapacity would be amended, the defense could have conducted
cross-examination and produced additional witnesses and
evidence to show the complainant's level of intoxication
was nowhere near the level that would render her
incapacitated. The amendment did constitute a wholly new and
different offense, as it charged a new subsection and a
wholly different theory of the prosecution's case.
district court orally ruled on the motion for new trial
following an ...