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State v. Johnson

Court of Appeals of Iowa

March 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL T. JOHNSON, Defendant-Appellant.

         Appeal from the Iowa District Court for Clinton County, Stuart P. Werling, Judge.

         Michael Johnson appeals from his conviction for sexual abuse in the third degree.

          Kent A. Simmons, Bettendorf, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J. [*]

          DANILSON, Chief Judge.

         Michael 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.

         I. Background Facts & Proceedings.

         This 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.

         N.K. 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.

         Officers 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.

         Johnson was charged with third-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.4(1).[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).[2] 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).

         Johnson 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.

         The district court orally ruled on the motion for new trial following an ...


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