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State v. Richards

Court of Appeals of Iowa

March 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
TOBY RICHARDS, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.

         Toby Richards appeals from judgment and sentences imposed upon his convictions for domestic abuse assault, third or subsequent offense; domestic abuse assault by strangulation; and possession of a firearm by a domestic abuse offender.

          Lauren M. Phelps, Davenport, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

          Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J. [*]

          DANILSON, Senior Judge.

         Toby Richards appeals from judgment and sentences imposed upon his convictions for domestic abuse assault, third or subsequent offense; domestic abuse assault by strangulation; and possession of a firearm by a domestic violence offender. See Iowa Code §§ 708.2A(4), 708.2A(5), 708.2A(7)(b), 724.26(2)(a), 902.3, 902.9, 902.13 (Supp. 2017). He asserts the trial court erred in allowing bodycam video of the complaining witness under the excited-utterance exception to the hearsay rule. He also contends the court abused its discretion in allowing evidence of his prior bad acts. He argues there in insufficient evidence to sustain the convictions, the court erred in failing to give his requested instruction about expert-witness testimony, and his confrontation rights were violated. Richards also challenges the sentences imposed.

         We find no error in the admission of the bodycam video and no abuse of discretion as to admission of prior bad acts on the grounds asserted. We find sufficient evidence to sustain the convictions of domestic abuse assault, third or subsequent offense, and domestic abuse assault by strangulation. However, we find there is insufficient evidence of possession of a firearm to sustain that conviction. The district court did not abuse its discretion in denying Richards' proposed instruction as to expert-witness testimony. Because we reverse the conviction on count 3, we remand for resentencing, at which time Richards may assert his request that he be allowed to serve his sentences for prior offenses concurrently with the sentences for the instant convictions.

         I. Background Facts and Proceedings.

         Toby Richards was charged on August 6, 2017, by complaint with domestic abuse assault as a third or subsequent offender. A no-contact order protecting Emily issued that day.[1]

         Less than a week later, Emily moved to dismiss the no-contact order. At a hearing on the motion to dismiss, Emily testified, "He's never done anything to hurt me ever." She stated a person who had just been released from prison for attempted murder had assaulted her on August 6. She denied talking to an attorney from the Scott County Attorney's office (who made a statement to the contrary). She also said that Richards did not have a gun: "Toby doesn't have a gun. . . . It wasn't Toby's, and he did not have dominion or control over it." She also stated, "I have never called the police on Toby." The district court denied the motion to dismiss the no-contact order.

         A trial information was filed on September 13 charging Richards with three offenses-domestic abuse assault as a third or subsequent offender, domestic abuse assault by strangulation causing bodily injury, and possession of a firearm by a domestic violence offender-all class "D" felonies. At the criminal trial held in December 2017, the manager of a convenience store testified Emily had come to the store on August 6 at about 1:45 p.m. bloody and crying, and asked him to call police and have them meet her by her red Toyota at a nearby McDonald's store "because she said he would find her here."

         Responding officers, Brian Hanssen and Dennis Tripp, encountered a woman who was "distraught," "crying," "shaking," and bleeding. Officer Tripp's bodycam video shows he asked the woman, "What's going on?" The woman told Officer Tripp, "he beat me up" and "he said 'give me the .22'." She later identified herself and stated her boyfriend, Toby Richards, had punched and kicked her in the head, "he wants me to die," and "he tried to choke me again but I felt that I could breathe this time." She told Officer Tripp that Richards told her to kill herself with the .22. Emily asked the officer if he knew why she could not see out of her left eye. Emily stated that if Richards found out she had called police, "he's going to kill me." Officer Tripp recalled Emily was "just very upset." He testified Emily was bleeding and her mouth appeared injured. Her mouth and eye on the left side of her face were swollen.

         Emily was transported to the hospital and remained upset and shaken. Photographs taken at the hospital show bruising and cuts on Emily's face and abrasions and blood on her hands.

         Police went to the address for Richards that Emily had given them, which was just a few minutes away. Police created a perimeter around the residence. Richards' mother eventually gave officers permission to enter[2] and informed them Richards was hiding in the attic. Officers were able to convince Richards to emerge.

         Officer Christina Thomas testified she responded to a domestic-assault dispatch to Richards' residence. She transported Richards to the county jail and then returned to the residence upon receiving information that a firearm "involved in the earlier incident" was there. She was able to locate the weapon from the information received.

         Officer Ashley Guffey testified that she, too, responded to Richards' residence about 2:00 p.m. on August 6. After Richards was detained, Officer Guffey went to the hospital to speak with Emily and photograph her injuries. Office Guffey testified Emily "was really upset" and "really shaken." She stated Emily "said she had been through a lot and was scared of the defendant." Officer Guffey testified Emily's injuries included swelling, redness, and a bruise underneath her left eye, a cut on her left eyelid, and redness in her left eye, her nose was swollen, her cheek was bruised, and her lips were cut and swollen. Emily also had cuts on her hands, cuts on the inside of her mouth, and a chipped tooth. Officer Guffey stated, "I had obtained information that there was a gun in the residence still, and I relayed that to the other officers, to go retrieve it."

         Officer Jon Ronnebeck testified he obtained information concerning Richards' jail house phone calls. On August 6, Richards was on the phone from the jail and was told that the police had come and taken the gun. Richards stated, "I told her [Emily] that she should get it and kill herself." In a call on August 7, Richards told his son, "I did hit her." And later that day, he told his mother, "Look, what I did to her again, Mom. She has every right to be upset." In an August 27 phone call, Richards said he had told the classification staff, "I've been suffering from anger . . . that I'm lucky nobody has died."

         A domestic-abuse therapist testified that it is not unusual for survivors of domestic abuse to deny that it occurred. She testified how abusers use violence to maintain control over an intimate partner and described the cycle of violence- a "honeymoon" period, a building of tension, and then acute verbal, emotional, or physical abuse. She also testified it is not uncommon for victims to decline to participate in a prosecution because they know or think they know what will occur when the perpetrator is no longer incarcerated. She testified she had not met Emily or Richards.

         The State was allowed to present testimony over Richards' relevance objections that on September 17, 2015, Richards admitted injuring Emily at the Jumer's casino and hotel in Rock Island, Illinois. Emily had swelling on the left side of her face and a "C" shaped cut to her temple. On May 1, 2016, police responded to Genesis East Hospital where they found Emily in a neck brace. Richards pled guilty to domestic abuse assault related to this incident (FECR377195). And on August 31, 2016, surveillance cameras at the Isle of Capri Casino captured video of Richards shoving Emily from a stool. An officer later found Emily lying on her back in pain. Richards pled guilty to domestic abuse assault for this incident (AGCR379842).

         Richards intended to call Emily as a witness. However, through counsel, Emily informed the court she would "plead the Fifth" if called, and the court refused to require her to take the stand.

         Richards testified in his own defense. He testified he got up at about 10:00 a.m. on August 6 and awakened Emily to ask "if she had handled it." "I was mad because she didn't keep her word." He stated Emily had not "take[n] care of what she said she would take care of." He stated he started calling her names, told her their April 1st marriage was off, and "she wasn't worth my time anymore." He further testified:

I was mean to her, and I told her, you know, you got your dad's car, just get out of my life, get out of my son's life, get out of our life, you know. You're just-you're not doing what you say you're going to do, and I do what I say I'm going to do, just please get out. And I said no, just get the F out, just get out of our lives.
And I left the room. We were in the bedroom at that time, and I left the room. And I was trying to cool off because I was way out of control, and I went into my son's room and he wasn't awake, and I went ouside just to cool off, so I could get calm and not act like an ass any longer.
Whenever I came back in, I didn't see her, so I laid back down on the bed and my son came in and asked me what happened and I told him that we'd gotten into it, told him that she didn't keep her word, and he said yeah. And I looked for her and then I seen that her dad's car was gone.

         When asked what time Emily left, Richards testified, "About 11, maybe." He stated his mother came to tell him the police were outside so he hid in the attic because he "was scared to death."

         Richards admitted he had once had a .22 rifle but stated Emily was tasked with getting rid of it. He denied the rifle in evidence was his. He stated, "This is not my rifle, but that was the only-only thing I knew about a gun is I used to have a .22 rifle also, and to my understanding that it had been taken out of the house whenever I got my first domestic conviction."

         On cross-examination Richards admitted he is prohibited from a possessing a firearm. He also attempted to explain his statement in the jail house phone call, "I hit her," stating: "Whenever I said I hit her, that was referring to the past incident." And, "What I'm saying is that I didn't hit her this time, and I was saying that it had to do with another incident."

         The jury found Richards guilty as charged. The district court sentenced him to three, concurrent sentences not to exceed five years, with a three-year mandatory minimum, which were to be served consecutively to his convictions for the May 1 (FECR377195) and August 21, 2016 (AGCR379842) domestic abuse assault incidents. Richards now appeals.

         II. Scope and Standards of Review.

         "Although we normally review evidence-admission decisions by the district court for an abuse of discretion, we review hearsay claims for correction of errors at law." State v. Smith, 876 N.W.2d 180, 184 (Iowa 2016). "'[T]he question whether a particular statement constitutes hearsay presents a legal issue,' leaving the trial court no discretion on whether to admit or deny admission of the statement." Id. (quoting State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003)).

         "In considering whether the trial court properly admitted prior-bad-acts evidence, we apply an abuse-of-discretion standard of review." State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004). The abuse-of-discretion standard means "we give a great deal of leeway to the trial judge who must make [a] judgment call." State v. Newell, 710 N.W.2d 6, 20-21 (Iowa 2006). "If an abuse of discretion occurred, reversal will not be warranted if error was harmless." State v. Reynolds, 765 N.W.2d 283, 288 (Iowa 2009).

         We may affirm an evidentiary ruling on any valid alternative ground supported by the record. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002). We give deference to the lower court's finding of facts because it has a better opportunity to assess the credibility of witnesses, but we are not bound by them. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

         We review claims involving the Confrontation Clause de novo. State v. Bentley, 739 N.W.2d 296, 297 (Iowa 2007).

         We review a district court ruling denying a motion for judgment of acquittal for errors of law. State v. Hearn, 797 N.W.2d 577, 579 (Iowa 2011).

         III. Discussion.

         A. Bodycam Video. Richards first challenges the district court's admission of Officer Tripp's bodycam video, which includes Emily's statements implicating Richards. He asserts those statements were inadmissible hearsay. He also ...

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