IN THE COURT OF APPEALS OF IOWA
No. 13-0738
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DARION AUBREA LOVE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Pottawattamie County, James S.
Heckerman, Judge.
Darion Love appeals from the sentences imposed upon his convictions of
assault with intent to inflict serious injury and willful injury. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Matthew D. Wilber, County Attorney, and Amy Zacharias, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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DANILSON, C.J.
Darion Love appeals from his convictions of assault with intent to inflict
serious injury and willful injury, contending the district court erred in not merging
the two sentences. Upon our de novo review, we conclude there was substantial
evidence to support the two separate convictions and the district court did not err
in refusing to merge the sentences. We affirm.
I. Background Facts.
Over the course of several hours on May 5 and 6, 2012, Darion Love beat
Jennifer Pruett, the mother of his child. We summarize: Pruett locked herself in
her bedroom to get away from an angry and intoxicated Love. Love gained entry
to Pruett’s bedroom. Pruett threw a cup at Love, hitting him in the forehead.
Love bit Pruett on the left arm and punched her in the face with his fist. When
Pruett fell to the floor, Love kicked her in the face and “stomp[ed]” her back.
Pruett tried to crawl to the bathroom, but Love grabbed her by the hair and
banged her head on the bathroom floor while continuing to punch her in the face
and kick her in the back. Love stopped his assault to call people to complain
about Pruett. Love stated he was going to kill Pruett. After dragging her back to
the bedroom from the bathroom doorway, Love beat Pruett with the wooden legs
off a TV table until she could no longer move. Love again got on the phone and
lit a cigarette. He then poured fingernail polish on Pruett’s face and put out his lit
cigarette behind Pruett’s left ear.
The morning of May 6, Pruett presented to the emergency room with dried
blood on her clothing; both eyes bruised and swollen shut; mouth swollen;
numerous bruises—including long, linear bruises—on her arms, legs, and back;
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a sprained wrist and ankle; and her nose fractured. She was admitted “because
of the severe head trauma,” and she was unable to open her eyes. Pruett was in
the hospital for two days.
Photographs taken at Pruett’s house after the event indicate there was
blood on her bedding, two walls of her bedroom, and the bathroom floor. The
broken legs of the TV table were scattered across the bedroom, splintered and
blood-stained. DNA testing determined the blood was Pruett’s.
Love was charged in three counts: count one, first-degree kidnapping;
count two, attempted murder; and count three, willful injury causing bodily injury.
He raised an intoxication defense and argued he suffered from mental illness.
After a jury trial, Love was found guilty on count two of the lesser-included charge
of assault causing serious injury, and on count three of willful injury as charged.
The district court imposed concurrent sentences.
Love now appeals, contending the sentences are illegal because the
convictions should merge.
II. Scope and Standard of Review.
Love’s appeal has constitutional implications and, therefore, our review is
de novo. See State v. Velez, 829 N.W.2d 572, 576 (Iowa 2013).
III. Discussion.
Love argues his conviction of assault with intent to inflict serious injury
should have merged with his conviction of willful injury. The State argues the
record supports two or more separate and distinct crimes. We conclude the case
was presented as a series of completed assaults, with a break in the action
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between the completed acts, which under the principles enunciated in Velez,
provides support for the two convictions. See 829 N.W.2d at 583.
It is well established in Iowa law that a single course of
conduct can give rise to multiple charges and convictions. See
State v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992) (discussing
how we typically resolve “[t]he question of whether the legislature
intended that a criminal defendant may be cumulatively punished
based upon a single incident”). “In considering a double jeopardy
claim within the multiple punishments context, we are guided by the
general principle that the question of what punishments are
constitutionally permissible is no different from the question of what
punishments the legislature intended to impose.” Id. at 57. In order
to determine if Velez’s second conviction constitutes a violation of
his double jeopardy protections, the key question we must answer
is what the legislature intended would constitute a unit of
prosecution under Iowa Code section 708.4. In our analysis of
whether two distinct factual bases existed to accept Velez’s guilty
plea, we analyzed legislative intent. We found that under both the
break-in-the-action test and the completed-acts test, Velez
committed two or more discrete acts of willful injury. Because the
legislative intent was to punish these two or more acts, double
jeopardy is not violated.
Id.
More recently, our supreme court enunciated the following test:
[O]ur decision in Velez and cases in other jurisdictions have
considered certain factors to aid the fact finder in determining if the
defendant’s assaultive conduct is one continuous act or a series of
separate and distinct acts. These factors are (1) the time interval
occurring between the successive actions of the defendant, (2) the
place of the actions, (3) the identity of the victims, (4) the existence
of an intervening act, (5) the similarity of defendant’s actions, and
(6) defendant’s intent at the time of his actions.
State v. Ross, ___ N.W.2d ___, ___, 2014 WL 1128309, at *11 (Iowa 2014).
As was the case in Velez, there was more than one “break in the action”
between the beatings inflicted upon Pruett. With respect to the factors
enunciated in Ross, while the time interval between the successive assaults is
not completely clear, the interval was sufficient for Love to make several phone
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calls to family and friends and to light and smoke a cigarette. Love hit and kicked
Pruett in the bedroom; when she tried to crawl to the bathroom, he grabbed her
by the hair and hit her head against the bathroom floor, and then dragged her
back to the bedroom. As noted, intervening acts included phone calls and Love
lighting and smoking a cigarette. Love engaged in different acts of assault—first,
punching and kicking Pruett, and later using the broken table legs to beat Pruett.
In Velez, the court described the incident that led to the defendant being
convicted of two counts of willful injury:
Welsh described both a break in the action and a series of acts that
would each constitute a completed act if serious injury resulted.
Specifically, Welsh’s minutes of testimony describe Velez striking
Kennedy “20 to 40 times” with a metal pole. Since either a single
blow or a single series of blows caused each serious injury, we find
that there were more than two completed acts, as Kennedy
suffered at least two serious injuries. Similarly, we find a break in
the action occurred. Velez stopped hitting Kennedy long enough to
pat him down, and Welsh’s testimony infers Velez was looking for
money. When he found no money, only a knife, Velez resumed
hitting Kennedy. There was also a break in the action when
Kennedy produced a lighter, which resulted in a break in the prior
assault, followed by another discrete assault. These breaks in the
action are sufficient to constitute two acts of willful injury when
serious injury results.
829 N.W.2d at 583-84.
There was substantial evidence from which the jury members could find at
least two completed assaults, each of which was accompanied by an intent to
inflict serious injury. We therefore affirm the defendant’s convictions and
sentences.
AFFIRMED.