IN THE COURT OF APPEALS OF IOWA
No. 3-1244 / 13-0166
Filed February 5, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIAM EARL ROBY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Kurt L. Wilke,
Judge.
A husband appeals the judgment following a jury verdict finding him guilty
of committing an assault causing serious injury to his wife. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Ricki N. Osborn, County Attorney, and Jennifer Benson and Cori Kuhn
Coleman, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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TABOR, J.
Through appellate counsel, William Roby claims he received substandard
representation at trial because his attorney did not contest the State’s proof his
wife, Aleta Roby, suffered serious injury. Roby also filed a pro se brief that
asserts the district court employed an incorrect standard in ruling on his motion
for new trial.
Finding no reasonable probability the district court would have granted
judgment of acquittal on the serious injury element of the assault offense given
the strength of the State’s evidence, we conclude counsel’s performance did not
prejudice Roby’s defense. As for the pro se claim, the record does not show the
district court failed to apply the weight-of-the-evidence standard. Accordingly, we
affirm.
I. Background Facts and Proceedings
The jury was entitled to credit the following information offered through the
testimony of Aleta Roby (Aleta) and other State’s witnesses.
Around 11:30 p.m. on August 16, 2012, Aleta and William Roby (Roby)
were drinking whiskey and using methamphetamine in the living room of their
Fort Dodge home. Roby grew angry with his wife, questioning her, then pushing
and slapping her. His violence escalated to punching her with his fist. He next
dragged her by the hair into the bedroom and threw her on the bed. Once on the
bed he straddled her, pinning her arms with his knees. He continued to punch
her in the head and face while she begged him to stop. Aleta felt “terrified” and
believed he was going to kill her. She did not know how long the attack lasted
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because she lost consciousness. She did recall seeing Roby finally roll over and
fall asleep at 6:30 the next morning.
Her eyes were so swollen from the blows that she could not see her own
injuries in the mirror for more than a day. The pain in her face was
“excruciating.” When she was able to observe the damage, she noted “massive
black eyes” and bruises and swelling all over her face. She bled from her left ear
for two weeks. In the days following the assault, she stayed in the house—
feeling “afraid, in shock, terrified.” When she tried to leave the house, Roby
would pull her back in. Roby refused to take her to the hospital, instead acting
like he “wanted to be [her] nurse and just take care of her.” He would apply ice
packs and a heating pad to her injuries. Roby eventually ordered his wife to
vacuum up all of the hair he had pulled from her head.
On August 27, eleven days after the attack, Aleta convinced her husband
to drive her to the food stamp office to take care of some paperwork. When she
was at the office, Aleta called an assistant county attorney for help. Authorities
escorted Aleta to the police department, where a detective interviewed her and
then took her to the emergency room (ER).
The ER nurse practitioner noted it was hard for Aleta to open her mouth
fully, her upper lip was swollen, and she could not properly position her dentures.
Aleta’s ears were so swollen the nurse could not use the instrument to look
inside the ear canal. Aleta eventually was diagnosed with a ruptured ear drum
that required multiple visits to a specialist and treatment with prescription drops.
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Aleta’s physical injuries also caused her to vomit blood, which required her to see
a general practice physician.
During Aleta’s initial ER visit, medical personnel ordered a facial CT scan
that revealed an orbital blowout fracture, a condition where the bone encasing
her eye orbit was broken. The ER staff referred Aleta to an eye surgeon in Iowa
City. The surgeon removed a fragment of bone beneath her eye and replaced it
with a plastic piece held together by three screws; the surgery did not leave a
scar because it was accomplished by going through her eye. Aleta suffered pain
in her face for four to five weeks after the surgery and reported still feeling
discomfort at the time of trial. Aleta described the continuing sensation: “It’s like I
constantly have something in my eye, that’s scratching my eye.”
Meanwhile, on August 27, 2012, after interviewing Aleta, police officers
searched the Roby residence for evidence. In the bedroom they found blood-
stained pillow cases and a clump of hair inside the vacuum cleaner. Later DNA
testing at state crime lab showed the blood and hair matched Aleta’s genetic
profile.
The State filed its trial information on September 6, 2012, charging Roby
with four counts: (I) stalking, in violation of Iowa Code section 708.11 for actions
on July 23, 2012; (II) willful injury causing serious injury, in violation of sections
708.1 and 708.4(1) for conduct on August 16, 2012; (III) domestic abuse assault
with intent to inflict serious injury, in violation of sections 708.2A(1) and
708.2A(2)(c), also for conduct on August 16, 2012; and (IV) domestic abuse
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assault causing bodily injury, in violation of sections 708.2A(1) and 708.2A(2)(b)
for conduct on July 4, 2012.
The State dismissed the stalking charge on December 4, 2012, and
proceeded to trial on the other three charges on December 11, 2012. After two
days of trial, the jury returned verdicts finding Roby guilty of (I) assault causing
serious injury, a class “D” felony (a lesser-included offense of willful injury) and
(II) simple misdemeanor domestic abuse assault (a lesser-included offense of
domestic abuse assault with intent to inflict serious injury) for the incidents on
August 16, 2012. The jury acquitted Roby of the assault alleged to have
occurred on July 4, 2012.
Roby filed a motion for new trial, which the district court denied at the
January 22, 2013 sentencing hearing. The court imposed concurrent sentences
of an indeterminate five years for the class “D” felony assault and thirty days for
the simple misdemeanor assault. Roby appeals from the felony conviction.
II. Scope and Standards of Review
Because Roby’s complaint about the competency of his trial counsel
springs from the Sixth Amendment, we review it de novo. See State v. Canal,
773 N.W.2d 528, 530 (Iowa 2009). To the extent he calls into question the
sufficiency of the State’s proof of serious injury, we review that underlying claim
for errors at law, viewing the totality of the evidence in the light most favorable to
the verdict. See State v. Button, 622 N.W.2d 480, 484 (Iowa 2001).
Often we reserve ineffective-assistance claims for possible postconviction
relief proceedings so the parties may fully develop the record. State v. Brubaker,
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805 N.W.2d 164, 170 (Iowa 2011). But where enough facts appear in the trial
transcript to settle the dispute on direct appeal, we will do so. Id. at 171. Here,
we find the record complete enough to decide the ineffectiveness claim. Roby
bears the burden to show his trial attorney failed to perform an essential duty and
prejudice resulted. See Button, 622 N.W.2d at 483. If he cannot show both
prongs by a preponderance of the evidence, we will affirm. See id.
We review Roby’s claim the district court erred in denying a motion for
new trial based on the weight-of-the-evidence standard for an abuse of
discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). An abuse of
discretion occurs when a district court’s exercise of its discretion in deciding a
motion for new trial rests on plainly untenable grounds or the extent of its
exercise of discretion is clearly unreasonable. See State v. Reeves, 670 N.W.2d
199, 202 (Iowa 2003).
III. Analysis
A. Did counsel provide ineffective assistance by not challenging
the serious injury element when seeking judgment of
acquittal?
In his motion for judgment of acquittal, Roby’s trial attorney argued: “The
State failed to prove the essential elements of the offenses, specifically that there
was any assault or offensive contact between the Defendant and the alleged
victim, Aleta Roby.” Defense counsel went on to critique Aleta’s credibility,
asserting her injuries were consistent with causes other than an assault by her
husband. Counsel did not separately dispute the State’s evidence supporting the
serious injury element.
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On appeal, Roby does not pursue the claim that he did not cause his
wife’s injuries. Instead he contends the State did not prove his wife suffered
serious injury as that term is defined in Iowa’s criminal code.
To preserve error on a claim of insufficient evidence, defense counsel
must move for judgment of acquittal at trial by identifying the specific grounds
raised on appeal. State v. Truesdell, 679 N.W .2d 611, 615 (Iowa 2004).
Counsel’s failure to preserve error at trial can support a claim of ineffective
assistance of counsel. Id. Roby claims his attorney was ineffective in not asking
the district court to enter judgment of acquittal on the assault offense requiring
proof of serious injury.
The code defines “serious injury” as either a “disabling mental illness” or a
“‘bodily injury’ which does any of the following: (1) creates a substantial risk of
death, (2) causes serious permanent disfigurement, or (3) causes protracted loss
or impairment of function of any bodily member or organ.” Iowa Code § 702.18.
The State argues Aleta’s wounds fall under the third bodily injury alternative: the
protracted loss or impairment of a bodily member, which the legislature borrowed
from the common law crime of mayhem. See State v. Welton, 300 N.W.2d 157,
160–61 (Iowa 1981).
The Welton court defined “member” as a “bodily part or organ” and, in
turn, defined “organ” as “various cells and tissues . . . adapted for performance of
some specific function.” Id. at 161. The court defined “protracted” as “to draw
out or lengthen in time or space.” Id. at 160 (finding jury question engendered by
six-week loss of the ability to chew due to broken jaw bone and citing with
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approval Cheatham v. State, 270 N.W.2d 194, 198 (Wis. 1978), where Wisconsin
court found protracted impairment based on skull fracture that caused loss of
feeling on right side for six days with no further effects). The Welton court
recognized not every bone fracture constituted a protracted loss or impairment
but found a fracture that “substantially impaired the victim’s health” met the
definition in section 702.18. Id. at 161.
In a subsequent case, the supreme court decided a harm that
“substantially interferes with an organ’s function meets the statutory test.” State
v. McKee, 312 N.W.2d 907, 913 (Iowa 1981). The McKee court defined
impairment by its “common usage” as “any deviation from normal health.” Id.
According to the court, the term “impair” meant “to weaken, to make worse, to
lessen in power, diminish, or relax, or otherwise affect in any injurious manner.”
Id. Under McKee, a harm which made the function of an organ intensely painful
or irregular constituted impairment as the term is used in the statute. Id.
(concluding chronic menstrual irregularity and severe cramping as a result of
sexual abuse was substantial enough to be an impairment).
Roby argues the photographic evidence does not establish Aleta’s injuries
substantially interfered with the function of a bodily member or organ over a
protracted time period. He also contends Aleta’s testimony that she suffered
pain for four to five weeks after her facial surgery and continued to have a
scratching sensation in her eye did not establish serious injury. His argument
suggests it is necessary to have a medical opinion to meet the statutory definition
at section 702.18(1)(b)(3).
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We find nothing in the statutory language or case law interpreting it that
would preclude finding a protracted loss or impairment of function based on a lay
person’s testimony. See McKee, 312 N.W.2d at 912 (finding serious injury based
on victim’s own testimony she suffered cramps that cause her to “double over in
pain” despite gynecologist’s testimony that he found no evidence of physical
damage to account for victim’s symptoms); see also In re Doe, 107 P.3d 1203,
1210 (Haw. Ct. App. 2005) (finding substantial evidence supported serious bodily
injury element of assault when victim suffered orbital fracture and describing
“protracted” as commonly understood word that needed no medical opinion).
Aleta testified she could not see through her swollen eyes for more than a day,
that the orbital blowout fracture discovered in the CT scan required surgical
repair, that she suffered pain for more than a month after that surgery, and
continued to suffer a constant scratching sensation in her eye up to the date of
the trial.
Aleta’s testimony and the photographs documenting her injuries generated
a jury question as to whether the bodily injuries caused by Roby’s blows created
a protracted loss or impairment to her eye. Undoubtedly, the eye is a “bodily
member or organ” under section 702.18. We find the jury was entitled to decide
if the following conditions—(1) an orbital fracture which required surgical repair,
(2) pain lasting four to five weeks after the surgery, and (3) a continuing
abnormal scratching sensation in her eye—added up to a substantial impairment,
defined as an extended loss of use or weakened or reduced use. See State v.
Epps, 313 N.W.2d 553, 557–58 (Iowa 1981) (upholding jury instruction based on
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language in Welton and McKee). While not all fractures qualify as serious
injuries, those that require surgery to correct the damage are more likely to meet
the statutory definition. See State v. Mott, 635 N.W.2d 301, 302 (Iowa Ct. App.
2001) (finding broken jaw set with steel plates which “never fully returned to its
pre-fracture state” constituted serious injury). Further, more than one month of
pain following surgery to repair the orbital fracture could fit the definition of drawn
out or lengthened impairment. See State v. Hilpipre, 395 N.W.2d 899, 903–04
(Iowa Ct. App. 1986) (finding pain in fractured ribs six weeks after assault
qualified as protracted loss under standards in Welton and Epps). Finally, a
reasonable fact finder could consider a persistent abnormal irritation in the eye to
be an impairment of the organ. See State v. Sells, 964 A.2d 97, 102 (Conn. App.
2009) (finding overwhelming evidence victim suffered serious physical injury
when she sustained an orbital fracture to her eye which caused continued
numbness around her eye and cheekbone).
Because the State presented substantial evidence that Aleta’s bodily
injuries caused a protracted impairment of her eye, we find no reasonable
probability that had trial counsel challenged the serious injury element, the
outcome of the case would have been different. It would have been proper for
the district court to deny a motion of judgment of acquittal challenging the proof
of serious injury and to submit that factual question to the jury. Accordingly,
Roby is unable to satisfy the prejudice element of his ineffective assistance of
counsel claim. See State v. Taylor, 689 N.W.2d 116, 136 (Iowa 2004) (rejecting
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ineffective assistance claim when challenge to proof of injury would not have
been successful).
B. Did the district court apply the correct standard to Roby’s
motion for new trial?
In a pro se brief, Roby argues the district court applied an incorrect
standard in overruling his motion for new trial under Iowa Rule of Criminal
Procedure 2.24(2)(b)(6). Under that rule, the district court may grant a new trial
when the verdict is contrary to the evidence. Iowa R. Crim. P. 2.24(2)(b)(6).
Contrary to the evidence means contrary to the “weight of the evidence.” State v.
Ellis, 578 N.W.2d 655, 659 (Iowa 1998). In considering a motion for a new trial,
the court must weigh the evidence and consider the credibility of the witnesses.
State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008).
Roby’s trial counsel filed a motion for new trial that cited Ellis and correctly
distinguished the weight-of-the-evidence standard from the more deferential
standard applied to motions for judgment of acquittal. At the hearing, the
defense referred to the circumstances set forth in the motion. The State argued
the verdict was not contrary to the evidence presented. The district court denied
the new trial motion without analysis. We presume the district court applied the
standard urged by the parties. See State v. Harrington, 264 N.W. 24, 26 (Iowa
1935) (“Manifestly, unless the record is set out, this court may not presume error,
but on the contrary, the presumption would be in favor of the regularity of the
procedure and rulings of the court.”).
When ruling on a motion for new trial, the district court should state the
reasons for its decision. State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008).
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But a court’s failure to do so will not result in automatic reversal. Id. at 193
(upholding district court’s rejection of claim the verdict was against the weight of
the evidence despite court’s failure to state reasons). “We are obliged to affirm
where a proper basis appears in the record for the district court’s action.” Id. at
192.
We find no abuse of discretion in the district court’s conclusion that the
greater weight of the evidence supports the jury’s determination of guilt on the
assault causing serious injury offense. Aleta’s facial injuries, along with the
physical evidence retrieved from the scene, corroborated her testimony regarding
the August 16 assault. Accordingly, the credible evidence did not preponderate
against the verdict, and a new trial was not warranted.
AFFIRMED.