IN THE COURT OF APPEALS OF IOWA
No. 14-1344
Filed June 24, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CINDY CHRISTINE HEBRON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William A. Price,
District Associate Judge.
A defendant challenges her guilty plea to operating while intoxicated first
offense and the denial of a new trial on two related assault charges. AFFIRMED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Heather R. Quick
(until withdrawal), Assistant Attorneys General, John P. Sarcone, County
Attorney, and Jeff Noble, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and McDonald, JJ.
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TABOR, J.
Cindy Hebron crashed her car into a parked pickup, sheared off a power
pole, and landed upside down in the front yard of an east side Des Moines
residence. As she squeezed out of the driver’s side window, she begged
witnesses at the scene: “Don’t call the cops.” After she was transported to the
emergency room, she struggled with health care providers and hospital security.
As a result, the State charged her with operating while intoxicated (OWI) second
offense and three assaults. A jury convicted her of two counts of assault on
health care providers, in violation of Iowa Code section 708.3A(4) (2011).
Because the jury could not reach a verdict on the OWI second offense, the
district court declared a mistrial. Hebron later pleaded guilty to OWI first offense,
in violation of Iowa Code section 321J.2.
Hebron challenges all three convictions on appeal. First, she argues her
counsel was ineffective in allowing her to plead guilty given her mental condition.
Second, she contends the district court erred in denying her motion for new trial
on the two assault counts. On the guilty plea claim, because Hebron fails to
show her attorney breached a material duty or that she suffered prejudice as a
result of his performance, we reject her allegation of ineffective assistance of
counsel. In regard to the motion for new trial, we conclude Hebron has waived
error on a weight-of-the-evidence claim under Iowa Rule of Criminal Procedure
2.24(2)(b)(6) by failing to argue the correct evidentiary standard on appeal. To
the extent Hebron is raising a sufficiency-of-the-evidence challenge, we find
substantial evidence supports the jury’s assault verdicts. Accordingly, we affirm.
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I. Background Facts and Proceedings
After Hebron’s August 19, 2012 car crash and trip to the hospital, the
State filed a trial information charging her with four counts:
Count I: Operating a motor vehicle while under the influence
of alcohol or drug, second offense, in violation of Iowa Code section
321J.2.
Count II: Assault on a healthcare provider causing injury, in
violation of Iowa Code section 708.3A(3), relating to the assault of
nurse Patrice Herrera.
Count III: Assault on a healthcare provider, in violation of
Iowa Code section 708.3A(4), relating to the assault of Dr. James
Swegle.
Count IV: Assault causing bodily injury, in violation of Iowa
Code section 708.2(2), relating to the assault of Ruby Highland.
Before trial, Hebron successfully moved to suppress the law enforcement
report indicating she had refused to submit to chemical testing. During Hebron’s
treatment at the hospital, she was too combative to safely allow a technician to
draw a blood sample.
Her jury trial began on March 5, 2014. Dr. Swegle, a trauma surgeon,
testified he treated Hebron the night of the crash. He had no doubt she was
intoxicated. Dr. Swegle testified that during their interaction in the emergency
room, Hebron struck his face with a closed fist. Nurse Patrice Herrera also
testified to tending to Hebron in the emergency room. The nurse shared the
doctor’s opinion that Hebron was under the influence of alcohol that night.
Herrera testified Hebron scratched her face, leaving an abrasion below her eye,
and bit her thumb. The nurse viewed the contact with Hebron as offensive and
injurious, and not inadvertent. Nurse Herrera also told the jury that Hebron
4
kicked security guard Highland while the guard was trying to hold the patient
down.
On March 12, 2014, the jury found Hebron guilty of two serious
misdemeanors: assault on a health care provider, without causing injury, in the
count involving nurse Herrera (a lesser included offense of the count charged)
and assault on a health care provider, as charged, in the count involving Dr.
Swegle. The jury acquitted Hebron of the assault against the security guard and
could not reach a verdict on the OWI second count, resulting in a mistrial.
On May 16, 2014, the parties appeared before the court and indicated
they had reached a plea agreement on the remaining count. In return for
Hebron’s guilty plea, the State agreed to reduce the charge to OWI first offense;
the parties were free to recommend any disposition. The district court conducted
a complete plea colloquy with Hebron and accepted her plea of guilty.
Hebron appeared for sentencing on July 15, 2014. Before the court could
pronounce sentence, while sitting at counsel table in the courtroom, Hebron
swallowed a handful of prescription Xanax. The court ordered Hebron into
custody and directed jail staff to arrange any necessary medical care. After
reconvening for sentencing on July 18, 2014, the court imposed a suspended
two-year sentence for the assaults and a concurrent 180-day jail term for the
OWI conviction. Hebron now appeals.
II. Scope and Standards of Review
We review de novo Hebron’s claim she received ineffective assistance of
counsel at the plea hearing. See State v. Finney, 834 N.W.2d 46, 49 (Iowa
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2013). We apply the de novo standard because her claim is based in the Sixth
Amendment. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We evaluate
claims of ineffective assistance using a two-part test. See Strickland v.
Washington, 466 U.S. 668, 694 (1984) (holding defendant must show counsel’s
representation fell below an objective standard of reasonableness and a different
result was reasonably probable but for counsel’s unprofessional errors). While
we often preserve ineffective-assistance claims for postconviction-relief
proceedings, we will decide them on direct appeal if the record is adequate to do
so. Finney, 834 N.W.2d at 49.
We apply an abuse-of-discretion standard to the denial of a motion for
new trial. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). We allow district
courts “wide discretion” in deciding new trial motions alleging the verdict is
contrary to the weight of the evidence under rule 2.24(2)(b)(6). But, at the same
time, we caution courts to exercise that discretion “carefully and sparingly” so
that they do not lessen the role of juries as the principal fact finders. See State v.
Ellis, 578 N.W.2d 655, 659 (Iowa 1998). By contrast, the denial of a motion for
judgment of acquittal requires us to examine the sufficiency of the evidence
supporting the jury’s verdict. Nitcher, 720 N.W.2d at 556. We review challenges
to the sufficiency of the evidence for errors at law. Id.
III. Analysis of Hebron’s Challenges
A. Ineffective Assistance of Counsel at Guilty Plea Hearing
A guilty plea is a serious act that a defendant must do voluntarily,
knowingly, and intelligently with an awareness of the relevant circumstances and
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consequences. Hill v. Lockhart, 474 U.S. 52, 56 (1985); State v. Utter, 803
N.W.2d 647, 651 (Iowa 2011). We evaluate guilty plea challenges based on
ineffective assistance of counsel under the two-part Strickland test. Hill, 474 U.S.
at 57. To satisfy the performance prong, a defendant must show her counsel’s
performance fell below the benchmark of a reasonably competent practitioner.
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To satisfy the prejudice prong
in a guilty plea case, a defendant must show a reasonable probability that but for
counsel’s error, she would not have pleaded guilty and would have insisted on
going to trial. Id. at 138.
Hebron argues she was not afforded effective assistance of counsel
because her attorney allowed her to enter a guilty plea which was not knowing,
voluntary and intelligent. Hebron does not attack the adequacy of the court’s
colloquy, but instead claims her attorney “could not adequately explain things to
her prior to the guilty plea she entered because of her brain injury and the
medications she was taking.”
The plea transcript belies Hebron’s claim that her attorney breached a
material duty in allowing her to enter a guilty plea. In the following exchange,
Hebron told the court that she was taking medication that enabled her to
understand the proceedings:
THE COURT: Are you under the care of a doctor,
psychiatrist, or psychologist at this time?
THE DEFENDANT: Yeah.
THE COURT: And which of those three, or all three?
THE DEFENDANT: Psychiatrist and I believe—just a
psychiatrist.
THE COURT: Are you being prescribed psychotropic
medications by this psychiatrist?
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THE DEFENDANT: Abilify is one of my prescriptions that I’m
taking. And Abilify is one of the medications, and I’m up to date on
taking that. It’s for bipolar. And Cymbalta, starts with a C, for
depression.
THE COURT: And have you taken those prescriptions as
prescribed by your psychiatrist?
THE DEFENDANT: Yes, I have.
THE COURT: And do they, either the Cymbalta or the
Abilify, in any way affect your ability to think with a clear mind as
you appear before me today?
THE DEFENDANT: It helps me think with a clearer mind.
THE COURT: And do you believe you are thinking with a
clear mind as you appear before me today?
THE DEFENDANT: Yes.
The court also asked Hebron if she was satisfied with the advice and
services of her attorney at the plea hearing, and she responded that she was.
She told the court she was pleading guilty voluntarily and of her own free will.
She also told the court her attorney had complied with all of her requests in
connection with the defense of the OWI case. When asked to describe what she
did “back on August 19, 2012” to be charged with OWI, Hebron told the court she
purchased “a bottle of Fireball” whiskey and drank all but one shot of it before
driving her vehicle. Based on this record, we conclude a competent criminal
defense attorney could have reasonably believed the defendant was capable of
entering a knowing, voluntary, and intelligent plea. Hebron does not establish
her counsel’s performance fell below that of a reasonably competent practitioner.
On the prejudice prong, Hebron does not assert in her opening appellant’s
brief that but for trial counsel’s deficient performance, she would not have
pleaded guilty and would have insisted on going to trial. Hebron does assert in
her reply brief that “but for feeling duress to enter this plea” she would have
“gone to a second trial and prevailed on the OWI charge.” But that assertion
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comes too late. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992) (“[W]e
have long held that an issue cannot be asserted for the first time in a reply
brief.”). Moreover, we see nothing in her responses during the plea record that
would support an allegation of duress.
Because Hebron can satisfy neither prong of the Strickland test, we reject
her claim of ineffective assistance of counsel in connection with her guilty plea to
OWI first offense.
B. Motion for New Trial
Hebron next argues the district court erred in denying her motion for new
trial on the two counts of assault against her healthcare providers. Both in the
trial court and on appeal, Hebron’s attorneys confuse the standards for assessing
weight and sufficiency of the evidence. Hebron’s trial counsel filed a motion for
new trial alleging the court erred in “not granting the motion for judgment of
acquittal on Counts II and III based on the lack of sufficient evidence proving
specific intent to commit an assault.” At the time of the new trial motion, the
district court could not reconsider its ruling on the motion for judgment of
acquittal. See State v. Smith, 195 N.W.2d 673, 674 (Iowa 1972) (motion for
judgment notwithstanding the verdict is not recognized in Iowa criminal practice).
Under rule 2.24(2)(b)(6), the district court did have discretion to grant a new trial
if the verdict was contrary to the weight of the evidence. State v. Reeves, 670
N.W.2d 199, 201 (Iowa 2003). Despite trial counsel’s misstatement of the
standard, the district court ruled the verdicts were not contrary to the weight of
the evidence.
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On appeal, Hebron’s counsel targets the court’s denial of the motion for
new trial in the issue heading but cites only case law discussing the sufficiency of
the evidence in the body of the brief. See, e.g., State v. Sanford, 814 N.W.2d
611, 615 (Iowa 2012); Nitcher, 720 N.W.2d at 556;1 State v. Webb, 648 N.W.2d
72, 75 (Iowa 2002). Hebron’s appellate counsel mentions rule 2.24(2)(b)(6) but
does not discuss the weight-of-the-evidence standard. Because Hebron does
not advance an argument that the jury’s assault verdicts were contrary to the
weight of the evidence, we deem that issue waived in this appeal. See State v.
Short, 851 N.W.2d 474, 479 (Iowa 2014) (citing Iowa R. App. P. 6.903(2)(g)(3)
(requiring appellant to present arguments and supportive authority in appeal brief
and stating “[f]ailure to cite authority in support of an issue may be deemed
waiver of that issue”)).
To the extent Hebron has preserved a claim regarding the sufficiency of
the evidence for her assault convictions, we will address that issue here. We
uphold verdicts if they are supported by substantial evidence. State v. Keeton,
710 N.W.2d 531, 532 (Iowa 2006). We consider evidence to be substantial if it
would convince a rational fact finder the defendant is guilty beyond a reasonable
doubt. Id. We view the evidence in the light most favorable to the verdicts,
including legitimate inferences and presumptions that may fairly and reasonably
be deduced from the record evidence. Id.
1
Nitcher actually addresses both a sufficiency issue and a weight-of-the-evidence issue,
but Hebron’s pinpoint cite is to the sufficiency analysis.
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Hebron points out that assault is a specific-intent crime and argues the
State did not prove she intended to harm nurse Herrera or Dr. Swegle 2–given her
“heightened emotional state” following the car crash.
When viewing the evidence in the light most favorable to the verdicts, we
find substantial evidence to uphold the jury’s finding that Hebron had specific
intent to assault her health care providers. Witness Ruby Highland testified
Hebron threatened to “hunt down Patrice [Herrera] and kill her.” Hebron also
was cursing the medical staff. Nurse Herrera testified Hebron looked right at her
before grabbing and scratching her face. Hebron also moved her head into a
position so that she could bite the nurse’s thumb. Dr. Swegle testified Hebron
punched him in the face with a closed fist, suggesting more than an inadvertent
blow as she was flailing in the bed. The jury was entitled to view these as
deliberate acts, committed with specific intent to either cause the health care
providers pain or injury; or to result in physical contact which would be insulting
or offensive; or to place the providers in fear of immediate physical contact that
would be painful, injurious, or offensive. See Iowa Code § 708.1(2). Under this
record, substantial evidence existed to support the jury’s verdicts on assault.
AFFIRMED.
2
Hebron argues for the first time on appeal that Dr. Swegle did not identify her as his
assailant during his testimony. Because identity was a not a basis for the motion for
judgment of acquittal at trial, that ground is not preserved for appeal. See State v.
Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) (“To preserve error on a claim of
insufficient evidence for appellate review in a criminal case, the defendant must make a
motion for judgment of acquittal at trial that identifies the specific grounds raised on
appeal.”).