State Of Iowa Vs. Roger Paul Bentley

IN THE SUPREME COURT OF IOWA
No. 06–0476

Filed October 31, 2008

STATE OF IOWA,

Appellee,

vs.

ROGER PAUL BENTLEY,

Appellant.

Appeal from the Iowa District Court for Johnson County, Patrick R.

Grady, Judge.

Defendant appeals jury verdicts of first-degree murder and first-

degree kidnapping. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, and Janet M. Lyness, County Attorney, for appellee.
 2

CADY, Justice.

In this direct appeal from a judgment and sentence of first-degree

kidnapping and first-degree murder, we review a variety of claims of trial

and sentencing errors. Upon our consideration of the appeal, we decline

to address one claim of ineffective assistance of counsel and reject all

other claims of error. We affirm the judgment and sentence of the

district court.

I. Background Facts and Proceedings.

J.G. was ten years of age when her life ended as a victim of

murder. The detailed events of her death are chronicled in this opinion

in order to properly address the issues raised in this appeal from the trial

where they were recounted by witnesses and memorialized as evidence.

We use the initials of the name of the victim to identify her in this

opinion in an effort to protect her memory from the brutal actions that

accompanied her death. See Iowa Code § 915.36(2) (2007).

J.G. lived with her grandmother, mother, and two younger siblings

in her grandmother’s two-story home in Cedar Rapids. J.G. was the

oldest child and maintained a bedroom in the basement of the home.

She attended a local grade school and was fond of wearing her “Chicago

Bears” jacket.

On the morning of March 25, 2005, police found J.G.’s lifeless

body in a filthy and deserted trailer home located on the Orval Yoder

Turnpike outside Cedar Rapids, several miles from her home. Her body

was inhumanely wedged into a bathroom vanity in the trailer home. She

had been brutally beaten, sexually abused, bound in plastic and

wrapped in duct tape. A plastic bag had been placed over her head and

wrapped with six rotations of tape around her neck. The cause of her
 3

death was determined to be asphyxiation from the plastic bag and

compression to the neck and chest.

Roger Bentley was, ostensibly, a friend of J.G.’s family. On the

morning of March 24, 2005, the day before the grisly discovery of the

body of J.G., Bentley was at J.G.’s home for the purpose of making

repairs to the family van. Bentley worked outside the house on the van

for most of the day, but came into the house from time to time to warm

his body, especially as evening descended on the day. He stopped

working on the van at 7:30 p.m. and entered the house for the last time.

He went into the living room, sat down and engaged in conversation with

J.G.’s grandmother and the three children. J.G.’s mother was not at

home.

At 8 p.m., J.G.’s grandmother announced it was time for the three

children to go to bed. J.G. went downstairs to her bedroom by herself as

directed by her grandmother. The grandmother took the two younger

children to their upstairs bedroom and put them into bed. Bentley

accompanied J.G.’s grandmother and the two children up the stairs and

told the two children goodnight.

Bentley then left the house. However, the precise movements of

his departure are somewhat shrouded by the grandmother’s inability to

clearly articulate the events. Her testimony at trial permitted the State to

assert that Bentley left the house while she was still upstairs with the

two younger children. 1 Bentley claims her testimony can be viewed to

mean she showed him to the front door and locked the door behind him

as he left the house. Bentley did not testify at trial.

1J.G.’s grandmother testified: “Well, he went and said good night to—when I put

[J.G.’s sister] to bed, he said good night. And when I put [J.G.’s brother] to bed, he said
good night. And then he went around to the front door and then—it was about 8:00
and then he left. Then I went down and locked the door.”
 4

Under either view, J.G.’s grandmother locked the front door after

Bentley left the house. She later went downstairs to check on J.G. She

did not find J.G. in her bed. The fear she sensed intensified, as she was

unable to find J.G. in or around the house. She telephoned J.G.’s

mother and then the police. The police issued an AMBER alert 2 and

sought to locate Bentley.

Between 10:45 p.m. and 11 p.m. that evening, a motorist pulled to

the side of the road and stopped after he was flagged down by Bentley.

Bentley was in a pickup truck with a topper over the bed of the truck.

Bentley asked the motorist for directions to Black Diamond Road. This

road accesses Orval Yoder Turnpike. The motorist provided directions to

Bentley, but did not observe anyone in the cab of the truck with Bentley.

The topper had tinted windows, which did not allow the motorist to view

the truck bed.

The next morning, Robin Walker and Danny Hill were home getting

ready for work. They heard the AMBER alert on the morning news

broadcast. The alert announced J.G. was missing and that police were

looking for Bentley. Walker and Hill were almost immediately overcome

with suspicion that Bentley may have taken J.G. to the trailer on

Orval Yoder Turnpike. Bentley occasionally did automobile repair work

for them, and he had accompanied Walker and Hill to the trailer three

days earlier. Walker and Hill were interested in purchasing the trailer.

They promptly called police about their prophetic feeling.

A short time later, law enforcement officers converged on the

trailer. Bentley emerged from the rear door of the trailer and was taken

2“The AMBER alert program is a cooperative effort of the department of public
safety, the department of transportation, the lottery authority, the Iowa association of
broadcasters, the Iowa state association of sheriffs and deputies, local law enforcement
agencies, and the national weather service.” Iowa Admin. Code r. 661—89.200 (2003).
 5

into custody. Officers observed that he was “scruffy,” “unkempt,” and

“unshaven.” He was wearing jeans with blood on the fabric in the area of

the front zipper.

Officers entered the trailer. They found it in a general state of

disarray. In a bedroom, a youth-sized “Chicago Bears” jacket was

observed, along with a child’s pink tennis shoe. Officers also observed a

substance later determined to be blood on the mattress in the bedroom.

Officers called out for J.G., with no response. A hurried search by

the officers of the other rooms of the trailer failed to reveal her presence.

The officers did observe a filing cabinet and a large piece of wood

positioned in front of the vanity in the bathroom.

A canine unit was summoned to the trailer to search for J.G. After

an unsuccessful search of the wooded area surrounding the trailer, the

dog and his handler went into the trailer. Within a short period of time,

the dog alerted to the area of the vanity under the sink in the bathroom.

The officers removed the debris in front of the vanity and opened the

vanity door located below the sink. The search had come to an end.

J.G.’s body was cool to the touch. Lividity had set in. The officer

who opened the vanity door observed blood in the area of J.G.’s exposed

lower back and buttocks.

State criminologists were summoned to the trailer. They removed

J.G.’s body from the vanity. A plastic garment bag had been taped

tightly around her neck. Her feet were also wrapped with plastic and

bound with tape. The criminologists found blood on the bedding in the

bedroom, as well as on the walls and doorjamb of the bedroom. The

blood was later determined to be from J.G.

An autopsy of J.G.’s body revealed bruising to the deep tissue of

her neck, blunt-force trauma to the side of her head, and less severe
 6

bruising to the face, abdomen, shoulder, back, arms, and legs. Petechial

hemorrhaging was present in her eyes, face, heart, and lungs. A frothy

substance was found in her larynx. These findings supported a cause of

death by asphyxiation from the plastic bag and compression to the neck

and chest.

The autopsy also discovered seminal fluid in J.G.’s vagina and

anus. DNA from the fluid was tested and matched the DNA collected

from Bentley.

Criminologists additionally analyzed scraping from Bentley’s

fingernails. The analysis found blood containing DNA from J.G. Blood

was also found on Bentley’s underwear, shirt, and fly area of his pants.

This blood contained DNA from J.G. The “Chicago Bears” jacket and

shoe were confirmed to belong to J.G.

Bentley was charged and found guilty following a jury trial of first-

degree kidnapping and first-degree murder. The district court sentenced

Bentley to two consecutive life sentences. It indicated consecutive

sentences were justified based on the violent and cruel nature of the

criminal acts and to send a message to the parole board and governor

that any future application for commutation of sentence “should not be

taken seriously.”

Bentley appealed and raised three issues. He first claims there

was insufficient evidence to support a finding that he was the person

who removed or confined J.G. to support the conviction for first-degree

kidnapping. Second, he claims his trial court counsel rendered

ineffective assistance in two ways. The first component of the claim is

his trial lawyer should have requested a new trial based on jury

misconduct after it was discovered that a juror used a dictionary to

ascertain the definition of the word “necromancy” and went on-line to
 7

Amazon.com to search for a book titled “The Necromantic Ritual Book.”

A copy of this book was found at Bentley’s house and was introduced

into evidence at trial. The second component of the claim of ineffective

assistance of counsel was based on the failure of Bentley’s trial counsel

to object to the malice-aforethought instruction given by the trial court to

the jury. Bentley claims the instruction permitted the jury to convict him

without adequate proof of malice aforethought. Finally, Bentley claims

the district court used an improper reason to impose consecutive

sentences.

II. Standards of Review.

The principles governing our review of a district court’s denial of a

criminal defendant’s motion for judgment of acquittal are well-

established. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005). A motion

for judgment of acquittal is a means of challenging the sufficiency of the

evidence, and we review such claims for correction of errors at law. Id. A

guilty verdict must be supported by substantial evidence. Id.

“ ‘Substantial evidence’ is that upon which a rational trier of
fact could find the defendant guilty beyond a reasonable
doubt.” In conducting our review, we consider all the
evidence, that which detracts from the verdict, as well as
that supporting the verdict. We view the evidence in the
light most favorable to the State.

State v. Hagedorn, 679 N.W.2d 666, 668–69 (Iowa 2004) (quoting State v.

Pace, 602 N.W.2d 764, 768 (Iowa 1999)) (citations omitted).

“[T]he decision of the district court to impose a particular sentence

within the statutory limits is cloaked with a strong presumption in its

favor, and will only be overturned for an abuse of discretion or the

consideration of inappropriate matters.” State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002). Abuse of discretion occurs only when “the
 8

decision was exercised on grounds or for reasons that were clearly

untenable or unreasonable.” Id.

We review ineffective-assistance-of-counsel claims de novo. State

v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).

III. Sufficiency of the Evidence to Support First-Degree
Kidnapping.
A key element of kidnapping in the first degree requires the

defendant to remove the victim from one place to another or confine the

victim. Iowa Code § 710.1 (2003). Bentley argues there was no

substantial evidence presented by the State to support a guilty verdict on

the element of the crime that Bentley removed J.G. from one place to

another. 3

The crux of Bentley’s argument is that no direct evidence was

presented at trial to demonstrate he abducted J.G. and drove her to the

trailer. The State acknowledges the lack of direct evidence of an

abduction, but contends sufficient circumstantial evidence was

presented at trial to support a verdict based on removal of J.G. from one

place to another. We agree.

As with a great bulk of the jurisdictions around the country, we

follow a rule that direct and circumstantial evidence are equally

probative for the “purposes of proving guilt beyond a reasonable doubt.”

State v. O’Connell, 275 N.W.2d 197, 205 (Iowa 1979). Additionally,

[w]hile a jury may not rely upon evidence that merely creates
speculation, suspicion or conjecture, it may utilize all of the
direct and circumstantial evidence, and the inferences from
that evidence, in determining whether or not the required
removal or confinement is proven.

3Bentley also argues the State failed to prove beyond a reasonable doubt that
Bentley did not have consent to remove J.G. In his reply brief, however, Bentley
concedes this argument was not preserved for appellate review.
 9

State v. Hatter, 414 N.W.2d 333, 338 (Iowa 1987) (citation omitted).

Moreover, the prosecution does not have “an affirmative duty to rule out

every hypothesis except that of guilt beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781, 2792–93, 61

L. Ed. 2d 560, 578 (1979) (affirming murder conviction relying

exclusively on circumstantial evidence to prove intent element); accord

Holland v. United States, 348 U.S. 121, 139–40, 75 S. Ct. 127, 137, 99

L. Ed. 150, 166 (1954) (rejecting an instruction requiring that when the

state’s evidence is circumstantial the state must disprove every

reasonable hypothesis other than guilt).

The State concedes the paucity of direct evidence that Bentley

removed J.G. from the house. Yet, there was ample circumstantial

evidence to support a finding that he removed J.G. from her home. On

the night J.G. disappeared, she went to her bedroom in her house to go

to sleep. Bentley was at the house at the time and left a short time later.

The only other known occupants of the house were J.G.’s grandmother

and J.G.’s two younger siblings. There was no evidence of a forced entry

into the house. There was evidence Bentley left the house unobserved

while J.G.’s grandmother was upstairs with the younger siblings. A

short time after Bentley left, the grandmother discovered J.G. was

missing. Considering J.G.’s youthful age, she would not have been able

to transport herself to the deserted trailer where she was found.

Approximately two hours after Bentley left the house, he asked for

directions to a road that accessed the road where the trailer was located.

The next morning, Bentley was found in the trailer. Parts of the trailer

were smeared with J.G.’s blood, and J.G.’s bloody clothes were found

inside the trailer. Her body was also found. Her DNA was found under
 10

Bentley’s fingernails and on his clothes. Bentley’s sperm was found

inside J.G.’s body.

While the absence of direct evidence that Bentley abducted J.G.

from her house means the prosecution cannot affirmatively disprove the

hypothesis that someone other than Bentley removed J.G. to the trailer,

the State is not tasked with such an onerous burden. E.g., Jackson, 443

U.S. at 326, 99 S. Ct. at 2792–93, 61 L. Ed. 2d at 578. Instead, the

State is required to prove beyond a reasonable doubt that Bentley

removed J.G. A reasonable jury could have found beyond a reasonable

doubt Bentley left the house with J.G. while J.G.’s grandmother was

upstairs and drove to the trailer with J.G. in his truck. While other

conflicting scenarios can be postulated, a court “faced with a record of

historical facts that supports conflicting inferences must presume—even

if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to

that resolution.” Id. at 326, 99 S. Ct. at 2793, 61 L. Ed. 2d at 578.

A guilty verdict based on a removal theory is supported by

substantial evidence in the record. Consequently, we need not address

Bentley’s legal argument addressing the propriety of the general

kidnapping verdict. 4 The first-degree kidnapping verdict is affirmed.

IV. Ineffective Assistance of Counsel.

Bentley argues his trial counsel was ineffective in two ways. To

establish either ineffective-assistance-of-counsel claim, Bentley must

satisfy the well-settled two-prong test requiring (1) the failure by counsel

4Bentleyargues the general guilty verdict on the kidnapping count cannot stand.
He argues there is no way of knowing whether he was convicted on the arguably
unsupported removal theory—meaning the possibility exists that he was convicted on
some quantum of evidence less than the constitutionally mandated proof beyond a
reasonable doubt. Again, this is a nonissue because the removal theory was supported
by ample circumstantial evidence.
 11

to perform an essential duty, and (2) resulting prejudice. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,

693 (1984).

[C]laims of ineffective assistance of counsel raised on direct
appeal are ordinarily reserved for postconviction proceedings
to allow full development of the facts surrounding counsel’s
conduct. Only in rare cases will the trial record alone be
sufficient to resolve the claim.

State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997) (citation omitted). “Even

a lawyer is entitled to his day in court, especially when his professional

reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).

A. Juror Misconduct. Bentley first claims ineffective assistance

of counsel premised on the failure of his trial attorney to seek a new trial

based on jury misconduct. After sentencing, but before filing his appeal,

Bentley learned through an investigator that one of the jurors performed

research outside of the record. Specifically, the juror used a dictionary

to determine the meaning of the word “necromancy” and searched for

“The Necromantic Ritual Book”—which was introduced at trial—on

Amazon.com. 5

Bentley argues his counsel’s failure to move for a new trial based
on the juror’s conduct amounts to ineffective assistance of counsel. He

acknowledges in his brief, however, that the record needs to be further

developed and that his claim should be preserved for postconviction

relief. Bentley asks us to explicitly preserve this ineffective-assistance-of-

counsel claim.

5Necromancy is defined as “1a(1): the art or practice of magically revealing the
future, of magically influencing the course of natural events, or of magically attaining
other purposes esp. through communication with and intervention of the dead (2): the
art or practice of magically conjuring up the souls of the dead b: magic in general esp.
when directed toward attainment of evil purposes: WITCHCRAFT, SORCERY.”
Webster’s Third New International Dictionary 1511 (unabr. ed. 2002).
 12

Iowa Code section 814.7(1) relieves defendants from the necessity

of raising ineffective-assistance-of-counsel claims on direct appeal.

Instead, the claims are preserved for postconviction relief proceedings by

operation of law. When an ineffective-assistance-of-counsel claim is

raised on direct appeal, Iowa Code section 814.7(3) provides appellate

courts with the option to decide the claim upon an adequate record or

allow the claim to be brought in a postconviction proceeding so that a

proper record can be made.

The ineffective-assistance-of-counsel claim in this case is the type

that normally requires additional record to properly decide. Our prior

cases addressing claims of jury misconduct based on the acquisition of

outside information demonstrate the importance of understanding the

specific background facts to properly apply the law. See State v. Arnold,

543 N.W.2d 600, 604–05 (Iowa 1996) (stating the three elements that

must be proven to impeach a verdict on the basis of juror misconduct);

Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 828–29

(Iowa 1993) (same). Based on the necessity of a more developed record,

and on Bentley’s acknowledgment that the record is inadequate to decide

this issue, we decline to address the claim on direct appeal.

B. Malice Aforethought. Bentley next claims his counsel was

ineffective in failing to object to the jury instruction on malice. He claims

the instruction failed to properly define malice aforethought, and this

deficiency permitted the jury to convict him without adequate proof that

he asphyxiated J.G. with malice formed before engaging in the criminal

act. The State contends the instruction was legally sufficient, and even if

it was not, any infirmity did not prejudice Bentley.

Malice aforethought is an essential element of first-degree murder.

Iowa Code § 707.1 (“A person who kills another person with malice
 13

aforethought either express or implied commits murder.”). The district

court included this element in its charging instruction to the jury and

further instructed the jury as follows:

“Malice” is a state of mind which leads one to
intentionally do a wrongful act to the injury of another out of
actual hatred, or with an evil or unlawful purpose.
Malice may be established by evidence of actual
hatred, or by proof of a deliberate or fixed intent to do injury.
Malice may be found from the act and conduct of the
defendant, and the means used in doing the wrongful and
injurious act.

Bentley contends the court erred in not including the following language

found in the instructions published by the Iowa State Bar Association:

Malice requires only such deliberation that would
make a person appreciate and understand the nature of the
act and its consequences, as distinguished from an act done
in the heat of passion.
“Malice aforethought” is a fixed purpose or design to
do some physical harm to another which exists before the
act is committed. It does not have to exist for any particular
length of time.

I Iowa Crim. Jury Instruction 700.7 (2006). He asserts the omission of

the definition of “malice aforethought” allowed the jury to convict him

without finding he had malice before the act causing J.G.’s death. The

State argues the instructions, read as a whole, adequately explain that

Bentley was required to act with malice aforethought.

Our law provides that malice to support a conviction for first-

degree murder must be “formed before and continue[] to exist at the time

of the injury.” State v. Hofer, 238 Iowa 820, 833, 28 N.W.2d 475, 482

(1947). This statement captures the essential meaning of the

“aforethought” component of the malice requirement. Importantly, “[t]he

relationship that must be shown between the state of mind that is malice

aforethought and the homicidal act is more accurately characterized as a
 14

causal relationship than as a temporal relationship.” State v. Lee, 494

N.W.2d 706, 707 (Iowa 1993). In other words, the malice must result in

the homicidal act. This concept is the critical aspect expressed by

“malice aforethought.”

In this case, the instruction given by the district court explained

that malice “is a state of mind which leads one to intentionally do a

wrongful act.” (Emphasis added.) Although the instruction did not

specifically define malice aforethought, it clearly informed the jury that

malice was required to exist before the wrongful act was committed that

caused J.G.’s death and led Bentley to commit the act. In fact, courts in

other jurisdictions have determined that malice and malice aforethought

are not legally distinguishable. See, e.g., State v. Enno, 807 P.2d 610,

622 (Idaho 1991) (“There is no legal distinction between malice and

malice aforethought.”). In light of the instruction given, we conclude the

district court was not required to specifically define the term “malice

aforethought.” The instruction given by the district court informed the

jury that the presence of malice had to lead Bentley to intentionally do

the act that resulted in J.G.’s death.

V. Sentence.

Bentley next claims the trial court considered an inappropriate

factor in sentencing him to consecutive life sentences. At the sentencing

hearing and again in the written judgment, the trial court expressed its

reasons for ordering consecutive life sentences. The two statements were

substantially the same, and included:

[T]he nature of the acts, the fact that these were different
acts of violence that involve their own level of cruelty and
that this be a signal to any future parole board or governor
that any application of commutation should not be taken
seriously.
 15

Bentley asserts it was error for the trial court to impose consecutive

sentences as a signal to a future parole board and governor. The State

argues it is common and proper for a sentencing court to utilize

sentencing to send a message to others.

Generally, courts may consider a variety of factors to justify the

imposition of a sentence, including rehabilitation of the defendant,

protection of the community from further offenses by the defendant and

others, Iowa Code § 901.5, the defendant’s age and criminal history, the

defendant’s employment and family circumstances, the nature of the

offense, and “such other factors as are appropriate.” Iowa Code § 907.5.

Yet, we have also held a number of factors are not appropriate for

consideration. One inappropriate factor involves the consideration of

parole in sentencing. We have said a sentencing court impermissibly

invades the prerogative of the parole board by considering the effect a

sentence will have on a defendant’s parole date. State v. Remmers, 259

N.W.2d 779, 785 (Iowa 1977); see also State v. Thomas, 520 N.W.2d 311,

313 (Iowa Ct. App. 1994). Thus, a sentencing court may not impose

“consecutive sentences to thwart a perceived risk of early parole.” State

v. Hulbert, 481 N.W.2d 329, 335 (Iowa 1992). Bentley seizes on this

inappropriate factor by aligning it with the comments made by the

sentencing court in this case.

The analogy made by Bentley is not well taken. Bentley is not

eligible for parole, only commutation of sentence. Unlike parole, the date

a person is eligible for commutation of sentence is independent of the

length of the sentence imposed. See Iowa Code § 902.2; Iowa Admin.

Code r. 205—14.3(1). Thus, the consecutive sentences imposed in this

case do not affect the capacity of the board of parole to review a

commutation application or the power of the governor to convert a life
 16

sentence into a term of years. See Iowa Const. art. IV, § 16 (conferring

power of commutation on governor); Iowa Code § 914.1 (stating

governor’s power shall not be impaired). Accordingly, the message

broadcasted by the sentencing court in this case is not improper because

it does not bind or limit the board of parole or the governor in any future

consideration of commutation of the sentences.

Moreover, sentences imposed by courts in criminal cases

necessarily send messages, whether direct or subtle, to those who read

or otherwise learn of the sentence. See State v. Pappas, 337 N.W.2d 490,

494 (Iowa 1983) (involving perjury and theft by a lawyer and sending

messages to lawyers and public that dishonesty in the legal profession

will not be tolerated); State v. Farnum, 397 N.W.2d 744, 750 (Iowa 1986)

(involving sexual abuse and sending a message to the defendant and

others in the community that such conduct will not be tolerated); see

also Iowa Code § 901.5 (allowing courts to consider the need “for the

protection of the community from further offenses by the defendant and

others”). Thus, Bentley’s objection boils down to the propriety of the

specific target of the message identified by the sentencing court in this

case. However, a targeted message is merely a means to improve the

effectiveness of communicating the message. As long as the message

itself is not improper, as in this case, it is not improper to direct the

message to a specific individual or group.

VI. Conclusion.

We affirm the judgment and sentences for first-degree kidnapping

and first-degree murder.

AFFIRMED.

All justices concur except Baker, J., who takes no part.