IN THE COURT OF APPEALS OF IOWA
No. 16-1693
Filed March 7, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL T. JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Stuart P. Werling,
Judge.
Michael Johnson appeals from his conviction for sexual abuse in the third
degree. REVERSED AND REMANDED FOR A NEW TRIAL.
Kent A. Simmons, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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DANILSON, Chief Judge.
Michael Johnson appeals from his conviction following a bench trial for
sexual abuse in the third degree, in violation of Iowa Code sections 709.1 and
.4(4) (2013). Johnson maintains he is entitled to a new trial because the district
court erred in granting the State’s motion to amend the trial information and
abused its discretion in denying Johnson’s motion for new trial on the same
basis. We conclude the amended trial information presented a wholly new and
different offense and Johnson suffered prejudice as a result of the amendment.
We therefore find the district court erred in denying the motion for new trial, and
we reverse and remand for a new trial.
I. Background Facts & Proceedings.
This matter arose following an alleged assault N.K. reported had occurred
on the night of October 27, 2013. N.K.—then a university freshman—stated she
was attending a Halloween party at the home of other university students and
had become intoxicated. N.K. said she felt sick and went outside of the house
with Johnson to get some air. Johnson and N.K. sat on some steps next to the
house while N.K. vomited. When N.K. stopped vomiting, Johnson asked for a
kiss, and N.K. complied with a “peck.” N.K. stated Johnson then forced his finger
into her vagina and she “froze” due to the pain. N.K. said Johnson removed his
finger from her vagina when another party-goer came outside.
N.K. reported the incident to her friends, who took her back to the
dormitory and told her to report the assault to authorities. She spoke with a
campus security guard and a police officer. She completed a written statement,
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bagged her clothing to provide to the police, and went to the hospital where a
sexual assault kit was completed. N.K. stated she noticed she had blood in her
underwear. At the hospital, it was confirmed N.K. had bruising and an abrasion
on the right labia causing the bleeding. N.K. also had hickeys on her neck, which
were swabbed for DNA. N.K. stated she does not remember how she got the
hickeys.
Officers later interviewed Johnson and obtained the Halloween costume
he was wearing on the night of the incident. A DNA sample taken from
Johnson’s costume was a match for N.K. Additionally, the swab of the hickeys
on N.K.’s neck revealed a match for Johnson’s DNA. Johnson maintains he did
not assault N.K.
Johnson was charged with third-degree sexual abuse, in violation of Iowa
Code sections 709.1 and 709.4(1).1 Johnson elected to waive a jury trial, and
the bench trial was held on July 11-12, 2016. At the close of evidence—after the
State’s rebuttal evidence was submitted—the State moved to amend the trial
1
Iowa Code section 709.1 defines sexual abuse:
Any sex act between persons is sexual abuse by either of the
persons when the act is performed with the other person in any of the
following circumstances:
(1) The act is done by force or against the will of the other. If the
consent or acquiescence of the other is procured by threats of violence
toward any person or if the act is done while the other is under the
influence of a drug inducing sleep or is otherwise in a state of
unconsciousness, the act is done against the will of the other.
(2) Such other person is suffering from a mental defect or
incapacity which precludes giving consent, or lacks the mental capacity to
know the right and wrong of conduct in sexual matters.
(3) Such other person is a child.
Additionally, section 709.4(1) (now 709.4(1)(a)) provides: “A person commits
sexual abuse in the third degree when the person performs a sex act . . . done by force
or against the will of the other person, whether or not the other person is the person’s
spouse or is cohabitating with the person.”
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information to charge Johnson with third-degree sexual abuse, in violation of
709.4(4).2 Johnson’s attorney objected. The court made its ruling on the motion
to amend in its order and ruling entered on July 29, 2016. The court granted the
motion and found Johnson guilty of the newly-amended charge of third-degree
sexual abuse, in violation of Iowa Code section 709.4(4).
Johnson filed a motion for new trial on September 9, 2016, arguing the
court improperly allowed amendment of the trial information as that amendment
constituted a wholly new and different offense, affected Johnson’s substantial
rights, and resulted in prejudice to Johnson. Johnson argued:
The State chose to proceed on subsection (1) of Section
709.4, and thereby notified the defense the State’s case would
require proof beyond a reasonable doubt that a sex act was “done
by force or against the will of the other person.” The decision to
reject a plea offer and the decision to waive a jury were both made
upon the consideration that a trial would address the question of an
overborne will or the use of force. Additionally, had the defense
been on reasonable notice that the theory of incapacity would be
amended, the defense could have conducted cross-examination
and produced additional witnesses and evidence to show the
complainant’s level of intoxication was nowhere near the level that
would render her incapacitated. The amendment did constitute a
wholly new and different offense, as it charged a new subsection
and a wholly different theory of the prosecution’s case.
The district court orally ruled on the motion for new trial following an
October 6, 2016 hearing. The court held:
The court, in its findings, was clear that there was no
consent issued by the complaining witness, and although the court
felt that a stronger theory of the prosecution’s facts as entered
would have been on her inability to give consent based on
intoxication, as the State correctly points out, the issue is whether
or not she consented.
2
Iowa Code section 709.4(4) (now 709.4(1)(d)) provides: “A person commits sexual
abuse in the third degree when the person performs a sex act . . . while the other person
is mentally incapacitated, physically incapacitated, or physical helpless.”
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Either she was capable of giving consent and refused to,
which is essentially the theory that the State originally had
prosecuted, or she was incapable of giving consent due to her
extreme intoxication. The court felt that the evidence was sufficient
to find that there was extreme intoxication on behalf of the
complaining witness, rendering her incapable of giving consent.
Regardless, there was absolutely no evidence given during
the trial that she consented to a sex act, and, in fact, the defense
was a denial that a sex act occurred. So even if the amendment
was improper, the evidence was sufficient to establish [Johnson’s]
guilt of sexual abuse in the third degree as charged originally by the
trial information.
Therefore, I don’t think that the defense had any surprise
unfair trial tactics imposed. I don’t think that the trial was unfair in
that regard, as [Johnson] went to trial and was prosecuted pursuant
to the theory that the State had originally put forth.
Thus, the court denied Johnson’s motion for new trial. Johnson appeals.
II. Standard of Review.
Johnson argues both that the amendment to the trial information was
improper under Iowa Rule of Criminal Procedure 2.4(8)(a) because (1) it was not
made “during the trial,” and (2) it prejudiced Johnson’s substantial rights and a
wholly new offense was charged. Because we find the second claim requires
reversal, we will address that argument. Our review of a challenge to the
amendment of the trial information pursuant to the second part of the rule—the
portion addressing Johnson’s substantial rights and whether a wholly new and
different offense was charged—is for correction of errors at law. State v.
Maghee, 573 N.W.2d 1, 5 (Iowa 1997).
III. Analysis.
Iowa Rule of Criminal Procedure 2.4(8)(a) provides:
The court may, on motion of the state, either before or during
the trial, order the indictment amended so as to correct errors or
omissions in matters of form or substance. Amendment is not
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allowed if substantial rights of the defendant are prejudice by the
amendment, or if a wholly new and different offense is charged.
Johnson contends the amendment in this case both prejudiced his substantial
rights and constituted a wholly new and different offense. We agree.
(1) Wholly new and different offense. Johnson was originally charged
under Iowa Code section 709.4(1) (“A person commits sexual abuse in the third
degree when . . . [t]he act is done by force or against the will of the other
person . . .”). Under this theory of prosecution, the State was required to prove
N.K. was sexually abused either by force or by lack of consent. See State v.
Meyers, 799 N.W.2d 132, 146 (Iowa 2011). “[M]eaningful consent is the
important inquiry, and this inquiry normally takes into account circumstances
indicating any overreaching by the accused, together with circumstances
indicating any lack of consent by the other person.” Id.
Johnson was found guilty by the district court under section 709.4(4)
(stating a person commits third-degree sexual abuse when “[t]he act is performed
while the other person is mentally incapacitated, physically incapacitated, or
physically helpless”). This theory of prosecution requires the State to prove N.K.
was “mentally incapacitated” due to her extreme intoxication. “‘Mentally
incapacitated’ means that a person is temporarily incapable of apprising or
controlling the person’s own conduct due to the influence of a narcotic,
anesthetic, or intoxicating substance.” Iowa Code § 709.1A.
Subsections (1) and (4) of section 709 constitute wholly different offenses.
Subsection (1) requires proof of lack of consent, while subsection (4) requires
proof of an inability to consent. While N.K.’s level of intoxication may have
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affected the evidence as to whether or not she consented to the sex act under
subsection (1), Johnson was not on notice that the State was alleging N.K. was
completely incapable of consenting under subsection (4). It is conceivable one’s
defense strategy would greatly differ depending on which theory of prosecution is
being pursued. Compare Maghee, 573 N.W.2d at 5 (concluding where “the
amendment charged the same offense but with a large amount of drugs involved
resulting in a potentially more severe sentence,” it did not charge a wholly new or
different offense), with State v. Sharpe, 304 N.W.2d 220, 223 (Iowa 1981)
(finding “first-degree murder was a ‘wholly new and different offense within the
meaning of the rule” because “it contains elements not found in second-degree
murder” and “there is a great disparity in punishment”).
(2) Prejudice. Additionally, Johnson contends the court erred in allowing
the amendment to the trial information because it prejudiced his substantial
rights. “An amendment prejudices the substantial rights of the defendant if it
creates such a surprise that the defendant would have to change trial strategy to
meet the charge in the amended information.” Maghee, 573 N.W.2d at 6. In
determining if Johnson was prejudiced by the amendment, we consider whether
Johnson was on notice of the alternative theory of prosecution—as evidenced by
the lack of a request for a continuance—and whether the amendment would
change Johnson’s defense strategy. State v. Brothern, 832 N.W.2d 187, 193-94
(Iowa 2013). We also consider if Johnson “would have pled guilty had he . . .
known of [the plan to amend] before trial.” Id. at 196.
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Here, Johnson contends the amended trial information, if submitted
earlier, not only would have affected his decision to reject a plea offer but also his
decision to waive a jury trial. Johnson also maintains if the State would have
pursued its case under section 709.4(4) prior to the close of evidence, Johnson
would have called specific witnesses to rebut the State’s claim that N.K. was
mentally incapacitated within the meaning of section 709.4(4). Specifically, in the
reply brief Johnson asserts if provided sufficient notice of the incapacitation
theory of prosecution, Johnson could have called three witness to testify as to
N.K.’s state of intoxication on the night in question: Austin Smith and Madeleine
Wright, who were both at the Halloween party and interacted with N.K. soon after
the assault was alleged to have occurred, and Kevin Temperly, the campus
security officer who took N.K.’s sexual-assault complaint before calling the police.
As such, Johnson has established the amendment to the trial information would,
indeed, have changed the defense strategy.
The State asserts Johnson was not prejudiced by the amendment
because it was clear that N.K.’s intoxication was at issue throughout the case.
However, by that same token, the State was aware intoxication was at issue and
chose not to move to amend the trial information until all the evidence was
submitted. Additionally, the record belies the assertion Johnson was on notice of
the mental-incapacitation issue from the start of trial. Following the State’s oral
motion to amend, the court addressed defense counsel, “I assume this is a
surprise to you.” To which counsel confirmed it was “[v]ery much a surprise.”
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The State’s late motion to amend withheld from Johnson the ability to defend the
case in the same manner as if section 709.4(4) was timely alleged.
Additionally, the court’s heavy reliance on N.K.’s intoxication in its order
and ruling and its ruling on the motion for new trial is indicative of the prejudice to
Johnson’s substantial rights. In its ruling and order, the court found:
In considering all of the surrounding circumstances of the
commission of the act, the court determines there is proof beyond a
reasonable doubt that the sex act was performed against the will of
the victim as she was incapable of giving consent due to her
extreme intoxication. At the time of the sex act, N.K. was
incapacitated due to intoxication and this incapacity was known or
should have been known to . . . Johnson.
Although the court stated in its ruling on the motion for new trial that there
was sufficient evidence to find Johnson guilty under both section 709.4(1) and
(4), the court only found Johnson guilty of third-degree sexual abuse under
section 709.4(4).
We conclude the State’s late amendment prejudiced Johnson in his
decision not to enter a plea, to waive a jury trial, and in his presentation of
witnesses supporting a defense. We therefore find Johnson’s substantial rights
were prejudiced by the State’s amendment of the trial information after the close
of evidence in this case, and the district court erred in denying Johnson’s motion
for new trial on that basis.
IV. Conclusion.
We conclude under the facts of this case, the amendment of the trial
information after the close of evidence to include a violation of section 709.4(4)
constituted a wholly new and different offense and prejudiced Johnson’s
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substantial rights. We therefore find the district court erred in denying the motion
for new trial, and we accordingly reverse and remand for a new trial.3
REVERSED AND REMANDED FOR A NEW TRIAL.
3
We note the State requests, even if the amendment was improper, that we remand for
entry of an amended judgment on section 709.4(1) because the court found guilt under
both forms of third-degree sexual abuse. We note the order and ruling, as well as the
sentencing order, clearly provide Johnson was found guilty only under section 709.4(4).
Additionally, we have found Johnson suffered prejudice in being prevented from
presenting a full defense to the charge under section 709.4(4). As opposed to State v.
Irvin, 334, N.W.2d 312, 315 (Iowa 1983), where the supreme court determined “[t]he
facts in the present controversy have already been determined by the proper trier of
fact,” here Johnson is entitled to a determination of the facts by a trier of fact after
presenting a full defense. As such, a new trial is required.