IN THE COURT OF APPEALS OF IOWA
No. 17-0057
Filed April 18, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMOTHY MICHAEL BASQUIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
Timothy Basquin appeals his conviction for domestic abuse assault causing
bodily injury. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND
VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED
SENTENCE.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Bower, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
VAITHESWARAN, Presiding Judge.
A jury found Timothy Basquin guilty of domestic abuse assault causing
bodily injury. This court reversed the judgment and remanded for a new trial. See
State v. Basquin, No. 15-0037, 2016 WL 1679157, at *2-3 (Iowa Ct. App. Apr. 27,
2016). A jury again found Basquin guilty. On appeal, Basquin (1) challenges the
sufficiency of the evidence supporting the jury’s finding of guilt, (2) contends his
trial attorney was ineffective in failing to object to the district court’s inclusion of a
jury instruction on general intent, (3) argues his trial attorney should have objected
to what he contends was impermissible testimony vouching for the assaulted
woman’s credibility, (4) contends the district court erred in admitting hearsay
testimony, (5) argues counsel was ineffective in failing to move for a new trial
based on the weight of the evidence, and (6) argues the district court erred in
imposing a domestic abuse assault surcharge.
I. Sufficiency of the Evidence
Basquin challenges the sufficiency of the evidence supporting the jury’s
finding of guilt. “A jury verdict finding of guilt will not be disturbed if there is
substantial evidence to support the finding.” State v. Robinson, 859 N.W.2d 464,
467 (Iowa 2015).
The jury was instructed the State would have to prove the following
elements of domestic abuse assault causing bodily injury:
1. On or about the 12th day of May, 2014, Timothy Basquin
did an act which was intended to cause pain or injury to [a woman].
2. Timothy Basquin had the apparent ability to do the act.
3. Timothy Basquin’s act caused a bodily injury to [the woman]
as defined in Instruction No.19.
3
4. The act occurred between persons who were family or
household members who resided together within the year prior to
May 12th, 2014.
Basquin contests the third and fourth elements. He argues, “[T]he State failed to
prove [he] assaulted” the woman and the State “failed to prove a domestic
relationship.” On retrial, a jury could have found the following facts.1
After the woman sustained injuries, she left for the sheriff’s office. En route,
she responded to a text from Basquin by stating, “I have done nothing to deserve
being choked, knocked, and physically thrown out the door.”
The woman gave the sheriff a voluntary written statement. She said
Basquin grabbed her by her neck, squeezed with both hands, and shook her neck
so tightly that she began choking and gasping for breath. Basquin threw her out
the door, causing her to fall on the porch, and kicked her on her left side. A deputy
sheriff took photographs to document the injuries.
The woman proceeded to a hospital, where she was seen by a nurse
practitioner. She appeared with “red marks on her neck and red marks on her wrist
and her thigh and the back of her shoulder.” She described her injuries in the
same manner as she described them in her voluntary statement to the sheriff.
At trial, the woman backtracked from these statements, testifying the
injuries were either self-inflicted or occurred when she slipped on the porch. The
1 In evaluating the sufficiency of the evidence, we consider all the evidence,
including evidence Basquin contends was erroneously admitted. See State v.
Dullard, 668 N.W.2d 585, 597 (Iowa 2003).
4
jury reasonably could have found the woman’s original statements more
persuasive.2
The jury also could have found Basquin and the woman were “family or
household members,” defined for the jury as “persons cohabiting with each other.”
The woman testified she and Basquin had a relationship for “about six months.”
She described their relationship as “[f]riends with benefits.” She gave Basquin’s
address as her own, had a key to Basquin’s house, and received mail there.
Although she attempted to minimize her contacts with him, it was up to the jurors
to determine whether the “continuity and length of” the relationship justified a
finding of cohabitation.
Substantial evidence supports the third and fourth elements of the crime.
II. Impermissible Vouching
Basquin contends his trial attorney was ineffective in failing to object to the
testimony of three witnesses as improper opinion evidence. To prevail he must
establish the breach of an essential duty and prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). We find the record adequate to address
the issue.
The nurse practitioner described the woman’s injuries as consistent with the
woman’s narrative at the time:
Q. Now, as you did indicate, these injuries were consistent with the
narrative you were getting at that point in time? A. Correct.
....
2
The Iowa Supreme Court recently addressed recantations in Schmidt v. State, ___
N.W.2d ___, ___, 2018 WL 1440111, at *9 (Iowa 2018). The court’s holding that the
defendant’s guilty pleas “do not preclude his actual-innocence claim” does not affect the
recantation in this case.
5
Q. Now, you did say that injuries can be consistent with a lot
of things? A. Correct.
Q. And so what you’ve been shown as State’s Exhibit G can
arguably be consistent with someone falling down? A. Yes.
Q. Can it also be totally consistent with someone claiming or
telling you that they’ve been kicked? A. Yes.
Q. Would that be totally consistent with that? A. Yes.
Basquin argues the nurse practitioner improperly opined the woman’s “initial out-
of-court statements [were] to be believed.” See State v. Dudley, 856 N.W.2d 668,
676-77 (Iowa 2014) (prohibiting testimony vouching for the credibility of a witness,
both directly and indirectly). He contends his trial attorney was ineffective in failing
to object to this testimony. On our de novo review, we disagree.
According to the nurse practitioner, the woman told her “her neck was
grabbed,” she “was shaken by the neck, and she was not able to breathe until she
was let go,” she “was pushed through a door,” and “[s]he was kicked in the left
thigh.” The nurse practitioner opined the injuries she sustained could be consistent
with the narrative she gave at the time. But she also agreed the injuries could be
consistent with a lot of things, including a fall on the porch, as the woman testified
to at trial.
The nurse practitioner did not impermissibly vouch for the woman’s
credibility. See State v. Brown, 856 N.W.2d 685, 689 (Iowa 2014) (finding “nothing
wrong” with sentences conveying that a child “was able to give [the evaluator] a
clear and detailed history” and the child “gave the same history to her mom as she
did to” the evaluator); Dudley, 856 N.W.2d at 678 (holding assertion that
statements were consistent throughout the interview gave “the jury an insight into
the victim’s memory and knowledge” and did not cross the line into permissible
vouching for the person’s credibility); State v. Moore, No. 10-1902, 2012 WL
6
3195779, at *7-8 (Iowa Ct. App. Aug. 8, 2012) (finding expert testimony from a
physician that it is common to find no injuries to sexual assault reporters because
the adult sex organs are designed “to fit together” was not improper vouching
testimony and assisted the jury in understanding the evidence). Accordingly,
counsel did not breach an essential duty in failing to object to her testimony on this
ground.
The same holds true for certain testimony elicited from a deputy sheriff. The
deputy opined that the woman’s injuries were consistent with an assault.3 As
noted, internal consistencies in a witness statement may be brought to the jury’s
attention. See Dudley, 856 N.W.2d at 678. But, assuming the testimony could be
construed as impermissible vouching, it was cumulative of the woman’s statement
to the sheriff, her statements to the nurse practitioner, and the nurse practitioner’s
description of the woman’s injuries and demeanor. See State v. Schaer, 757
N.W.2d 630, 638-39 (Iowa 2008) (rejecting ineffective-assistance claim based on
failure to object to certain hearsay testimony on the ground the testimony was
“cumulative of other properly admitted evidence”).
Another deputy’s testimony is more problematic. She agreed the woman’s
“demeanor or behavior” was “pretty much just consistent with what [she] knew at
that point, that she had been assaulted.” The State concedes Basquin’s attorney
could have lodged a Dudley-style objection to the testimony but argues the
3
The deputy died between the first and second trials, and his original testimony was read
into the record of the second trial. Before the reading to the jury, the parties discussed
the challenged portion of the deputy’s testimony and agreed the original question and
answer were, “In your experience of investigating crimes of assaults, are those marks
consistent with what she told you? Answer: Yes.” The parties and the district court further
agreed to change the language to state the marks were consistent with an “assault.”
7
testimony was not prejudicial. We agree because the evidence was cumulative of
other duly admitted evidence.
III. Admission of Hearsay Evidence
As noted, the nurse practitioner testified to what the woman told her. This
testimony was hearsay. See Iowa R. Evid. 5.801(c) (“Hearsay” is a statement
“[t]he declarant does not make while testifying at the current trial or hearing” offered
“into evidence to prove the truth of the matter asserted in the statement.”). Basquin
contends the evidence was inadmissible. See Iowa R. Evid. 5.802. The State
responds that the evidence fell into an exception for medical diagnosis and
treatment. See Iowa R. Evid. 5.803(4). We agree.
The district court did not allow the nurse practitioner to identify the
perpetrator. See State v. Smith, 876 N.W.2d 180, 190 (Iowa 2016) (concluding
“the State presented insufficient evidence that the identity of the assailant was
reasonably pertinent to [the victim’s] diagnosis or treatment”). The court limited
her testimony to “the nature of the injuries as they were presented” and “the
medical test, diagnosis, etcetera, that were made with regard to those external
injuries.” With this limitation, the nurse practitioner’s testimony fell into the medical
diagnosis and treatment exception. We conclude the district court did not err in
admitting the nurse practitioner’s testimony.
IV. Ineffective Assistance – Jury Instructions
The jury received two instructions on the meaning of intent. The first was a
general intent instruction:
To commit a crime a person must intend to do an act which is
against the law. While it is not necessary that a person knows the
act is against the law, it is necessary that the person was aware he
8
was doing the act and he did it voluntarily, not by mistake or accident.
You may, but are not required to, conclude a person intends the
natural results of his acts.
The second was a specific intent instruction:
Specific intent means not only being aware of doing an act
and doing it voluntarily, but in addition, doing it with a specific
purpose in mind.
Because determining Timothy Basquin’s specific intent
requires you to decide what he was thinking when an act was done,
it is seldom capable of direct proof. Therefore, you should consider
the facts and circumstances surrounding the act to determine his
specific intent. You may, but are not required to, conclude a person
intends the natural results of his acts.
Basquin contends his trial attorney was ineffective in failing to object to the
submission of both instructions. In his view, “[T]he instructions as a whole provided
no guidance to the jury as to how the specific intent instruction or the general intent
instruction applied to the elements in the marshalling instructions” and the
instructions “allowed the jury to reach guilty verdicts on the specific intent elements
of assault based upon a finding of general intent.”
Basquin’s argument is appealing at first blush. But the court of appeals
recently rejected an identical argument. In State v. Benson, No. 17-0650, 2018
WL 739324, at *3-4 (Iowa Ct. App. Feb. 7, 2018), the jurors received the same
general intent instruction given in Basquin’s case and also received a specific
intent instruction. The defendant argued the instructions were contradictory and
would have confused or misled the jury. Benson, 2018 WL 739324, at *4. We
stated, “The marshalling instruction for assault causing bodily injury” identified the
type of intent the State would have to prove, namely that the defendant did an act
“intended to cause pain or injury.” Id. We concluded, “It is hard to imagine the jury
9
was confused or misled in believing the general intent instruction applied where
the marshalling instruction clearly stated the specified purpose in mind.” Id.
This case is even stronger than Benson. As noted, the marshalling
instruction set forth the intent element of the crime as follows: “On or about the
12th day of May, 2014, Timothy Basquin did an act which was intended to cause
pain or injury to [the woman].” (emphasis added). In addition, the separate specific
intent instruction referred to Basquin by name and cited “his specific intent.”
We acknowledge this court found counsel ineffective in failing to object to a
general intent instruction under similar circumstances. See State v. Drake, No.
12-0554, 2013 WL 3457176, at *4-6 (Iowa Ct. App. July 10, 2013). In our view,
Drake is distinguishable. The court stated, “[T]he instructions as a whole provided
no guidance to the jury as to how the specific intent instruction or the general intent
instruction applied to the elements in the marshaling instructions.” Id. at *6. In
addition, jury questions revealed confusion about the intent requirement. Id. at *4,
*6. Although Basquin’s marshalling instruction contained the same language as
the marshalling instruction in Drake—an act which was meant to cause pain or
injury—the Basquin jury also was informed in the separate specific intent
instruction that the State would have to prove Basquin’s “specific intent.” See State
v. Wessels, No. 15-1023, 2016 WL 4543719, at *2 (Iowa Ct. App. Aug. 31, 2016)
(concluding “the marshalling instruction for assault on a peace officer required the
State to prove specific intent. Given the precise language of the marshalling
instruction, there was scant likelihood the jury would import the general intent
instruction in deciding whether the State proved the elements of assault on a peace
officer”). This additional language mitigated concerns about jury confusion. We
10
conclude counsel did not breach an essential duty in failing to challenge the district
court’s inclusion of a general intent instruction. See Strickland, 466 U.S. at 687.
V. Ineffective Assistance – New Trial Motion
Basquin argues counsel was ineffective in failing to file a new trial motion
on the ground the verdict was against the weight of the evidence. See State v.
Shorter, 893 N.W.2d 65, 70 (Iowa 2017). The weight-of-the-evidence standard
“involves questions of credibility, and requires the district court to determine
whether more credible evidence supports one side or the other.” Id. Although
district courts are vested with “wide discretion in deciding motions for new trial,”
they are to exercise their discretion “carefully and sparingly” under the weight-of-
the evidence standard. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1988). A motion
should be granted under this standard, “only in the extraordinary case in which the
evidence preponderates heavily against the verdict rendered.” State v. Ary, 877
N.W.2d 686, 706 (Iowa 2016).
Although the woman recanted her pretrial statements about the assault and
Basquin denied committing an assault, a district court could have found her
virtually contemporaneous statements to the sheriff and nurse practitioner to be
more credible than her subsequent recantation. In the exercise of its broad
discretion, and heeding the Iowa Supreme Court’s caution to grant a new trial
carefully and sparingly, the court would not have abused its discretion in denying
a new trial motion. Accordingly, counsel did not breach an essential duty in failing
to file a new trial motion on this ground.
VI. Domestic Abuse Assault Surcharge
11
The district court imposed a $100 domestic abuse assault surcharge.
Basquin contends the surcharge was illegal because the statutory provision
authorizing the surcharge—Iowa Code section 911.2B (2015)—became effective
after the date of his offense. The State agrees. See State v. Lopez, 907 N.W.2d
112, 123 (Iowa 2018) (“[T]he imposition of the section 911.2B surcharge for
conduct occurring prior to the July 1, 2015 effective date violates the Ex Post Facto
Clauses of the Iowa and United States Constitutions.”). We “vacate only that
discrete portion of [Basquin’s] sentence imposing the section 911.2B surcharge
and remand to the district court for entry of a corrected sentence.” Id.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND
VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED
SENTENCE.