IN THE COURT OF APPEALS OF IOWA
No. 19-1509
Filed January 21, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMEESHA RENAE ALLEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter, Judge.
A defendant appeals her conviction for assault while using or displaying a
dangerous weapon. REVERSED.
Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
2
TABOR, Judge.
A jury found Jameesha Allen guilty of assault while using or displaying a
dangerous weapon. She appeals that conviction, alleging the district court issued
three faulty rulings: (1) allowing the State to amend the trial information under Iowa
Rule of Criminal Procedure 2.4(8), (2) admitting surveillance videos into evidence,
and (3) rejecting a claim of prosecutorial misconduct in closing arguments.1
Because the State charged a wholly new and different offense on the morning of
trial, we reverse the conviction. Finding the first issue dispositive, we do not reach
her other claims.
I. Facts and Prior Proceedings
Allen’s boyfriend, Desean, called 911 from the Dollar General parking lot.
He told the operator he “needed the police as soon as possible” because
“somebody scratched his car and stabbed [him]” on Welbeck Road. He reported
being chased by “three guys and a girl” who had “bats and all types of stuff.” The
recording then dissolved to background noise and shouting for about ninety
seconds before Desean told the operator: “They’re still chasing me. I’m out here,
there’s five of them.” Losing his patience, Desean declared: “I just got away from
them again. . . . They got two cars, a white car and a blue car.” He added: “She
just tried to run me over. She’s in the street now. They’re trying to kill me.” He
then repeated: “She’s running me over.”
1 Allen also claims her attorney was ineffective for not objecting under the
Confrontation Clause to the admission of the complaining witness’s out-of-court
statements to police.
3
After another gap, the operator asked if Desean needed a medic. He
responded: “Yes. I’m hurt. I’m bleeding.” By this time, Desean had run past a
Subway sandwich shop to a nearby HyVee grocery store. A surveillance video of
the Subway drive-through lane captured a blue car jumping the curb and grazing
Desean, who fell to the ground. Then from the HyVee entrance, Desean updated
the dispatcher: “They’re circling the parking lot.” When the dispatcher asked what
kind of injuries he had, Desean answered: “I got a lot ma’am, my elbow, my hand,
everything.”
Inside the grocery store, the assistant manager noticed Desean was
bleeding from his left hand.2 Desean said his girlfriend’s mother, Sheila Thomas,
struck him with her white car. When police officers arrived, they also saw blood
dripping from Desean’s hand. But Desean declined medical help and walked back
to the apartment complex where the incident began.3 An officer approaching the
HyVee saw a blue car driving away and matched its plate to Allen’s registration.
When interviewed the next day, Allen admitted driving the blue car as
depicted in several store surveillance videos. Detective Brad Youngblut recorded
the exchange on his body camera. Allen’s hand was bandaged in the video. She
told the detective: “Yes, that’s me chasing Desean.” When asked if she struck him
with her car, Allen replied: “I don’t think Desean got hit.”
2 It is unclear from the record whether Desean received his injuries from being
stabbed, as he told the 911 operator, or from being struck by a car. The police
report attached to the minutes of evidence described a struggle over a knife in the
apartment complex parking lot and Allen suffering a cut to her hand.
3 The police report recorded Desean’s complaint that Allen and her family members
were “busting up his vehicle” at the apartment complex where it had broken down.
4
Three weeks later, the county attorney filed preliminary complaints against
Allen for criminal mischief and assault while using or displaying a dangerous
weapon, both aggravated misdemeanors. The attached affidavit alleged Allen
used her car as the weapon against Desean.
After another month, the State filed a three-count trial information charging
Allen with criminal mischief and a different assault offense—assault causing bodily
injury, a serious misdemeanor. The information also charged Thomas, Allen’s
mother, with assault while displaying a dangerous weapon.4 The State later
dismissed the charge against Thomas. The State also dismissed the criminal
mischief count against Allen. But the State received permission to amend the
serious-misdemeanor assault charge against Allen to assault while displaying a
dangerous weapon, an aggravated misdemeanor.
At trial, the State offered testimony from the 911 operator, the HyVee
assistant manager, a Subway employee, and the police officers. Desean did not
testify. For the defense, Allen took the stand and denied driving a blue car on the
day in question. To explain her videotaped interview with the detective, she
testified it was a “miscommunication” about what day he was investigating.
In closing argument, the prosecutor explained the State’s theory: “Now, we
all probably drive cars. We know how they’re used. We know what they’re for.
We also know if you use them the wrong way, they’re a pretty dangerous weapon.
You can kill someone.”
4 The trial information alleged Thomas pointed a firearm at Desean, but the police
report stated Thomas “was arrested for assault with a weapon, the weapon being
a motor vehicle.”
5
The jury convicted Allen of the amended assault charge. She appeals.
II. Amending the Trial Information
Allen argues the district court erred in allowing the State to amend the trial
information. She contends the amendment charged a wholly new and different
offense, prejudicing her substantial rights. See Iowa R. Crim. P. 2.4(8); see also
Iowa R. Crim. P. 2.5(5) (applying indictment rules to trial information).
The original trial information charged Allen with third-degree criminal
mischief, an aggravated misdemeanor, in violation of Iowa Code section 716.5
(2019) and assault causing bodily injury, a serious misdemeanor, in violation of
Iowa Code section 708.2(2). On the first day of trial,5 the court denied the State’s
motion to substitute a charge of willful injury for the criminal mischief count. So the
State dismissed the criminal mischief count.6 But the court allowed the State to
amend the charge of assault causing bodily injury to assault while using or
displaying a dangerous weapon, an aggravated misdemeanor, in violation of Iowa
Code sections 708.1(2)(c) and 708.2(3).
5 The State claims it moved to amend several days earlier. Our record does not
show such a filing. The State did file additional minutes of testimony ten days
before trial but did not amend the trial information until the trial started. And those
other minutes offered only a generic description of the testimony expected from
the dispatcher:
Specifically the witness will describe her role as a 911 dispatch
operator and receiving a call on the date and time of the alleged
offense. That the call was recorded fairly and accurately. The
witness will testify about their impressions, conclusions and opinions
reached as a result of their observations.
6 The prosecutor explained because Desean would not cooperate, the State “did
not have a victim to establish an amount in controversy for the criminal mischief
charge.”
6
Allen contends the court’s approval of the amended assault charge violates
Iowa Rule of Criminal Procedure 2.4(8). That rule allows the State to amend the
trial information before or even during a trial “to correct errors or omissions in
matters of form or substance.” Iowa R. Crim. P. 2.4(8). But the rule disallows
amendment “if substantial rights of the defendant are prejudiced by the
amendment, or if a wholly new and different offense is charged.” Id.
Because permission to amend is discretionary, we review for abuse of
discretion—up to a point. See State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).
The district court’s discretion ends if the amendment prejudices substantial rights
of the defendant or charges a wholly new and different offense. Id. We review
those factors for correction of legal error. See id.; see also State v. Michael,
Nos. 0-602 and 99-1578, 2000 WL 1675715, at *1–2 (Iowa Ct. App. Nov. 8, 2000)
(discussing scope of review for ruling on motion to amend trial information).
We first examine whether the amendment charged a “wholly new and
different offense” under rule 2.4(8). The earliest and fullest discussion of that
phrase appears in State v. Sharpe. 304 N.W.2d 220, 223 (Iowa 1981). Sharpe
held that an offense was “different” if it contained an element not found in the
charged count.7 See id. (finding first-degree murder differed from second-degree
murder, in part, because it contained distinct elements). But the Sharpe court
rejected the State’s request to apply a legal-elements test similar to Blockburger
7 The predecessor to rule 2.4(8) disallowed amendments if they had “the effect of
charging the accused with an offense which is different than the offense which was
intended to be charged in the indictment as returned by the grand jury.” Sharpe,
304 N.W.2d at 222 (quoting Iowa Code § 773.46 (1977)). Despite substituting the
phrase “wholly new and different” in place of “different,” the new rule, according to
Sharpe, was “merely an adoption of the prior law.”
7
v. United States, 284 U.S. 299, 304 (1932): “Under [the State’s] reasoning,
offenses which lie within the chain of included offenses could be substituted, either
raising or lowering the original charge.” Id. The Sharpe court figured the
legislature did not intend to allow the State that much leeway in amending a
charge. Beyond the elements discussion, Sharpe highlighted the “great disparity”
in the punishments between the two murder offenses. Id.
To interpret the “wholly new” language, Sharpe expressed what it was not.
An offense is not “wholly new” if the amendment charges an alternative means of
committing the same crime. Id. (endorsing “propriety of amending a charge of
first-degree murder by alleging a different means of committing the crime”); see
also State v. Schertz, 330 N.W.2d 1, 2 (Iowa 1983) (upholding amendment adding
torture as means of committing first-degree kidnapping, already charged under
serious-injury alternative); State v. Williams, 305 N.W.2d 428, 431 (Iowa 1981)
(permitting amendment to drug-trafficking offense to add conspiracy alternative).
Defending the amendment here, the State contends the switch from one
assault to another assault did not charge a different crime. In the State’s view, the
amendment alleged an alternative means of committing the same crime. To
showcase its point, the State cites three assault definitions from the criminal code:
A person commits an assault when, without justification, the person
does any of the following:
a. Any act which is intended to cause pain or injury to, or which
is intended to result in physical contact which will be insulting or
offensive to another, coupled with the apparent ability to execute the
act.
b. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious, or
offensive, coupled with the apparent ability to execute the act.
c. Intentionally points any firearm toward another or displays
in a threatening manner any dangerous weapon toward another.
8
Iowa Code § 708.1(2)(a)–(c).
From these definitions the State argues, “the various alternatives—a
harmful touch, an act intended so, and display of a dangerous weapon—are all
alternatives within a single code section.”8 Insisting the elements are the same
under the original and amended assault charges, the State contends it makes no
difference that paragraph (c) carries a higher penalty (an aggravated misdemeanor
rather than a serious misdemeanor). For that proposition, the State relies on
Maghee, where our supreme court upheld an amendment of drug possession from
a class “C” felony to a class “B” felony based on the amount of drugs because the
elements forming the “base prohibition” remained the same. 573 N.W.2d at 5.
Rebutting the State’s position, Allen distinguishes Maghee as a case
involving enhanced punishment, rather than a change in elements. See id. She
instead focuses on Sharpe and its reminder that courts should take a “relatively
narrow view” of allowing amendments that add elements to the original charge.
See 304 N.W.2d at 222. In looking at the elements, Allen posts a side-by-side
comparison of assault causing bodily injury (which requires proof that Allen
intended to cause pain or injury and that Desean suffered a bodily injury) and
8 The first two alternatives under section 708.1(2) describe different acts.
Paragraph (a) reflects the common law crime of battery, an act intended to cause
painful physical contact. See State v. Yanda, 146 N.W.2d 255, 255 (Iowa 1966).
Paragraph (b) reflects the common law crime of assault, a more preliminary act
intended to place another in fear of immediate physical contact. See id. at 256
(describing an assault as “the initial stage of an act which is aggravated by
a battery”). The third alternative or paragraph (c), intentionally pointing a firearm
at another or displaying in a threatening manner any dangerous weapon toward
another, resembles the offense of recklessly endangering another person
described in the assault chapter of the Model Penal Code. See Model Penal Code
§ 211.2 (Am. Law. Inst.).
9
assault while displaying a dangerous weapon (which does not require proof of
specific intent or injury but requires evidence that she brandished a dangerous
weapon in a threatening manner). Compare Iowa Code § 708.1(2)(a), and
§ 708.2(2), with § 708.1(2)(c), and § 708.2(3); see also State v. Beck, 854 N.W.2d
56, 66 (Iowa Ct. App. 2014) (suggesting third definition of assault was
general-intent crime while first two definitions required proof of specific intent).
In response, the State argues that Allen’s method of “standing the elements
and punishment of one offense up against those of another does not answer the
issue here.” The State characterizes Sharpe as foreclosing a Blockburger-style
elements comparison. The State is right and wrong. Right that Sharpe forecloses
amending a charge of second-degree murder (or even manslaughter or assaults)
up to first-degree murder because they are lesser-included offenses. 304 N.W.2d
at 223. But wrong that Sharpe shuns a comparison of elements (or punishments)
when deciding whether an offense is wholly new and different. Just the opposite
is true. Sharpe commands such a comparison. Id. at 222.
On some level recognizing that command, the State alternatively asserts
that all the prosecutor “did was allege an alternative means of committing assault.”9
But the difference between the “means of committing” an offense and “an element”
of an offense is sometimes murky. At their core, “elements” are the “constituent
9 The State’s argument would be more compelling if the trial information had first
charged an aggravated-misdemeanor assault. See Michael, 2000 WL 1675715,
at *2 (upholding amendment where State first charged domestic abuse assault
with intent to commit serious injury under sections 708.1(1) [now section
708.1(2)(a)] and 708.2A(2)(c), and later added reference to section 708.1(3) [now
section 708.1(2)(c)]). In that case, the original charge alerted Michael to the
State’s allegation that he used dangerous weapon. See id. The same isn’t true
for the original trial information against Allen.
10
parts” of a crime’s legal definition—the things the “prosecution must prove to
sustain a conviction.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)
(quoting Elements, Black’s Law Dictionary (10th ed. 2014)). “At a trial, they are
what the jury must find beyond a reasonable doubt to convict the defendant . . . .”
Id.
Applying this definition to section 708.1(2)(c), the State had to prove that
Allen displayed a dangerous weapon in a threatening manner toward another.
Those constituent parts of the aggravated-misdemeanor assault were elements—
elements not included in the serious-misdemeanor assault causing bodily injury.
Because the new charge had elements not included in the original charge and
carried a harsher punishment,10 under Sharpe, the district court should have
disallowed the amendment.
Before concluding, we address one more argument. The State reasons that
the amended offense was not wholly new and different because it appeared in the
same code section as the original charge. See Iowa Code § 708.1(2) (defining
three assault crimes). True, we have mentioned the “same code section” in our
cases. See, e.g., State v. Brisco, 816 N.W.2d 415, 418 (Iowa Ct. App. 2012)
(noting “the amended trial information charged violations of the same code section”
(quoting Maghee, 573 N.W.2d at 5)). Yet how the code editor arranges various
crimes is not controlling. See generally State v. Webb, 156 N.W.2d 299, 301 (Iowa
10The State downplays the increase in punishment (one to two years). But we find
the difference between the two categories of misdemeanors significant not only for
the maximum length of the sentence and amount of the fine, but in the place of
confinement (jail versus prison) and the extra requirement to submit a DNA
specimen. See Iowa Code §§ 81.2, 903.1(1), .4.
11
1968) (holding that headings drafted by code editors “are not a part of the law as
enacted”). Remember that one code section defines both first- and second-degree
murder. Iowa Code § 707.1. Yet first-degree murder is a wholly new and different
offense than second-degree murder. See Sharpe, 304 N.W.2d at 223. Under
Sharpe, the higher offense of assault while displaying a dangerous weapon is
wholly new and different from the charged offense of assault causing bodily
injury—regardless of their numbering in the Code.
Because we hold the district court should have disallowed the amendment
as charging a wholly new and different offense, we need not address whether the
amendment prejudiced Allen’s substantial rights.
REVERSED.