IN THE COURT OF APPEALS OF IOWA
No. 16-0892
Filed July 19, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN JAMES ZOBEL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Karen
Kaufman Salic, District Associate Judge.
Justin Zobel appeals from his convictions and sentences for domestic
abuse assault causing bodily injury, domestic abuse assault, third-degree
burglary, and possession of marijuana. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.
Justin Zobel appeals from his convictions and sentences for domestic
abuse assault causing bodily injury, a serious misdemeanor, in violation of Iowa
Code section 708.2A(2)(b) (2016); domestic abuse assault, a simple
misdemeanor, in violation of section 708.2A(2)(a); third-degree burglary, a class
“D” felony, in violation of sections 716.1 and 716.4; and possession of marijuana,
second offense, an aggravated misdemeanor, in violation of section
124.401(4)(m) and (5). Zobel contends the trial court erred in refusing to instruct
the jury on the self-defense theory and alleges a number of errors during
sentencing. Because we find the trial court did not err in refusing to instruct the
jury on the justification defense and find no abuse of discretion or error by the
sentencing court, we affirm.
I. Background Facts & Proceedings.
Zobel’s convictions for third-degree burglary and possession of marijuana
were entered pursuant to a written Alford plea. The underlying facts of those
convictions are not relevant to the appeal. Zobel’s domestic-abuse-assault-
causing-bodily-injury and domestic-abuse-assault convictions arose from a
dispute between Zobel and Katie Barnish in the early morning hours of July 4,
2015, after which Barnish ended up with a black eye. Zobel and Barnish
previously dated and have a child together, “G.”
At trial, Zobel did not dispute he hit Barnish causing the black eye, but he
did dispute the way in which the injury occurred. Barnish testified Zobel punched
her in the face after the dispute had progressed outside the house. Barnish
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stated she was attempting to walk back inside the home and was holding G.
when Zobel intentionally hit her. However, Zobel testified he hit Barnish in the
face when she was violently trying to wake him while he was sleeping on the
floor of G.’s room. Specifically, Zobel testified:
Q. And when did you wake up? A. I woke up to being pulled
on by my shorts and hit—like hit in the face, hit in the back, hit in
the back of the head, and I don’t know, just like I said, I can’t say
exactly how long it was but that’s how I was woken.
....
Q. And did you know what was going on? A. No, I had no
clue. I just knew I was just being hit and yelled at, screamed at.
Q. What did you do? A. I reacted. I rolled over and threw a
punch, first thing I did.
Q. Did you throw a punch or swing your arm? A. Kind of
rolled over and swung to get somebody off me because I had
somebody in my face more or less in a reaction . . . .
....
Q. When she got hit, was than an intentional act on your
part? A. No. It was more of an act in defense.
Q. So it was accidental? A. I believe so, yes.
Q. Were you looking at her face at the time your hand struck
it? A. No. I just rolled over to defend myself.
Based on the facts as asserted in Zobel’s testimony, defense counsel
requested that the court instruct the jury on the justification defense. The court
refused to give the instruction. The jury ultimately found Zobel guilty on both
domestic-abuse counts.
The sentencing hearing was held on May 23, 2016. The court sentenced
Zobel to an indeterminate prison term not to exceed five years on the third-
degree-burglary conviction, an indeterminate term not to exceed two years on the
possession-of-marijuana conviction, a thirty-day sentence on the domestic-
abuse-assault conviction, and a one-year term on the domestic-abuse-assault-
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causing-bodily-injury conviction, all sentences to be served consecutively. Zobel
now appeals.
II. Jury Instruction.
Zobel first asserts the trial court erred in refusing to instruct the jury on the
justification defense. We review the court’s refusal to give the requested jury
instruction for correction of errors at law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d
699, 707 (Iowa 2016). “It is error for a court to refuse to give a requested
instruction where it ‘correctly states the law, has application to the case, and is
not stated elsewhere in the instructions.’” Deboom v. Raining Rose, Inc., 772
N.W.2d 1, 5 (Iowa 2009) (citation omitted). “Any error in the instructions given
‘does not merit reversal unless it results in prejudice.’” Id. (citation omitted).
In refusing defense counsel’s request for a justification-defense jury
instruction, the court explained:
As far as the self-defense instruction, there’s not been
sufficient evidence produced to justify instructing the jury on self-
defense. The defendant’s testimony, while he used the term self-
defense, was that it was basically not—he didn’t have a specific
intent to commit an assault, that he admitted the fact of striking her,
and there weren’t the grounds included in his testimony to justify
giving that self-defense instruction so that won’t be given.
When defense counsel later reasserted the issue, the court further explained:
As the court indicated yesterday, there are some threshold—or
there is a threshold for the evidence to be submitted in order to give
the self-defense instruction. The court does not find that that has
been met. Further, the defendant’s testimony seemed to me he
wasn’t sure what he was doing and it was kind of instinctive, not an
intentional act, so that’s a different issue than self-defense and he
can certainly pursue that but based on the case law and the court
rules, self-defense instruction will not be granted.
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The court determined there was not substantial evidence to support the defense
theory of justification. We agree the justification defense is not applicable under
these facts.
Iowa Code section 704.3 defines the justification defense: “A person is
justified in the use of reasonable force when the person reasonably believes that
such force is necessary to defend oneself or another from any imminent use of
unlawful force.” Here, Zobel’s testimony stated he accidentally hit Barnish in an
attempt to stop her from hitting Zobel in the back of the head and pulling on his
shorts. Zobel described his actions in the incident as a “reaction,” not as
necessary to defend himself. See State v. Rains, 574 N.W.2d 904, 915 (Iowa
1998) (concluding there was not substantial evidence to support the submission
of the justification-defense instruction because there was “no evidence that
defendant had a ‘reasonable belief’ that force was necessary to defend himself”).
During cross-examination, Zobel stated, “I didn’t purposely ever intently swing at
[Barnish].” In essence, his defense was that his assault was accidental rather
than intentional—not that it was justified.1
While the jury was not instructed on the justification defense, it was
instructed on specific intent. The jury was instructed Zobel could not be found
guilty if he did not have the specific intent to cause pain or injury to Barnish and,
in turn, specific intent required Zobel to be aware of doing the act and that the act
was done voluntarily and with a specific purpose in mind. This instruction
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See State v. Delay, 320 N.W.2d 831, 835 (Iowa 1982) (“Self-defense may operate as
justification only if the act committed by the defendant was defensive . . . .” (quoting 6
Am. Jur. 2d Assault and Battery § 160 (1963)).
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addressed Zobel’s argument he did not intend to hurt Barnish but that he was
reacting to her violent attempt to wake him. In his closing argument, defense
counsel emphasized the argument Zobel lacked the requisite intent:
[Zobel] woke up to someone hitting him on the back of the head
and pulling on his pants to the point that they ripped, he had no
idea what was going on and struck out to stop the assault on him.
His hand hit Miss Barnish’s face and that’s when she got injured.
He said that he didn’t intend to assault her but was only trying to
stop from being hit by her any further.
The jury instructions given in this case allowed the jury to properly consider
Zobel’s recitation of the facts and arguments in defense. The justification
defense was not applicable, and Zobel was not prejudiced. Thus, the trial court
did not err in refusing to instruct the jury on the justification defense.
III. Sentencing Errors.
Zobel also contends the district court erred at sentencing in (1)
considering impermissible factors, (2) failing to state the reasons for imposing
consecutive sentences, and (3) imposing a domestic-abuse surcharge in the
written judgment but not in the oral pronouncement of the sentence.
We review the allegations the court considered impermissible factors and
failed to state reasons for the sentence for an abuse of discretion. See State v.
Witham, 583 N.W.2d 677, 678 (Iowa 1998); see also State v. Oliver, 588 N.W.2d
412, 414 (Iowa 1998). We review claims of an illegal sentence for correction of
errors at law. Kurtz v. State, 854 N.W.2d 474, 478 (Iowa Ct. App. 2014).
A. Consideration of Impermissible Factors. Zobel first takes issue with the
court’s following statement at the sentencing hearing:
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There are certainly some things that you have done of late that are
going to serve you well long term. My concern is that, as I’m sure
you can imagine, pretty [much] everybody that sits there in your
chair tells me the same thing, they’re sorry, they won’t see me
again, they’ve made decisions about how to live their life differently.
Some of those people are flat out lying to me. Some of them are
very sincere in it but not going to be able to carry it out, and others
are sincere about it and they get it done. You know, you’ve been in
and out of courtroom[s] since you were a kid. A lot of your
circumstances are unchanged. I think your parents have always
supported you, have been there for you, sometimes I imagine
probably a little bit to your detriment, that you might be further along
if you had to struggle a little bit more because you do have a very
strong safety net in being able to go home. A lot of people in your
situation their parents would lock the doors and throw a deadbolt on
and pray you didn’t break in and steal all their stuff, so you have
that, but you’ve always had that. That’s not a new development,
and that’s not really anything that’s in your control; it’s their good
grace and their good favor and their care for you. . . . [I]n your
case, pretty much everything that could be offered to you, has been
offered to you, and most of those cases you’ve chosen not to take
advantage of the support and services offered to you and kind of
repeated this pattern.
The argument that [defense counsel] makes, and I can’t say
it’s a bad one, you know, there is always the option of sending you
to prison [if unsuccessful on probation], but that isn’t without risk.
We have assault offenses here, we have burglary offenses here, of
a business, you know, . . . We have a drug offense, and it’s just
untold the possible risk that you pose to the community because
there’s so many issues that you need to work on, and based on all
of those considerations, I just don’t think that can happen in the
community.
Zobel first argues the court improperly considered the honesty and
success of other defendants sentenced by the court. Zobel contends, “The
sentence imposed should be based on the particular defendant who is being
sentenced.” However, the district court did not conclude that Zobel had more or
less likelihood to successfully rehabilitate based on a consideration of other
defendants’ success. Rather, the court stated the possible range of outcomes
regarding attempts to rehabilitate and then continued to evaluate Zobel’s specific
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circumstances in determining the appropriate sentence in this matter. The
court’s statement regarding its experience with sentencing other defendants did
not constitute an improper consideration.
Zobel also argues the court improperly considered Zobel’s relationship
with his parents. However, we have previously held a sentencing court did not
err in considering a defendant’s “upbringing” because it “was in response to the
mitigating circumstances offered by [defendant’s] counsel.” State v. Scribner,
No. 13-1715, 2014 WL 7343340, at *2 (Iowa Ct. App. Dec. 24, 2014). Similarly
here, Zobel first raised the support of his parents as a mitigating factor. The
court therefore did not err in subsequently considering Zobel’s relationship with
his parents.
B. Stated Reasons for Consecutive Sentences. Zobel next contends the
court did not state the reasons for imposing consecutive sentences as required.
Pursuant to Iowa Rule of Criminal Procedure 2.23(3)(d), the court is
required to “state on the record its reason for selecting the particular sentence.”
However, “[a] statement may be sufficient, even if terse and succinct, so long as
the brevity of the court’s statement does not prevent review of the exercise of the
trial court’s sentencing decision.” State v. Hennings, 791 N.W.2d 828, 838 (Iowa
2010), overruled on other grounds by State v. Hill, 878 N.W.2d 269, 275 (Iowa
2016). Although a “[s]entencing court should . . . explicitly state the reasons for
imposing a consecutive sentence, . . . in doing so the court may rely on the same
reasons for imposing a sentencing of incarceration.” Hill, 878 N.W.2d at 275.
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Here, the court stated, “I’m going to order that each of these sentences be
served consecutively for the reasons I’ve previously touched on; also, the distinct
nature of each of those.” The court previously addressed Zobel’s age,
employment, criminal history, his familial circumstances and support, his positive
behavior in jail, and the specific nature of his crimes in determining it was
appropriate to impose a sentence of incarceration. The court stated it relied on
those reasons and the distinct nature of Zobel’s offenses in imposing consecutive
sentences. This did not constitute an abuse of discretion.
C. Discrepancy Between Oral Sentencing Pronouncement and Written
Judgment. Last, Zobel asserts the sentence is illegal because the court did not
impose a domestic-abuse surcharge on each of the domestic-abuse-assault
convictions in its oral sentencing pronouncement but imposed surcharges in the
written judgment. Iowa Code section 911.2B requires the court to “assess a
domestic abuse assault, . . . surcharge of one hundred dollars if an adjudication
of guilty . . . has been entered for a violation of section 708.2A, 708.11, or
710A.2, or chapter 709.” Thus, the sentencing court’s sentences for the
domestic-abuse-assault convictions by oral pronouncement that did not include
the domestic-abuse surcharges were illegal. See State v. Hess, 533 N.W.2d
525, 527 (Iowa 1995) (“When a court imposes a sentence which statutory law
does not permit, the sentence is illegal, and such a sentence is void and we will
vacate it.”). However, by imposing the required domestic-abuse surcharges in
the written judgment order, the district court remedied what would have been an
illegal sentence if the surcharges were not imposed. See State v. Buchanan, No.
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13-1999, 2015 WL 162028, at *3 (Iowa Ct. App. Jan. 14, 2015). We therefore
find the sentencing court did not err.
IV. Conclusion.
Because we find the trial court did not err in refusing to instruct the jury on
the justification defense and find no abuse of discretion or error by the
sentencing court, we affirm.
AFFIRMED.