State of Iowa v. Brent Alan Foster

• Court: Court of Appeals of Iowa
• Decided: September 23, 2020
• Docket: 19-0949
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0949 Filed September 23, 2020

STATE OF IOWA, Plaintiff-Appellee,

vs.

BRENT ALAN FOSTER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.

Defendant appeals his conviction of domestic abuse assault. AFFIRMED.

William P. Baresel of Prichard Law Office, PC, Charles City, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.

Considered by May, P.J., Ahlers, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020). 2

DANILSON, Senior Judge.

Brent Foster appeals his conviction of domestic abuse assault. We

conclude the State presented substantial evidence on the issue of identification.

Through her testimony, the complaining witness identified Foster as her husband,

as the person who committed the assault, and as the person in the courtroom. We

affirm Foster’s conviction.

Foster was charged with domestic abuse assault causing bodily injury after

an incident on April 8, 2018, involving his wife, M.F. During the opening

statements at the jury trial, defense counsel stated, “What you’re going to hear

today is the testimony of the only two people who were there—[M.F.], Brent Foster.

The only two people who saw what happened because they were participants.”

M.F. was questioned:

Q. Are you currently married? A. Yes. Q. To whom? A. Brent Alan Foster. Q. Is that the same Brent Alan Foster that’s in the courtroom today? A. Yes.

M.F. testified about the assault committed by Foster. She testified Foster pushed

her against her truck with his forearm pressing her neck and threw her down on a

gravel driveway. M.F. had abrasions and contusions after the incident.

At the close of the State’s evidence, Foster made a motion for a directed

verdict, stating there was no in-court identification of him as the defendant. The

court denied the motion, stating, “Well, I don’t think she has to actually point her

finger at the Defendant. I think she identified him as the husband/person that she

lived with then.” Foster testified, admitting there was a physical altercation with

M.F., but claiming M.F. was the aggressor and he was acting in self-defense. 3

A jury found Foster guilty of the lesser-included offense of domestic abuse

assault, in violation of Iowa Code section 708.2A(2)(a) (2018), a simple

misdemeanor. He was sentenced to serve seven days in jail. Foster appeals his

conviction.

Foster contends he was not sufficiently identified in the courtroom. He

points out that the State is required to “introduce substantial evidence identifying

the person charged as the perpetrator or an accomplice.” State v. Baker, 224

N.W.2d 7, 8 (Iowa 1974). He asserts the State was required to have someone in

the courtroom identify him as the defendant, instead of presuming he was the

defendant because he was in the courtroom.

“[T]he State’s evidence is reviewed in the most favorable light, but the State

must still have substantial evidence to identify the defendant.” State v. Ross, 512

N.W.2d 830, 832 (Iowa Ct. App. 1993). “Identity is an element of a criminal offense

which the State must prove beyond a reasonable doubt. For this reason witnesses

are permitted to point out the accused as the person who committed a crime.”

State v. Jensen, 216 N.W.2d 369, 374 (Iowa 1974) (citation omitted). However,

“such a procedure is not necessary to make out a jury question on identification.

Identification of a defendant may be implicit or inherent in a record.” Id. at 375.

A dramatic gesture where a witness points a finger at the defendant is not

required. See State v. Kardell, No. 09-1859, 2011 WL 441961, at *8 (Iowa Ct. App.

Feb. 9, 2011) (“[A] witness need not physically point out a defendant so long as

the evidence is sufficient to permit the inference that the person on trial was the

person who committed the crime.” (quoting United States v. Alexander, 48 F.3d

1477, 1490 (9th Cir.1995))); State v. DeMoss, No. 06-1337, 2007 WL 2004513, at 4

*4 (Iowa Ct. App. July 12, 2007) (“According to the court’s rulings, witnesses

gestured toward DeMoss during their testimony about him. Though the State must

prove identity beyond a reasonable doubt, identity may be inferred or inherent in

the record.”). Through her testimony, M.F. identified Foster as her husband, as

the person who committed the assault, and as the person in the courtroom.

Furthermore, Foster’s attorney introduced his client as Brent Foster and

stated Foster and M.F. were “the only two people who were there.” Although the

oral argument was not evidence, nor were defense counsel’s statements evidence,

a stipulation regarding evidence may eliminate the State’s need to marshal proof

on an essential element of a crime. See State v. Roe, 642 N.W.2d 252, 254 (Iowa

2002). For all practical purposes, the admission that the defendant and M.F. were

the only two there is an admission or stipulation of those facts. Further, “[i]t is

elementary that admissions made in the course of judicial proceedings are

substituted for and dispense with actual proof of facts.” State v. Wilson, 144 N.W.

47, 53 (Iowa 1913); see also Dick v. United States, 40 F.2d 609, 611 (8th Cir. 1930)

(concluding the statement of counsel may eliminate the need for evidence on the

point).

We conclude the State presented substantial evidence on the issue of

identification. We affirm Foster’s conviction.

AFFIRMED.