IN THE COURT OF APPEALS OF IOWA
No. 17-1871 Filed November 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
DREW ALLAN JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
Defendant appeals his conviction for domestic abuse assault causing bodily
injury, enhanced. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Andrew C. Abbott of Abbott Law Office, PC, Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Drew Johnson appeals his conviction for domestic abuse assault causing
bodily injury, enhanced. We find there is substantial evidence in the record to
support the jury’s verdict in this case. We affirm Johnson’s conviction for domestic
abuse assault, but due to insufficiencies in the colloquy where he stipulated to a
prior conviction, we reverse the determination this was a second offense and
remand for further proceedings. In making this determination, we also vacate
Johnson’s sentence for domestic abuse assault, enhanced. On remand, upon the
conclusion of proceedings concerning the prior conviction, Johnson should be
resentenced.
I. Background Facts & Proceedings
Johnson was in a romantic relationship with A.G. and they lived together
until shortly before June 21, 2016. On that date, Katie DeBoer gave A.G. a ride to
the Super 8 Hotel in Waverly, where both women were employed. A.G. and
Johnson had a verbal argument over the phone during the drive. When the women
arrived in the hotel parking lot, Johnson was there. A.G. got out of the car before
DeBoer. DeBoer testified when she walked toward the back of her car, she saw
A.G. was on the ground with Johnson on top of her with his hand by her face. She
stated she saw Johnson hit A.G. on the head. Johnson then left the parking lot in
his vehicle.
Katherine Pitt, a manager at the Super 8, testified she heard “[s]creaming,
beating on the door,” and found A.G. outside. Pitt helped A.G., who was crying
and upset, into the hotel. A.G. told Pitt her ex-boyfriend beat her up. Gary Phillips,
also a manager at the hotel, testified he heard “an agonizing wail.” He saw A.G. 3
was on the floor, had injuries, and was engaged in “painful crying.” Phillips stated
A.G. told him “Drew . . . just began hitting her and she tried to get away and ended
up inside the front desk area.” Pitt and Phillips observed A.G. had injuries.
DeBoer, Pitt, and Phillips all called the police.
Lisa Barker, an EMT, testified A.G. was “very shaken up,” “crying,” and
“shaking.” A.G. told Barker her ex-boyfriend hit her. Barker observed A.G. had
swelling on the bridge of her nose and multiple abrasions. Barker stated A.G. had
“very recent wounds. They were open, oozing; the swelling had happened and
there was no bruising.”
Office Dave Lindley testified A.G. told him “Johnson had struck her in the
head and/or the face.” Office Lindley observed A.G. was crying and upset, and
she had injuries. A.G. gave a written statement, which stated:
I had been arguing with Drew on the phone all morning when the last phone call took place I hung up on him and before I knew it he pulled up behind me as I was walking in the door Drew hit me several times in the head. I do not know exactly how many times he did. I tried opening the door when I got to [the] front desk the cops were being called already by staff.
Officer Lindley talked to Johnson, who stated he struck A.G. on the shoulder. He
also stated, “I am not innocent.”
Johnson was charged with domestic abuse assault causing bodily injury,
enhanced, in violation of Iowa Code section 708.2A(3)(b) (2016), an aggravated
misdemeanor. The enhancement was based on the State’s allegation Johnson
had a previous conviction for domestic abuse assault.
A jury trial was held on July 27, 2017. At the time of the trial, A.G. and
Johnson had reconciled and were again living together. A.G. testified Johnson 4
came to the Super 8 to get his house keys which she threw at him because she
was mad. She stated Johnson “pushed me a little but it was more like a defense,”
when he was catching the keys. She agreed she had been upset and crying after
her interaction with Johnson, but denied she had injuries. Johnson testified A.G.
“threw the keys to me. I kind of went and blocked, you know. I brushed her
shoulder with my hand and after that everybody was calling the cops and I leave.”
Johnson stated, A.G. “went to the ground more or less, you know, and yelling or
screaming. She went to the office or something.” Johnson stated he barely grazed
A.G.’s shoulder with his fingertips. Johnson testified his statement about
innocence referred to his life in general, not this specific situation.
The district court denied Johnson’s motion for judgment of acquittal brought
at the close of the State’s evidence and renewed at the close of all the evidence.
The jury found Johnson guilty of domestic abuse assault.
Johnson requested a separate trial on the issue of whether he had a
previous conviction for domestic abuse assault, which would allow the present
conviction to be enhanced to an aggravated misdemeanor. A trial was scheduled
for August 3, 2017, and a jury was assembled, but Johnson decided at that time
to stipulate he had been previously convicted of domestic abuse assault. The
following exchange took place:
The Court: Mr. Johnson, is that correct that you’re willing to stipulate to that conviction? The Defendant: Yes. The Court: No one has threatened you in any way or put you under any kind of pressure in order to get you to make this decision? The Defendant: No. The Court: You’re doing this voluntarily and of your own free will? 5
The Defendant: Yes. I said something in the courtroom last time and it didn’t matter, but, yes, I am voluntarily.
The court asked the parties if any further record needed to be made and both
indicated their satisfaction with the proceedings.
Johnson was sentenced to a term of imprisonment not to exceed two years.
He now appeals his conviction.
II. Sufficiency of the Evidence
Johnson claims there is not sufficient evidence in the record to support his
conviction for domestic abuse assault. He states the State did not present
substantial evidence of an assault. Johnson concentrates on A.G.’s statements
during the trial, which recanted her statements made at the time of the offense and
her written statement. By looking only at A.G.’s testimony during the trial, he states
there is not substantial evidence to show he committed domestic abuse assault.
We review claims challenging the sufficiency of the evidence to support a
conviction for the correction of errors of law. State v. Wickes, 910 N.W.2d 554,
563 (Iowa 2018). We will uphold a verdict if it is supported by substantial evidence.
State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017). “Evidence is considered
substantial if, when viewed in the light most favorable to the State, it can convince
a rational jury that the defendant is guilty beyond a reasonable doubt.” State v.
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IN THE COURT OF APPEALS OF IOWA
No. 17-1871 Filed November 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
DREW ALLAN JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
Defendant appeals his conviction for domestic abuse assault causing bodily
injury, enhanced. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Andrew C. Abbott of Abbott Law Office, PC, Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Drew Johnson appeals his conviction for domestic abuse assault causing
bodily injury, enhanced. We find there is substantial evidence in the record to
support the jury’s verdict in this case. We affirm Johnson’s conviction for domestic
abuse assault, but due to insufficiencies in the colloquy where he stipulated to a
prior conviction, we reverse the determination this was a second offense and
remand for further proceedings. In making this determination, we also vacate
Johnson’s sentence for domestic abuse assault, enhanced. On remand, upon the
conclusion of proceedings concerning the prior conviction, Johnson should be
resentenced.
I. Background Facts & Proceedings
Johnson was in a romantic relationship with A.G. and they lived together
until shortly before June 21, 2016. On that date, Katie DeBoer gave A.G. a ride to
the Super 8 Hotel in Waverly, where both women were employed. A.G. and
Johnson had a verbal argument over the phone during the drive. When the women
arrived in the hotel parking lot, Johnson was there. A.G. got out of the car before
DeBoer. DeBoer testified when she walked toward the back of her car, she saw
A.G. was on the ground with Johnson on top of her with his hand by her face. She
stated she saw Johnson hit A.G. on the head. Johnson then left the parking lot in
his vehicle.
Katherine Pitt, a manager at the Super 8, testified she heard “[s]creaming,
beating on the door,” and found A.G. outside. Pitt helped A.G., who was crying
and upset, into the hotel. A.G. told Pitt her ex-boyfriend beat her up. Gary Phillips,
also a manager at the hotel, testified he heard “an agonizing wail.” He saw A.G. 3
was on the floor, had injuries, and was engaged in “painful crying.” Phillips stated
A.G. told him “Drew . . . just began hitting her and she tried to get away and ended
up inside the front desk area.” Pitt and Phillips observed A.G. had injuries.
DeBoer, Pitt, and Phillips all called the police.
Lisa Barker, an EMT, testified A.G. was “very shaken up,” “crying,” and
“shaking.” A.G. told Barker her ex-boyfriend hit her. Barker observed A.G. had
swelling on the bridge of her nose and multiple abrasions. Barker stated A.G. had
“very recent wounds. They were open, oozing; the swelling had happened and
there was no bruising.”
Office Dave Lindley testified A.G. told him “Johnson had struck her in the
head and/or the face.” Office Lindley observed A.G. was crying and upset, and
she had injuries. A.G. gave a written statement, which stated:
I had been arguing with Drew on the phone all morning when the last phone call took place I hung up on him and before I knew it he pulled up behind me as I was walking in the door Drew hit me several times in the head. I do not know exactly how many times he did. I tried opening the door when I got to [the] front desk the cops were being called already by staff.
Officer Lindley talked to Johnson, who stated he struck A.G. on the shoulder. He
also stated, “I am not innocent.”
Johnson was charged with domestic abuse assault causing bodily injury,
enhanced, in violation of Iowa Code section 708.2A(3)(b) (2016), an aggravated
misdemeanor. The enhancement was based on the State’s allegation Johnson
had a previous conviction for domestic abuse assault.
A jury trial was held on July 27, 2017. At the time of the trial, A.G. and
Johnson had reconciled and were again living together. A.G. testified Johnson 4
came to the Super 8 to get his house keys which she threw at him because she
was mad. She stated Johnson “pushed me a little but it was more like a defense,”
when he was catching the keys. She agreed she had been upset and crying after
her interaction with Johnson, but denied she had injuries. Johnson testified A.G.
“threw the keys to me. I kind of went and blocked, you know. I brushed her
shoulder with my hand and after that everybody was calling the cops and I leave.”
Johnson stated, A.G. “went to the ground more or less, you know, and yelling or
screaming. She went to the office or something.” Johnson stated he barely grazed
A.G.’s shoulder with his fingertips. Johnson testified his statement about
innocence referred to his life in general, not this specific situation.
The district court denied Johnson’s motion for judgment of acquittal brought
at the close of the State’s evidence and renewed at the close of all the evidence.
The jury found Johnson guilty of domestic abuse assault.
Johnson requested a separate trial on the issue of whether he had a
previous conviction for domestic abuse assault, which would allow the present
conviction to be enhanced to an aggravated misdemeanor. A trial was scheduled
for August 3, 2017, and a jury was assembled, but Johnson decided at that time
to stipulate he had been previously convicted of domestic abuse assault. The
following exchange took place:
The Court: Mr. Johnson, is that correct that you’re willing to stipulate to that conviction? The Defendant: Yes. The Court: No one has threatened you in any way or put you under any kind of pressure in order to get you to make this decision? The Defendant: No. The Court: You’re doing this voluntarily and of your own free will? 5
The Defendant: Yes. I said something in the courtroom last time and it didn’t matter, but, yes, I am voluntarily.
The court asked the parties if any further record needed to be made and both
indicated their satisfaction with the proceedings.
Johnson was sentenced to a term of imprisonment not to exceed two years.
He now appeals his conviction.
II. Sufficiency of the Evidence
Johnson claims there is not sufficient evidence in the record to support his
conviction for domestic abuse assault. He states the State did not present
substantial evidence of an assault. Johnson concentrates on A.G.’s statements
during the trial, which recanted her statements made at the time of the offense and
her written statement. By looking only at A.G.’s testimony during the trial, he states
there is not substantial evidence to show he committed domestic abuse assault.
We review claims challenging the sufficiency of the evidence to support a
conviction for the correction of errors of law. State v. Wickes, 910 N.W.2d 554,
563 (Iowa 2018). We will uphold a verdict if it is supported by substantial evidence.
State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017). “Evidence is considered
substantial if, when viewed in the light most favorable to the State, it can convince
a rational jury that the defendant is guilty beyond a reasonable doubt.” State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017) (citation omitted).
We find there is substantial evidence in the record to support the jury’s
verdict in this case. DeBoer testified she saw Johnson hit A.G. on the head. Pitt,
Phillips, Barker, and Officer Lindley all testified A.G. told them shortly after the
incident Johnson hit her. Furthermore, in her written statement, A.G. stated, “Drew 6
hit me several times in the head. I do not know exactly how many times he did.”
We conclude Johnson’s conviction for domestic abuse assault is supported by
substantial evidence and should be upheld on appeal.
III. Prior Conviction
Johnson claims the district court did not engage in a sufficient colloquy to
inform him of the rights he was giving up during the separate proceeding where he
stipulated to having a prior conviction for domestic abuse assault. Generally, in
order to preserve error, a challenge to the colloquy should be raised in a motion in
arrest of judgment. See State v. Harrington, 893 N.W.2d 36, 43 (Iowa 2017).
Where a defendant has not been informed of the requirement to file a motion in
arrest of judgment, however, a challenge to a colloquy is not precluded by the
failure to file such a motion. See State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016).
At the time the district court accepted Johnson’s stipulation of prior conviction, the
court did not inform him he was required to file a motion in arrest of judgment in
order to challenge the colloquy on appeal. We conclude Johnson’s challenge in
this case is not barred by our rules concerning error preservation.1
In Harrington, 893 N.W.2d at 45, the Iowa Supreme Court stated a court
should engage in a colloquy similar to that required in accepting a guilty plea when
a defendant admits to prior felony convictions. The court must determine whether
a defendant is fully cognizant of the rights the defendant is giving up by admitting
to the prior conviction. Harrington, 893 N.W.2d at 45. A court must inform a
1 The error preservation rule in Harrington, 893 N.W.2d at 43, applies prospectively only from the date the case was filed on April 7, 2017, and amended on June 14, 2017. The proceeding where Johnson stipulated to a prior conviction for domestic abuse assault occurred on August 3, 2017. We therefore conclude the error preservation rule applied. 7
defendant concerning (1) the nature of the habitual offender charge; (2) the
maximum possible punishment, including the mandatory minimum punishment;
(3) the trial rights the defendant is waiving; (4) no trial will take place if defendant
admits to the convictions; and (5) a challenge to an admission must be raised in a
motion in arrest of judgment. Id. at 45–46; see also State v. Wade, No. 16-0867,
2017 WL 2181450, at *5 (Iowa Ct. App May 17, 2017).
The requirements in Harrington apply when a defendant faces an enhanced
penalty or a different classification of offense due to prior convictions. State v.
Brewster, 907 N.W.2d 489, 494 (Iowa 2018); see also State v. Coleman, 907
N.W.2d 124, 147 (Iowa 2018) (“[W]e see no reason for treating a second offense
enhancement . . . different from our rules governing the habitual offender
enhancement given that both enhancements result from the defendant’s
admission to prior convictions, thereby leading to increased sentences.”).
A first offense for domestic abuse assault is a serious misdemeanor, while
a second offense is an aggravated misdemeanor. Iowa Code § 708.2A(3)(a), (b).
Because Johnson would be subject to an enhanced penalty for a second
conviction for domestic abuse assault, we determine the court should have
conducted a colloquy under the guidelines of Harrington. The colloquy with
Johnson was deficient in several respects. Johnson was not informed (1) the prior
conviction was valid only if he was represented by counsel and there was a factual
basis for the conviction; (2) the maximum possible punishment and the mandatory
minimum punishment resulting from the admission; (3) the trial rights found in Iowa
Rule of Criminal Procedure 2.8(2)(b)(4), which he was giving up by his admission;
(4) there would be no trial due to his admission; and (5) any challenges to the 8
proceeding must be raised in a motion in arrest of judgment. See Harrington, 893
N.W.2d 45–46.
Based on the limited colloquy conducted by the district court to determine
whether Johnson was aware of the consequences of his admission, we conclude
he did not knowingly and voluntarily admit his prior conviction.
We affirm Johnson’s conviction for domestic abuse assault but reverse the
determination this was a second offense and remand for further proceedings
pursuant to rule 2.19(9), dealing with questions involving prior convictions. See
Brewster, 907 N.W.2d at 495. In making this determination, we also vacate
Johnson’s sentence for domestic abuse assault, enhanced. On remand, upon the
conclusion of proceedings under rule 2.19(9), Johnson should be resentenced.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.