IN THE SUPREME COURT OF IOWA No. 18–1737
Submitted November 18, 2020—Filed April 30, 2021
STATE OF IOWA,
Appellee,
vs.
MARIO GOODSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Joel
Dalrymple (trial and posttrial motions), Linda M. Fangman (enhancement),
and George L. Stigler (sentencing), Judges.
The defendant seeks further review from the court of appeals
decision affirming his convictions of first-degree burglary, third-degree
sexual abuse, domestic abuse assault causing bodily injury, and operating a vehicle without its owner’s consent, arguing that the district court improperly admitted prior act evidence and that his convictions of first-
degree burglary and third-degree sexual abuse should merge. DECISION
OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT
AFFIRMED, SENTENCE AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED FOR RESENTENCING.
Appel, J., delivered the opinion of the court, in which all justices
joined. 2
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Brian Williams, County Attorney, and Israel Kodiaga
and Michelle Wagner, Assistant County Attorneys, for appellee. 3
APPEL, Justice.
In this case, Mario Goodson appeals his conviction following a jury
trial on charges of first-degree burglary, in violation of Iowa Code section
713.3 (2016); operating a motor vehicle without its owner’s consent, in
violation of Iowa Code section 714.7; domestic abuse assault causing
bodily injury, in violation of Iowa Code section 708.2A(2)(b); and third-
degree sexual abuse, in violation of Iowa Code section 709.4(1)(a).
The criminal charges arose from an altercation on December 23,
2016, between Goodson and his former partner, A.T., at A.T.’s home.
During the trial the State introduced evidence of Goodson’s prior acts. The
evidence included a neighbor’s testimony about a previous altercation
between Goodson and A.T., a videotape of an altercation between Goodson
and A.T. outside of A.T.’s place of employment, and testimony about an
arrest warrant issued for Goodson as a result of the altercation outside of
A.T.’s place of employment.
Goodson claims on appeal that prior act evidence was improperly
admitted solely to show propensity. He also asserts that his conviction of
first-degree burglary and third-degree sexual abuse should merge. In
addition, Goodson claims the trial judge should have recused himself from both the trial and the hearings on posttrial motions. Finally, he argues
his sentence is illegal because it specifies a duration for sex offender
registry obligations.
For the reasons stated below, we affirm Goodson’s convictions,
reverse the illegal portion of Goodson’s sentence, and remand for
resentencing.
I. Background Facts and Proceedings.
A. Introduction. Goodson and A.T. began a romantic relationship
sometime around November 2014. The relationship broke up on three 4
occasions but the parties got back together. The two lived together in
A.T.’s residence during some portions of the relationship.
In early summer 2015, Goodson and A.T. broke off their relationship
and Goodson moved out. But, later that summer, when A.T. found out
she was pregnant with Goodson’s child, Goodson moved back to live with
A.T. Their child was born in March 2016.
In July, Goodson once again left the residence, but moved back in
September. On December 8, a conflict between Goodson and A.T. occurred
at A.T.’s work. On December 23, a second altercation occurred at A.T.’s
home, the second altercation led to the criminal charges in this case.
The State brought four criminal charges against Goodson: first-
degree burglary in violation of Iowa Code section 713.3 (2016), operating
a motor vehicle without its owner’s consent in violation of Iowa Code
section 714.7, domestic abuse assault causing bodily injury in violation of
Iowa Code section 708.2A(2)(b), and third-degree sexual abuse in violation
of Iowa Code section 709.4(1). A jury returned a verdict of guilty on all
charges. The sentencing court imposed terms of incarceration on each
count and ran them concurrently resulting in a twenty-five-year prison
term with an eighty-five percent mandatory minimum. B. Proceedings Before the District Court.
1. Introduction. At trial, Goodson and A.T. presented contrasting
stories about what happened on December 23, 2016, and the events
leading up to it. The central issue for the jury was whether to believe the
version of the event given by A.T. or by Goodson.
2. A.T.’s version of the December 23 events at trial. A.T. testified she
returned home on December 23, and as she opened the door, Goodson
was in the doorway and pulled her into the residence. A.T. stated that
Goodson was agitated, threatened her, and hit her several times when she 5
was in the bathroom, breaking a mirror. A.T. asserted she attempted to
escape through the front door, but Goodson blocked the door with a coffee
table. A.T. said she attempted to retrieve a mace gun that she had
purchased for protection, but Goodson was able to prevent her from
utilizing it. However, the mace gun hit the ground and exploded, spraying
onto A.T., Goodson, and the baby.
A.T. said Goodson forced her into the basement, seized her phone,
and became angry about text messages she had sent to other men. A.T.
declared that she was eventually able to regain control of her phone and
smashed it on the concrete floor, which created momentary calm. Then,
A.T. said she and the baby showered to remove the mace; Goodson
eventually joined. A.T. said she and her baby went to take a nap while
Goodson cleaned up the house.
A.T. said Goodson came into the room where she and the baby were
napping and again became angry about the other men. A.T. testified that
Goodson then sexually assaulted her. At some point during the
altercation, Goodson’s leg was injured, and he left to get his leg examined
by a doctor. A.T. said Goodson took her car without her permission. After
Goodson left, A.T. said she was able to call the police and the police came to investigate.
3. Goodson’s version of the December 23 events at trial. Goodson
had a different story at trial than A.T. According to Goodson, he was in
A.T.’s home packing up some of his clothing to take with him to a job
interview in Las Vegas. Goodson testified that he previously interviewed
for a job in Las Vegas and discussed moving to Las Vegas with A.T. and
each of their children. Goodson said A.T. was not interested in the idea of
moving and became angry whenever Goodson brought up the topic.
Goodson testified that when A.T. returned home, she went down to the 6
basement and Goodson told A.T. that he was packing some clothes for
another job interview in Las Vegas, to which A.T. responded with
frustration.
Goodson said they both went upstairs to the bathroom to pack
toiletries and then A.T. started an argument. Goodson contends that A.T.
said she did not need to have a relationship with Goodson, and showed
Goodson conversations on her phone with other men with whom she had
relationships. Goodson admitted he got “pissed” and punched the
bathroom mirror but did not intentionally hit A.T. He conceded, however,
that he may have hit her by accident.
Goodson testified that A.T. then attempted to get a mace gun
because she was angry with him, and as he wrestled the gun away from
her, the gun exploded. After the explosion, Goodson said he was
concerned about the baby and that all three should shower to remove the
mace. Goodson then said he reconciled with A.T. and they ultimately had
consensual sex. Goodson said that he went to the doctor to get his leg
examined, and while he was at the doctor, he received a phone call from
his mother telling him not to return to A.T.’s house because the police had
been called. 4. Admission of prior acts evidence. Over the objection of Goodson,
the State offered and the district court admitted testimonial evidence of
Goodson’s prior acts to support A.T.’s account of the December 23 events
and to establish a pattern of abusive behavior by Goodson towards A.T.
The district court admitted evidence regarding two prior events. First, the
district court admitted evidence of a confrontation between A.T. and
Goodson that occurred on December 8, roughly two weeks prior to
December 23. Second, the district court admitted evidence from a 7
neighbor of A.T.’s who testified that he saw Goodson punch A.T. in the face
after an argument that occurred several months prior to December 23.
Regarding the December 8 incident, A.T. testified that she had told
Goodson by text or phone of a relationship she was forming with another
man. A.T. testified that after she told Goodson of the relationship, he said
that he was going to kill her. A.T. said she was concerned by Goodson’s
statements and believed Goodson might come to her work to confront her.
A.T. said she looked into the parking lot and did not see Goodson’s car, so
she left. A.T. said that as she walked to her car, she heard an engine and
turned to see Goodson’s mother’s car. A.T. then testified that Goodson
jumped out of the car, ran after her, and threatened her—eventually
forcing her into his car. Within the car, A.T. said she and Goodson had
an argument in which Goodson was verbally and physically abusive
towards her. A.T. said she was able to convince Goodson to let her leave
his car, and after she left, she went to stay at her mother’s house. A.T.
said she filed a police report about the altercation and was careful over the
next several weeks to make sure she did not run into Goodson. A.T. said
she primarily stayed at her mother’s house throughout the time period.
In addition to the testimony of A.T., the district court admitted other evidence related to the December 8 incident. The district court admitted
a video of the December 8 events. The district court further admitted a
911 phone called made by A.T. on December 23 where she recounted that
an arrest warrant had been issued for Goodson after the December 8
incident.
Goodson has a different version of the December 8 events.
According to Goodson, the altercation was misconstrued. Goodson
testified that he simply came to talk with A.T. about their relationship on
December 8. He asserted there was no threatening or assaultive activity. 8
The district court also admitted testimony from a neighbor of A.T.,
one Jacob Miller. According to Miller, several months prior to
December 23, he observed Goodson punch A.T. in the face after a verbal
argument.
5. Posttrial motions. After trial, Goodson filed a motion for a new
trial alleging an appearance of impropriety because of the trial judge’s
interaction with several jurors. The judge denied Goodson’s motion. Four
months later, Goodson filed a second motion for a new trial alleging that
the trial judge had been the prosecutor for Goodson’s previous sexual
abuse conviction and requesting a new trial with a different judge. The
judge denied Goodson’s second motion.
At the hearing to determine whether a sentencing enhancement
would apply under Iowa Code section 901A.2(3) for Goodson’s prior sexual
abuse conviction, a different judge determined the enhancement would
apply. A third judge presided over Goodson’s sentencing hearing.
C. Court of Appeals Decision. The court of appeals affirmed
Goodson’s convictions. According to the court of appeals, the district court
did not abuse its discretion in admitting any prior act evidence. The court
of appeals further held that the offenses of first-degree burglary and third- degree sexual abuse do not merge. On the issue of judicial recusal, the
court of appeals decided the issue was not preserved. Finally, the court of
appeals held that a portion of Goodson’s sentence was illegal and
remanded the case to the district court for resentencing of the illegal
portion.
II. Standard of Review.
“We review rulings on the admission of evidence of prior bad acts for
an abuse of discretion.” State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008).
We reverse a district court’s admission as an abuse of discretion if the 9
grounds or reasoning for admission were “clearly untenable or clearly
unreasonable.” State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017). We
review the failure to merge convictions required by statute for correction
of errors at law. State v. Johnson, 950 N.W.2d 21, 23 (Iowa 2020). We
review any constitutional double jeopardy claim de novo. Id.
III. Discussion.
A. The Admissibility of Prior Act Evidence.
1. Positions of the parties. Goodson claims the district court erred
in allowing admission of evidence related to the December 8 altercation,
the mention of the arrest warrant related to it, and Miller’s testimony about
Goodson punching A.T. in the face several months prior to December 23.
Although there was no contemporaneous objection at trial, Goodson now
objects to testimony from A.T. outlining the history of their stormy
relationship.1 Goodson claims that the evidence was used by the State to
show that Goodson was generally a bad person and would act in
conformity with that bad character during the December 23 incident.
Goodson recognizes that under Iowa Rule of Evidence 5.404(b)(2), other
act evidence might be relevant on a significant issue such as intent. State
v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). Goodson argues, however, that intent was not really an issue in the case as he admitted he was
“pissed” and that his actions were not accidental.
Goodson also claims that the prior acts evidence was not supported
by “clear proof.” Although Goodson concedes that under our caselaw,
1Goodson invites us to address the unpreserved issue on this direct appeal under
the rubric of ineffective assistance of counsel. Under S.F. 589, however, ineffective- assistance-of-counsel claims cannot be decided on direct appeal. 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code § 814.7). In State v. Macke, we determined that S.F. 589 did not retroactively apply prior to its effective date of July 1, 2019. 933 N.W.2d 226, 231, 236 (Iowa 2019). Since the district court’s judgment occurred on October 4, 2018, prior to the effective date of S.F. 589, S.F. 589 does not apply and we may address the ineffective-assistance-of-counsel issue on direct appeal. 10
direct testimony from one witness may amount to clear proof, State v.
Richards, 879 N.W.2d 140, 152 (Iowa 2016), he argues that in this case
the evidence was heavily disputed and thus should have been excluded.
Even if the evidence was arguably relevant, Goodson argues that the
probative value was substantially outweighed by the danger of unfair
prejudice. He cites Richards for the proposition that propensity evidence
may encourage juries to punish the defendant because of his past conduct
rather than on evidence related to the crime. Id. In pressing his argument,
Goodson notes that juries are far more susceptible than judges in bench
trials to deciding a case based on an improper basis. State v. Taylor, 689
N.W.2d 116, 130 (Iowa 2004).
Goodson further asserts that the district court did not properly limit
the scope of the prior act evidence. In particular, Goodson argues that the
evidence regarding the December 8 incident included a video that was
played, in whole or in part, several times for the jury. Goodson notes that
the district court did not provide the jury with a cautionary instruction
regarding the use of the evidence.
Finally, Goodson claims he was prejudiced by the introduction of
the prior acts evidence. He asserts that in light of the conflicting testimony at trial, confidence in the jury verdict is undermined because of the
improper admission of the prior acts evidence.
The State recognizes that the evidence it offered regarding prior acts
cannot be used solely to show propensity. Id. at 123 (citing State v.
Castaneda, 621 N.W.2d 435, 440 (Iowa 2001) (en banc)). But the State
insists the use of the prior acts evidence was not to demonstrate general
propensity. According to the State, the evidence was relevant to show
Goodson had specific intent to assault A.T. Further, according to the
State, the evidence was relevant to show motive. In particular, the State 11
observes that “domestic violence is a pattern of behavior, with each episode
connected to the others.” State v. Richards, 809 N.W.2d 80, 93 (Iowa 2012)
(quoting Taylor, 689 N.W.2d at 129 n.6). The evidence, according to the
State, was not used to show that Goodson “was a violent man generally”
but only that he was violent toward A.T. specifically. Richards, 809 N.W.2d
at 93–94. The State also argues the evidence was relevant on the question
of whether the sex between Goodson and A.T. on December 23 was
consensual or coerced.
On the issue of “clear proof,” the State observes that the mere fact
that the matters are disputed does not prevent admission of the prior acts
evidence. The State emphasizes that on the issue of clear proof, there is
no “require[ment] that the prior act be established beyond a reasonable
doubt, nor is corroboration necessary” when a witness directly testifies
about prior events. Taylor, 689 N.W.2d at 130.
2. Framework for admission of prior acts evidence. The admission
of the evidence is governed by Iowa Rule of Evidence 5.404(b)(1). Under
the rule, “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” The rule further provides, however, that prior acts “evidence may be admissible for another
purpose such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Id. r.
5.404(b)(2).
We have analyzed the admissibility of prior acts evidence using a
three-step approach. In Richards, we summarized the three-step
approach:
(1) “the evidence must be relevant and material to a legitimate issue in the case other than a general propensity to commit wrongful acts”; (2) “there must be clear proof the individual 12 against whom the evidence is offered committed the bad act or crime”; and (3) if the first two prongs are satisfied, “the court must then decide if [the evidence’s] probative value is substantially outweighed by the danger of unfair prejudice to the defendant.”
Richards, 879 N.W.2d at 145 (alteration in original) (quoting Sullivan, 679
N.W.2d at 25).
We considered the question of the admission of prior act evidence in
a case involving domestic disputes in State v. Taylor. 689 N.W.2d at 120–
30. In Taylor, we determined that in order for the evidence of prior
domestic abuse to be admissible, the evidence “must be probative of ‘some fact or element in issue other than the defendant’s criminal disposition.’ ”
Id. at 123 (quoting Castaneda, 621 N.W.2d at 440). The Taylor court held
that evidence of prior conduct by a defendant against the same victim as
the alleged crime may demonstrate motive and intent. Id. at 125 (“[P]rior
conduct directed to the victim of a crime, whether loving or violent, reveals
the emotional relationship between the defendant and the victim and is
highly probative of the defendant’s probable motivation and intent in
subsequent situations.”).
Similarly, in State v. Rodriquez, we concluded that evidence of prior
abuse by a defendant against the victim was admissible when the defendant was charged with murder, kidnaping and assault against his
girlfriend (the same victim as the prior abuse) because “prior intentional,
violent acts towards the victim . . . [made] it more probable that [the
defendant] intended to cause [the victim] serious injury” on the specific
day of the crimes for which he was being charged. 636 N.W.2d 234, 242
(Iowa 2001).
If there is no dispute such as intent or motive, then the primary
“relevancy of [prior acts] is to show the defendant’s criminal disposition or
propensity to commit the very crime for which the defendant is on trial.” 13
Richards, 879 N.W.2d at 147 (quoting State v. Henderson, 696 N.W.2d 5,
16 (Iowa 2005) (Lavorato, C.J., concurring specially)). When confronting
the possibility of propensity inferences from evidence of violent acts, we
look to whether the evidence establishes “not that [a defendant is] a violent
man generally, but rather [whether a defendant is] explosive toward [the
victim] specifically.” Richards, 809 N.W.2d at 94.
Taylor also provides guidance on the second step for determining
whether clear proof exists that the individual committed the prior act. “[I]t
is not required that the prior act be established beyond a reasonable
doubt, nor is corroboration necessary”; instead, all that is required is
“sufficient proof to ‘prevent the jury from engaging in speculation or
drawing inferences based on mere suspicion.’ ” Taylor, 689 N.W.2d at 130
(quoting State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997)). “[A] victim’s
testimony, standing alone, satisfies the requirement of clear proof.” State
v. Jones, 464 N.W.2d 241, 243 (Iowa 1990).
Finally, Taylor provides guidance on the third step for whether the
unfair prejudice of the evidence substantially outweighs its probative
value. To analyze the balancing, Taylor provides,
[T]he court should consider the need for the evidence in light of the issues and the other evidence available to the prosecution, whether there is clear proof the defendant committed the prior bad acts, the strength or weakness of the evidence on the relevant issue, and the degree to which the fact finder will be prompted to decide the case on an improper basis.
Taylor, 689 N.W.2d at 124.
In Richards, the court acknowledged that “juries would probably not
like someone whom they conclude has repeatedly assaulted a significant
other and therefore might develop a desire to punish.” 879 N.W.2d at 152.
And that a jury trial means that “the fact finder is more susceptible to 14
deciding the case on an improper basis.” Id.; see also Taylor, 689 N.W.2d
at 130 (“Clearly the likelihood of an improper use of the evidence is reduced
by the fact that the present case was tried to the court.”). Yet the caselaw
clearly permits the admission of prior acts if relevant to a noncharacter
issue and if the relevancy of the evidence is substantially outweighed by
prejudice to the defendant. See, e.g., Richards, 879 N.W.2d at 145; State
v. Mitchell, 633 N.W.2d 295, 299 (Iowa 2001).
3. Application of prior acts framework. The battle over the narrative
in this case was whether Goodson and A.T. were parents and former lovers
who had their struggles but generally got along, or whether Goodson had
turned so bitter against A.T. in light of their failed relationship that he
broke into her home without her permission and physically and sexually
assaulted her. The nature of the relationship between A.T. and Goodson
was critical in determining the motive for Goodson entering A.T.’s home,
whether he entered without permission, and whether he entered the house
with intent to assault A.T.
Importantly, the prior act evidence did not simply show that
Goodson had bad character traits. Instead, the evidence specifically
focused on the nature of the relationship between A.T. and Goodson and was clearly connected to factual issues to be determined by the jury at
trial. While Goodson may have “stipulated” to being “pissed off,” the issue
at trial was not simply whether he was upset or angry. Instead, the jury
was asked to determine whether he intentionally broke into A.T.’s house
with intent to assault her. Goodson certainly did not concede he intended
to commit the acts with which he was criminally charged. See Richards,
809 N.W.2d at 94–95.
Goodson and A.T. offered the jury highly conflicting versions of the
events on December 23. The prior acts evidence was relevant to show what 15
motivated Goodson on that day. The district court properly admitted the
evidence because it helped to “adequately frame the nature of the parties’
relationship.” Goodson claimed to be in the home with A.T.’s permission
and that they engaged in consensual sex. A.T. told a much different story.
Surely the evidence showing the contentious nature of the relationship
between A.T. and Goodson was relevant on the question of whose story to
believe. We thus reject Goodson’s argument that the admission of the
prior acts evidence was an impermissible effort designed generally to show
bad character. It was specific evidence designed to show the nature of the
relationship between A.T. and Goodson that had direct relevance to
determining what happened on December 23 at A.T.’s home.
We next consider the issue of clear proof. A.T. testified about the
various pieces of evidence regarding the December 8 incident and said
Goodson committed the acts. The content of the video is self-proving in
regard to some interaction taking place between A.T. and Goodson on
December 8. As for Miller’s testimony about observing Goodson punch
A.T. several months before December, the fact that Miller, a third-party
witness with nothing to gain, testified under oath about a concrete and
particular event is enough to provide sufficient proof to the jury that Goodson actually punched A.T. To add further proof, A.T. testified to
remembering the specific event described by Miller.
Goodson argues that even if the evidence was otherwise admissible,
it should have been excluded by the district court because its probative
value was substantially outweighed by the prejudice to Goodson. We do
not agree. As noted above, the evidence helps to set the stage for the
antagonistic relationship between Goodson and A.T., and eliminates the
necessity of the jury to conduct a pure “he said, she said test” of credibility.
In cases with conflicting direct testimony, it is crucial to have triangulating 16
evidence to resolve the issue. We cannot say that the district court abused
its discretion by concluding that the relevance of the testimony was not
substantially outweighed by its prejudicial effect.
Last, Goodson claims the district court should have limited the
scope of the prior acts evidence. The evidence that was admitted focused
on the combative relationship between A.T. and Goodson. The December 8
incident was described in detail and included a video from a security
camera. But aside from the detail, Goodson does not identify any
prejudicial collateral matters that improperly came in through the back
door. We see no reversible error here.
For all the above reasons, we reject Goodson’s claim that the district
court abused its discretion in admitting evidence of prior acts in this case.
B. Merger Doctrine.
1. Introduction. Goodson was charged, convicted, and sentenced for
four crimes. Two of the crimes, first-degree burglary and third-degree
sexual abuse, have overlapping elements. Goodson claims because of the
overlapping elements of first-degree burglary and third-degree sexual
abuse, the crimes should merge under Iowa Code section 701.9 and the
Double Jeopardy Clause of the United States Constitution. As a result, Goodson argues that his conviction for third-degree sexual abuse should
merge with his conviction on first-degree burglary.2
2. Positions of the parties. Goodson begins his merger argument by
focusing on the jury instructions in this case. Under Jury Instruction
2The State argues that because Goodson did not raise the issue of merger or
double jeopardy at trial, the issue is waived. However, we have held that a “district court’s failure to merge convictions as required by statute results in an illegal sentence. Such claims may be raised at any time.” State v. Love, 858 N.W.2d 721, 723 (Iowa 2015). The State suggests in this case that because special verdicts would have demonstrated whether the jury found two separate crimes in this case, Goodson must seek special verdicts or his merger claim is waived. In light of our ultimate disposition, we need not address the State’s preservation argument regarding Goodson seeking a special verdict. 17
No. 19, the jury was instructed that in order to prove first-degree burglary,
the state must prove:
6. During the incident:
a. The defendant intentionally or recklessly inflicted bodily injury as defined in instruction 30 . . . , or
b. The defendant performed or participated in a sex act . . . which would constitute sexual abuse as defined in instruction 36.
Because alternative 6(b) of the first-degree burglary instruction
contains all the elements of third-degree sexual abuse, Goodson asserts
that the two crimes should merge under the same elements test of
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932).
Goodson recognizes that even where the elements are the same
under Blockburger, merger does not occur if there is an indication that the
legislature intended multiple punishments. See State v. Lewis, 514
N.W.2d 63, 69 (Iowa 1994). Goodson argues that there is no such
indication here. He notes that in State v. Anderson, we found that the
crime of assault with intent to commit sexual abuse merged with first-
degree burglary. 565 N.W.2d 340, 344 (Iowa 1997). Absent a finding of
legislative intent to the contrary, Goodson argues, the crime of sexual abuse in the third degree merges with first-degree burglary.
The State advances two distinct counter arguments. First, the State
points out that in this case, it is clear that the jury found two separate
crimes. The State notes that Goodson was found guilty of the crime of
domestic abuse assault causing bodily injury as well as the crime of sexual
abuse in the third degree. By finding Goodson guilty of the crime of
domestic abuse assault, the State argues, we can be confident that jurors
found Goodson committed a distinct criminal act to satisfy paragraph 6 of 18
the first-degree burglary instruction that was independent of his act of
sexual abuse.
Second, however, the State argues that even if the same elements
test of Blockburger have been met, the crimes of first-degree burglary and
sexual assault in the third degree should not merge because there is
evidence that the legislature did not intend this result. Specifically, the
State points to statutes providing for enhanced penalties for subsequent
sex crimes. Iowa Code § 901A.2; id. § 902.14. According to the State, the
possibility of enhanced punishment for sexual abuse crimes demonstrates
a legislative intent to permit multiple punishment in all cases. If the
crimes of first-degree burglary and third-degree sexual abuse merged, the
reach of the enhanced penalties would be lessened—contrary to legislative
intent. Further, the State points to lifetime special sentences under Iowa
Code section 903B.1 which applies to “class ‘C’ felony or greater offense
under [Iowa Code] chapter 709.” The availability of lifetime special
sentences, which is viewed as additional punishment, State v. Lathrop, 781
N.W.2d 288, 294–97 (Iowa 2010), would be undermined if sexual abuse in
the third degree merged with first-degree burglary.
3. Discussion of the merits. Iowa’s merger statute states: “No person shall be convicted of a public offense which is necessarily included in
another public offense of which the person is convicted.” Iowa Code
§ 701.9. The statute has the effect of codifying constitutional double
jeopardy protections. See, e.g., State v. Halliburton, 539 N.W.2d 339, 344
(Iowa 1995); State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993). However,
when the legislature intends double punishment, then the Double
Jeopardy Clause, and therefore the merger statute, are not applicable.
See, e.g., Johnson, 950 N.W.2d at 23–24; State v. West, 924 N.W.2d 502,
512 (Iowa 2019) (“[T]he question of whether an offense is necessarily 19
included in a greater offense is a question of legislative intent.”); see also
Gamble v. United States, 587 U.S. ___, ___, 139 S. Ct. 1960, 1965 (2019)
(stating that double jeopardy “protects individuals from being twice put in
jeopardy ‘for the same offence,’ not for the same conduct or actions”
(quoting Grady v. Corbin, 495 U.S. 508, 529, 110 S. Ct. 2084, 2097 (1990)
(Scalia, J., dissenting))).
In order to determine legislative intent for double punishment, we
use a two-step analysis. Johnson, 950 N.W.2d at 24–25. First, we conduct
a Blockburger-type elements test which looks at “the elements of the two
offenses to determine whether it is possible to commit the greater offense
without also committing the lesser offense.” Halliburton 539 N.W.2d at
344; see also Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. “If the greater
offense is defined alternatively and the State charges both alternatives, the
test for included offenses must be applied to each alternative.” State v.
Hickman, 623 N.W.2d 847, 851 (Iowa 2001) (en banc). Therefore, “[w]hen
alternatives are present and one alternative requires merger, merger is
required if it is impossible to determine which alternative the jury used.”
Bryson v. State, 886 N.W.2d 860, 864 (Iowa Ct. App. 2016).
The second step is “whether the legislature intended multiple punishments for both offenses.” Halliburton, 539 N.W.2d at 344. In State
v. West, we decided “where the greater offense has a penalty that is not in
excess of the lesser included offense, a legislative intent to permit multiple
punishments arises. Otherwise, there would be little point to the greater
offense.” 924 N.W.2d at 511.
We have further analyzed legislative intent for double punishment
of offenses that carry enhancements for subsequent offenses. Most
recently in State v. Johnson we determined merger does not occur with the
offenses of marijuana possession and eluding with possession of 20
marijuana because merger would thwart the legislative intent of
enhancement for subsequent possession offenses. 950 N.W.2d at 25–27.
Similarly, the court of appeals in State v. Rice determined that merger of
eluding and OWI “would thwart the legislative design of [the OWI statute]
and its subparts, which detail a number of offense-specific sentencing
provisions, including mandatory minimums and subsequent-offense
enhancements.” 661 N.W.2d 550, 552 (Iowa Ct. App. 2003).
Our first step in determining whether third-degree sexual abuse
merges with first-degree burglary is whether it is possible to commit a first-
degree burglary offense without committing third-degree sexual abuse.
First-degree burglary occurs when a person commits a burglary in a
structure where at least one person is present and one of several
circumstances apply during the commission of the burglary including if
“[t]he person intentionally or recklessly inflicts bodily injury on any
person” or the person commits a sexual abuse offense. See Iowa Code
§ 713.3. So, sexual abuse is a sufficient, but not a necessary requirement
for committing first-degree burglary.
The jury instructions offered each of these alternative routes to a
first-degree burglary conviction.3 Therefore, we must determine whether it is possible to ascertain which alternative the jury relied upon for its first-
degree burglary conviction. The jury could rely on the sexual abuse
alternative, for which it convicted Goodson on the separate charge.
36. During the incident: a. The defendant intentionally or recklessly inflicted bodily injury as defined in instruction 30 on [A.T.], or b. The defendant performed or participated in a sex act as defined in instruction 38 with [A.T.] which would constitute sexual abuse as defined in instruction 36. 21
However, it is not clear that the jury found the intentional or reckless
infliction of bodily injury route was also met. The jury convicted Goodson
of domestic abuse assault which allows conviction if the “assault causes
bodily injury or mental illness” and assault does not require an intentional
or reckless element to cause injury. Id. §§ 708.2A(2)(b), 708.1 (describing
three mens rea alternatives for assault). For this reason, the jury could
not have relied on the domestic abuse assault charge to rise to the level
necessary to establish first-degree burglary. We cannot determine for
certain whether the jury found the requisite intent for intentional or
reckless infliction of injury on another, and therefore cannot determine
that the jury rested its first-degree burglary conviction on the intentional
or reckless infliction of injury route rather than the sexual abuse route.
Since it can only be clearly demonstrated that the jury relied on the sexual
abuse route, the elements test is met because third-degree sexual abuse
is a lesser included offense of first-degree burglary.
Since the elements test is met, we move to the second step to
determine whether the legislature intended to double punish for first-
degree burglary and third-degree sexual abuse. Third-degree sexual
abuse, under Iowa Code section 709.4(2), is a class “C” felony, and first- degree burglary, under Iowa Code section 713.3(2), is a class “B” felony.
Relying on West, when a defendant faces potential charges of third-degree
sexual abuse and first-degree burglary, on its face, there would not be a
reason to charge the defendant with the greater offense because an
unenhanced third-degree sexual abuse charge clearly carries a lesser
punishment than a first-degree burglary charge.
However, the sexual abuse statute permits enhancement of
punishment based on repeated violations. Id. § 901A.2(3) (“[A] person
convicted of a sexually predatory offense which is a felony, who has a prior 22
conviction for a sexually predatory offense, shall be sentenced to and shall
serve twice the maximum period of incarceration for the offense, or twenty-
five years, whichever is greater, notwithstanding any other provision of the
Code to the contrary.”). Therefore, there is a possibility that a subsequent
sexual abuse offense could carry a greater punishment, and at a minimum
would carry an equal punishment, to a first-degree burglary crime because
class “B” felonies carry a maximum sentence of twenty-five years.
Compare Iowa Code § 901A.2(3), with id. § 902.9(b). Since an enhanced
sexual abuse conviction would carry the same or greater punishment as a
first-degree burglary conviction, there may “never be a reason to charge a
defendant with the greater offense” when the offender has committed a
prior sexual abuse offense. West, 924 N.W.2d at 511. Meaning the
legislature must have intended double punishment. Further, the language
“notwithstanding any other provision of the Code to the contrary” from the
enhancement statute, along with our past decisions holding that
sentencing enhancements for OWI and possession of marijuana would be
thwarted by merger, make merger in this case similarly inappropriate.
Johnson, 750 N.W.2d at 23–24 (marijuana possession); Rice, 661 N.W.2d
at 552 (OWI). In addition, a lifetime special sentence under Iowa Code section
903B.1 applies to offenders convicted of sexual assault in the third degree
but would not be imposed if that offense is merged into first-degree
burglary. We have said that the lifetime special sentence is additional
punishment. See State v. Lathrop, 781 N.W.2d 288, 295–97 (Iowa 2010).
We think the overall legislative scheme which includes substantive
sexual offenses, sentence enhancements, and lifetime parole would be
upset if the crime of sexual assault in the third degree merged with first-
degree burglary. We therefore hold that the enhancement statute 23
demonstrates a legislative intent to double punish for first-degree burglary
and third-degree sexual abuse and therefore the two offenses do not
merge.
Our approach today is not inconsistent with Anderson. 565 N.W.2d
340. In that case, the question was whether first-degree burglary and
assault with intent to commit sexual abuse resulting in bodily injury
merged. Id. at 343–34. As in this case, we concluded that the Blockburger
elements test had been met. See id.
But we did not have occasion in Anderson to consider a situation
where merger of the crimes would adversely impact the availability of
enhanced sentencing. At the time of Anderson, the crime of first-degree
burglary was potentially subject to sentence enhancement where the crime
had a sexual component. Compare Iowa Code § 901A.1 (1996) (listing first-
degree burglary, amongst other crimes, as a sexually predatory offense
and therefore eligible for sentencing enhancement when the commission
of the crime also involved sexual abuse), with Iowa Code § 901A.1 (2016).
In the Anderson case, then, merger did not negatively impact the
availability of enhanced sentencing for sexual misconduct.
In this case, however, the crime of sexual abuse in the third degree, is subject to sentence enhancement, but first-degree burglary is not
subject to the enhancement. Therefore, unlike in Anderson, merger of
sexual abuse in the third degree with burglary in the first degree will defeat
enhanced sentencing for sexual offenders. Under Johnson and Rice,
merger does not occur when to do so would defeat the legislative policy
behind a statutory enhancement of sentencing. And, we also consider the
lifetime special sentence, a factor not considered in Anderson. Thus,
under the statutes we confront today, we conclude the merger principles 24
of Johnson and Rice, and not the result of Anderson under a different
statutory environment, control this case.
C. Judicial Recusal. Goodson argues that the trial judge, who also
heard Goodson’s posttrial motions, should have recused himself because
he had improper contact with members of the jury prior to the verdict and
because the judge was the prosecutor for Goodson’s 1999 sexual abuse
conviction. The State argues that Goodson did not preserve error.
A recusal claim first raised at a motion for a new trial is too late.
State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). Goodson was convicted
in March 2018 and first filed a motion for new trial in April alleging
impropriety because of the judge’s contact with the jury. Goodson filed a
second motion for a new trial in August alleging impropriety because the
judge prosecuted Goodson in 1999. In the second motion, Goodson
requested a new trial with a different judge presiding. The request for
recusal did not come until the second motion, let alone the first motion,
which in any event a motion for a new trial is too late to first raise a claim
for recusal. Goodson’s claim was not preserved.
Goodson did not raise the issue of judge recusal for the posttrial
motions until appeal. We find this issue was not preserved. D. Illegal Sentence. Goodson argues that the district court
entered an illegal sentence because the sentence specified a duration for
his sex offender registration. He asks that the illegal portion of the
sentence be reversed. The State agrees that the district court’s sentence
is illegal and must be corrected. As a result, we reverse the illegal portion
of Goodson’s sentence.
IV. Conclusion.
For the foregoing reasons, we affirm Goodson’s convictions, reverse
the illegal portions of his sentence, and remand for resentencing. 25
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND
REVERSED IN PART, AND CASE REMANDED FOR RESENTENCING.