State of Iowa v. Charles Raymond Albright , 925 N.W.2d 144 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 17–1286
Filed March 22, 2019
STATE OF IOWA,
Appellee,
vs.
CHARLES RAYMOND ALBRIGHT,
Appellant.
Appeal from the Iowa District Court for Franklin County, Gregg R.
Rosenbladt, Judge.
A defendant appeals his convictions and sentences for willful injury
causing bodily injury and kidnapping in the first degree. JUDGMENT OF
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout and Laura
Roan, Assistant Attorneys General, and Brent Symens, County Attorney,
for appellee.
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WIGGINS, Justice.
A defendant appeals his convictions and sentences for willful injury
causing bodily injury and kidnapping in the first degree. He claims that
there was insufficient evidence to support his kidnapping conviction and
that he was prejudiced when the court instructed the jury on a lessor
included charge of kidnapping in the second degree. He also claims his
trial counsel was ineffective by failing to object to and by introducing
evidence of his other crimes, wrongs, or other acts. Finally, he claims the
district court erred in ordering him to pay restitution without first
considering his reasonable ability to pay.
On appeal, we find that substantial evidence supported his
conviction for first-degree kidnapping and that he was not prejudiced
when the court instructed the jury on a lessor included charge of
kidnapping in the second degree. We also find we cannot reach his
ineffective-assistance-of-counsel claims regarding his counsel’s failure to
object to and introduction of evidence of his other crimes, wrongs, or other
acts on direct appeal. We further find the restitution prescribed in the
sentencing order does not comply with our restitution statutes. Therefore,
we affirm Albright’s convictions for willful injury causing bodily injury and
kidnapping in the first degree. We vacate the restitution part of the
sentencing order and remand the case to the district court to order
restitution in a manner consistent with this opinion.
I. Background Facts.
“Viewing the trial evidence in the light most favorable to the jury’s
guilty verdict[], the jury could have found the following facts.” State v.
Romer, 832 N.W.2d 169, 172–73 (Iowa 2013). The defendant, Charles
Albright, and K.H. dated for over two years, during which time they lived
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together in various locations around Iowa. In October of 2016, Albright
and K.H. lived in a house in Meservey.
Around 1:30 a.m. on October 7, 2016, Albright became paranoid
after using methamphetamine and decided not to go into work that day.
Albright accused K.H. of having men over to their home while he was at
work and said he was going to stay home to keep an eye on K.H. K.H. told
Albright she was not having men over while he was at work. At that point,
Albright became very angry and hit K.H. Albright continued to hit her in
the face with both an open hand and a fist while accusing her of lying and
calling her worthless, good-for-nothing, and other derogatory names.
K.H. tried to get away from Albright. As she went toward the locked
door of their home, Albright grabbed K.H. by the collar of her jacket, threw
her against the wall, and told her she was not leaving the house. Albright
then threw K.H. onto the floor and slammed her head into the ground
twice. Albright continued to hit K.H. as he threw her onto the mattress in
the living room. Albright’s dog, who lived with the couple, began biting
K.H. on the leg and on the hip while Albright continued to batter K.H. on
the mattress.
Albright hit K.H. in her pelvic region multiple times with the
backside of a cordless drill. K.H. tried to block Albright’s blows to her face
and body with her hands and arms. Albright held K.H. down and cut
behind her ear with a knife. He used a Taser to burn K.H.’s wrists. The
assault went on intermittently for hours.
K.H. could not escape because she was scared and Albright was
always watching her. When she tried to leave the home by moving toward
the door, Albright blocked the door and told K.H. to sit back down. K.H.
had to remain within Albright’s eyesight the entire morning, and Albright
never fell asleep.
4
That afternoon, Albright forced K.H. to go with him to the
veterinarian in Sheffield. K.H. did not want to enter Albright’s truck with
him because she was afraid he would kill her. She told Albright she did
not want to go. Albright started getting out of the truck to force her
physically inside, so K.H. entered Albright’s vehicle.
On the way to the veterinarian’s office, Albright continued to hit K.H.
Albright made a phone call to a friend, and K.H. tried to call out “help” to
the friend on the phone. Albright told K.H. he was going to bury her in a
cornfield up to her neck and let a combine cut off her head.
When Albright and K.H. arrived at the veterinarian’s office, K.H.
stayed in the truck while Albright took the dog inside. K.H. did not try to
escape from the truck while Albright was inside the veterinarian’s office
because there was a large window looking out from the office to the parking
lot, and she was afraid Albright would see her escape from the truck.
After the veterinarian appointment, Albright drove to a Casey’s gas
station. While Albright was inside the gas station, K.H. escaped by leaving
Albright’s truck and running across the road to Dollar General. Once
inside, K.H. asked the Dollar General clerk for a telephone and the keys to
the restroom. K.H. called 911 for help from inside the restroom and waited
there until an officer arrived.
The Sheffield Chief of Police arrived at Dollar General at
approximately 3:00 p.m. as the first officer on the scene. K.H. sounded
very scared when he arrived, and she wanted to verify it was the officer
outside the restroom door, not Albright. When K.H. opened the door for
the officer and he first saw her, K.H. was propped up against the bathroom
wall and her eyes were almost completely swollen shut. The chief called
an ambulance and asked an EMT who was shopping at Dollar General to
evaluate K.H. before the ambulance arrived.
5
As a result of Albright’s beating, K.H. suffered two nose fractures;
bruising and swelling of her arms, legs, and face; head and wrist pain;
dizziness; and vision problems. Albright also broke K.H.’s dentures when
he repeatedly hit her in the face.
II. Proceedings.
On October 10, the court issued a warrant for Albright’s arrest. On
October 18, officers executed a search warrant for Albright’s home in
Meservey. Officers found a cordless drill sitting upside down on a chair
near the mattress in the living room.
Officers located and arrested Albright on October 19 at a home in
Mason City. The State charged Albright with willful injury resulting in
serious injury, a class “C” felony, in violation of Iowa Code section 708.4(1)
(2016), and kidnapping in the first degree, a class “A” felony, in violation
of Iowa Code sections 710.1 and 710.2.
At trial, the State entered evidence that Albright had been abusive
and controlling of K.H. and that she had tried to leave him in the past.
Defense counsel did not object to the testimony and asked questions of
K.H. that resulted in further prior bad acts evidence. The State and
defense counsel also introduced evidence of Albright’s prior convictions
and jail time. Defense counsel did not request a limiting instruction on
the prior bad acts or prior convictions evidence, and the district court did
not give a limiting instruction to the jury.
The jury found Albright guilty of willful injury causing bodily injury
and kidnapping in the first degree. The district court entered judgment,
ordering Albright to serve a term not to exceed five years for the willful
injury conviction and life in prison for the kidnapping conviction. The
district court ordered Albright to pay a $750 fine, 35% surcharge, and
“court costs in the amount assessed by the Clerk” for the willful injury
6
conviction. The district court also ordered Albright to pay court costs for
the kidnapping conviction. Regarding his reasonable ability to pay, the
district court’s order said,
Pursuant to Iowa Code section 910.2, Defendant is found to
have the reasonable ability to pay the obligations set forth
herein, including but not limited to any crime victim
assistance reimbursement, restitution to public agencies, and
court costs including correctional fees, court-appointed
attorney fees, contribution to a local anticrime organization,
or restitution to the medical assistance program.
Albright appealed his convictions and sentences.
III. Issues.
Albright raises four issues on appeal. First, whether the State
presented sufficient evidence to support his conviction of first-degree
kidnapping. Second, whether the district court erred in submitting
kidnapping in the second degree as a lesser included offense of kidnapping
in the first degree. Third, whether counsel was ineffective by failing to
object to and by introducing evidence of Albright’s other crimes, wrongs,
or other acts. Fourth, whether the district court was wrong in ordering
Albright to pay restitution without first considering his reasonable ability
to pay.
IV. Whether the State Presented Sufficient Evidence to Support
Albright’s Conviction of First-Degree Kidnapping.
Albright argues the State did not present sufficient evidence to prove
two of the elements of first-degree kidnapping: (1) confinement and/or
removal and (2) torture.
A. Standard of Review. We review challenges to the sufficiency of
evidence for correction of errors at law. State v. Copenhaver, 844 N.W.2d
442, 449 (Iowa 2014). We review all of the evidence presented at trial and
consider it in the light most favorable to the State. Id. When the evidence
7
could convince a rational trier of fact that the defendant is guilty beyond
a reasonable doubt, the verdict is supported by substantial evidence. State
v. Bower, 725 N.W.2d 435, 444 (Iowa 2006).
B. Whether Albright Preserved Error on the Issue. The State
contends Albright did not preserve error on this issue. Albright argues he
preserved error by moving for a judgment of acquittal.
Counsel does not preserve error on a sufficiency-of-evidence issue
when counsel makes a general motion for judgment of acquittal but fails
to identify specific elements of the charge not supported by the evidence.
See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (en banc). The
exception to this error preservation rule is when “grounds for a motion
were obvious and understood by the trial court and counsel.” State v.
Williams, 695 N.W.2d 23, 27 (Iowa 2005). In Williams, we held the element
to which counsel referred in his motion for acquittal was “obvious and
understood” by the trial court and opposing counsel when the crime
required the prosecution to prove only two elements and the parties
stipulated the second element was present. Id. at 28.
Here, at the close of the State’s evidence, defense counsel asserted,
I do have one motion, Judge. Comes now, Mr. Albright,
through counsel, and moves to dismiss this matter and hold
it in arrest of judgment for the reason that all of the evidence
that’s been presented, even when it’s viewed in the best light
for the State, could not allow these people to form or find—
engender a jury question.
Again, at the close of all evidence, defense counsel renewed his motion,
stating,
Comes now, the defendant, again through counsel, and moves
for a directed verdict of acquittal on the grounds that all of the
evidence, even in the best light for the State, would not
engender a jury question.
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In his motions, defense counsel did not identify the specific elements
of the charge of kidnapping in the first degree for which sufficient evidence
was lacking. Defense counsel’s motions do not fall under the “obvious and
understood” exception either.
The State was required to prove four elements in this case to prove
kidnapping in the first degree. It was also required to prove three elements
to prove willful injury causing bodily injury. When defense counsel failed
to mention any of the elements in his motions for acquittal, neither the
trial court nor counsel could be certain as to which element or elements
defense counsel was arguing sufficient evidence did not support. Cf.
Williams, 695 N.W.2d at 28. The present case is unlike Williams, where
the parties stipulated to one of the two elements needed to prove domestic
abuse assault. See id. Thus, in Williams it was clear which element was
the fighting issue of the case. See id. Here, Albright did not stipulate to
any of the elements of kidnapping in the first degree. The court could not
know what element or elements Albright’s counsel was referring to in his
motions. Therefore, the Williams exception does not apply.
Our conclusion is supported by the prosecutor’s statement following
defense counsel’s second motion for acquittal where she said, “[T]he State
resists and believes that the evidence, even at the close of the record,
creates a genuine issue of material fact upon which a jury could render
verdicts on Count I and/or Count II.” This indicates it was not “obvious
and understood” by opposing counsel which elements of the kidnapping
charge defense counsel was referring to in his motion. The State did not
know whether defense counsel was referring to the kidnapping charge or
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the willful injury charge, let alone which particular elements of the
charge. 1
Moreover, the court too, in its initial analysis deciding whether to
grant defense counsel’s first motion for acquittal, went through all of the
elements of both the kidnapping and willful injury charges. Thus, it was
not “obvious and understood” by the court that defense counsel’s motion
referred to any particular elements of kidnapping.
Accordingly, we find Albright did not preserve error on his
sufficiency-of-evidence claim.
C. Whether Counsel Was Ineffective for Failing to Preserve
Error on the Issue of the Sufficiency of the Evidence of Kidnapping
in the First Degree. Albright argues in the alternative that if he did not
preserve error, counsel was ineffective for failing to preserve error. We
review claims of ineffective assistance of counsel de novo because such
claims have their basis in the Sixth Amendment to the United States
Constitution. State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). To prevail
on a claim of ineffective assistance, the claimant must show both that
counsel failed to perform an essential duty and that prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);
accord State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
For the first prong—counsel failed to perform an essential duty—the
claimant must show counsel made errors so serious that counsel was not
functioning as the counsel guaranteed by the Sixth Amendment. Canal,
773 N.W.2d at 532. We measure counsel’s performance against the
1It later became clear that defense counsel was referring to the kidnapping charge
only, not the willful injury charge, when he gave his closing argument, saying, “And he
knows he committed willful injury. And we think he’s guilty of willful injury.” However,
which of the elements of kidnapping defense counsel believed the evidence was
insufficient for remained unclear.
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standard of a reasonably competent practitioner, and we begin with the
presumption that counsel performed his or her duties competently. State
v. Clay, 824 N.W.2d 488, 495 (Iowa 2012). We objectively consider
whether counsel’s performance was reasonable under prevailing
professional norms in light of all of the circumstances. State v. Lyman,
776 N.W.2d 865, 878 (Iowa 2010), overruled on other grounds by Alcala v.
Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). In making this
determination, we avoid second-guessing or making hindsight
evaluations. Maxwell, 743 N.W.2d at 196.
For the second prong—prejudice—the claimant must prove there is
a reasonable probability that the outcome of the proceeding would have
been different but for counsel’s unprofessional errors. Canal, 773 N.W.2d
at 532. The claimant need not show that it is more likely than not the
proceeding would have been different, but only that the probability of a
different result is “sufficient to undermine confidence in the outcome.”
Bowman v. State, 710 N.W.2d 200, 206 (Iowa 2006) (quoting State v.
Graves, 668 N.W.2d 860, 882 (Iowa 2003)). To make this determination,
we consider what factual findings counsel’s errors affected and whether
the effect was pervasive or isolated and trivial. Id. at 882–83.
Albright argues his counsel was ineffective by failing to make a
specific motion for judgment of acquittal based on insufficient evidence to
prove the charge of kidnapping. Specifically, he argues the prosecutor did
not prove the elements of “confinement and/or removal” and “intentionally
subjected to torture” by sufficient evidence.
An ineffective-assistance-of-counsel claim founded on counsel’s
failure to raise a claim of insufficient evidence to support a conviction is a
claim a defendant can raise on direct appeal. State v. Truesdell, 679
N.W.2d 611, 616 (Iowa 2004), superseded by statutory amendment on
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other grounds, 2004 Iowa Acts ch. 1057, § 1 (codified at Iowa Code
§ 124.401(4) (2005)), as recognized in State v. Milom, 744 N.W.2d 117,
121–22 (Iowa 2007). If the record does not reveal substantial evidence to
support the convictions, counsel was ineffective for failing to raise the
issue. Id. If, however, the record contains sufficient evidence, counsel’s
failure to raise the claim was not prejudicial and the claimant’s ineffective-
assistance-of-counsel claim fails. Id.
1. Sufficiency of evidence for element of confinement and/or removal.
To prove Albright committed first-degree kidnapping, the State was
required to prove Albright confined K.H. or removed her from one place to
another. See Iowa Code § 710.1 (2016). The court instructed the jury on
confinement or removal as follows:
For purposes of these instructions, a person is
“confined” when her freedom to move about is substantially
restricted by force, threat, or deception. The person may be
confined either in the place where the restriction began or in
a place to which she has been removed. No minimum time of
confinement or distance of removal is required, but it must be
more than slight. The confinement or removal must have
significance apart from any other crime committed against the
person and must substantially increase the risk of harm to
the person, significantly reduce the risk to Defendant of
detection, or significantly ease the escape of Defendant.
In State v. Rich, we adopted the incidental rule for kidnapping
offenses. 305 N.W.2d 739, 745 (Iowa 1981). The incidental rule
establishes that confinement or removal as used in the kidnapping statute
requires more than confinement or removal that is an inherent incident of
the commission of another crime. Id. “The rationale for this conclusion is
that we do not believe the legislature intended to afford the prosecution a
choice of two penalties of such a disparate nature for the typical crime of
sexual abuse.” Id.12
The outcome from Rich has been our application of a three-prong
test to determine whether confinement or removal can support a
conviction of kidnapping. See, e.g., State v. Robinson, 859 N.W.2d 464,
478–79 (Iowa 2015). The test is essentially contained in the instructions
the court gave to the jury in this case. The three prongs include
confinement or removal that (1) “substantially increases the risk of harm
to the victim,” (2) “significantly lessens the risk of detection,” or
(3) “significantly facilitates escape of the perpetrator.” Rich, 305 N.W.2d
at 745–46. One prong must be present to support a kidnapping conviction
alongside the underlying crime. See Robinson, 859 N.W.2d at 478.
The State first argues the incidental rule does not apply in cases
alleging torture because torture is not a separate underlying offense.
However, this court has applied the incidental rule and three-prong
analysis when considering torture as the offense on which the State has
based a kidnapping charge. See State v. Siemer, 454 N.W.2d 857, 864
(Iowa 1990).
In Siemer, a man handcuffed his girlfriend’s seven-year-old child to
a bed in the basement furnace room of their home and subjected the child
to horrendous torture. Id. at 858–59. We upheld the kidnapping
conviction in that case, reasoning Siemer’s movement and confinement of
the child to the basement room “substantially increased the risk of harm
to the child and significantly lessened the risk that Siemer’s infliction of
chronic abuse would be detected.” Id. at 864. We further held the record
contained substantial evidence to support a finding the confinement in
that case exceeded confinement normally incidental to the underlying
crime of child abuse. Id. at 864–65.
While torture alone may not be a codified offense, we have defined
torture under section 710.2, kidnapping in the first degree, as subjecting
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a person to “physical and/or mental anguish.” State v. White, 668 N.W.2d
850, 857 (Iowa 2003). Torture therefore appears to encompass any
codified acts that would cause physical and/or mental anguish, such as
child abuse, assault with a deadly weapon, or intentional infliction of
bodily injury. See Siemer, 454 N.W.2d at 864–65; White, 668 N.W.2d at
857; State v. Cross, 308 N.W.2d 25, 27 (Iowa 1981). It would not make
sense to require more than incidental confinement or movement to
establish first-degree kidnapping when the underlying crime is robbery or
sexual assault but allow the movement or confinement to be incidental for
other underlying crimes, such as child abuse.
The State attempts to equate this case to “the classic kidnapping
case in which an individual is abducted for the express purpose of holding
the person for ransom or as a hostage,” as discussed in State v. Misner,
410 N.W.2d 216, 223 (Iowa 1987). The Misner court said that in such
cases, the incidental rule does not apply. Id. at 223–24. We disagree with
the State that this case falls under the “classic kidnapping” realm of cases.
In this case, Albright prevented K.H. from leaving her own home with
physical violence and threats of force. He beat and abused K.H. Unlike
the classic kidnapping cases described in Misner, id. at 223, Albright
neither abducted K.H. to hold her as ransom or hostage, nor refrained
from committing other crimes against her. When a victim is tortured, he
or she has suffered some physical or mental anguish beyond abduction.
Therefore, we decline to adopt the State’s argument that the incidental rule
does not apply when a kidnapping charge involves torture.
The question then is whether there is sufficient evidence of Albright’s
confinement of K.H. in the house by use of physical force or threat, or
Albright’s moving of K.H. from the house to the veterinarian clinic and gas
station for a jury to find Albright guilty of kidnapping. Since our adoption
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of the three-prong Rich analysis, we have overturned kidnapping
convictions based on insufficient evidence to prove the element of
confinement or removal in only a few cases. See Robinson, 859 N.W.2d at
482; State v. Mead, 318 N.W.2d 440, 445 (Iowa 1982); State v. Marr, 316
N.W.2d 176, 180 (Iowa 1982).
In Marr, the defendant began following the victim while she was
walking home from a drug store at ten in the evening. Marr, 316 N.W.2d
at 177. The defendant ran up behind the victim while she was on the
sidewalk directly in front of her apartment, she screamed, and he placed
his hand over her mouth threatening her not to scream again. Id. The
defendant slammed the victim against the corner of the building; shoved
her to the ground; and forced her around the side of the building into a
gangway separating the apartment building from a neighboring house,
about ten to fifteen feet from where he had attacked her. Id. at 177–78.
The defendant pinned one of the victim’s arms behind her back, choked
her, lifted her shirt and pulled down her pants, and sexually abused the
victim for two or three minutes until the victim’s husband stopped the
attack. Id. at 178.
There, we held the facts did not warrant the conviction of kidnapping
because the confinement or removal of the victim did not exceed that
normally incidental to the commission of sexual abuse. Id. at 180. We
reasoned that holding otherwise would turn every rape, robbery, or “other
assault involving some minimal degree of confinement or removal” into a
kidnapping. Id. at 179. We held the means by which the defendant gained
control of the victim and the duration of that control distinguished Marr
from prior cases where we affirmed kidnapping convictions. Id. at 179; cf.
State v. Knupp, 310 N.W.2d 179, 182–83 (Iowa 1981) (upholding a
conviction where the defendant pulled the victim into his vehicle, drove
15
her to a parking lot under an overpass bridge, and proceeded to forcefully
rape her); Rich, 305 N.W.2d at 745–46 (upholding a conviction where the
defendant removed the victim from an open mall walkway, bound her
hands behind her back, placed her in a wheel barrow and covered her with
trash, screamed at her to remain silent, and took her to a mall restroom
to sexually assault her).
In Mead, the defendant waited on the porch of the victims’ home
until they arrived, began talking to them about the neighborhood, and
then followed them into their home uninvited when they opened the door.
Mead, 318 N.W.2d at 441–42. The defendant then held a knife to the neck
of one of the victims and said, “This woman is dead.” Id. at 442. The
victim freed herself and ran out of the house for help as the defendant
struck the second victim in the face, kicked the second victim on the
ground, and ripped the second victim’s purse away from her. Id. The
defendant ran out of the back of the home with the victim’s purse. Id.There, the State argued the defendant had committed kidnapping
by confining the victim when he grabbed her around the neck. Id. at 443.
We drew a distinction between a seizure and confinement and held the
facts did not warrant the conviction of kidnapping because the defendant
only seized the victim. Id. at 445.
More recently, in Robinson, we reversed a kidnapping conviction,
finding the facts did not show confinement or removal beyond that
normally associated with sexual assault. Robinson, 859 N.W.2d at 481–
82. In that case, the victim returned to the defendant’s apartment with
him willingly after the two met at a bar. Id. at 466. When the victim took
out her phone to make a call, the defendant grabbed the phone and threw
it out of the victim’s reach. Id. When the defendant went to use the
restroom, the victim grabbed her purse and left the apartment. Id. The
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victim realized she had left her phone in the apartment and went back to
retrieve it. Id. When she reentered the apartment, the defendant shut and
locked the door behind her, grabbed her by the neck, covered her mouth,
and dragged her down the hall to the bedroom. Id. The defendant locked
the bedroom door, threw the victim on the bed, and sexually assaulted
her. Id. The assault ended when a neighbor, who heard screams, called
the police and the police arrived, kicking down the door. Id.
In Robinson, we reasoned that the defendant’s actions of tossing the
cell phone, locking the doors, covering the victim’s mouth, and moving the
victim from the living room to the bedroom within the apartment, did not
warrant a conviction of kidnapping. Id. at 481. We said, “While there
might be some marginal increase in the risk of harm, lessening of
dete[c]tion, or facilitation of escape, we conclude it is not sufficient to
trigger dramatically increased sanctions under our kidnapping statute in
this case.” Id. at 482. We further reasoned that to be punishable for
kidnapping, the removal or confinement must add substantially to the
heinousness of the underlying crime. Id.
In the present case, the State presented evidence that Albright
prevented K.H. from leaving their house in Meservey for over thirteen
hours. Albright began assaulting K.H. at approximately 1:30 a.m. When
K.H. tried to leave the house, Albright stopped her by blocking the door
and shoving her against the wall and telling her to get back inside the
house. Even if K.H. had managed to escape, she had no cell phone and
nowhere to go because she had no vehicle. Albright hit K.H. in the face,
threw her onto the floor and slammed her head into the floor, hit K.H. in
the pelvis with a cordless drill, used a knife to cut behind K.H.’s ear, used
a Taser on K.H.’s wrists, and allowed his dog to bite K.H.’s body. The
beatings continued for hours.
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This case is unlike the above three cases where we reversed the
kidnapping convictions in that the duration of confinement here was
substantially longer. The defendants in Marr, Mead, and Robinson
confined their victims for a matter of a few minutes to an hour. Here,
Albright confined K.H. for over thirteen hours. This was not a “minimal
degree of confinement.” Marr, 316 N.W.2d at 179 (discussing that many
crimes involve some minimal degree of confinement).
Our kidnapping cases have generally held that the increased-risk-
of-harm prong of the Rich test is satisfied when the duration of
confinement substantially exceeded the underlying crime. See, e.g., State
v. Griffin, 564 N.W.2d 370, 373 (Iowa 1997) (noting the defendant had the
victim remove her clothing so that she would not leave the hotel room and
she remained there the entire night after the assault); State v. McGrew,
515 N.W.2d 36, 40 (Iowa 1994) (noting the victim did not escape from the
defendant for more than four hours after he broke into her home and a
considerable amount of time after the sexual assault ended).
This case is similar to Griffin, where a jury convicted a husband of
kidnapping his wife. See Griffin, 564 N.W.2d at 372. In that case, the
defendant and his wife, the victim, were staying in a motel room together.
Id. The defendant ordered the victim to undress so she would not leave
the room, then held her down on the bed, choked her, and accused her of
being unfaithful. Id. The defendant repeatedly hit the victim on her head
and body with a bottle and sexually assaulted her with the bottle. Id. She
eventually lost consciousness, and the defendant continued to sexually
abuse her. Id.The victim did not regain consciousness until 1:30 p.m. the day
following the assault, approximately sixteen hours after she had arrived at
the motel. Id. When the victim regained consciousness, her sister, who
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was also staying at the motel, came to the room while the defendant was
gone, and the victim asked her sister to call the police. Id. The defendant
in that case, like Albright, was convicted of willful injury and kidnapping,
and he challenged the evidence supporting his kidnapping conviction. Id.We upheld Griffin’s conviction, finding his confinement of his victim in the
motel room lowered the chances of detection of the sexual assault. Id. at
373.
Like the defendant in Griffin, Albright confined K.H. for an extensive
period—a period longer than it would normally take to commit an
underlying offense of assault. See id. at 373. While the defendant in
Griffin had his victim remove her clothing to prevent her from leaving,
Albright prevented K.H. from leaving the house by blocking her exit and
physically stopping her. See id. In Griffin, we said that even though the
victim voluntarily entered the motel room, the confinement before and
after the assault took the confinement beyond that incidental to sexual
assault. Id.Here, Albright confined K.H. all through the night and the following
morning, with periods of assault occurring throughout. Even though
Albright rested on the bed for some time, we still find that K.H. was
confined. See McGrew, 515 N.W.2d at 39–40. In McGrew, the defendant
fell asleep on the bed after sexually assaulting the victim, and the victim
stayed next to him on the bed for hours, too scared to move until she finally
had the courage to escape when she was sure he was sleeping. Id. at 38.
Similarly, K.H. was too scared to try to escape because, when she would
move away from Albright as he rested, he would wake.
Albright’s confinement of K.H. substantially increased the risk of
harm to K.H. If Albright had not confined K.H. to the house, she would
have been free to leave and further injury would have been prevented.
19
Albright did not give her that opportunity. Moreover, the secluded nature
of the home significantly decreased the likelihood of detection. See id. at
40 (“Choosing the seclusion of his victim’s own bedroom as the situs of the
offense lessened the risk of detection for McGrew. However, that seclusion
also increased the risk of harm to Horning because McGrew, with his
victim secluded, was free to deal with her as he wished.”).
Therefore, we find substantial evidence exists to support the jury’s
finding that Albright confined K.H. in their Meservey home. Accordingly,
Albright’s counsel was not ineffective for failing to raise whether
substantial evidence existed on the issue of confinement at trial. Because
we find substantial evidence exists as to confinement, we need not analyze
the argument that the movement of K.H. from the house to the veterinarian
clinic or gas station would satisfy this element.
2. Sufficiency of evidence for element of torture. To prove first-degree
kidnapping, the State was required to show intentional infliction of severe
physical or mental pain. Cross, 308 N.W.2d at 26–27. We have analyzed
torture as an element of kidnapping in several cases before. See State v.
Schertz, 328 N.W.2d 320, 321–22 (Iowa 1982); Cross, 308 N.W.2d at 26–
27.
In Cross, we found the element of torture was satisfied for first-
degree kidnapping when the defendant removed the victim’s clothing,
struck the victim several times, touched and bit her breasts, chained her
hands, exposed himself to her, sexually assaulted her with his hands, and
carried her in his car trunk for miles while she was nude and unconscious.
308 N.W.2d at 27. The torture lasted twelve hours, during which the
defendant constantly threatened to kill the victim and inflict sexual
abuses. Id.20
In Schertz, we found torture when the defendant and the other
abductors tied the victim to a park tree and severely beat him. Schertz,
328 N.W.2d at 321–22. The victim was bound to a tree with his belt,
gagged with strips of his shirt, kicked, and struck in the head numerous
times. Id. We noted that as a result of the beating, the victim had multiple
lacerations on his scalp, a fractured rib, bruising of the right chest wall,
and other bruises and abrasions. Id. at 322.
In the present case, the State presented evidence through testimony
and photographs of K.H.’s injuries that K.H. experienced severe physical
pain. Albright beat K.H. intermittently for thirteen hours, causing
numerous physical injuries. Albright punched and hit K.H. in the face
with his hands; hit her in the pelvis with a cordless drill; cut behind K.H.’s
ear with a knife; burnt her wrists with a Taser; broke her dentures; and
allowed his dog to latch onto her leg, resulting in puncture wounds from
the multiple bites. In addition, Albright threatened K.H., telling her he
would bury her in a cornfield up to her head and let a combine cut her
head off, and he repeatedly called her a whore and other derogatory names.
The officer who arrived at Dollar General when K.H. called the police
testified that K.H.’s eyes were almost completely swollen shut, her face was
swollen, and it appeared to him that K.H.’s cheeks and nose were probably
broken. The EMT at the scene testified that dried blood was coming from
K.H.’s ear and dried blood covered her lips. The EMT further testified
K.H.’s forearms and hands were swollen and bruised. The officer and the
EMT both testified that K.H. sounded and appeared scared.
K.H.’s severe physical injuries are evident from the photo exhibits
and the testimony of the officer, EMT, and K.H. herself. Like the victim in
Schertz, K.H. was severely beaten. See Schertz, 328 N.W.2d at 321–22.
However, Albright beat K.H. much longer than the defendant beat the
21
victim in Schertz. See id. Like the defendant in Cross, who confined his
victim for twelve hours of torture, Albright confined K.H. to the house and
then to his car for around thirteen hours and subjected K.H. to a multitude
of different physical pains. See Cross, 308 N.W.2d at 27.
Therefore, we find substantial evidence exists to support a finding
that Albright tortured K.H. Accordingly, Albright’s counsel was not
ineffective for failing to raise whether substantial evidence existed on the
issue of torture at trial.
V. Whether the District Court Erred in Submitting Kidnapping
in the Second Degree as a Lesser Included Offense of Kidnapping in
the First Degree.
Albright argues the district court erred in instructing the jury on
kidnapping in the second degree as a lesser included offense of kidnapping
in the first degree. The State argues because no prejudice resulted from
this instruction, his argument must fail. We agree.
We review challenges to jury instructions for correction of errors at
law. State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010). In doing so, we
determine whether the challenged instruction accurately states the law
and whether substantial evidence supports it. State v. Predka, 555 N.W.2d
202, 204 (Iowa 1996). We are not required to reverse unless the error was
prejudicial to the defendant. State v. Spates, 779 N.W.2d 770, 775 (Iowa
2010).
When a jury convicts a defendant of a greater offense, no prejudice
results from the jury considering his guilt of a lesser offense. State v.
Douglas, 485 N.W.2d 619, 623 (Iowa 1992). Here, the jury convicted
Albright of kidnapping in the first degree. Therefore, the court’s
instruction to consider kidnapping in the second degree did not prejudice
Albright.
22
VI. Whether Counsel Was Ineffective by Failing to Object to and
by Introducing Evidence of Albright’s Other Crimes, Wrongs, or Other
Acts.
Albright argues he suffered prejudice by his counsel’s failure to
object to the prosecution’s introduction of and his counsel’s own
introduction of his prior bad acts. To be ineffective, we require a showing
of “more than mere ‘[i]mprovident trial strategy, miscalculated tactics,
mistake, carelessness or inexperience’ ” to find counsel failed to perform
an essential duty. State v. Cromer, 765 N.W.2d 1, 8 (Iowa 2009) (alteration
in original) (quoting Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972)).
Here, Albright claims defense counsel not only failed to object to evidence
of Albright’s other crimes, wrongs, or other acts, but affirmatively
introduced evidence of Albright’s other crimes, wrongs, or other acts. This
leads us to believe that defense counsel’s trial strategy may have included
the admissibility of these matters.
We cannot tell from the record what was going through defense
counsel’s mind when he allowed such matters into evidence without
objection and then introduced similar matters into evidence. Under these
circumstances, “[w]e prefer to reserve such questions for postconviction
proceedings so the defendant’s trial counsel can defend against the
charge.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). Accordingly, we
will not reach these issues on direct appeal. Of course, Albright can raise
them in a postconviction-relief action if he so desires.
VII. Whether the District Court Erred in Ordering Albright to
Pay Restitution Without First Considering His Reasonable Ability to
Pay.
We review restitution orders for correction of errors at law. State v.
Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). “[W]e determine whether the
court’s findings lack substantial evidentiary support, or whether the court
23
has not properly applied the law.” Id. (quoting State v. Bonstetter, 637
N.W.2d 161, 165 (Iowa 2001)).
A. Relevant Statutory Provisions. Prior to addressing the
restitution issue, it is important to review the statutory scheme of our
restitution statutes contained in chapter 910. The Code defines restitution
as the “payment of pecuniary damages to a victim in an amount and in
the manner provided by the offender’s plan of restitution.” Iowa Code
§ 910.1(4). The Code defines pecuniary damages as
all damages to the extent not paid by an insurer on an
insurance claim by the victim, which a victim could recover
against the offender in a civil action arising out of the same
facts or event, except punitive damages and damages for pain,
suffering, mental anguish, and loss of consortium. Without
limitation, “pecuniary damages” includes damages for
wrongful death and expenses incurred for psychiatric or
psychological services or counseling or other counseling for
the victim which became necessary as a direct result of the
criminal activity.
Id. § 910.1(3).
The Code also includes the following as items of restitution:
fines, penalties, and surcharges, the contribution of funds to
a local anticrime organization which provided assistance to
law enforcement in an offender’s case, the payment of crime
victim compensation program reimbursements, payment of
restitution to public agencies pursuant to section 321J.2,
subsection 13, paragraph “b”, court costs including
correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9,
including the expense of a public defender, and the
performance of a public service by an offender in an amount
set by the court when the offender cannot reasonably pay all
or part of the court costs including correctional fees approved
pursuant to section 356.7, or court-appointed attorney fees
ordered pursuant to section 815.9, including the expense of a
public defender, and payment to the medical assistance
program pursuant to chapter 249A for expenditures paid on
behalf of the victim resulting from the offender’s criminal
24
activities including investigative costs incurred by the
Medicaid fraud control unit pursuant to section 249A.50.
Id. § 910.1(4).
After the Code lists what items are included as restitution, the Code
then instructs the court on how it should order restitution. Id. § 910.2(1).
It creates two categories of restitution. See id. The items in the first
category are restitution “to the victims of the offender’s criminal activities
[and] to the clerk of court for fines, penalties, [and] surcharges.” Id. The
court is required to order restitution for the items in this first category
regardless of the offender’s reasonable ability to pay. Id.
The items of restitution in the second category are
for crime victim assistance reimbursement, restitution to
public agencies pursuant to section 321J.2, subsection 13,
paragraph “b”, court costs including correctional fees
approved pursuant to section 356.7, court-appointed attorney
fees ordered pursuant to section 815.9, including the expense
of a public defender, when applicable, contribution to a local
anticrime organization, or restitution to the medical
assistance program pursuant to chapter 249A.
Id. The court can only order restitution for items in this second category
to the extent the offender has the reasonable ability to pay. Id. If the court
finds an offender is not reasonably able to pay all or a part of the items in
the second category, the court may order community service in lieu of
restitution under the terms and conditions set forth in the Code. Id.
§ 910.2(2).
The Code also instructs the court on how it is to obtain the amount
of each item of restitution listed in section 910.2(1). Id. § 910.3. The
county attorney is to
prepare a statement of pecuniary damages to victims of the
defendant and, if applicable, any award by the crime victim
compensation program and expenses incurred by public
agencies pursuant to section 321J.2, subsection 13,
paragraph “b”, and shall provide the statement to the
25
presentence investigator or submit the statement to the court
at the time of sentencing.
Id.
The clerk of court is required to
prepare a statement of court-appointed attorney fees ordered
pursuant to section 815.9, including the expense of a public
defender, and court costs including correctional fees claimed
by a sheriff or municipality pursuant to section 356.7, which
shall be provided to the presentence investigator or submitted
to the court at the time of sentencing.
Id. If the county attorney or the clerk of court provides these items of
restitution to the presentence investigator, these items shall be included
in the presentence report. Id. If the amount of pecuniary damages is “not
available at the time of sentencing, the county attorney shall provide a
statement of pecuniary damages incurred up to that time to the clerk of
court.” Id. The Code requires the county attorney to provide this
statement to the clerk of court no later than thirty days after sentencing.
Id.
At the time of sentencing, the court is required to set out the amount
of restitution, including the amount of public service the offender must
perform as restitution and the persons to whom the offender must pay.
Id. The Code recognizes that the full amount of restitution may not be
available at the time of sentencing. Id. If the court cannot determine the
full amount of restitution at the time of sentencing, “the court shall issue
a temporary order determining a reasonable amount for restitution
identified up to that time.” Id.
If the court enters a temporary order, the court shall issue a
permanent or supplemental order setting the full amount of restitution.
Id. If necessary, the court shall enter further supplemental orders. Id.
The temporary, permanent, and supplemental orders are the plan of
26
restitution of the court. Id. The plan of restitution is part of the sentencing
process of the offender. State v. Harrison, 351 N.W.2d 526, 528 (Iowa
1984). After the plan of restitution is ordered, “the next step is establishing
a plan of payment.” Id.While an offender is incarcerated, the director of the Iowa
Department of Corrections shall prepare a plan of payment in accordance
with the department’s administrative rules. Iowa Code § 910.5(1)(d), (5);
see also Iowa Admin. Code r. 201—20.11 (administrative rules governing
plans of restitution while offender is incarcerated). The director of the Iowa
Department of Corrections must determine the plan of restitution as a
condition of work release or parole. Iowa Code § 910.5(2), (3), (4).
If the offender is on probation, the office or individual charged with
supervising the offender while on probation reviews the plan of restitution
and submits a plan of payment to the sentencing court. Id. § 910.4(2)(a).
All of these determinations may be subject to review by the court if the
offender or the office or individual who prepared the offender’s restitution
plan petitions the court. Id. § 910.7(1). The office or individual preparing
the plan of payment is required to forward the plan to the clerk of court in
the county in which the offender was sentenced. Id. § 910.6. If an offender
files a petition within thirty days from the entry of the plan of payment, we
consider the petition under section 910.7(1) an extension of the criminal
matter allowing for appointment of counsel. State v. Jose, 636 N.W.2d 38,
47 (Iowa 2001).
B. Application of Relevant Statutory Provisions Generally. The
first order of business by the district court is to determine the plan of
restitution. In an ideal world, all amounts of restitution would be before
the court at the time of sentencing. By this decision, we are urging the
sentencing court to take whatever steps necessary to ensure the items of
27
restitution are before the court at the time of sentencing. If not all of the
items of restitution are available at the time of sentencing, the Code allows
the sentencing court to file temporary, supplemental, and permanent
orders prior to the final plan of restitution. Iowa Code § 910.3. This
constellation of orders is the plan of restitution under the Code. Id.A plan of restitution is not complete until the court issues the final
restitution order. State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999).
Until the court issues the final restitution order, the court is not required
to consider the offender’s reasonable ability to pay. Id. Restitution orders
entered by the court prior to the final order are not appealable as final
orders or enforceable against the offender. The reason for these orders
being nonappealable or enforceable is that the final order of restitution
must take into account the offender’s reasonable ability to pay. Iowa Code
§ 910.3.
Once the court has all of the items of restitution before it, it must
determine a final amount of restitution and/or community service in its
final order. To do this the court must determine restitution for the victim
and court fines, penalties, and surcharges payable to the clerk of court.
The court is required to assess these amounts against the offender
regardless of the offender’s reasonable ability to pay. Id.The court can only assess the remaining items of restitution against
the offender in an amount commensurate with the offender’s reasonable
ability to pay. Id. We discussed the meaning of reasonable ability to pay
in a case discussing the predecessor to section 910.3. 2 See State v.
Haines, 360 N.W.2d 791, 793–94 (Iowa 1985). The inclusion of the
reasonable-ability-to-pay requirement makes these restitution provisions
2The statute in question was Iowa Code section 910.2 (Supp. 1983).
28
constitutional. Id. In Haines, we relied on a United States Supreme Court
decision discussing an Oregon restitution statute. Id. at 794. The
Supreme Court said several times that a defendant has the reasonable
ability to pay when he or she can do so “without hardship.” Fuller v.
Oregon, 417 U.S. 40, 53–54, 94 S. Ct. 2116, 2124–25 (1974).
We also articulated an undue hardship standard as “inherent in
Iowa’s traditional administration of probation considerations.” State v.
Rogers, 251 N.W.2d 239, 245 (Iowa 1977) (en banc). In Rogers, we said a
court should not order payment of restitution unless the convicted person
“is or will be able to pay it without undue hardship to himself or
dependents, considering the financial resources of the defendant and the
nature of the burden payment will impose.” Id.Other states have adopted similar standards regarding reasonable
ability to pay. Massachusetts has also adopted the financial hardship
standard. See Commonwealth v. Henry, 55 N.E.3d 943, 953–54 (Mass.
2016). In Henry, the Massachusetts high court clarified the legal standard
in the state for determining a defendant’s reasonable ability to pay
restitution. See id. It held,
[T]he judge must consider the financial resources of the
defendant, including income and net assets, and the
defendant’s financial obligations, including the amount
necessary to meet minimum basic human needs such as food,
shelter, and clothing for the defendant and his or her
dependents.
Id. at 953. “Restitution payments that would deprive the defendant or his
or her dependents of minimum basic human needs would cause
substantial financial hardship.” Id. at 954.
The Michigan courts have similarly held the standard of whether a
defendant has the reasonable ability to pay is whether he or she can do so
without “substantial hardship.” See People v. Jackson, 769 N.W.2d 630,
29
636 (Mich. 2009) (“[T]he entity deciding whether to require repayment
must take cognizance of the individual’s resources, the other demands on
his own and family’s finances, and the hardships he or his family will
endure if repayment is required. The purpose of this inquiry is to assure
repayment is not required as long as he remains indigent.”).
In Florida, analysis of the reasonable ability to pay similarly
considers financial hardships a defendant would incur if ordered to pay
restitution. Fla. Stat. Ann. § 775.089(6) (West, Westlaw through 2018 2d
Reg. Sess.). There, in determining ability to pay, the court must consider
the financial resources of the defendant, the present and potential future
financial needs and earning ability of the defendant and his or her
dependents, and other factors as the court deems appropriate. Id.;
Pettway v. State, 502 So. 2d 1366, 1367 (Fla. Dist. Ct. App. 1987).
We find the sentencing court should consider all these factors when
awarding the final amount of restitution based on the offender’s
reasonable ability to pay. If a defendant does not have the reasonable
ability to pay the items, the court has three alternatives. First, the court
may not order restitution for the item. Second, the court may order
restitution in an amount less than the full amount of the item. Third, the
court may order the offender to pay none or part of the amount of an item
of restitution and perform community service in lieu of that payment under
section 910.2. Of course, if in the future the offender obtains the
reasonable ability to pay an item of restitution not previously assessed,
the court may modify the plan of restitution upon petition. Iowa Code
§ 910.7.
In summary, we urge courts to do everything possible to have all
items of restitution before the court at the time of sentencing. Courts must
wait to enter a final order of restitution until all items of restitution are
30
before the court. Once the court has all the items of restitution before it,
then and only then shall the court make an assessment as to the offender’s
reasonable ability to pay. A court should make every effort to determine
an offender’s financial condition as early as possible. This may require the
offender filing an updated financial statement, a colloquy with the
offender, or both. A court cannot impose restitution on an offender for the
items subject to the offender’s reasonable ability to pay if the offender does
not have a reasonable ability to pay those items. Finally, any temporary,
permanent, or supplemental order regarding restitution is not appealable
or enforceable until the court files its final order of restitution. 3
C. Application of Relevant Statutory Provisions to This Case.
Here the court found Albright had the reasonable ability to pay and
ordered restitution for items in the second category of restitution without
having the amount of each item of restitution before it. This is contrary to
the statutory scheme as outlined in this opinion. For these reasons, we
vacate the district court’s sentencing order regarding restitution and
remand the case to the district court to order restitution in a manner
consistent with this opinion.
VIII. Disposition.
We affirm Albright’s convictions for willful injury causing bodily
injury and kidnapping in the first degree. On direct appeal, we do not
reach Albright’s claims of ineffective assistance of counsel for his counsel’s
failure to object to and introduction of evidence of Albright’s other crimes,
wrongs, or other acts. Finally, we vacate the restitution part of the
3If not all the items of restitution are available at the time of sentencing, the court
may ask the defendant to waive his or her presence at the supplemental proceeding where
the ability to pay determination will be made and the final plan of restitution will be
entered.
31
sentencing order and remand the case to the district court to order
restitution in a manner consistent with this opinion.
JUDGMENT OF CONVICTIONS AFFIRMED; SENTENCES
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
All justices concur except McDonald, J., who takes no part.