State of Iowa v. Jeremy Michael Newsom ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 13-2078
Filed March 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEREMY MICHAEL NEWSOM,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, John M. Wright,
Judge.
A criminal defendant appeals from his conviction for assault causing bodily
injury. AFFIRMED.
John W. Pilkington of Nidey, Erdahl, Tindel & Fisher, P.L.C., Marengo, for
appellant
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Darin R. Stater, County Attorney, and Edward G. Harvey and Erin
Stensvaag, Assistant County Attorneys, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, J.
Jeremy Newsom appeals from his conviction for assault causing bodily
injury. At trial, he asserted affirmative defenses of self-defense, defense of
others, and resisting a forcible felony. The trial court, finding insufficient
evidence to support an instruction for resisting a forcible felony, declined to give
the instruction. Newsom contends this was in error. Newsom also contends the
trial court erred in refusing to give further instruction when the jury asked a
question during deliberations. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Newsom’s girlfriend, Nicole Bresnahan, testified that on the day in
question, she was standing outside their home in the front yard. Newsom and
the couple’s children were inside. Joey and Crystal Marcos drove by the house
in a car. They began yelling profanities at Bresnahan from the car. Shortly
thereafter a group of people began walking down the street toward Newsom’s
and Bresnahan’s home including Joey and Crystal Marcos, Kairon McClenan,
Mitch Genck, Rebecca Dominquez, and Autumn Dorothy. Bresnahan went back
inside the house and informed Newsom what was happening. Newsom went
outside.
McClenan later testified the group went to the house to entice or persuade
Newsom to fight. The men had taken their shirts off and were standing in the
street, yelling for Newsom to come out to the street and fight them. Newsom told
them to leave his property; they refused. Newsom remained in his yard
throughout the incident. Newsom told Bresnahan to call police, which she did.
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More people began approaching the home. Newsom and Bresnahan
testified one of these people, later identified as Diego Alvarez, said that if
Newsom went inside, he would follow Newsom and shoot Newsom, Bresnahan,
and their children.1 Newsom picked up a baseball bat from the porch. Newsom
testified McClenan stepped onto Newsom’s yard with one arm behind his back.
Newsom swung the bat at McClenan and hit him on the left side of his jaw.
Newsom testified he was trying to hit McClenan’s arm, he believed McClenan
had a weapon, he believed his actions were necessary to protect himself from
imminent assault, and he had no alternative course of action.
Dorothy testified McClenan never stepped on Newsom’s property, but that
Newsom repeatedly told the crowd to come onto his property. McClenan testified
Genck and Newsom had a disagreement and Genck wanted to settle it by
fighting Newsom. Genck testified he was standing in the street, arguing with
Newsom and urging him to put down the bat and “come at him like a man.”
According to Genck, Newsom threatened him, saying, “[C]ome in my yard; I’m
going to kill you; I’m going to hit you.” Crystal Marcos testified McClenan was
looking away from Newsom when Newsom hit him with the bat and that
McClenan would not have seen the bat about to hit him. McClenan did not take
any kind of defensive motion to block the bat or move his head. McClenan was
not carrying any weapon.
Shortly after Newsom hit McClenan, police officers arrived on the scene,
and the crowd dispersed. The officers arrested Newsom. They charged several
1
However, Genck testified Alvarez did not appear on the scene until after Newsom hit
McClenan.
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other participants with disorderly conduct. The charging officer testified Newsom
changed his explanation several times for why he hit McClenan. At one time he
explained McClenan had stepped onto his yard. At another time, he said
McClenan “flinched” at him. At another time, he said McClenan threatened him
but did not clarify what McClenan had said. Still another time, Newsom said
McClenan had swung an arm at him.
At trial Newsom asserted an affirmative defense of justification and
requested jury instructions on self-defense and defense of others, pursuant to
Iowa Code section 704.1 and .3 (2011), and justification for resisting a forcible
felony, pursuant to section 704.7. The district court found there was insufficient
evidence to support the proposed resisting forcible felony instruction and
declined to provide it but did provide instructions on the defense of self and
others.
During deliberations, the jury submitted a question to the court. Finding
the instructions already stated the necessary law, the court declined to provide
further instruction and directed the jury to reread the instructions. Following
deliberation, the jury found Newsom guilty of assault causing bodily injury, in
violation of Iowa Code sections 708.1 and 708.2(2).
Newsom appeals contending the trial court abused its discretion in giving
the jury instructions. First, he argues the district court erred in not instructing the
jury regarding the justification for resisting a forcible felony under Iowa Code
section 704.7. He claims this instruction differs from the other justification
instructions because it does not require the defendant to retreat or seek an
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alternative course of action. Second, he claims the court erred in not responding
to the jury question.
II. STANDARD OF REVIEW.
We review challenges to jury instructions for correction of errors at law.
State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013). “We review the related claim that
the trial court should have given the defendant’s requested instructions for an
abuse of discretion.” Id. An abuse of discretion occurs when the court’s decision
is based on a ground or reason that is clearly untenable or when the court’s
discretion is exercised to a clearly unreasonable degree. State v. Becker, 818
N.W.2d 135, 140 (Iowa 2012).
III. ANALYSIS.
A. Resisting Forcible Felony Instruction.
“A trial court must instruct on all material issues raised by the evidence.”
State v. Broughton, 425 N.W.2d 48, 51 (Iowa 1988). “In order to obtain such an
instruction, the defendant must produce substantial evidence to support it.” Id. at
52. “‘Substantial’ evidence means evidence which could convince a rational trier
of fact that the defendant has established his affirmative defense.” Id. Error in
giving or refusing to give a particular jury instruction does not merit reversal
unless it results in prejudice to the defendant. State v. Kellogg, 542 N.W.2d 514,
516 (Iowa 1996). “When the error is not of constitutional magnitude, the test of
prejudice is whether it sufficiently appears that the rights of the complaining party
have been injuriously affected or that the party has suffered a miscarriage of
justice.” Frei, 831 N.W.2d at 73-74.
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In order to find Newsom guilty of assault causing bodily injury, the jury had
to find each of the following:
1. . . . [T]he Defendant did an act which was meant to cause pain
or injury to Kairon McClenan.
2. The Defendant had the apparent ability to do the act.
3. Defendant’s act caused a bodily injury to Kairon McClenan.
4. The Defendant was not acting with justification.
Newsom complains the trial court should have given the jury instruction on
justification for resisting a forcible felony. He contends the instruction for
resisting a forcible felony differs from the defense-of-self and -others instructions
because it does not require the defendant to retreat or seek an alternative course
of action. Newsom asserts the forcible felony that was being committed at the
time he hit McClenan was McClenan’s felonious assault on him.
The jury instruction for defense of self provided:
A person is justified in using reasonable force if he
reasonably believes the force is necessary to defend himself from
any imminent use of unlawful force.
If the State has proved any one of the following elements,
then the defendant was not justified.
1. The Defendant started or continued the incident
which resulted in injury.
2. An alternative course of action was available to
the Defendant.
3. The Defendant did not believe he was in imminent
danger of death or injury and the use of force was
not necessary to save him.
4. The Defendant did not have reasonable grounds
for the belief.
5. The force used by the Defendant was
unreasonable.
The instruction for defense of others provided:
A person is justified in using reasonable force if he
reasonably believes the force is necessary to defend another from
any imminent use of unlawful force.
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If the State has proved any one of the following elements,
then the defendant was not justified:
1. The defendant knew the person he helped had
started or continued the incident, or the defendant
himself started or continued the incident which
resulted in injury.
2. An alternative course of action was available to
terminate defendant.
3. The defendant did not believe the person he
helped was in imminent danger of death or injury
and the use of force was not necessary to save
the person.
4. The defendant did not have reasonable grounds
for the belief.
5. The force used by the defendant was
unreasonable.
Newsom’s proposed jury instruction for resisting a forcible felony was Iowa
criminal jury instruction 400.6:
A person is justified in using reasonable force against
someone committing a forcible felony to prevent completion of the
felony if [he]she] knows a (name of forcible felony) is being
committed.
If the State has proved any one of the following elements,
the defendant was not justified:
1. The defendant knew (name of forcible felony) was
not being committed by (name of victim).
2. The defendant did not believe the force was
necessary to prevent the (name of forcible felony).
3. The defendant did not have reasonable grounds
for the belief.
4. The force used by the defendant was
unreasonable.
Thus, instruction 400.6 omits the requirement that the defendant have no other
available course of action. The jury instructions, however, are not themselves
laws. In determining whether the law for resisting forcible felony differs
appreciably from defense of self or others, we must be guided by the statutes
and case law.
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The resisting forcible felony defense is set out in Iowa Code section 704.7,
which provides, “A person who knows that a forcible felony is being perpetrated
is justified in using, against the perpetrator, reasonable force to prevent the
completion of that felony.” The state legislature enacted section 704.7 in 1976
and revised it in 1977, but Iowa courts have addressed it only once since that
time. In an unpublished disposition, the court of appeals found a trial attorney
was not ineffective for not raising a forcible felony affirmative defense where the
facts did not support the assertion that the victim was committing a forcible
felony. O’Shea v. State, No. 05-0331, 2006 WL 623593 *3 (Iowa Ct. App. Mar
15, 2006). In that case the court did not address whether the absence of an
alternative course of action was an element of proof capable of defeating the
affirmative defense of resisting forcible felony.
Several cases dealing with resisting a forcible felony predate the 1976
enactment. In State v. Harris, 222 N.W.2d 462, 467 (Iowa 1974), the Iowa
supreme court approved a trial court’s refusal to give a resisting forcible felony
instruction where a defendant shot and killed a man she believed was going to
assault her. The supreme court’s discussion emphasized that the “foundation of
both the doctrines of self-defense and prevention of felony” is “the necessity of
imminent danger of loss of life or great bodily harm.” Harris, 222 N.W.2d at 467.
Section 704.7 reflects this concept by its applicability only to forcible felonies.
Yet, the court in Harris found the defendant’s request for a justification instruction
was overly broad where it stated only that “some felony” was about to be
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committed, rather than a felony involving “imminent danger of loss of life or great
bodily harm.” Id.In State v. Shannon, 243 N.W. 507, 510 (Iowa 1932), the court dealt with
a statute preceding the current section 704.7 regarding protection of property
against felonious acts. Defense of property is not at issue here. The court also
dealt with defense of property against felonious acts in State v. Metcalfe, 212
N.W. 382, 382 (Iowa 1927). Thus, we acknowledge there is very little case law
to aid in our interpretation of section 704.7.
The State points out an issue with the temporal operation of the defense
of resisting a forcible felony. Section 704.7 provides a defense where the
defendant knows a forcible felony “is being perpetrated,” which apparently does
not allow the defendant to prevent a forcible felony before it happens. However,
in Harris, the court stated there was a justification defense when a person
observed “an atrocious, violent felony about to be or being committed.” Harris,
222 N.W.2d at 466 (emphasis added). O’Shea, the only case to interpret section
704.7, involved an ongoing felony already being committed. See O’Shea, 2006
WL 623593 at *1.
Nonetheless, if the only difference between the instructions is, as Newsom
asserts, that defense of self and others require that there not be an alternate
course of action for the defendant to take, we view that argument as not viable
here because of the undisputed fact that Newsom never left his property and
because of the following jury instruction:
If the defendant was on his property which he was legally
occupying and the alternative course of action was such that he
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reasonably believed he had to retreat or leave his position to avoid
the confrontation, he was not required to do so and he could repel
force with reasonable force.
Therefore, within the facts of this case, under none of the asserted justification
defenses was Newsom required to retreat or leave his position to avoid the
confrontation.
Additionally, because the asserted felony was assault, the resisting
forcible felony justification would have been in substance indistinguishable from
the defense-of-self and -others instructions. The jury rejected Newsom’s claims
of self-defense and defense of others. As the instruction for resisting forcible
felony would have been indistinguishable, Newsom could not have been
injuriously affected by the exclusion of the instruction, nor did he suffer a
miscarriage of justice. See Frei, 831 N.W.2d at 73-74. Consequently, without
the necessity of addressing whether the evidence was sufficient to warrant the
requested instruction, we conclude the refusal did not result in prejudice to
Newsom.
B. Answer to Jury Question.
While the jury is deliberating, the court may in its discretion
further instruct the jury, in the presence of or after notice to counsel.
Such instruction shall be in writing, be filed as other instructions in
the case, and be a part of the record and any objections thereto
shall be made in a motion for a new trial.
Iowa R. Civ. P. 1.925. We reverse the court’s decision whether to give further
instruction only for an abuse of discretion. State v. Watkins, 463 N.W.2d 15, 18
(Iowa 1990).
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During deliberations, the jury asked, “If the State has not brought enough
evidence to prove beyond a reasonable doubt that Mr. Newsom did not have the
right to defend his property and family, then is Mr. Newsom not guilty on all
counts.” Newsom requested that the court instruct the jury that the burden
remained on the State. The court determined that the previous instructions
contained the answer to the question, and it did not want to interfere with
deliberations by emphasizing any particular instruction. The court responded to
the jury with the following statement, “I cannot answer your question. Please re-
read the instructions.”
The jury had already been instructed on the elements of the charged
offenses, and on the defenses, which included the following language: “If the
State has proved any one of the following elements, the defendant was not
justified.” The following instructions explained the burden of proof:
Instruction No. 2
[T]he burden is on the State to prove guilt beyond a reasonable
doubt. Whenever I instruct you the State must prove something, it
must be by evidence beyond a reasonable doubt. If the State does
not prove the defendant guilty beyond a reasonable doubt, your
verdict must be not guilty.
Instruction No. 8
The burden is on the State to prove the Defendant guilty beyond a
reasonable doubt.
Giving the instruction Newsom requested would have been repetitious and
unnecessary. The jury was adequately instructed that the State was required to
prove at least one of the elements in order to defeat each justification defense,
and that anything the State was required to prove must be by evidence beyond a
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reasonable doubt. We discern no abuse of the court’s discretion in directing the
jury to re-read the instructions.
IV. CONCLUSION.
We conclude Newsom was not prejudiced by the district court’s refusal to
instruct the jury on the defense of resisting a forcible felony, as the facts of the
case render the instruction in substance indistinguishable from instructions
already given for defenses the jury rejected. We further find the additional
response to the jury question would have been repetitious of previous
instructions and unnecessary. The court did not abuse its discretion in refusing
to give further instruction.
AFFIRMED.