State of Iowa v. Brooke Lynn Trimble ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1289
Filed October 9, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BROOKE LYNN TRIMBLE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris,
District Associate Judge.
A defendant appeals her sentence for domestic abuse assault and violation
of a no-contact order. SENTENCES VACATED AND REMANDED FOR
RESENTENCING.
Jesse M. Marzen and Cynthia Tofflemire of Marzen Law Office, P.L.L.C.,
Waverly, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
2
TABOR, Judge.
The sentencing court described Brooke Trimble’s serious-misdemeanor
assault of her boyfriend as “somewhat of a reverse Me Too situation” before
imposing a term of 365 days, all but fifteen days suspended, and one to two years
supervised probation. Trimble asks to be resentenced, alleging the court’s
remarks signaled its consideration of improper factors. She also argues the
sentence was grossly disproportionate to the crime.
In our review, we find the court’s “reverse Me Too” analogy revealed its
reliance on an unprosecuted and unproven charge. Accordingly, we vacate
Trimble’s sentences for domestic abuse assault and the no-contact order violation
and remand for resentencing before a different judge.
I. Facts and Prior Proceedings
A neighbor summoned law enforcement to the residence of Brooke Trimble
and her boyfriend, B.M., in November 2017 after hearing screaming and banging
inside. B.M. told the responding deputy he and Trimble “got into an argument that
morning” and Trimble slapped him while he was holding their infant son. He also
said Trimble tackled him, held him down on the bed, and tried to remove his
clothes. B.M. said he refused Trimble’s sexual advances and was relieved when
the deputies responded to the neighbor’s 911 call. B.M. showed the deputies
bruising on both sides of his neck, as well as on his right bicep and chest. The
deputy reported Trimble was uncooperative and had to be restrained.
The State charged Trimble with child endangerment; domestic abuse
assault causing bodily injury, first offense; and obstruction of emergency
3
communications. She agreed to plead guilty to domestic abuse assault.1 At the
same hearing, Trimble also pleaded guilty to a later-incurred charge for violating
the no-contact order imposed following the November 2017 incident. In exchange,
the State agreed to recommend Trimble be sentenced to 365 days confinement
with all but six days suspended, one to two years supervised probation, completion
of the Iowa Domestic Abuse Program, and a $315 fine with surcharge and court
costs. Along with the sentencing recommendation, the State dismissed the child-
endangerment charge, an aggravated misdemeanor, and the obstruction-of-
emergency-communications charge, a serious misdemeanor.
At the July 2018 sentencing hearing, the State followed through with its
promised recommendation of six days in jail, while Trimble asked for the two-day
statutory minimum term. B.M. gave a victim impact statement, recounting the
attack by Trimble after he told her he was going to the bank that November day:
[S]he fired back, ‘Oh, so are you going to sleep with that girl from the
bank?’ And she grabbed my shirt and said,. ‘We are having sex right
now.’ I told her no and she began trying to pull me out of the
vehicle . . . .
Then she began clawing at my face and forcing me to kiss
her. . . .
She screamed at the top of her lungs that we are having sex
right now. And she ripped off all my clothes, or ripped off all her
clothes. And I told her no again.
B.M. also told the court: “Brooke has always made sure she was in control of
everything I did. Always intimidated me to do what she wanted me to do. . . . And
if I tried to stand up for myself or leave, she’d become violent.”
1
Our supreme court decided recent amendments to Iowa Code section 814.6 (limiting
direct appeals from guilty pleas) and 814.7 (prohibiting resolution of ineffective-assistance-
of-counsel claims on direct appeal) apply only prospectively and do not apply to cases,
like this one, pending on July 1, 2019. See State v. Macke, 2019 WL 4382985, at *7 (Iowa
2019).
4
Then the district court addressed Trimble:
In this case the court is going to punish you for the offense
that you pled guilty to. The court is going to consider your
rehabilitative potential, that the sentence will be designed to deter
you and others similarly situated from committing this type of act in
the future, and the sentence is designed to protect society.
In listening to the victim impact statement, the first thing that
came to the court’s mind was that we’re in somewhat of a reverse
Me Too[2] situation here. It’s difficult to—well, it’s difficult not to turn
on the TV and see some of the allegations made by a number of
women across the United States against people who have assaulted
them and violated them. The victim in this case has made his
statement about how he has been basically violated by you on this
particular occasion.
After that foray into current events, the court noted Trimble had “no real
criminal record” other than traffic citations. The court then sentenced Trimble to
365 days confinement, all but fifteen days suspended, one to two years supervised
probation, a $315 fine with surcharge and court costs, and completion of the Iowa
Domestic Abuse Program. Additionally, the court sentenced her to seven days in
2
In 2006 Tarana Burke founded the MeToo movement to help survivors of sexual
violence, particularly women and girls of color. Abby Ohlheiser, The Woman Behind ‘Me
Too’ Knew the Power of the Phrase When She Created It—10 Years Ago, Wash. Post,
Oct. 19, 2017, https://www.washingtonpost.com/news/the-intersect/wp/2017/10/19/the-
woman-behind-me-too-knew-the-power-of-the-phrase-when-she-created-it-10-years-
ago/. In October 2017, “the #MeToo movement exploded onto the popular media stage
after actress Alyssa Milano asked Twitter users to ‘write “me too” as a reply to [her] tweet’
if they had ‘been sexually harassed or assaulted.’” Angela Onwauchi-Willig, What About
#UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J. F. 105, 106
(2018) (alteration in original) (footnote omitted).
It is unclear exactly what the sentencing court meant in dubbing Trimble’s crime a
“reverse Me Too” situation. The current #MeToo movement focuses on sexual violence
and workplace harassment. While reports from women outnumber those from men, the
movement is not a monolith. See, e.g., Anna North, When the Accused is a Woman: A
#MeToo Story’s Lessons on Gender and Power, Vox (Aug. 14, 2018),
https://www.vox.com/2018/8/14/17688144/nyu-me-too-movement-sexual-harassment-
avital-ronell (describing accusations by men against women).
5
jail for violating a no-contact order, a simple misdemeanor,3 to run concurrently
with her sentence for the serious-misdemeanor domestic abuse assault.
Trimble appeals, contending the court relied on improper sentencing factors
and subjected her to a sentence grossly disproportionate to the crime.
II. Scope and Standards of Review
We review sentencing decisions for an abuse of discretion. State v. Evans,
672 N.W.2d 328, 331–32 (Iowa 2003). Absent a showing of abuse of discretion or
a defect in sentencing procedure, including reliance on an impermissible factor,
the district court’s sentence will survive appeal.4 State v. Witham, 583 N.W.2d
677, 678 (Iowa 1998).
III. Analysis
In determining the appropriate sentence, a court considers the nature of the
offense, attending circumstances, the defendant’s age, character, and
propensities, as well as chances for reform. State v. Hildebrand, 280 N.W.2d 393,
396 (Iowa 1979). No single factor should determine the sentence, and the court
must share its rationale on the record. Id. And a court “may not rely upon
additional, unproven, and unprosecuted charges unless the defendant admits to
the charges or there are facts presented to show the defendant committed the
3
The parties do not address the fact no right of direct appeal exists for simple
misdemeanors; defendants must seek discretionary review. See Iowa Code § 814.6
(2017); Tyrrell v. Iowa Dist. Court, 413 N.W.2d 674, 675 (Iowa 1987). But when a party
seeks an improper form of review, rather than dismissing the case, we may treat the notice
of appeal as a request for discretionary review. See Iowa R. App. P. 6.108. We do so
here and consider the sentence for the no-contact order violation together with the
assault sentence.
4
We review constitutional claims de novo. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa
2009). Because we vacate Trimble’s sentence on improper-consideration grounds, we
need not address her cruel-and-unusual-punishment argument.
6
offense.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). But we presume
it properly exercised its discretion absent an affirmative showing of reliance on
those uncharged offenses. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990).
Trimble made that showing here.
Trimble argues the district court’s description of her crime as a “reverse Me
Too situation” shows the court relied on improper considerations in imposing
sentence.5 In response, the State contends the court’s comment was merely “a
timely reference to ongoing events.” We agree with Trimble—the misplaced
reference to the cultural phenomenon reveals an abuse of discretion.
The district court was entitled to consider B.M’s victim impact statement
when choosing a sentencing option. See Iowa Code § 910.5. Additionally, as the
State maintains, the fact the victim impact statement brought to the court’s mind a
phenomenon in the news does not alone show reliance on unproven or
unprosecuted offenses. Cf. State v. Anderson, No. 15–1180, 2016 WL 5407954,
at *14 (Iowa Ct. App. Sept. 28, 2016) (noting reference to “current public debate”
on gun control did not suggest court was “relying on it in imposing sentence”). But
here, unlike in Anderson, the current events were not relevant to the prosecuted
offense. Cf. id. Because the court relied on the unproven and unprosecuted
sexual offenses as described by B.M., we cannot dismiss the sentencing court’s
remark as simply referencing a recent news story.
5
Because we reverse on this ground, we do not address Trimble’s argument the district
court’s characterization of Trimble’s offense as an aggravated misdemeanor when she
was being sentenced for a serious misdemeanor constituted reversible error.
7
The #MeToo movement started as a means to raise awareness and support
survivors of sexual assault; and in late 2017 (just before Trimble’s sentencing
hearing), the movement resurged, focusing on sexual harassment by superiors
over workplace subordinates. See Nancy Chi Cantalupo, And Even More of Us
Are Brave: Intersectionality & Sexual Harassment of Women Students of Color, 42
Harv. J.L. & Gender 1, 3–4 (2019).
In the first three pages of B.M.’s four-page victim impact statement, he
detailed Trimble’s jealousy and unwanted sexual advances. The final two
paragraphs addressed how Trimble’s crime affected his life. After considering his
victim impact statement, the court explained “the first thing that came to the Court’s
mind” was that B.M. was recounting a “reverse Me Too situation.” The court
described “how [B.M.] has basically been violated[6] by [Trimble] on this particular
occasion.” But Trimble was not prosecuted for, nor did she admit to, sexual abuse
or assault with intent to commit sexual abuse. So the court’s reliance on the
alleged sexual nature of the assault is improper when sentencing Trimble for
domestic abuse assault. Likening the present situation to the #MeToo movement
demonstrates that the court considered the unproven allegations of sexual abuse
in sentencing Trimble, constituting reliance on an improper factor. See State v.
Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (remanding for resentencing in incest
case when court referred to unproven allegation that defendant paid victim money
in exchange for sex); see also State v. Glenn, No. 08-1530, 2010 WL 2598633, at
6
The sentencing court’s use of the word “violated” further bolsters the conclusion it
considered uncharged allegations of sexual abuse. See Violate, Merriam-Webster’s New
Collegiate Dictionary (8th ed. 1973). (“[T]o do harm to the person or especially the chastity
of.”).
8
*5 (Iowa Ct. App. June 30, 2010) (“Where a victim impact statement refers to an
unprosecuted or unproved crime, there must be affirmative evidence the district
court considered that alleged crime in imposing sentence.”).
Moreover, even if we discounted the court’s remark during the hearing, it
doubled down in its written sentencing order. The court wrote: “The victim impact
statement, in part, constituted a reverse Me Too [m]ovement concern for the court.”
True, the court qualified its concern by explaining, “The notoriety and alleged acts
of criminal misconduct associated with the alleged offenses and violators in those
cases was not imputed to the defendant by the court.” But its qualification missed
the mark. The domestic-abuse assault did not justify a comparison to the #MeToo
movement when the State did not charge, nor did Trimble admit to, B.M.’s
allegations of sexual misconduct. Thus, in trying to disclaim reliance on the
notoriety of the media cases, the court reaffirmed its consideration of unproven
allegations. We cannot speculate about how much weight the sentencing court
placed on the unproven sexual aspect of Trimble’s actions; and thus, the
disclaimer is not sufficient to uphold the original sentence. See Lovell, 857 N.W.2d
at 243. For these reasons, we vacate Trimble’s sentence and remand for
resentencing before a different judge.
SENTENCES VACATED AND REMANDED FOR RESENTENCING.