State of Iowa v. Corey London ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1461
Filed October 15, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
COREY LONDON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson,
Judge.
Corey London appeals his convictions for willful injury causing serious
injury and assault. CONVICTIONS AFFIRMED, SENTENCE VACATED, AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney
General, Michael J. Walton, County Attorney, and Patrick McElyea, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
2
DOYLE, J.
Corey London his convictions for willful injury causing serious injury and
assault, contending (1) the district court erred in overruling his hearsay objections
to testimony from one of the State’s witnesses, (2) trial counsel was ineffective in
several respects, and (3) the district court entered an illegal sentence. We affirm
in part, vacate in part, and remand for entry of an order in accordance with this
opinion.
I. Background Facts and Proceedings
Following an alleged assault of Janell Bentley with a baseball bat, which
fractured her skull, Corey London was charged with willful injury causing serious
injury, in violation of Iowa Code section 708.4(1) (2013), enhanced as an habitual
offender under sections 902.8 and 902.9, and domestic abuse assault causing
bodily injury, in violation of sections 236.2 and 708.2A(2)(b). London pled not
guilty and filed a notice of his intent to rely on the defense of self-defense.
The case proceeded to a jury trial. The State called three witnesses at
trial: Bentley’s mother, who testified as to her observations of Bentley in the
emergency room following the assault; a Davenport police officer, who testified
as to his observations upon responding to the scene of the assault; and an
emergency room physician, who testified about Bentley’s injuries and statements
she made while being treated. Janell Bentley was apparently not available as a
witness for trial and she did not testify. The jury could have deduced the
following from the evidence presented by the State.
At around 11:45 p.m. on February 7, 2013, Davenport Police Officer
Donnie Pridemore was dispatched to a disturbance call. He responded within
3
ten minutes. Inside the house, Officer Pridemore saw Janell Bentley kneeled
down on the floor, holding her head, and crying. Officer Pridemore observed
Bentley had a laceration on the back of her head, a swollen lip, and swelling on
her face. There was a lot of blood; Bentley’s head was bleeding and blood was
pooled on the floor around her. Officer Pridemore saw a kitchen knife near
where Bentley was laying, but there was no blood on it. Officer Pridemore also
found a metal baseball bat on the floor next to the door.
Medical personnel arrived a few minutes later and attended to Bentley’s
head injury. Bentley was “upset,” “crying a lot,” and kept repeating that she had
been hit with a bat. She identified Corey London as the person who had hit her
with the bat. London is the father of two of Bentley’s children.1 Officers were not
able to locate London until approximately one month later. When they did so,
London denied having assaulted Bentley.
Bentley was treated for her injuries at the hospital, where she told the
treating physician she had been struck twice in the head by a baseball bat by “a
guy she knows.”2 Bentley had a skull fracture, swelling, a stellate laceration on
her head, bruising to her brain, and subdural bleeding. She also experienced
severe vertigo. Her injuries were consistent with receiving a blow from an object,
and the physician opined the injuries could have resulted in death.
1
During an appearance on Maury (formerly, the Maury Povich Show), London learned
Bentley’s youngest child, of which London was also thought to be the father, was proven
by DNA testing not to be his child.
2
Testimony from Bentley’s mother that Bentley told her London was the person who hit
her with the bat was excluded by the district court on defense counsel’s hearsay
objections.
4
At the close of the State’s case, defense counsel moved for a judgment of
acquittal. The district court addressed the motion, finding sufficient evidence in
the record that Bentley “was struck with a baseball bat,” Bentley “sustained a
serious injury,” and “whoever struck her with the bat intended to cause a serious
injury.” The court observed it was a “closer question” whether London was the
person who swung the bat and caused Bentley’s injuries. The court stated,
As to the crime of Willful Injury, as charged in Count I of the
Trial Information, . . . the only evidence in the record at this point
concerning the defendant is a statement testified to by Officer
Pridemore that Janell Bentley told ambulance personnel that Corey
London had struck her. The Court finds that a rational trier of fact,
if that testimony was accepted, could find that it was the defendant
that struck Janell Bentley with a baseball bat . . . .
....
As to Count II, Domestic Abuse Assault, again, we have the
same issue. The only testimony in the Court’s recollection
concerning the defendant is the alleged victim’s statements to
ambulance personnel, testified to by the police officer. But, again,
a rational trier of fact could decide to accept that testimony.
The district court therefore overruled the motion as to both counts.
Defense counsel then made her opening statement, which she had
previously reserved. Defense counsel conceded London “[hit] Bentley with a
baseball bat,” but claimed he “was merely defending his life” after Bentley
“stabbed him with a knife.”
The sole witness for the defense was London’s girlfriend Lakeisha
Branom. According to Branom, London came to her apartment with a severe
stab wound to his arm shortly after midnight on February 8, 2013. Branom
testified London’s wound was “gushing blood” and she “could see the meat in his
arm.” Branom was “scared” and thought London might die. Branom tried to
5
convince London to go to the hospital but he refused. Branom wrapped
London’s arm in a bandage and applied pressure to stop the bleeding.
Branom testified she had known Bentley for several years and the two
were very good friends. According to Branom, Bentley called her “hours later”
about the incident. Branom learned that London and Bentley had gotten into an
altercation about some money, Bentley stabbed London, and London struck
Bentley with a bat in self-defense.
The defense rested and defense counsel moved for judgment of acquittal,
which the district court denied. During closing argument, defense counsel
argued the reason London had not sought medical attention for his stab wound
and Bentley was evasive in discussing with the emergency room physician who
hit her with the bat was because Bentley had stabbed London and he had acted
in self-defense. Defense counsel stated, “What has been consistent is that the
evidence—the testimony has indicated that yes—yes, Corey London did hit her.”
But defense counsel persisted that the State had not proved London was not
acting in self-defense, and stated, “London does not claim that he did not hit
Janell Bentley, but his witness in his defense tells you, clearly, he was defending
himself.”
The jury found London guilty of Count I as charged and guilty of a lesser-
included offense of Count II, simple assault. London stipulated he was a habitual
offender. London filed a motion for new trial, which the district court denied. The
court sentenced London to a period of incarceration not to exceed fifteen years
on the willful injury as a habitual offender conviction. The court did not impose a
6
separate sentence on the lesser-included offense of simple assault because it
merged into the greater offense. London appeals.
II. Hearsay Evidence
London contends the district court erred by allowing testimony from Officer
Pridemore regarding Bentley’s statement identifying London as the assailant.3
London points to the challenged testimony as being the sole evidence presented
by the State during its case-in-chief tying London to the incident. The State
concedes Bentley’s statement was hearsay, but claims the court correctly
allowed the testimony under the excited utterance exception to the hearsay rule.
See Iowa R. Evid. 5.803(2).
In general, review of a district court’s decision to admit or exclude
evidence is for an abuse of discretion. State v. Paredes, 775 N.W.2d 554, 560
(Iowa 2009). Claims of hearsay, however, are reviewed for the correction of
errors at law. Id. “This standard of review extends to determining whether
statements come within an exception to the general prohibition on hearsay
evidence.” Id.Hearsay is a statement, other than one made by the declarant while
testifying at the trial, offered in evidence to prove the truth of the matter asserted.
Iowa R. Evid. 5.801(c). Hearsay is not admissible unless provided by the Iowa
Constitution, statute, rules of evidence, or other rules of the Iowa Supreme Court.
Iowa R. Evid. 5.802.
3
London argues, in the alternative, if error was not preserved on this claim that his trial
counsel was ineffective in failing to preserve error. The State does not contest error
preservation.
7
At trial, Officer Pridemore was permitted to testify over defense counsel’s
objection that London was the person who hit Bentley with the bat. London takes
issue with the italicized statement in the following colloquy:
Q. [STATE] While she’s speaking with medical personnel,
did she identify who hit her with the bat? A. [OFFICER
PRIDEMORE] She did.
Q. Okay. Who did she say identified—or hit her with the
bat?
DEFENSE COUNSEL: Objection, Your Honor. Hearsay.
COURT: That’s overruled.
A. She gave me the name Corey London.
(Emphasis added.)
This statement was clearly offered by the State to prove the truth of the
matter asserted, and the out-of-court statement was by someone other than the
declarant testifying at trial. Therefore, the question is whether the testimony is
admissible as an exception to the hearsay rule.
Iowa Rule of Evidence 5.803(2) provides an exception to the hearsay rule
for an excited utterance: “A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition.” “The rationale behind the exception is that statements made
under the stress of excitement are less likely to involve deception than if made
upon reflection or deliberation.” State v. Harper, 770 N.W.2d 316, 319 (Iowa
2009) (quoting State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004)). Application
of the excited utterance exception “lies largely within the discretion of the trial
court.” State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). In determining
whether a statement qualifies as an excited utterance, the court should consider:
(1) the time lapse between the event and the statement, (2) the
extent to which questioning elicited the statements that otherwise
8
would not have been volunteered, (3) the age and condition of the
declarant, (4) the characteristics of the event being described, and
(5) the subject matter of the statement.
Harper, 770 N.W.2d at 319 (quoting Atwood, 602 N.W.2d at 782).
London concedes the characteristics of the event being described by
Bentley’s statement “certainly qualify as a startling event,” but maintains the
State failed to demonstrate any of the other factors above. We disagree.
Officer Pridemore arrived to the scene within ten minutes of the dispatch
call. Medical personnel arrived only a few minutes later. See Atwood, 602
N.W.2d at 782 (finding statement made at the hospital two or two and one-half
hours after a serious accident resulting in the death of two children was an
excited utterance). Bentley was “upset,” “crying a lot,” “worked up,” and repeated
that she had been hit with a bat. Bentley was on the ground bleeding profusely
and, not knowing the extent of her head injury, Officer Pridemore waited his turn
in order to allow medical personnel to attend to Bentley’s injuries. Officer
Pridemore stated Bentley “gave me the name Corey London” as the person who
hit her with the bat during this time frame of his investigation. It is unclear
whether Bentley’s statement was made in response to a question. See Harper,
770 N.W.2d at 320 (“[T]he fact that a statement was prompted by a question
does not automatically disqualify it as an excited utterance.”).
Bentley was an adult, but she was severely injured and visibly upset by
the assault. See, e.g., State v. Augustine, 458 N.W.2d 859, 861 (Iowa Ct. App.
1990) (finding statements made while declarant was “understandably excited and
outraged at defendant” were admissible as excited utterances); State v. Watts,
441 N.W.2d 395, 398 (Iowa Ct. App. 1989) (finding statements made while
9
declarant was “visibly shaken up,” “shaking,” “her voice was quivering,” and she
was “very upset” were admissible as excited utterances). As noted above, the
characteristics of the event—receiving skull-fracturing blows by a metal baseball
bat—is a startling event. And the subject matter of Bentley’s challenged
statement relate directly to the startling event—identification of the person who
struck her with the bat. See Harper, 770 N.W.2d at 320 (observing the victim’s
statements describing what happened and identifying her perpetrator “were not
reflective or deliberative, but rather made under the stress of her situation”).
Under these circumstances, Bentley’s statement meets the requisite
“spontaneity in order to possess a circumstantial guarantee of trustworthiness for
admissibility.” Watts, 441 N.W.2d at 398 (quoting Bratton v. Bond, 408 N.W.2d
39, 45 (Iowa 1987)). We conclude Bentley’s statement was an excited utterance
and an exception to the hearsay rule.4 Accordingly, the district court
appropriately determined the statement was admissible into evidence at trial. 5
We affirm on this issue.
4
The State also claims the court correctly allowed the testimony under the medical
diagnosis or treatment exception to the hearsay rule. See Iowa R. Evid. 5.803(4)
(“Statements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably pertinent
to diagnosis or treatment.”). Because the statement was admissible under the excited
utterance exception, we need not determine whether the statements are admissible
under Iowa Rule of Evidence 5.803(4).
5
The State raises a harmless error argument, claiming even if the district court erred in
admitting Bentley’s out-of-court identification as London as the assailant, “the record
affirmatively establishes a lack of prejudice” where London asserted a defense of
justification and conceded he struck Bentley with the bat. See State v. Hildreth, 582
N.W.2d 167, 170 (Iowa 1998) (“[E]rroneous admission of hearsay is presumed to be
prejudicial unless the contrary is established affirmatively. However, we will not find
prejudice if the admitted hearsay is merely cumulative.” (citation omitted)). We decline
to consider the evidence introduced after the close of the State’s case which the State
points to as being cumulative. London’s justification defense (and all evidence
10
III. Ineffective Assistance of Counsel
London contends his trial counsel was ineffective in failing to (1) object to
a number of instances of hearsay testimony, (2) object to certain testimony as
violating his right of confrontation, and (3) request a spoliation instruction. We
review these claims de novo. See State v. Gines, 844 N.W.2d 437, 440 (Iowa
2014).
To prevail on a claim of ineffective assistance of counsel, London must
show (1) a deficiency in counsel’s performance, and (2) that the deficient
performance prejudiced his defense. State v. Ross, 845 N.W.2d 692, 697-98
(Iowa 2014) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). London
must prove both the “essential duty” and “prejudice” prongs by a preponderance
of the evidence. See id. “There is a presumption the attorney acted
competently, and prejudice will not be found unless there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Ennenga v. State, 812 N.W.2d 696, 701
(Iowa 2012) (internal quotation marks omitted).
“Even though these claims are generally preserved for postconviction
relief, when presented with a sufficient record this court will address such a
claim.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). If we determine the
claim cannot be addressed on appeal, however, we must preserve it for a
postconviction relief proceeding, regardless of our view of the potential viability of
supporting it that could be considered evidence cumulative to Bentley’s statement
identifying London as the assailant) was not introduced until after defense counsel’s
hearsay objection was overruled, the State rested its case, and London’s motion for
judgment of acquittal was denied.
11
the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We find the
record adequate to address London’s claims at this juncture.
A. Objections to Hearsay Testimony. London points to the following
italicized statements during the State’s direct examination of Officer Pridemore
and claims counsel breached an essential duty in failing to raise objections:
Q. [STATE] And what were you doing? A. [OFFICER
PRIDEMORE] Mostly, just waiting my turn there. I tried to see if
anyone else had been around when this actually happened. Most
people told me that they hadn’t, but then one person said he had
been there.
....
Q. Once you received this information, what did you do? A.
[Bentley] was being treated by the medical personnel. I spoke with
the male who said that he had seen at least part of the incident.
....
Q. Did you—Did you receive any information while you were
there that Mr. London was ever injured? A. No, sir.
(Emphasis added.)
Counsel’s failure to object to the first two of these statements, although
hearsay, cannot support a claim of ineffective assistance. The mere fact that
someone witnessed the incident was not prejudicial to London; indeed, a witness
may have supplied information supporting London’s justification defense. And
the third statement is not hearsay because it does not contain an out-of-court
statement offered to prove the truth of the matter asserted. See Iowa Rs. Evid.
5.801(a) (defining “statement”), 5.801(c) (defining “hearsay”).
London further claims that although counsel successfully lodged a
hearsay objection to the following testimony of Officer Pridemore, counsel
thereafter breached a duty in failing to move to strike or to admonish the jury to
disregard his answer:
12
Q. [STATE] What information did you receive about the
knife? A. [OFFICER PRIDEMORE] The information I was given
about the knife was that [Bentley] had grabbed if for defense, but
that she had not used it.
DEFENSE COUNSEL: Hearsay, Your Honor. Excuse me.
Hearsay.
COURT: That’s sustained.
(Emphasis added.) Without confirming the inadmissibility of the statement, we
turn to the prejudice prong of London’s claim of ineffective assistance with
respect to this evidence. The jury heard other evidence indicating the knife was
not used. Officer Pridemore observed there was no blood on the knife. London
did not talk about being injured when he was arrested. The jury also heard
evidence presented by the defense that Bentley had used the knife, and
specifically that she had used it to stab London. See State v. Musser, 721
N.W.2d 758, 761 (Iowa 2006) (noting it is in the province of the jury to resolve
factual disputes and weigh the credibility of the witnesses). Under these
circumstances, London has not sustained his burden to demonstrate a
reasonable probability of a different result had the statement been stricken.
London’s claims of ineffective assistance on these grounds fail.
B. Confrontation. London contends his trial counsel was ineffective for
failing to object to the hearsay testimony challenged above on Confrontation
Clause grounds. “If a hearsay statement made by a declarant who does not
appear at trial is testimonial, evidence of that statement is not admissible under
the Confrontation Clause unless the declarant is unavailable to testify at trial and
the defendant had a prior opportunity for cross-examination.” State v. Schaer,
757 N.W.2d 630, 635 (Iowa 2008); see Crawford v. Washington, 541 U.S. 36, 68
(2004); see also U.S. Const. amend. IV; Iowa Const. art. I, § 10.
13
Testimonial statements include “statements made under circumstances
that would lead witnesses to objectively believe the statements might be used at
trial.” State v. Shipley, 757 N.W.2d 228, 235 (Iowa 2008). Statements can be
nontestimonial in the course of a police investigation “under circumstances
objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.” Davis v. Washington, 547
U.S. 813, 822, 827 (2006) (“That is true even of the operator’s effort to establish
the identity of the assailant, so that the dispatched officers might know whether
they would be encountering a violent felon.”). Conversely, similar statements
would be testimonial if “the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
Id.Here, Officer Pridemore responded to the scene within ten minutes and
found Bentley on the floor bleeding from a laceration on her head, among other
injuries. Bentley was crying, upset, and worked up. Officer Pridemore was the
first responder to the dispatch call; medical personnel arrived a few minutes later.
Officer Pridemore testified, “I tried speaking with her. . . . I was trying to get as
much information as I could, because I had other officers looking for the
suspect.”
These circumstances, viewed objectively, indicate the primary purpose of
Officer Pridemore’s questions was to “enable him to assess the situation and to
meet the needs of the victim.” United States v. Clemmons, 461 F.3d 1057, 1060
(8th Cir. 2006) (“When the officers arrived at the scene, Williams was lying in
14
front of a neighbor’s house, suffering from multiple gunshot wounds. Officer
Lester further testified that his purpose in speaking to the victim was, ‘to
investigate, one, his health to order him medical attention and, two, try to figure
out who did this to him.’”). In terms of the emergency-nature of this situation, we
believe it can be contrasted from a police interrogation and is more akin to a
victim’s attempt “to obtain assistance and treatment for her injuries.” See State
v. Schaer, 757 N.W.2d 630, 636 (Iowa 2008) (concluding a victim’s statements
identifying her attacker to her stepsister and treatment providers were
nontestimonial); see also People v. Cage, 155 P.3d 205, 207-08 (Cal. 2007)
(holding victim’s identification of his assailant to treating physician who asked
victim “what happened” was a nontestimonial statement). In sum, we conclude a
reasonable observer would understand Officer Pridemore was facing an ongoing
emergency and that the purpose of his questions was to enable police assistance
to enable police assistance to meet that emergency and to assist Bentley.
Accordingly, because the statements were nontestimonial, they do not implicate
London’s right to confrontation and trial counsel did not provide ineffective
assistance in failing to object on that ground.
C. Spoliation Instruction. London contends his trial counsel was
ineffective in failing to request a spoliation instruction “based on law
enforcement’s failure to preserve the knife in evidence.” The bad faith
destruction of exculpatory evidence is commonly referred to as spoliation. See
State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). “A spoliation instruction is a
direction to the jury that it may infer from the State’s failure to preserve evidence
15
that the evidence would have been adverse to the State.” State v. Hartsfield, 681
N.W.2d 626, 630 (Iowa 2004).
To justify instructing the jury on a spoliation inference, there must be
substantial evidence to support the following facts: “(1) the evidence was ‘in
existence’; (2) the evidence was ‘in the possession of or under control of the
party’ charged with its destruction; (3) the evidence ‘would have been admissible
at trial’; and (4) ‘the party responsible for its destruction did so intentionally.’” Id.(quoting State v. Langlet, 283 N.W.2d 330, 335 (Iowa 1979)). Our analysis of
this claim begins and ends with the last prong—intentional destruction of the
evidence by the State.
In support of his claim that the State intentionally destroyed evidence,
London claims Officer Pridemore “received information at the scene that Bentley
had at minimum armed herself with the knife in connection with the altercation,”
and the State was therefore “sufficiently alerted that the knife bore on the
question of how the incident started or progressed, and on the question of which
party was the initial aggressor.” The circumstances presented here do not
support a finding that the failure to preserve the knife in evidence was intentional
so as to support an adverse inference. Cf. id. at 632 (noting defense counsel’s
professional statement that he had asked the jailers for the jail videotape, and
that the conversation was corroborated by a different officer, and that further
evidence indicated the investigator had been misled as to whether a videotape
existed). Here, there was no evidence the knife was destroyed; the State simply
chose not to present it during the trial. See, e.g., Lynch v. Saddler, 656 N.W.2d
104, 111 (Iowa 2003) (observing a spoliation inference should be “utilized
16
prudently and sparingly,” and only where the requesting party “can show both
intentional destruction and control of the evidence”).
“[T]he spoliation inference is not appropriate when the destruction is not
intentional.” Hartsfield, 681 N.W.2d at 630; accord Langlet, 283 N.W.2d at 333;
see also Lynch, 656 N.W.2d at 111 (Iowa 2003) (“Such inference may only be
drawn when the destruction of relevant evidence was intentional, as opposed to
merely negligent or the evidence was destroyed as the result of routine
procedure.”). Under these circumstances, trial counsel did not provide ineffective
assistance in failing to request a spoliation instruction.
IV. Illegal Sentence
London contends the district court entered an illegal sentence in merging
only the sentences on Counts I and II and not the convictions. London requests
that this Court vacate his Count II conviction. Our review of an alleged violation
of Iowa Code section 701.9 is for correction of errors at law. See State v.
Mulvany, 600 N.W.2d 291, 293 (Iowa 1999).
Iowa Code section 701.9 provides:
No person shall be convicted of a public offense which is
necessarily included in another public offense of which the person
is convicted. If the jury returns a verdict of guilty of more than one
offense and such verdict conflicts with this section, the court shall
enter judgment of guilty of the greater of the offenses only.
A failure to follow section 701.9 creates an illegal sentence because
“[w]here a lesser-included offense is merged with the greater offense, a
conviction on the lesser-included offense is void.” State v. Anderson, 565
N.W.2d 340, 344 (Iowa 1997). Here, in the written entry of judgment, the district
court ordered:
17
Pursuant to the jury finding Defendant guilty of Count 1—
Willful Injury Causing Serious Injury, and pursuant to Defendant’s
stipulation that he is a Habitual Offender, a Class C felony, in
violation of Section 708.4(1), Iowa Code, and pursuant to Sections
902.3 and 902.9, Iowa Code, it is the judgment and sentence of the
Court that defendant be committed to the custody of the Director of
the Iowa Department of Corrections for a period not to exceed 15
years. . . . .
The defendant was convicted of the lesser-included offense
of Simple Assault under Count 2 of the Trial Information. The Court
finds that, pursuant to Iowa Code Section 701.9, Simple Assault,
which is a lesser-included offense of Willful Injury, merges into the
greater offense. For that reason, the Court will not impose a
separate sentence on the lesser-included offense of Simple
Assault.
(Emphasis added.)
The district court properly merged the sentence for the lesser-included
offense of assault with the willful injury sentence, but entered judgment on both
offenses. Because the assault charge merged with the willful injury charge under
section 701.9, this conviction and judgment is vacated. We remand to the district
court for entry of an order in accordance with this opinion. See Anderson, 565
N.W.2d at 344.
V. Conclusion
Upon our review, we conclude the district court appropriately determined
the challenged hearsay statements were admissible into evidence at trial, trial
counsel did not provide ineffective assistance, and we affirm London’s judgment
and sentence for willful injury causing serious injury. However, because the
assault charge merged with the willful injury charge under Iowa Code section
701.9, this conviction and judgment is vacated. We remand to the district court
for entry of an order in accordance with this opinion.
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED.