State of Iowa v. Terrell Sallay ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1538
Filed September 23, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TERRELL SALLAY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
A defendant appeals his conviction for domestic abuse assault causing
bodily injury, third or subsequent offense. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.
Terrell Sallay appeals his conviction for domestic abuse assault causing
bodily injury, third or subsequent offense. We find there is substantial evidence in
the record to support Sallay’s conviction. We also find, contrary to his argument,
he was not improperly subjected to ex post facto punishment requiring him to serve
a more severe sentence than was available at the time the offense was committed.
We affirm Sallay’s conviction and sentence.
I. Background Facts & Proceedings
On April 28, 2017, Sallay came home in the earlier morning hours, at about
3:00 or 4:00 a.m., from his job at the New World Bar and Grill in Waterloo. Sallay
was intoxicated and began yelling at his wife, T.S.1 They got into an argument,
and Sallay threw a laundry basket in the bedroom, breaking a television. T.S.
testified Sallay may have dragged her from the bedroom but she did not have a
clear memory of it. She stated she had a rug burn on her arm, which caused her
pain. In the living room, Sallay threw a glass container with a candle at a wall,
spraying wax on the wall and the carpet. T.S. and Sallay disagreed about whether
T.S. was standing near where the candle hit the wall.
In an attempt get away from Sallay, T.S. went to the front door. She testified
Sallay began punching her and struck her in the face. She stated she ducked
down in an attempt to avoid the blows. T.S. testified that she had a black eye and
pain in her face from Sallay striking her.
1 Sallay and T.S. had been married for ten days at the time of the assault.
3
T.S. told Sallay she needed to go to a nearby Hy-Vee Grocery Store to buy
cigarettes. Ranae Wason opened the store at 5:00 a.m. She noticed T.S. walking
in the store and saw she was upset. T.S. told Wason she had pain in her arm.
T.S. called 911 at 5:13 a.m. Officers met her at Hy-Vee. T.S. stated Sallay struck
her. Officers observed an abrasion or rug burn on her left arm, and T.S. informed
law enforcement she had pain in her left arm and face.
T.S. gave officers permission to enter her home. They found Sallay, who
was intoxicated. Sallay had bleeding scratches on his left hand, and there was
blood on the front door slightly below the height of the doorknob. Sallay stated he
struck the front door. He also admitted arguing with T.S. and throwing the candle.
He, however, denied hitting T.S.
Sallay was charged with domestic abuse assault causing bodily injury, third
or subsequent offense, in violation of Iowa Code section 708.2A(4) (2017), a class
“D” felony. The jury found him guilty. Sallay admitted to two previous convictions
for domestic abuse assault. He was sentenced to a term of imprisonment not to
exceed five years, with a one-year mandatory minimum. Sallay appeals his
conviction.
II. Sufficiency of the Evidence
Sallay claims the State presented insufficient evidence to show he
committed domestic abuse assault causing bodily injury. He asserts there is not
substantial evidence to show T.S. suffered a bodily injury.
On sufficiency-of-the-evidence claims, our review is for the correction of
errors of law. State v. Folkers, 941 N.W.2d 337, 338 (Iowa 2020). “The district
court’s findings of guilt are binding on appeal if supported by substantial evidence.
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Evidence is substantial if it would convince a rational trier of fact the defendant is
guilty beyond a reasonable doubt.” Id. (citations omitted).
For the offense of domestic abuse assault causing bodily injury, the State
was required to show Sallay (1) committed “an act which was meant to cause pain
or injury, result in physical contact which was insulting or offensive, or place [the
victim] in fear of immediate physical contact which would have been painful,
injurious, insulting or offensive to [the victim]”; (2) “had the apparent ability to do
the act”; (3) caused a bodily injury; and (4) was in a domestic relationship with the
victim. See State v. Kuhse, 937 N.W.2d 622, 625–26 (Iowa 2020). Sallay
concedes that he and T.S. were in a domestic relationship. See Iowa Code
§ 708.2A(1) (citing Iowa Code § 236.2(2)).
T.S. testified Sallay struck her in the head, causing a black eye. Her
testimony is supported by evidence she told Officer Patrick Bush that she had pain
in her face. The State also presented photographic evidence to show Sallay had
a black eye. Sallay’s intent is shown by evidence the couple was arguing and
Sallay threw a laundry basket, threw a candle, and punched the front door during
the argument. From the evidence, the jury could find Sallay committed “an act
which was meant to cause pain or injury, [or] result in physical contact which was
insulting or offensive.” See Kuhse, 622 N.W.2d at 625. The “determination of the
credibility of the witnesses and the weight of the evidence is the function of the
factfinder.” State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). Furthermore,
Sallay’s apparent ability to strike T.S. is shown by the evidence he struck her.
“Bodily injury” as used in chapter 708 means “physical pain, illness, or any
impairment of physical condition.” State v. Taylor, 689 N.W.2d 116, 135 (Iowa
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2004) (citation omitted). An assault causing physical pain is sufficient to meet the
definition of bodily injury. Id. at 136. T.S. testified she had pain in her eye from
being punched and got a black eye. She had injuries on her left arm, which were
variously described as scrapes, rug burns, or abrasions. Wason testified T.S.
stated she had pain in her arm. Officer Bush testified T.S. stated she had pain in
her face and left arm. The jury could conclude the evidence of a black eye,
abrasions, and pain was sufficient to show T.S. suffered a bodily injury. It is for
the jury as the factfinder “to resolve questions of fact and credibility of witnesses.”
State v. Menke, 227 N.W.2d 184, 189 (Iowa 1975).
We find there is substantial evidence in the record to support Sallay’s
conviction for domestic abuse assault causing bodily injury.
III. Sentencing
Sallay contends he was improperly sentenced to a one-year mandatory
minimum sentence. The offense in this case occurred in April 2017. Sallay claims
the district court improperly applied section 902.13(1), which went into effect on
July 1, 2017, to impose the one-year mandatory minimum sentence.2 See 2017
2 Section 902.13 provides:
1. A person who has been convicted of a third or subsequent
offense of domestic abuse assault under section 708.2A, subsection
4, shall be denied parole or work release until the person has served
between one-fifth of the maximum term and the maximum term of
the person’s sentence as provided in subsection 2.
2. The sentencing court shall determine, after receiving and
examining all pertinent information referred to in section 901.5, the
minimum term of confinement, within the parameters set forth in
subsection 1, required to be served before a person may be paroled
or placed on work release.
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Iowa Acts ch. 83, § 5. Sallay asserts the one-year mandatory minimum violates
the Ex Post Facto Clause. See U.S. Const. art. I, § 10; Iowa Const. art. I, § 21.
The Federal and State Ex Post Facto Clauses “forbid enactment of laws
that impose punishment for an act that was not punishable when committed or that
increases the quantum of punishment provided for the crime when it was
committed.” State v. Aschbrenner, 926 N.W.2d 240, 247 (Iowa 2019). On this
constitutional issue, our review is de novo. Id. at 245–46.
At the sentencing hearing, the State recommended a five-year prison
sentence with a one-year mandatory minimum. The district court ordered Sallay
to serve a one-year mandatory minimum, stating it was “mandatory.” Neither the
prosecutor nor the court stated the statutory basis for the mandatory minimum
sentence at the sentencing hearing.
The State contends Sallay was subject to a one-year mandatory minimum
sentence before the legislature enacted section 902.13. Sallay was convicted
under section 708.2A(4), which is a class “D” felony. At the time Sally committed
the offense, section 708.2A(7)(b) provided, “A person convicted of violating
subsection 4 shall be sentenced as provided under section 902.9, subsection 1,
paragraph ‘e’, and shall be denied parole or work release until the person has
served a minimum of one year of the person’s sentence.”3
We find that under the statutory framework existing in 2017, Sallay was
required to serve a one-year mandatory minimum. He was not improperly
3 Section 902.9(1)(e) provided that a person convicted of a class “D” felony “shall
be confined for no more than five years, and in addition shall be sentenced to a
fine of at least seven hundred fifty dollars but not more than seven thousand five
hundred dollars.
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subjected to ex post facto punishment requiring him to serve a more severe
sentence than was available at the time the offense was committed. See
Aschbrenner, 926 N.W.2d at 247.
We affirm Sallay’s conviction and sentence.
AFFIRMED.