State v. Vandermark

965 N.W.2d 888

STATE of Iowa, Appellee,

v.James Paul VANDERMARK, Appellant.

No. 19-2112

Supreme Court of Iowa.

Submitted September 16, 2021

Filed October 22, 2021

Daniel M. Northfield, Urbandale, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

McDonald, J., delivered the opinion of the court, in which Appel, Oxley, and McDermott, JJ., joined. Mansfield, J., filed a dissenting opinion, in which Christensen, C.J., and Waterman, J., joined.

McDONALD, Justice.

This court has taken a "relatively narrow view" of the circumstances under which the state may amend a trial information. State v. Sharpe , 304 N.W.2d 220, 222 (Iowa 1981). The district court "may" allow an amendment to correct "errors or omissions" in a trial information. Iowa R. Crim. P. 2.4(8)(a ) ; see State v. Maghee , 573 N.W.2d 1, 5 (Iowa 1997).¹ However, "[a]mendment is not allowed" if the amendment charges a "wholly new and different offense" or if it prejudices the "substantial rights of the defendant." Iowa R. Crim. P. 2.4(8)(a ). The question presented in this appeal is whether the district court erred in deviating from the relatively narrow view in allowing the State to amend a charge of assault causing bodily injury to a charge of willful injury causing bodily injury.

I.

The offense conduct is largely undisputed. On April 10, 2019, Edgar Rodriguez and his spouse were seated in a hospital waiting room with their son to see a doctor. The defendant, James Vandermark, entered the waiting room, approached Rodriguez, punched Rodriguez in the face and head between seven and ten times, and then turned and left the hospital. Rodriguez was left with marks to his face and head, including a black eye. Rodriguez testified he still feels that his nose is crooked.

The State charged Vandermark with assault causing bodily injury, a serious misdemeanor, in violation of Iowa Code section 708.2(2) (2019), punishable by a term of incarceration not to exceed one year. One week prior to trial, the State moved to amend the trial information to charge Vandermark with willful injury causing bodily injury, a class "D" felony, in violation of Iowa Code section 708.4(2), punishable by a term of incarceration not to exceed five years. At the same time, the State provided notice it would seek a habitual offender enhancement pursuant to Iowa Code section 902.8, enhancing the punishment for the felony offense to an indeterminate term of incarceration not to exceed fifteen years with a mandatory minimum sentence of three years.

The motion to amend was argued and decided on the day of trial. The State argued the amended charge was not wholly new and different because it arose out of the same facts noticed in the minutes of testimony. On the same basis, the State argued Vandermark would not suffer any prejudice as a result of allowing the amendment. Vandermark contended the amended charge was wholly new and different because it increased the potential punishment and required proof of different elements. The district court agreed with the State, concluding that the amendment should be allowed because the amended charge included additional elements that made the State's case more difficult to prove, the elements were "substantially similar," and the underlying facts (such as the date, time, place, defendant, and victim) remained the same. The district court also denied Vandermark's motion to continue trial to prepare a defense against the new charge.

The case proceeded to trial, and the jury found Vandermark guilty of willful injury causing bodily injury. After the verdict, Vandermark waived his right to trial on the habitual offender enhancement. Subsequent to the jury's verdict but prior to sentencing, Vandermark was convicted of misdemeanor assault and harassment in two unrelated cases. At a combined sentencing hearing for all three convictions, the district court imposed the fifteen-year sentence for the conviction of willful injury causing bodily injury, said sentence to run consecutive to one of the misdemeanor sentences and concurrent to the other.

Vandermark timely appealed, and we transferred the matter to the court of appeals. On appeal, Vandermark argued there was insufficient evidence to support his conviction for willful injury, the district court erred in granting the State's motion to amend the trial information, the district court abused its discretion in denying him a continuance to prepare his defense against the new charge, and the district court abused its discretion in imposing sentence.

The court of appeals affirmed Vandermark's conviction and sentence. The court of appeals held there was sufficient evidence to support the jury's verdict. With respect to the motion to amend, the court of appeals affirmed the decision of the district court. Relying on State v. Brisco , 816 N.W.2d 415 (Iowa Ct. App. 2012), the court of appeals reasoned the amended charge of willful injury was not wholly new and different from the original assault charge because the "amended charge referenced the same time, date, place, and alleged actions, was within the same assault classification, did not involve additional witnesses, and was supported by the original minutes of testimony." The court of appeals reasoned Vandermark did not suffer any prejudice because he was offered the opportunity to plead guilty without the habitual offender enhancement prior to trial and because he did not assert the amendment forced any change in his trial strategy. The court of appeals held the district court did not abuse its discretion in denying Vandermark's motion to continue trial. Finally, the court of appeals held the district court did not abuse its sentencing discretion.

We granted Vandermark's application for further review. "On further review, we have the discretion to review any issue raised on appeal." Burton v. Hilltop Care Ctr. , 813 N.W.2d 250, 255 (Iowa 2012) (quoting State v. Marin , 788 N.W.2d 833, 836 (Iowa 2010), overruled on other grounds by Alcala v. Marriott Int'l, Inc. , 880 N.W.2d 699 (Iowa 2016) ). We exercise our discretion to review only the district court's ruling on the motion to amend the trial information. The court of appeals decision is final as to all other issues.

II.

The district court must disallow the State's motion to amend a trial information if the amendment charges a "wholly new and different offense" or if the amendment prejudices the "substantial rights of the defendant." Iowa R. Crim. P. 2.4(8)(a ). Whether an amendment charges a wholly new and different offense or prejudices the substantial rights of the defendant are questions of law, and our review is for the correction of legal error. See Maghee , 573 N.W.2d at 5.

What constitutes a wholly new and different offense is well established. Forty years ago, in State v. Sharpe , we held an amendment charged a wholly new and different offense where the amended charge both increased the potential punishment and charged an offense with different or additional elements. Sharpe , 304 N.W.2d at 222–23.

We have also been clear on what does not constitute a wholly new and different offense. An offense is not wholly new and different where the amendment charges the same base prohibition but alleges "different means" of committing the same base prohibition. Id. ; see State v. Schertz , 330 N.W.2d 1, 2–3 (Iowa 1983) (allowing amendment to charge a different means of committing kidnapping in the first degree); State v. Williams , 305 N.W.2d 428, 431 (Iowa 1981) ("Nevertheless, the effect of the amendment was not to add another offense but to merely add a new means of committing the same offense, drug trafficking, and is permissible ...."). Nor is an offense wholly new and different where the amendment charges the same prohibition but adds a predicate or predicates for enhanced punishment in the context of drug trafficking or recidivist statutes. See, e.g. , Maghee , 573 N.W.2d at 5 ("We agree with the State that under these circumstances the amendment did not charge a ‘wholly new or different offense.’ Rather, the amendment charged the same offense but with a larger amount of drugs involved resulting in a potentially more severe sentence."); State v. Berney , 378 N.W.2d 915, 919 (Iowa 1985) (holding that amendment alleging defendant to be a habitual offender did not define a new crime but merely constituted a predicate for enhanced punishment), overruled on other grounds by State v. Bruce , 795 N.W.2d 1 (Iowa 2011).

Here, the proposed amendment charged a wholly new and different offense within the meaning of rule 2.4(8)(a ) and our cases interpreting the same, and the district court erred in allowing the amendment. First, the amendment increased the level of punishment from a term of incarceration not to exceed one year to an indeterminate term of incarceration not to exceed five years and the maximum fine from $1,875 to $7,500. Compare Iowa Code § 903.1(1)(b ) (maximum sentences for misdemeanors), with id. § 902.9(1)(e ) (maximum sentences for felonies). Second, the amended charge altered the elements of the offense. To prove assault causing bodily injury, the State was required to prove, among other things, that Vandermark acted with the specific intent to cause pain or injury to the victim, to result in physical contact that would be insulting or offensive to the victim, or to place the victim in fear of physical contact that would be injurious or offensive. Id. § 708.1(1)–(2). To prove Vandermark committed willful injury, the State was required to prove, among other things, that he acted with the specific intent to cause serious injury to the victim. Id. § 708.4. The elements of the two offenses are different. Contrary to the district court's reasoning, it is immaterial that the additional or different element(s) makes the State's case more difficult to prove. See, e.g. , Sharpe , 304 N.W.2d at 223 (holding amendment to allege first-degree murder was improper...