IN THE COURT OF APPEALS OF IOWA No. 20

- 0327 Filed September 1, 2021
STATE OF IOWA, Plaintiff

- Appellee,

vs. GARY CHARLES WOOD, JR. , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, William P. Kelly (trial) and David Porter ( habitual

- offender trial and sentencing) , Judge s

.

A defendant appeals his conviction and sentence for third

- offense domestic abuse assault , as a habitual offender. AFFIRMED.

John C. Heinicke of Kragnes & Associates, P.C. , Des Moines , for appellant. Thomas J. Miller, Attorney General, and Linda J. Hines , Assistant Attorney General, for appellee.

Considered by Tabor , P.J. , Greer, J. , and Doyle, S.J.* * Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021).2

TABOR , Presiding Judge

. In late June 2019, Gary Wood struck his then live

- in girlfriend , M.M., bruising her left eye. The State charged him with domestic abuse assault, third or subsequent offense , and as a habitual offender. See Iowa Code §§ 708. 2A(4), 902.8 (2019)

. In a bifurcated trial, one jury convicted him of the domestic abuse assault ; ano ther jury found sufficient evidence supporting t he two enhancements. From those verdicts, the district court sentenced Wood to a fifteen

- year term of imprisonment with a mandatory minimum of five years

. Now Wood asks us to reverse his con viction and ord er a new trial. He claim s the court erred in finding he forfeited his right to object to M.M.’s statements under the Confrontation Clause

. He also asserts t he State o ffered insufficient evidence that he (1) acted with out justification in committing the assault and (2) had prior convictions qualifying him for either enhancement. And if we uphold his conviction , Wood asserts the court erred in sentencing him to a mandatory
mi nimum of five years under Iowa’s habitual

- offende r statute. Because the record shows Wood procured M.M.’s unavailability, we affirm the admissibility of M.M.’s statements. We also find the State offered sufficient proof of the domestic abuse assault and the recidivism enhancements. And after reviewing the sentencing statutes, we affirm the mandatory

- minimum term.
I. Facts and Prior Proceedings On June 30, M

. M

. called 911 from her apartment “screaming for help.” S he told the dispatcher Wood “was making his way into her house” and she was afraid “he was going to kill her.” While relaying that information , she saw Wood break in3

through a window and stab her son’s friend 1 with a screwdriver. When officers arrived, they secured Wood in the back of a patrol car.
D uring their investigation , Officer s Mitche ll Froehle and Dustin Wing noticed
M .M.’s black eye. When they asked about her injury , M .M. s aid Wood “struck her in the face” during an argument on J une 24. M .M. explained she did not report the assault “out of fear” from Wood ’s warning

— “ he was w illing to catch that number

one.” She understood that to mean “he was willing to take a murder

- one charge.” Wood instructed her “to tell her coworkers that she was assaulted by two unknown males near where she worked.” Based on that conversation, p olice arrested Wood for domestic abuse assault causing bodily injury. T he district court then issued a no

- contact order protecting M.M

. In August 2019, the State charged Wood with third

- offense domestic abuse assault

. The trial information alleged Wood had twice before been convicted of domestic abuse assault : on ce in September 2018 and on c e in June 2019. In an amended trial information, t he State added a habitua l

- offender enhancement based on 2003 and 2015 felony convictions. While awaiting trial i n jail , Wood violated the no

- contact order more than thirty times by communicating with M.M. through text messages, phone calls, and virtual visits, according to the State’s complaints. The State asked the district court “to restrict [Wood’s] avenues of c ommunications ” because he allegedly was threaten ing her not to come to trial

. The State also moved for a preliminary ruling on the admissibility of evidence, including the 911 call, jail recordings, and M .M. ’s

1 Police later learned from M .M. ’s son that he sent his friend to his mother’s apartment to protect her from Wood, believing her life was in danger.4

statements to police implicating Wood. See Iowa R. Evid. 5.104(a). The motion stated: “ [M.M.] has since minimized the allegation of abuse and has become uncooperative due to [Wood’s] manipulation through his jail communication in violation of the No Contact Order.” Besides arguing hearsay excepti ons, the S tate claimed Wood forfeited his right to object under the Confrontation Clause because he intimi dated her into not testifying against him. On the first day of trial, the district court held a n evidentiary hearing to address the State’s forfeit ure - by

- wrongdoing claim

. Investigator Kim Smith of the Polk County Attorney’s O ffice recounted her many attempts to serve M.M

. wit h a subpoena the week before

. Smith could not find M .M. at her residence or the convenience store where she worked

. The investigator called and left mess ages , but rece ived no response. The investigator eventually left the subpoena in her door and a note in her mailbox asking her to call. She did not respond. And despite Smith personally serving M.M. with the subpoena on the day before trial, M .M. failed to appear at the courthouse for trial

. Based on his interactions with M .M. and Wood , Officer Froehle believed i t was “[i]ntimidation and fear” that prevented
M .M. from coo perating with the prosecution. Also as evidence of Wood’s wrongdoing, the State offered ten recorded jail conversations between him and M .M. from July and October. After reviewing those recordings, the district court agreed : “ Wood intended to prevent

. . . [M.M.] from testifying through manipulation, control, threats, and the use of language, in violating the no

- contact order to accomplish that goal.” Because he caused M.M.’ s absence, the court ruled Wood forfeited his right to raise confrontation objections to the use of her statements during trial.5
Still, the State had other evidentiary hurdles in admitting that evidence. T he defense acknowledged M .M. ’s statements “directly implicating [Wood] on the 24th of June as the person who caused the black eye” w ere unobjectionable under the forfeiture ruli ng. But the defense argued all other statements, including

“ statements about how he has done this to her in the past, terrorized her in the past,” or “told her subsequently what story to tell” should be excluded as unfairly prejudicial and improper charac ter evidence. See Iowa Rs. Evid. 5.403, .404. The defense also resisted admission of the 911 call and jail recordings as irrelevant. In the end, the district court found M .M. ’s statements that Wood assaulted her on June 24, that he expressed his willing ness to face a murder charge, and that h e told her to fabricate a story were all admissible. As for the various recordings, the court allowed the jury to hear a redacted version of the 911 call and o ne jail recording as evidence of Wood’s consciousness of guilt

. T he jury found Wood guilty of domestic abuse assault. A different jury determined Wood was the same person who had been convicted of domestic abuse assault on two prior occasions and a habitual offender. Relying on those enhancements, the distr ict court ordered Wood to serve a mandatory minimum of five years of a fifteen

- year prison term. Wood appeals.
II. Scope and Standards of Review In resolving Wood’s claims, we apply three standards of review. First, w e review his forfeiture

- by

- wrongdoing c laim de novo because it involves the loss of his constitutional right to confront his accuser. 2 See State v. Hallum , 606 N.W.2d

2 At trial, Wood raised both hearsay and confrontation objections to the admission of M.M.’s statement to police that he had assaulted her on June 24. The district6

351, 354 (Iowa 2000)

. Under that standard, w e conduct an independent review of the entire record but “give weight to the district court’s findings of fact.” Id. Second, w e review his sufficiency challenges for correction of legal

error. State v. Banes , 910 N.W.2d 634, 637 (Iowa Ct. App. 2018). We will uphold the verdict s if substantial evidence s upports them. Id. We find s ubstantial evidence when the quant ity and quality of evidence could persuade a rational jury that the defendant is guilty beyond a reas onable doubt. Id. In reaching that determination , we view “the evidence in the light most favorable to the State, including all reasonable inferences that may be fa irly drawn from the evidence.” Id

. Third, b o th parties contend we review the sentencing decision for an abuse of discretion. But because Wood challenge s his five

- year mandatory m inimum , we review for correction of legal error under the sentencing

- enhancement
statutes

. See State v. Dailey , 774 N.W.2d 316, 317 (Iowa Ct. App. 2009) (applying
this standard whe n d eciding whether district court could impose staggered
sentence under sta tutes governing repeat offenders ); see also State v. Sanf ord , No. 11

- 0581, 2013 WL 264644, at *1 (Iowa Ct. App. Jan. 24, 2013) (asses sing whether sentence was illegal under sentencing

- enhancement provision for third

offense domestic abuse assault ). W e ask whether “the challenged sentence complies with the relevant statutes.” Sanford , 2013 WL 264644, at * 1 (citing Dailey , 774 N.W.2d at 317).

cou rt overruled those objections. On appeal, Wood does not challenge the ruling on hearsay grounds, which we would review for errors of law. See State v. Paulson , No. 17

- 1668, 2019 WL 1486395, at *2 n.2 (Iowa Ct. App. Apr. 3, 2019). Rather , he claims the court erred in admitting that out

- of

- court statement based on “the forfeiture of [his] Sixth Amendment right to confront his accuser.”7

III. Analysis
A. Forfeiture by Wrongdoing The Sixth Amendment safeguards the accused’s right “to be confronted with the w itnesses against him.” U.S. Const. a mend. VI. Th at clause precludes “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for

cross - examination.” Crawford v. Washington , 541 U.S. 36, 53

– 54 (2004)

. But we need not decide whether M .M. ’s statements were testimonial or nontestimonial. Nei ther party raises that issue on appeal. Instead, they focus on
th is exception : “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis v. Washington , 547 U.S. 813, 833 (2006). This exception often arises in domestic violence prosecutions because those cases are “notoriously susceptible to intimidation or co ercion of the victim to ensure that she does not testify at trial.” Id. Wood argues the district court erred in finding he forfeited his right to confrontation because his conduct did “not rise to the level of interfering with [M .M. ’s] willingness to testify at trial.” He suggests the State needed to prove he took “affirmative steps” to p revent her from testifying. In resistance, the State points to the 911 call and recorded jail phone calls as sufficient evidence that M .M. failed to appear because “[she] knew that Wood posed a danger to her and the people about whom she cared, and he made it clear he did not want her to show up at his trial.” The State points to Wood’ s p attern of conduct, includ ing threats and acts of violence intended to control M.M

.8

Under the forfeiture

- by

- wrongdoing exception, the State had to prove by a preponderance of the evidence that Wood “wrongfully procured the witness’s unavailability.” See Hallum , 606 N.W.2d at 355

– 56. That procurement may happen not only through “ the use of threats, force or intimidation” but also by persuasion and control. Id. at 356. “Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help [is] highly relevant to this inquiry

. . . .” Giles v. California , 554 U.S. 353, 377 (2008). The State met that burden of proof

. Viewing the history of Wood’s relationship with M.M. , we find sufficient evidence that Wood employed threats and levers of control to dissuade her from cooperating with the prose cution

. According to Officer Froehle, M .M. appeared “terrified” when he responded to her frantic 911 call on June 30. He documented the bruising on her left eye. Both M .M. and a neighbor identified Wood as the perpetrator. The neighbor corroborated M .M

. ’s
statement that she sustained the injury on June 24 while arguing with Wood. Despite her injury, M .M. declined to report the abuse because she believed Wood would retaliate with murder. That belief manifested in her statement to dispatch that she fear ed “he was going to kill her.” And it explained why M .M. ’s son was concerned for his mother’s safety. So much so that he asked his friend to stay with her as a form of protection. Beyond instilling fear through his prior conduct , W ood repeatedly viola ted his no

- contact order while in jail to keep tabs on M .M. Sergeant Elizabeth S wanson reported that Wood made over thirty prohibited outbound calls by borrowing “the phone account from several different inmates in his housing unit.” She described Wood’ s demeanor as “controlling.” The recorded conversations captured Wood9

“ telling [M .M. ] to be quiet, be quiet, shut up, listen to me, I’ll see you in court, I’ll see you in court. ” He also commented: “If you show up to court, you have no credibility.” The n on October 6, M .M. insinuated she would be see ing him in court. Wood responded, “No, no, you can’t.” He added, “That’s the day of the trial.” We consider Wood’s menacing tone and veiled threats in those jail calls, together with his prior violence, in finding the State proved the forfeiture

- by

wrongdoing exception. Wood intended to exploit both her fear and her lingering feelings for him to prevent M.M. from testifying at trial. As the district court noted , “He took advantage of her willingness to be in a relationship with him. You could tell from the latter calls how excited she was to see him again.” Sergeant Swanson expressed a similar view: “they would be happy with each other and then you would see extreme anger between them.” See Hallum , 60 6 N.W.2d at 358 (noting change in victim’s attitude toward defendant after exchanging letters showed effects of influence). Because he intended to prevent M .M. from showing up at
court and she did fail to appear , Wood forfeited his right to object to admission of her prior statements. 3 See State v. Harper , 770 N.W.2d 316, 322 (Iowa 2009).

3 In a related appeal, State v. Wood, No. 20

- 0614, 2021 WL _____________, (Iowa Ct. App. ____. ___, 202 1), a nother panel of our court decided the State did not offer substantial evidence to support Wood’s conviction for suborning perjury in connection with the domestic

- abuse trial . We recognize it may appear inconsistent to hold the State proved that Wood wrongfully procured M.M.’s unavailability for trial, while also deciding the State did not prove that Wood “procured or offered an inducement” to make M.M. “conceal material facts known to her.” Wood , 2021 WL ______, at *___. But two key differences exis t between these cases. First, the State presented different evidence on the confrontation issue here than at the prosecution for suborning perjury. Second, the evidence is judged under different standards. The State could prove forfeiture

- by

- wrong - doing by a preponderance of the evidence. The State ’s burden for the separate criminal offense was proof beyond a reasonable doubt.10

B. Sufficiency of the Evidence Wood next challenges the sufficiency of the evidence supporting his domestic

- abuse

- assault conviction and both the third

- offense and habitual

- offender enhancements. W e will address each claim in turn.
1. Domestic Abuse Assault For the jury to convict Wood of domestic abuse assault, the State had to
prove these elements beyond a rea sonable doubt :

1. On or about the 24th day of June, 2019, Gary Wood , Jr. specifically intended to do an act , without justification, which was meant to cause pain or injury, result in physical contact which was insulting or offensive, or place [M.M] in fe ar of immediate contact which would have been painful, injurious, insulting or offensive to [M. M.]

. 2. [Wood] had the apparent ability to do the act. 3. The act occurred between family or household members who a. Resided together within the last year but d id not reside together at the time of the assault OR b. Who resided together at the time of the assault. Wood does not dispute elements two and three. Rather, he contests the first element, claiming insufficient evidence to show he acted “without jus tification.” He criticizes the testimony from Officers Froehle and Wing as “woefully deficient” because neither described th e circumstances surrounding how M .M. sustained her black eye. In other words, even if he did strike his girlfriend , Wood asserts t he State needed to prove “specifically whether it was without justification.” The State counters that justification is an affirmative defense, and not an element of the crime, despite the language in the jury instruction. Reframing the issue, the State claims its burden was to prove Wood ’s conduct met the elements of assault in Iowa Code section 708.1(2).11
Indeed, our supreme cou rt has long rejected Wood’s position. See State v. Delay , 320 N.W.2d 831, 833 (Iowa 1982). Although the code defines a ssault as an act done “without justification,” the State is not required “to negate an affirmative defense unless the defendant meets his initial burden by producing sufficient evidence that the defense applies.” Id. at 834. So the inclusion of that phra se in the instruction did not shift the burden of proving justification to the State. Because Wood did not timely raise the affirmative defense or offer any evidence he acted with justification , the State satisfied the first element by showing he had the specific intent to do an act causing injury or harm to M.M

. 4 Thus, we uphold his conviction.
2. Prior Convictions Turning to the enhancements, Wood argues the State failed to adequately prove he was the same person convi cted of domestic

- abuse assault in 2018 and
2019 and of the f elonies in 2003 and 201 5. He claims the jury could not link him to those prior crimes without knowing “ [his] date of birth and social security number that [he] used for the case at bar” and without a positive in

- person identific ation that he was “ one and the same person” as the “ Gary Charles Wood Jr.” convicted in the other cases. We disagree. Even without the details of his personal information or a witness identification based on his appearance in court, a jury could reasonably conclude Wood was the same person convicted of those prior offenses. The State acknowledges “identity of names

— standing alone

— is insufficient to establish identi t y of persons” for recidivism enhancements

. State v. Sanborn , 564 N.W.2d

4 Despite filing a reply brief, Wood does not argue he lacked the requisite intent.12

813, 815 (Iowa 1997). But the jury did more than match names

. For instance, the State offered as exhibits two written guilty p leas for domestic abuse assault under Wood’s full name. The Polk County clerk of court verified the birth date and social security numbe r on those records. Both convictions listed M .M. as the victim. Officer Froehle corroborated the clerk’ s testimony by identifying Wood as the sa me person he investigated for domestic abuse assault against M .M. in 2018 . He confirmed the social security number and birth date given by Wood matched the
2019 conviction

. “A reasonabl e jury could infer from this testimony that the match resulted, not from mere identity of names, but from a correlation with the other data as well.” Id. at 816.
Th e record also supported the jury’ s habitual

- offender verdict

. T he State’s exhibits included a written guilty plea and sentencing order for two felony convictions. The name, social security number, and birth date were the same. Officer Froehle said he obtained Wood’s personal information through his investigation on June 30 and confirmed it matched the prior records. What’s more, a probation o fficer prepared photographs of Wood from the earlier cases. When the prosecutor asked: “Do you see that man in the courtroom today?” The probation officer said, “Yes, I do.” On this record, the State met its burden of proving the enhancements beyond a r easonable doubt

. See State v. Jordan , 663 N.W.2d 877, 882 (Iowa 2003). C. Sentencing Finally, W ood asserts the district court applied the wrong statu te in determining his mandatory

- minimum sent ence. According to Wood, “since the State elected to add the habitual offender enhancement to the [d] omestic [a] buse13

[a] ssault [t] hird or [s] ubsequent [o] ffense, the mandatory minimum sentence applicable to [that] enhancement should apply instead of the mandatory minimum found in Iowa Code section 902.13.” Section 902.8 governs sentencing for habitual offenders

. That provision states: “A person sentenced as a habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.” Iowa Code § 902.8

. But r ather than rely on the habitual

- offender statute, the district court sentenced Wood t o a five

- yea r minimum under section 902.13. 5 In choosing the mandatory minimum for third

- offense domestic abuse assault , the court explained:

[C ounsel ] , to avoid any ambiguity in this sentence, I will not impose or check the box for the three year habitual offender. What I want to avoid, simply put, is for someone asking

— or seeking clarification as to whether the c ourt wanted to impose a three year term or five ye ar term. I believe by imposing the five year mandatory minimum that should address the three year mandatory minimum concern. Despite th at explanation, the sentencing order reflects two checked boxes

— a five

- year mandatory minimum under section 902.13 and a three

- year mandatory minimum under section 902.8. In addressing that discrepancy, the State contends the five

- year term

“ subsumes ” the thre e - year term. Resisting that contention , Wood asserts “there is

5 That provision imposes a different man datory

- minimum requirement:

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. Iowa Code § 902.13 (1)

.14

no indication that the legislature intended that one statute is subsumed into the other statute.” But Wood fails to provide a reason why the court would have to impose the shorter sentence. As the State points out, we have recognized longer penalties s ubsume the three

- year minimum of section 902.8. See State v. Ross , 729 N.W.2d 806, 808 (Iowa 2007) ( upholding two fifteen

- year mandatory minimums imposed under section 902.12 despite habitual

- offender enhancement); State v. Burgs , 479 N.W.2d 323, 324 (Iow a 1992) (rejecting argument “that because section 902.11 makes no mention of the [habitual

- offender] status, the legislature must have intended that habitual offenders escape the statute’s stiffer penalty”). Under that line of cases, the district court pr operly found the five

- year minimum covered both enhancements. We find no error in the sentencing decision.
AFFIRMED.