                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1033
                               Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN F. SCARLETT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.



      Defendant appeals his conviction for assault causing bodily injury.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

       Steven Scarlett appeals his conviction for assault causing bodily injury.

We find there was no error in the court’s summary disposition of Scarlett’s motion

for new trial and the court did not abuse its discretion in denying the motion. The

court improperly entered a no-contact order prohibiting Scarlett from having

contact with the victim for five years from the date of resentencing. We find the

court did not abuse its discretion in sentencing Scarlett. We affirm his conviction

and sentence.

       I.     Background Facts & Proceedings

       A jury found Scarlett guilty of assault causing bodily injury after he pulled

the hair of his former girlfriend, M.H., slapped her, made her walk around on her

hands and knees in a parking lot, and kicked her in the ribs. Scarlett filed a

motion for new trial, which was denied by the district court. He was sentenced to

a term not to exceed one year, with all but forty-five days suspended, placed on

probation for one year, and ordered not to have contact with M.H. for five years.

The sentence was made consecutive to a conviction for operating while

intoxicated (OWI) in another case.

       Scarlett appealed his conviction for assault causing bodily injury.       On

appeal, we found the district court (1) did not abuse its discretion in concluding a

master/slave contract was admissible; (2) did not err in denying Scarlett’s motion

for judgment of acquittal on the ground the State did not present sufficient

evidence to show M.H. suffered a bodily injury; (3) used an improper standard in

denying Scarlett’s motion for new trial; and (4) did not provide reasons for making

the sentence in this case consecutive to the OWI sentence. State v. Scarlett, No.
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14-1704, 2016 WL 1130039, at *3-6 (Iowa Ct. App. Mar. 23, 2016).                We

remanded to the district court to apply the correct standard in addressing

Scarlett’s motion for new trial and stated if the court again denied the motion for

new trial, then Scarlett should be resentenced. Id. at * 5-6.

       The court stated on the record at the hearing on remand:

                Well, after hearing the evidence in this particular case, the
       Court does find that the jury verdict was supported by the evidence
       presented in this trial as to each and every element of the offense
       the defendant was convicted of.
                Further, the weight of the evidence established the
       defendant’s guilt beyond a reasonable doubt to each of those
       matters. There was – clearly, the verdict rendered by the jury was
       not contrary to the law or evidence that was presented at the time
       of trial, so the motion for new trial is denied.

       On resentencing, M.H. asked to have Scarlett sent to jail.          Defense

counsel stated Scarlett had not been in trouble since the original sentencing and

had not had any contact with M.H.            The court noted defense counsel’s

statements but found, “I don’t know that it has truly changed anything.” The court

sentenced Scarlett to one year in jail, with all but forty-five days suspended,

placed him on probation for one year, and ordered him to complete a batterer’s

education program. The court ordered Scarlett not to have any contact with M.H.

for a period of five years. Scarlett now appeals the district court’s actions on

remand.

       II.    Motion for New Trial

       A.     Scarlett claims the district court should not have summarily denied

his motion for new trial. He states the court should be required to make specific

findings of fact and conclusions of law to support its decision.        He states,

because the court did not make specific findings and conclusions, we are unable
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to determine whether the court abused its discretion in denying the motion for

new trial.    Scarlett asks us to reverse his conviction and remand for

reconsideration of his motion for new trial.

       In general, “[w]hen making a ruling on a motion for new trial, the trial court

should state the reasons for its ruling.” State v. Maxwell, 743 N.W.2d 185, 192

(Iowa 2008). When a court denies a motion for new trial without stating the

reasons for its denial, we may affirm “where any proper basis appears for a trial

court’s ruling, even though it is not one upon which the court based its holding.”

Id. at 192-93. In considering a similar situation to the one presented in this case,

our supreme court stated, “In denying Maxwell’s motion, the district court must

have found the jury’s guilty verdict was not contrary to the weight of the

evidence.” Id. at 193.

       Scarlett recognizes his claim is contrary to the holding in Maxwell and

asks that Maxwell be overturned. We are not at liberty, however, to overrule

controlling supreme court precedent. State v. Beck, 854 N.W.2d 56, 64 (Iowa

2014). While it would have been the better practice for the court to state the

reasons for its ruling, there was no error in the court’s summary disposition of the

motion for new trial. See Maxwell, 743 N.W.2d at 193.

       B.     Scarlett claims the district court should have granted his motion for

new trial because his conviction was contrary to the weight of the evidence. In

particular, he claims the weight of the evidence does not show M.H. suffered a

bodily injury. He points out there was no evidence, other than M.H.’s testimony,

to show she was injured by him.
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        “Trial courts have wide discretion in deciding motions for new trial.” State

v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). A motion for new trial may be granted

“[w]hen the verdict is contrary to the law or evidence.”        Iowa R. Crim. P.

2.24(2)(b)(6). Under this rule, a motion for new trial may be granted when the

verdict is contrary to the weight of the evidence. Ellis, 578 N.W.2d at 659. “On a

weight-of-the-evidence claim, appellate review is limited to a review of the

exercise of the discretion by the trial court, not of the underlying question of

whether the verdict is against the weight of the evidence.” State v. Reeves, 670

N.W.2d 199, 203 (Iowa 2003). On appeal, we do not judge the credibility of the

witnesses nor reweigh the evidence. Id.

        The court and jury must have found M.H. was a credible witness and her

testimony supported a finding of bodily injury. The term “bodily injury” means

“physical pain, illness, or any impairment of physical condition.” State v. Gordon,

560 N.W.2d 4, 6 (Iowa 1997). M.H. testified Scarlett slapped her in the face

several times, causing pain and redness. She stated Scarlett pulled her hair so

hard her ponytail holder broke, causing her pain.        She stated she received

scrapes on her hands and knees because Scarlett made her walk on her hands

and knees in a parking lot. Additionally, she testified Scarlett kicked her in the

ribs, which caused pain. M.H.’s testimony the assault by Scarlett caused her

pain is sufficient to show a bodily injury. See State v. Taylor, 689 N.W.2d 116,

136 (Iowa 2004) (“We think the evidence is sufficient to support a finding that the

defendant’s assault caused physical pain so as to meet the definition of bodily

injury.”).   We find the district court did not abuse its discretion in denying

Scarlett’s motion for new trial.
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       III.    No-Contact Order

       A jury found Scarlett guilty on September 11, 2014.                 The original

sentencing order was filed on October 7, 2014, and the first no-contact order was

filed at the same time.         On appeal, we determined Scarlett should be

resentenced if the court denied his motion for new trial on remand. Scarlett,

2016 WL 1130039, at *6. The court denied Scarlett’s motion for new trial on

remand, and he was resentenced on June 15, 2016. The court issued a new no-

contact order prohibiting Scarlett from having contact with M.H. for five years

from the resentencing date. Scarlett claims the no-contact order should only

extend for five years from the original sentencing date, which would be until

October 7, 2019.

       Iowa Code section 664A.5 provides a court may issue a permanent no-

contact order “for a period of five years from the date the judgment is entered.”

We did not remand the case for a new judgment, only for resentencing. See id.

The remand order did not affect the original judgment. Cf. State v. Cooley, 691

N.W.2d 737, 741-42 (Iowa Ct. App. 2004) (requiring a judgment be set aside on

remand and noting the remand was not limited to resentencing). We conclude

under section 664A.5, the no-contact order should remain in effect until October

7, 2019.1 We reverse the no-contact order filed on June 15, 2016, and remand

for entry of an order reimposing the order prohibiting Scarlett from having contact

with M.H. until October 7, 2019.



1
   The case of State v. Palmer, No. 15-1588, 2016 WL 3276662, at *2-3 (Iowa Ct. App.
June 15, 2016), contains a discussion of a similar factual issue involving the length of a
no-contact order when a case is remanded for resentencing.
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       IV.    Sentencing

       Scarlett claims the district court abused its discretion in sentencing him.

He states the court did not give sufficient weight to his postconviction

rehabilitation efforts.   At the sentencing hearing held in June 2016, defense

counsel pointed out Scarlett had not been in trouble since the original

sentencing, held in October 2014, and had no contact with M.H. during that time.

He states the court should have considered these circumstances in resentencing

him.

       We review sentencing decisions for an abuse of discretion or defect in the

sentencing procedure. State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). “An

abuse of discretion will only be found when a court acts on grounds clearly

untenable or to an extent clearly unreasonable.” Id. (citation omitted). We give

sentencing decisions by a trial court a strong presumption in their favor. State v.

Loyd, 530 N.W.2d 708, 713 (Iowa 1995).

       “[I]t is proper to consider at resentencing a change in circumstances that

occurs between the time of the original sentence and the time of the

resentencing.”    Hopkins, 860 N.W.2d at 555.         A defendant’s postconviction

rehabilitation efforts are an appropriate factor for a court to consider in imposing

sentence. Id. Rehabilitation efforts, however, are “only one of many relevant

factors to consider at resentencing.” Id. “Resentencing following an appeal does

not necessarily require a different sentence for those convictions not reversed on

appeal. The new circumstances are important, but not dispositive.” Id.

       We find the district court did not abuse its discretion in sentencing Scarlett.

The court recognized Scarlett’s claim he had not been in trouble over the past
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two years and found it did not necessitate changing the factors the court

considered important when Scarlett was originally sentenced. The court noted

the brutal nature of the assault, protection of the public, and the defendant’s

rehabilitation.    The court also incorporated its statements from the original

sentencing, where it stated, “And quite honestly, you, from my assessment, have

the greatest propensity for continued violence of any individual I’ve come across

in the last 18 years, and I’ve come across literally thousands.”       The court

expressed concern Scarlett would eventually seriously hurt someone and

expressed the hope he would benefit from treatment.

          We affirm Scarlett’s conviction and sentence for assault causing bodily

injury.    We reverse the no-contact order and remand for entry of an order

reimposing the order prohibiting Scarlett from having contact with M.H. until

October 7, 2019.

          AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
