               IN THE SUPREME COURT OF IOWA
                              No. 08–1845

                        Filed December 23, 2010


STATE OF IOWA,

      Appellee,

vs.

MARK THOMAS HENNINGS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Webster County, Joel E.

Swanson, Judge.



      Defendant appeals conviction arguing there was insufficient

evidence to sustain his conviction under Iowa’s hate-crime statute.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant

Attorney General, Timothy N. Schott, County Attorney, and Ricki L.

Osborn and Jennifer J. Bonzer, Assistant County Attorneys, for appellee.
                                          2

STREIT, Justice.

         Mark Hennings was convicted under Iowa’s hate-crime statute

after he ran over a twelve-year-old African-American boy. The evidence

was sufficient to support the jury verdict that Hennings acted “because

of” the victim’s race or color. Additionally, the district court sufficiently

stated reasons on the record for the decision to sentence Hennings to

consecutive sentences. We affirm the judgment of the district court.

         I. Background Facts and Prior Proceedings.

         On the morning of Saturday, June 2, 2007, twelve-year-old A.M.,

thirteen-year-old J.M., eleven-year-old D.G., and thirteen or fourteen-

year-olds D.M.G. and K.W., met up at the Frontier Days parade in Fort

Dodge. All five boys are African-American.

         After the parade, the boys planned to go swimming. The boys were

walking in the street when they heard a vehicle approaching and moved

to the sidewalk. Hennings, who is white, drove past the boys in a navy

blue Ford Ranger pickup and shouted at the boys to “get the fuck 1 off the

road.” K.W. yelled back at Hennings, “[W]e don’t have to get the fuck off

the street.”

         Hennings stopped his truck and got out of the truck carrying a
pocket knife with a blue handle and a serrated blade between three and

four inches long. J.M. testified Hennings threatened the boys with the

knife.     The boys ran away toward a parking lot, but K.W. stopped

running and stood his ground. K.W. testified he told Hennings “if you

drop the knife,” “we’ll beat [your] ass.”         When the other boys realized

K.W. had stayed behind, they ran back toward him. When they got back


         1Becausethe language used by the defendant is the central evidence in support
of the hate-crime charge, we have included such language, despite its offensive nature,
in this opinion.
                                     3

to K.W., Hennings walked back to his truck. Hennings called the boys

“fucking niggers” as he got into his truck.

      Hennings sped off and the boys continued walking. A.M. realized

he had dropped his swim trunks by the parking lot and went to retrieve

them. Meanwhile, Hennings circled back around toward the boys. As

the boys were crossing a street, they saw Hennings run a stop sign and

begin heading towards them in his truck. Hennings drove his truck in

the center of the street and aimed for the boys. The boys ran and some

climbed onto a brick retaining wall for protection.

      When the four boys reached safety, Hennings changed direction

and began aiming for A.M., who lagged behind the others. A.M. ran side-

to-side hoping to evade Hennings, but Hennings swerved his truck to

follow A.M. A.M. was soon hit, and the truck’s passenger-side tires drove

over him. Hennings then left the scene.

      Two bystanders observed the incident and testified at trial. Beth

Cox testified that from her desk at work she saw Hennings stop, threaten

the boys, drive away, and then circle back around. She started to call

911, but then decided to check on the boys and saw A.M. injured in the

street. The second bystander, State Senator Daryl Beall, called 911 and

exclaimed, “There is a young man that was hit, a car was chasing him

and ran over him.”

      A.M. was transported to the hospital and treated for abrasions to

his face, head, shoulders, elbow, and thighs. He also had a potentially

fatal laceration to his liver with internal bleeding, but the injury healed

without treatment.    A.M. stayed in the hospital for observation and

suffered permanent scarring and discoloration across his body, including

on his face.
                                        4

      The next day, police officers Brad Wilkins and Dan Charlson

obtained a search warrant.        Wilkins and Charlson went to Hennings’

home to execute the warrant, where they spoke with Hennings and his

parents.     Wilkins recorded the encounter on a digital recorder, part of

which was played for the jury.           Hennings’ comments included the

following:

      I came around the corner . . . there’s a big group of monkeys
      standing in the fuckin road . . . grabbing every which way
      . . . I didn’t think I hit any of ’em . . . I think I hit a pothole in
      the road . . . I think I missed all of ’em.
      I came around the corner . . . they were all standing out in
      the road and this . . . I beeped my horn and they just fled . . .
      completely across the road.
      Some went that way . . . some went that way . . . I started
      hitting the brake and trying to . . . go for openings but they
      just . . . keep going like this . . . like a normal fuckin
      monkey.
      What . . . fuckin nigger don’t have enough sense to stay out
      the fuckin road . . . they deserve to get hit.

      Wilkins then stated, “I figure you don’t like black people?”             And

Hennings’ mother asked, “Why didn’t you wait for ’em to move?”

Hennings then said, “When they’re standing in fuckin road like stupid

monkeys.”
      Hennings’ parents suggested the complaint against Hennings was

manufactured because the family was well-known in Fort Dodge and not

well-liked because of their opinions towards race.           Wilkins responded

there were witnesses to the incident that were both black and white and

were not related to each other.

      When asked, Hennings denied having a knife and physically tried

to prevent the officers from searching and seizing his truck. Eventually,

the officers executed the search warrant. They found a silver-handled

knife in the glove compartment of the truck and a blue-handled knife
                                     5

with a serrated blade in Hennings’ bedroom dresser.          The officers left

Hennings’ property, taking the truck with them. During the encounter,

Hennings did not ask about A.M.’s condition or show remorse for his

actions.

      A criminalist for the Iowa Division of Criminal Investigation

analyzed the truck and A.M.’s clothing. He found debris had been wiped

out from the truck’s underbody, marks on A.M.’s shirt, and damage to

the truck’s grille that were consistent with the truck running over A.M.

      The State charged Hennings with count I, attempted murder in

violation of Iowa Code section 707.11 (2005); count II, willful injury in

violation of section 708.4(1); and count III, assault in violation of

individual rights with the intent to inflict a serious injury in violation of

sections 708.2C(1), 708.2C(2), and 729A.2(1).

      A jury convicted Hennings of the lesser-included offenses for

counts I and II: assault with intent to inflict serious injury and willful

injury causing bodily injury. The jury also convicted Hennings of count

III, assault in violation of individual rights with the intent to inflict a

serious injury. The district court granted a motion to dismiss count I

because the court held it merged with count II, as a lesser-included

offense.    Hennings was sentenced to an indeterminate term of

imprisonment not to exceed five years for both counts II and III.         The

district court ordered the sentences to run consecutively.

      Hennings appealed his conviction under count III, arguing the

conviction is not supported by substantial evidence because the evidence

would not allow a rational jury to conclude beyond a reasonable doubt

that Hennings acted “because of” A.M.’s race. Hennings also appealed

his consecutive sentences, arguing the district court did not provide

reasons on the record for imposing consecutive terms of imprisonment.
                                    6

The court of appeals affirmed Hennings’ conviction, but vacated his

sentence and remanded for resentencing.       This court granted further

review.

      II. Scope of Review.

      Sufficiency-of-the-evidence claims are reviewed for correction of

errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). The

jury’s verdict is binding upon a reviewing court unless there is an

absence of substantial evidence in the record to sustain it.      State v.

Schrier, 300 N.W.2d 305, 306 (Iowa 1981). “Evidence is substantial if it

would convince a rational trier of fact the defendant is guilty beyond a

reasonable doubt.”    State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa

2008).

      When reviewing a challenge to the sufficiency of the
      evidence, we view the evidence in the light most favorable to
      the State, including legitimate inferences and presumptions
      which may fairly and reasonably be deduced from the
      evidence in the record.

State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006).

      This court reviews sentences imposed in a criminal case for

correction of errors at law. Iowa R. App. P. 6.907; State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002). “We will not reverse the decision of the

district court absent an abuse of discretion or some defect in the

sentencing procedure.” Formaro, 638 N.W.2d at 724.

      III. Merits.

      A. Sufficiency of the Evidence.       Hennings argues there was

insufficient evidence to support the jury’s conviction under count III.

Hennings was convicted of assault in violation of individual rights, with

the intent to inflict a serious injury under Iowa Code sections 708.2C(1),

708.2C(2), and 729A.2(1).    Iowa Code chapter 729A establishes hate
                                       7

crimes in Iowa. 2   Section 729A.2 defines a hate crime as “one of the

following public offenses when committed against a person or a person’s

property because of the person’s race, color, religion, ancestry, national

origin, political affiliation, sex, sexual orientation, age, or disability.”

Assault in violation of individual rights under section 708.2C is listed as

one of the enumerated public offenses. Iowa Code § 729A.2(1). Under

section 708.2C, “ ‘assault in violation of individual rights’ means an

assault, as defined in section 708.1, which is a hate crime as defined in

section 729A.2.” Id. § 708.2C(1). Hennings was convicted under section

708.2C(2), which provides: “A person who commits an assault in

violation of individual rights, with the intent to inflict a serious injury

upon another, is guilty of a class ‘D’ felony.”

      Hennings argues he could not be convicted under count III

because the State did not present sufficient evidence to establish beyond

a reasonable doubt that the assault was committed “because of” the

victim’s race or color, as required by section 729A.2. Hennings does not

contest that he is racist or that he used racially derogatory terms when

discussing the incident with Wilkins.       Hennings argues, however, it is

“just as likely” his actions were motivated by the boys’ presence in the

road and K.W.’s retorts to Hennings. Hennings argues “it is reasonable

to think Hennings would have acted in a similar way regardless of the

race of the boys blocking the road.”

      There are essentially three categories of defendants to whom the

state might try to apply hate-crime laws, such as Iowa’s chapter 729A.

      The first category involves an individual whose single motivation in

an assault is something other than the protected status of the victim,

      2This   court previously upheld a predecessor hate-crime statute against a
constitutional challenge in State v. McKnight, 511 N.W.2d 389, 396 (Iowa 1994).
                                     8

such as jealousy or greed, but the individual also happens to be racist.

An individual cannot be convicted under section 729A.2 for such action

because it cannot be said that such an individual acted “because of” the

victim’s protected status.   See In re M.S., 896 P.2d 1365, 1377 (Cal.

1995) (noting, in analyzing California’s hate-crime statute, that “the

Legislature has not sought to punish offenses committed by a person

who entertains in some degree racial, religious or other bias, but whose

bias is not what motivated the offense”).

      Hate crimes such as section 729A.2 avoid constitutional concerns

by excluding crimes committed by defendants who are biased, but who

commit their crimes for other reasons. Cf. Wisconsin v. Mitchell, 508 U.S.

476, 485, 113 S. Ct. 2194, 2199–2200, 124 L. Ed. 2d 436, 445 (1993)

(noting, while upholding a hate-crime statute to constitutional challenge,

that in the sentencing context, “[t]he defendant’s motive for committing

the offense is one important factor . . . [b]ut it is equally true that a

defendant’s abstract beliefs, however obnoxious to most people, may not

be taken into consideration by a sentencing judge”).         In State v.

McKnight, 511 N.W.2d 389, 395–96 (Iowa 1994), this court upheld a

predecessor Iowa hate-crime statute to a constitutional challenge based

on the First Amendment. As the court explained:

      Had McKnight limited his attack on Rone to mere words, the
      First Amendment would have protected his right to do so.
      He lost that protection when his racial bias toward blacks
      drove him to couple those words with assaultive conduct
      toward Rone, who is black. In these circumstances, the
      words and the assault are inextricably intertwined for First
      Amendment purposes.

McKnight, 511 N.W.2d at 395 (emphasis added). As McKnight clarifies, it

is the causal connection between prejudice and a prohibited action that

protects hate-crime statutes from constitutional challenge. Criminalizing
                                      9

prejudice     only—and   therefore   thoughts—would       violate   the   First

Amendment.

         Hennings suggests he is in this first category: someone with

socially unacceptable views whose actions were not motivated by those

views.     Substantial evidence supports the jury’s determination that

Hennings is not in this category.      Hennings made racially derogatory

comments both during his encounter with the boys and during his

conversation with the police officers.        A jury could have believed

Hennings suggested the boys deserved to be run over because of their

race. There was substantial evidence supporting the State’s position that

Hennings’ bias towards the boys’ race played a causal role in his actions.

         The second category is the other extreme: individuals who commit

a crime based on the singular motivation of the victim’s protected status.

Hennings’ actions do not fall into this category. Crimes that fall into this

category do not involve any altercation between the victim and

defendant, but are instead often a seemingly random act of violence,

such as an individual seeking out a person of a protected status simply

because the individual wishes to harm any person of that protected

status.     There can be no question that actions with such a single

discriminatory motivation are properly covered by section 729A.2. See

Mitchell, 508 U.S. at 480, 113 S. Ct. at 2196–97, 124 L. Ed. 2d at 442

(upholding     a   Wisconsin   hate-crime   statute   against   constitutional

challenge where defendants decided to “move on some white people” and

proceeded to severely beat the first white person they encountered, a

boy).

         The third and intermediate category is an individual who acts

based on dual intents or mixed motives. The aggressor is motivated by

both the victim’s protected status and by a separate motivation, for
                                    10

example, by jealousy, greed, or anger. Hennings argues section 729A.2

does not apply to defendants in the third category:      defendants with

mixed motives. We disagree.

      The legislature’s use of the words “because of” in section 729A.2

requires evidence of a causal connection between the defendant’s bias

and the alleged actions. See In re S.M.J., 556 N.W.2d 4, 6–7 (Minn. Ct.

App. 1996) (holding the words “because of” require demonstration of a

“causal connection”); State v. Plowman, 838 P.2d 558, 561 (Or. 1992)

(holding the language “because of” in the state’s hate-crime statute

“expressly and unambiguously requires the state to prove a causal

connection between the infliction of injury and the assailants’ perception

of the group to which the victim belongs”).

      We are frequently called upon to address causation within the

criminal law.    The doctrine of causation requires a “sufficient causal

relationship between the defendant’s conduct and a proscribed harm.”

State v. Marti, 290 N.W.2d 570, 584 (Iowa 1980).          As we recently

explained in State v. Tribble,
      When causation does surface as an issue in a criminal case,
      our law normally requires us to consider if the criminal act
      was a factual cause of the harm. The conduct of a defendant
      is a “factual cause of harm when the harm would not have
      occurred absent the conduct.”

State v. Tribble, 790 N.W.2d 121, 126–27 (Iowa 2010) (citations omitted)

(quoting Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 26, at 346 (2010) [hereinafter Restatement]).       This

standard of criminal causation, addressed in Tribble and Marti, has

traditionally been labeled a “but for” test.   See id. at 127; Marti, 290

N.W.2d at 585.
                                          11

        The legislature’s use of the words “because of” in section 729A.2

requires that the defendant’s prejudice or bias be a factual cause of the

act. Under this standard, “[t]he [prejudice] of a defendant is a ‘factual

cause of harm when the harm would not have occurred absent the

[prejudice].’ ” Tribble, 790 N.W.2d at 127 (quoting Restatement § 26, at

346).    To find a causal connection, the jury need not believe the only

motivation for the defendant’s acts was the victim’s race or other

protected status.       Instead, to find a defendant guilty under section

729A.2, the jury must determine beyond a reasonable doubt the

defendant would not have acted absent the defendant’s prejudice.

Therefore, if a defendant is partially motivated by bias, but would still

have committed the acts regardless of the bias, the defendant usually

cannot be guilty under section 729A.2. 3

        Here, there is substantial evidence Hennings would not have run

the boys down with his truck, and run over A.M., except for the boys’

race.    One boy testified Hennings referred to the boys as “fucking

niggers” during the initial encounter. Additionally, when police officers

came to Hennings’ home, he referred to the boys and A.M. as “monkeys,”

“a normal fuckin monkey,” “fuckin nigger,” and “stupid monkeys.”
Additionally, Hennings implied the boys deserved to be hit because of

their race, stating, “What . . . fuckin nigger don’t have enough sense to

stay out the fuckin road . . . they deserve to get hit.”               When asked


        3The  “multiple sufficient causes” doctrine is an exception to the but-for
causation rule. The doctrine applies when there are “two or more competing causes,
each of which is sufficient without the other to cause the harm.” Restatement § 27 cmt.
a, at 376. In such a circumstance, as we explained in Tribble, the Restatement and
Thompson v. Kaczinski, 774 N.W.2d 829, 837 n.3 (Iowa 2009), have adopted a “legal
rule that simply declares multiple causes that alone would have been a factual cause
under the ‘but for’ test to be factual causes.” Tribble, 790 N.W.2d at 127 n.2.
Therefore, when two separate motivations are each independently a but-for cause of the
action, each is considered a factual cause.
                                      12

whether he disliked black people and why he didn’t wait for the boys to

move, Hennings stated, “When they’re standing in fuckin road like stupid

monkeys.”

      Hennings’ own statements provided sufficient evidence for a

rational jury to find beyond a reasonable doubt that Hennings acted

“because of” the boys’ race or color. Regardless of whether Hennings was

motivated in part because the boys were in the road or because one of

the boys talked back to him, the evidence supports the conclusion by a

rational jury that Hennings would not have run A.M. down if he had not

been African-American.        This motivation is especially clear from the

statements Hennings made to the police officers the day after the

assault. State v. Pollard, 906 P.2d 976 (Wash. Ct. App. 1995), provides a

similar example. In Pollard, the defendant was walking down the street

drunk when two African-American boys playing in a yard whispered to

each other and started giggling.       Pollard, 906 P.2d at 978.   Pollard

entered the yard, pushed one of the boys, called him a “nigger,” and

threatened him.       Id.   When Pollard was arrested, he yelled the boy

“should be shot, because he was black, all niggers and Mexicans should

be shot.”     Id.   The court upheld Pollard’s conviction of a hate crime,

explaining:

      Whether or not Pollard assaulted Durham in part because he
      was blind drunk and insulted by the boys’ ridicule, the
      evidence is overwhelming that he also assaulted him with
      the intent to intimidate and harass him because of his race.
      As the trial court found, Pollard’s reason for assaulting
      Durham is clear from his statements when he first noticed
      the boys and approached them.

Id. at 981–82.

      One could argue both the boys’ presence in the road and their race

were but-for causes: (1) had the boys not been in the road, Hennings
                                          13

would not have run down A.M.; and (2) had the boys not been African-

American, Hennings would not have run down A.M.                    The existence of

multiple factual causes does not relieve Hennings of liability under Iowa’s

hate-crime statute. “An actor’s tortious conduct need only be a factual

cause of the other’s harm. The existence of other causes of the harm

does not affect whether specified tortious conduct was a necessary

condition for the harm to occur.”            Restatement § 26 cmt. c, at 347.

Hennings may not have been motivated to run over the boys had they

been walking on the sidewalk. However, just because the boys’ presence

in the street was a separate factual cause does not mean race was not

also a but-for cause. As noted above, there is substantial evidence to

support a jury determination that Hennings would not have run A.M.

over had he been white and in the street. 4


       4The   analysis of multiple factual causes is not the same as the doctrine of
“multiple sufficient causes” discussed above in footnote three. Here, the jury could
have found there were two but-for causes that were both necessary to Hennings’ action:
Hennings acted both because the boys were African-American and because the boys
were in the road. In Tribble, this court explained that in criminal cases, the law
typically requires the application of the “straightforward, factual cause requirement of
causation,” often labeled the “ ‘but for’ test.” Tribble, 790 N.W.2d at 126–27. Under a
factual cause analysis, as discussed above, there may be more than one factual or but-
for cause of the harm. See Restatement § 26 cmt. c, at 347. The doctrine of “multiple
sufficient causes,” on the other hand, addresses a situation where there are two
completely independent and separate causes that each would have caused the harm
independent of the other. In such a circumstance, neither is truly a but-for cause
because the harm would have occurred regardless, due to the other separate and
independent cause. To correct this inequality, the law declares separate independent
causes to be factual causes. Restatement § 27 cmt. a, at 376. For this doctrine to be
relevant here, both the boys’ race and presence in the street would have to be separate
independent causes: Hennings would have run the boys over on the sidewalk because
of their race and Hennings would have run the boys over if they were Caucasian but in
the street. The example of multiple sufficient causes provided in the Restatement is two
campfires, each of which cause fires that converge and burn a building. Id. § 27 cmt. a,
at 377. The building would have burned from either fire alone, therefore each fire is
considered to be a factual cause. Id. The analysis is unnecessary here because, as
discussed above, the jury could have found both the boys’ race and presence in the
street to be necessary factual causes: Hennings ran over A.M. because he was in the
road and African-American.
                                    14

      Essentially, Hennings objects to the concept of hate crimes.

Hennings argues it is “just as likely” he acted for nonbiased reasons and

a finding that Hennings acted because of race “requires the use of

speculation and conjecture.”     Determination of intent or mens rea is

frequently an element of criminal law and our system often relies on

juries to make this determination. “Because it is difficult to prove intent

by direct evidence, proof of intent usually consists of circumstantial

evidence and the inferences that can be drawn from that evidence.”

State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). In Adams, the jury

was called on to determine the defendant’s motivation for possessing

drugs:    for personal use or because he planned to deal the drugs to

others. Id. We held a trier of fact could reasonably infer the defendant

possessed the drugs with the intent to deliver. Id.

      Likewise, juries determine whether a killing was “premeditated,” a

determination that requires consideration of a defendant’s thoughts. In

State v. Taylor, 310 N.W.2d 174, 178 (Iowa 1981), we upheld a jury

instruction defining premeditation as “to think or ponder upon a matter

before acting.”   Similarly, the crime of assault with intent to commit

sexual abuse requires a jury to determine whether a defendant had

sexual intent, even though the assault may not have been sexual in

nature.    See State v. Casady, 491 N.W.2d 782, 785–86 (Iowa 1992)

(admitting prior instances of defendant pulling young women into his car

and sexually assaulting them to demonstrate sexual intent when

defendant attempted, but failed, to pull a girl into his car); see also Iowa

Code § 709.11.    Treason also presents a crime that requires a similar

inquiry, conviction for which the United States Supreme Court has

previously upheld.   Haupt v. United States, 330 U.S. 631, 634–35, 67

S. Ct. 874, 876, 91 L. Ed. 1145, 1150 (1947) (noting that whether the
                                    15

acts were done “is a separate inquiry from that as to whether the acts

were done because of adherence to the enemy, for acts helpful to the

enemy may nevertheless be innocent of treasonable character”). As the

Court explained in Mitchell, a conviction for treason “may depend very

much on proof of motive” to “prove that the acts in question were

committed out of ‘adherence to the enemy.’ ” Mitchell, 508 U.S. at 489,

113 S. Ct. at 2201, 124 L. Ed. 2d at 448.

      Juries are capable of making determinations regarding intent and

motivation, including whether a defendant acted “because of” a victim’s

protected status.   There may be cases where a lack of evidence will

require a directed verdict and prevent the issue from reaching the jury.

To support a conviction under section 729A.2, there must be enough

evidence to support a jury determination beyond a reasonable doubt that

the defendant would not have acted in the absence of the victim’s

protected status. That level of evidence is present here.

      B. Sentencing.      The district court sentenced Hennings to an

indeterminate term not to exceed five years for both counts II and III and

ordered the sentences to run consecutively. Hennings argues the district

court’s order that the sentences run consecutively should be set aside

because the court failed to state on the record its reasons for selecting

that the sentences run consecutively. The State concedes and suggests

the district court did not explain why it was sentencing Hennings to

consecutive sentences.      The State requests we vacate Hennings’

sentences and remand the case for resentencing to allow the district

court to state its reasons on the record. We, however, are not bound by

the State’s concession.   See State v. Bergmann, 633 N.W.2d 328, 332

(Iowa 2001) (“Although the State concedes that error has been preserved

on every issue raised on appeal by filing the timely suppression motion,
                                    16

we disagree.”); State v. Epps, 313 N.W.2d 553, 557 (Iowa 1981)

(“Although the State concedes this testimony by Bolden exceeded the

scope of the minutes, we do not agree.”).

      According to Iowa Rule of Criminal Procedure 2.23(3)(d):          “The

court shall state on the record its reason for selecting the particular

sentence.” “A statement may be sufficient, even if terse and succinct, so

long as the brevity of the court’s statement does not prevent review of the

exercise of the trial court’s sentencing discretion.” State v. Johnson, 445

N.W.2d 337, 343 (Iowa 1989).

      At the sentencing hearing, the district court first explained the

sentencing options, noting the difference between a sentence of

confinement, probation, and a deferred sentence. The judge explained

the hate-crime conviction carried a mandatory sentence and therefore,

probation or a deferred sentence were not options.

      The judge then summarized what he had reviewed, noting:

      I look at your age, that’s what the Presentence Investigation
      Report contains along with your prior criminal record, your
      employment record, your education record, previous crimes
      that you have been charged with, and of course, it gives
      some      recommendation,      usually   in   a    Presentence
      Investigation Report and this one does the same thing, so
      I’ve had a chance to review that. I, of course, presided at the
      trial, so I heard all the testimony that was presented in this
      case.

The district court explained the specific factors that influenced its

sentencing decision.   The court noted the purpose of sentencing is to

protect society and also a hope of rehabilitation.      The district court

emphasized the crime was classified as a hate crime and stated that

based on the evidence at trial, he believed it would have been difficult for

the jury not to convict on the hate crime. The district court also noted

that by enacting hate-crime legislation, the legislature wanted to send a
                                    17

message that “we’re [not] going to have any kind of violent activity based

solely upon a person’s race.”    The district court specifically referenced

A.M.’s mother’s testimony, in which she was angry and felt Hennings

could have chosen not to run over A.M.

      The district court then stated, “with all those things in mind,” each

of the sentences for counts II and III would be a period of not more than

five years and stated: “These two sentences shall run consecutively.”

      Hennings and the State apparently believe the district court’s

explanation was insufficient as it pertained to the choice to run the

sentences consecutively. We disagree. The court spoke at length about

the information it considered in making a sentencing determination and

specifically, what factors influenced its ultimate decision. This is not a

situation where the court “failed to give even a terse explanation of why it

imposed consecutive, as opposed to concurrent, sentences.”         State v.

Uthe, 542 N.W.2d 810, 816 (Iowa 1996). Nor is it a situation where the

court “ ‘did not state any reason why the two mandatory sentences were

set to run consecutively’ ” or “left the impression that the trial court may

have mistakenly believed that consecutive sentences were mandatory.”

Johnson, 445 N.W.2d at 343 (quoting State v. Harrington, 349 N.W.2d

758, 763 (Iowa 1984), abrogated on other grounds by Ryan v. Arneson,

422 N.W.2d 491, 495 (Iowa 1988)). Instead, “[i]t is apparent to us that

the district court ordered the defendant to serve his sentences

consecutively as part of an overall sentencing plan.” Id.

      IV. Conclusion.

      Substantial   evidence    supports   the   jury   determination   that

Hennings acted because of his victim’s race, as required by Iowa’s hate-

crime statute.    Additionally, the district court provided a sufficient
                                 18

statement on the record regarding the reasons behind the decision to

sentence Hennings to consecutive sentences.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

      All justices concur except Appel, Wiggins, and Baker, JJ., who

concur specially.
                                     19

                                                  #08–1845, State v. Hennings

APPEL, Justice (concurring specially).

      I agree with the result in the majority opinion and much of the

analysis contained in it.       I write separately only to emphasize the

narrowness of today’s ruling.

      The sole issue raised in this case is whether there is substantial

evidence to support the verdict. On this narrow issue, there is authority

in some jurisdictions that the use of a racial epithet in the heat of a fight

or altercation, standing alone, may be insufficient to support a conviction

of a hate crime. See Commonwealth v. Ferino, 640 A.2d 934, 938 (Pa.

Super. Ct. 1994).

      In this case, there was substantial evidence that Hennings uttered

a racial epithet at the conclusion of the initial encounter. But that was

not the end of the matter.       Instead of leaving, there was substantial

evidence that Hennings returned to the scene and began using his

vehicle to chase down an African-American youth.

      Why did Hennings engage in this odd behavior when he had

already begun to withdraw from the scene? In explaining his behavior to

police who were investigating the incident, Hennings, after repeatedly

using racially derogatory terms to describe the boys, declared “What . . .

fuckin nigger don’t have enough sense to stay out the fuckin road . . .

they deserve to get hit.” These were not angry words made in the course

of a heated struggle, an isolated or stray comment reflecting the anger of

the moment, or even simply a strident declaration of philosophy or belief.

Hennings    made    these   statements    after    passions   had   cooled   to

investigating officers trying to determine, among other things, why

Hennings did not simply break off the encounter. Hennings, apparently,

found repeated pejorative racial reference to the youth as relevant to
                                     20

explain his odd behavior that night, and so did the jury. On this record,

I am satisfied that there is sufficient evidence to support the conviction of

a hate crime.

      I observe, however, that courts must take care to ensure that a

defendant is not convicted of a hate crime merely because a defendant

holds unorthodox or unpopular beliefs. In a hate-crimes case, the trial

judge must carefully control the admission of evidence and ensure that

the jury is properly instructed on the law.      Where convictions result,

courts must carefully review the record to ensure that the jury has not

convicted the defendant of a hate crime based merely upon his or her

unsavory views.

      Wiggins and Baker, JJ., join this special concurrence.
