                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1252
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID MICHAEL SMITH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.




      David Smith appeals the sentences imposed on his convictions for

domestic abuse assault and willful injury causing bodily injury. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

         David Smith was charged with two class “D” felonies—domestic abuse

assault, third offense, and willful injury causing bodily injury—after assaulting his

live-in girlfriend in April 2015. In exchange for the State’s agreement that it would

not pursue any habitual offender sentencing enhancement or further criminal

charges resulting from the incident,1 Smith entered Alford pleas2 to the charges

and was sentenced to consecutive five-year terms in prison. He now appeals,

arguing his sentences are illegal because they violate the Double Jeopardy

Clause of the United States Constitution.

         A challenge to an illegal sentence may be raised at any time. See State v.

Louisell, 865 N.W.2d 590, 595 (Iowa 2015). We review illegal sentences for

correction of errors at law.     See Iowa R. App. P. 6.907.        However, claims

involving an alleged violation of the constitutional protection against double

jeopardy are reviewed de novo. See State v. Clarke, 475 N.W.2d 193, 194 (Iowa

1991).

         The Double Jeopardy Clause provides that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend

V.   The Clause protects defendants against multiple prosecutions or multiple

punishments for the same offense. See State v. McKettrick, 480 N.W.2d 52, 56

(Iowa 1992). A defendant may be convicted of and punished for the same crime


1
  As part of the agreement, Smith also agreed he would be found to have violated the
terms and conditions of his probation in two misdemeanor matters, his probation would
be revoked, and he would receive a sixty-day sentence and given credit for any time
served.
2
  An Alford plea allows a defendant to maintain innocence while acknowledging that the
State has enough evidence to win a conviction. See North Carolina v. Alford, 400 U.S.
25, 37 (1970).
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multiple times if the charges are based on “distinct acts.” See State v. Jacobs,

607 N.W.2d 679, 688 (Iowa 2000). Therefore, if it is legally impossible to commit

domestic abuse assault without also committing willful injury causing bodily

injury, or vice versa, Smith may only be punished for both offenses if they arise

from separate acts. See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)

(holding that where it is impossible to commit the greater offense without also

committing the lesser offense, the offenses are the “same” for purposes of

double jeopardy analysis). Here, Smith asserts that his convictions are a result

of the same act—a single assault of his girlfriend—and therefore violate the

Double Jeopardy Clause.

      The State does not dispute that Smith pled guilty to two crimes that arose

from the same act.     Instead, the State responds that Smith was subject to

multiple punishments for the single act of assault because the crimes of domestic

abuse assault and willful injury were intended to address separate evils. See

State v. Butler, 415 N.W.2d 634, 637 (Iowa 1987) (stating a defendant may

receive multiple punishments for the same act if the crimes for which the

defendant is being punished arise under separate statutes that were enacted to

address “separate evils”). When the legislature provides separate punishment

for each crime, double jeopardy is not violated. See Missouri v. Hunter, 459 U.S.

359, 368-69 (1983) (“Where . . . a legislature specifically authorizes cumulative

punishment under two statutes, regardless of whether those two statutes

proscribe the ‘same’ conduct . . . , the prosecutor may seek and the trial court or

jury may impose cumulative punishment under such statutes in a single trial.”).

The test is whether each offense requires proof of at least one element that the
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other does not.    See Butler, 415 N.W.2d at 637.        Therefore, if it is legally

impossible to commit domestic abuse assault without also committing willful

injury causing bodily injury, or vice versa, the offenses merge, and judgment and

sentence may be entered on only one offense, while judgment and sentence for

the other is vacated. See Iowa Code § 701.9 (2015); State v. Hickman, 623

N.W.2d 847, 850-52 (Iowa 2001) (describing the legal impossibility test and

applying it to merge crimes of first-degree robbery and willful injury); State v.

Muzingo, No. 99-1064, 2001 WL 23006, at *1 (Iowa Ct. App. Jan. 10, 2001)

(concluding Muzingo’s convictions for attempted murder, first-degree arson, and

willful injury stemming from the single act of placing explosives in his estranged

wife’s vehicle did not violate double jeopardy protections because “his conduct

violated three separately proscribed acts and, hence, are punishable as separate

evils”). If it is possible to commit one crime without committing the other, we

presume multiple punishments can be assessed.           See State v. Ceretti, 871

N.W.2d 88, 92 (Iowa 2015); State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999).

      In order to convict a defendant of domestic abuse assault, the State must

prove that the defendant assaulted a member of the household with the apparent

ability to cause bodily injury and that bodily injury resulted.    See Iowa Code

§§ 236.2(2), 708.2A(1), (4). To convict a defendant of willful injury causing bodily

injury, the State must prove a defendant assaulted another with the specific

intent to cause serious injury and bodily injury was caused. See id. § 708.4.

Although both crimes require a defendant to commit an assault and cause bodily

injury, the charges are not identical. Each charge has at least one element that

is not included in the other: domestic abuse assault requires the State prove the
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act occurred between household members, while willful injury does not.

Likewise, willful injury requires the specific intent to cause serious injury, while

domestic abuse assault does not. Because it is possible to commit one crime

without committing the other, merger was not required and the Double Jeopardy

Clause was not violated. See State v. Rodriquez, 636 N.W.2d 234, 247 (Iowa

2001) (noting that because aggravated and serious domestic abuse assault are

not included offenses of willful injury, merger was not required).

       The sentences imposed on Smith’s convictions for domestic abuse assault

and willful injury causing bodily injury do not run afoul of constitutional double

jeopardy protections. Therefore, his sentences are not illegal, and we affirm.

       AFFIRMED.
