                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1963
                              Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHWA MARQUETTE TANNER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Timothy J. Finn,

Judge.



      Joshwa Tanner appeals his judgment and sentence for willful injury

causing serious injury and domestic abuse assault causing serious injury.

JUDGMENT AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall and Kevin R.

Cmelik, Assistant Attorneys General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                          2


MULLINS, Judge.

       Joshwa Marquette Tanner appeals the district court’s judgment and

sentence finding him guilty of willful injury causing serious injury and domestic

abuse assault causing serious injury. Tanner argues there is not substantial

evidence to support the district court’s finding that he was in a domestic

relationship with J.R., or that he had the requisite intent to commit the crimes.

He also claims the district court erred in assessing fees and other financial

obligations to him without making a determination of his reasonable ability to pay.

We find there was sufficient evidence to support the convictions but an

inadequate record to show whether the district court reasonably exercised its

discretion when it assessed Tanner’s reasonable ability to pay before assigning

fees. Accordingly, we affirm the district court’s judgment, vacate the sentence in

part, and remand.

       I.     Background Facts and Proceedings

       On May 24, 2014, J.R. suffered the following injuries in a car in

Marshalltown: an extensive soft tissue swelling along with subcutaneous gas and

hematoma within the soft tissue of the left part of her face, a comminuted and

displaced fracture involving the posterior wall of the left maxillary sinus, a

herniation of fat in the left maxillary sinus, blood products within the left maxillary

sinus, fractures involving the orbital floor, mandibular fractures, slight irregularity

to the nasal bone (that may represent a fracture), likely blood products and gas in

the nasal passage, gas lucencies in the left optic canal, and fractures of the

pterygoid processes. Essentially J.R.’s jaw was broken on both sides, her left

orbit—or the bone surrounding her left eye—was fractured, her left sinus was
                                            3


fractured, the pterygoid processes were fractured, and her nose was fractured.1

She had three separate hemorrhagic contusions to her brain. An emergency

room doctor testified these injuries created a substantial risk of death had J.R.

not received treatment in a hospital.

       Both parties concede Tanner, J.R.’s boyfriend at the time of the incident,

caused her injuries. The night before the incident, Tanner and J.R. got into a

verbal disagreement that ended with J.R. telling Tanner she was going to her

sister’s house and did not know when she would be home. Tanner called J.R.

multiple times during the night; when J.R. finally answered, she sounded drunk

and asked Tanner, “Why would I come home?”

       Early the next morning, Tanner called his cousin and asked him to look for

J.R. at her friend’s house. Tanner’s cousin located J.R. at her friend’s home and

told Tanner he could not wake her. Tanner got a ride to Marshalltown and

walked to J.R.’s friend’s house.        When he arrived, he saw beer cans and

cigarettes in J.R.’s car, neither of which were brands he knew she used. Tanner

retrieved J.R.—who was sleeping on the couch—and walked her out to her car.

       In the car, Tanner asked J.R. about the beer and cigarettes and said he

could “smell her,” to which she replied “no, you can’t smell me.” When she told

him, “I’m not going to be fucking scared of you today,” he hit her twice in the jaw.

Tanner immediately drove J.R. to the emergency room after seeing she was

bleeding and making strange noises.




1
 In his brief, Tanner adopted the descriptions of J.R.’s injuries from the district court’s
written ruling; we do the same.
                                         4


       When asked by a nurse about what happened, Tanner said, “I did it. I hit

her.” Officer Joe Hengeveld described Tanner as “very agitated” and “sweaty.”

More than once Tanner said, “I really screwed up.” Tanner said J.R. was his

girlfriend and they lived together in Toledo. Tanner admitted to punching J.R. in

the face twice and then driving her to the emergency room.

       Detective Sadie Weekley, who interviewed Tanner at the hospital, testified

as follows at trial:

               Q: Did Mr. Tanner tell you whether he told anyone at the ER
       how [J.R.] had been injured? A: Yes. He stated that he told a
       worker there, “That’s my fault. I assaulted her.”
               ....
               Q: Did Mr. Tanner acknowledge or state to you that what he
       did to [J.R.] was wrong? A: Yes.
               Q: Did Mr. Tanner make any statements indicating that he
       placed some of the blame on [J.R.] for what happened? A: Yes.
       He said that she’s always provoking him into hitting her and she
       had given him a disgusted look right before this had happened.
               Q: Did you ask Mr. Tanner if he meant to hurt [J.R.]?
       A: Yes, I did.
               Q: What did he say? A: He said that he didn’t mean to hurt
       her that bad. That he was just getting her to shut up.
               Q: Did Mr. Tanner make any statements in your interview
       indicating that he was concerned for [J.R.] or for her condition? A:
       No.
               Q: Did Mr. Tanner express any concern for what would
       happen to him if [J.R.] died? A: Yes. He asked how serious it
       would be for him if she didn’t make it.
               Q: Did Mr. Tanner state whether [J.R.] had expressed any
       fear of him? A: He said that two days prior to this incident, she
       asked him if he was going to kill her.

       Detective Weekley also testified Tanner demonstrated how he struck J.R.,

showing a closed fist and landing two punches to the left side of her face.

Tanner, who testified in his own defense, denied having any intent to harm J.R.:

                Q: When you got in the car, did you intend to assault her?
       A: No.
                                        5


              Q: Did it just kind of happen? A: Yeah. It happened spur of
        the moment.
              THE COURT: I’m sorry. I didn’t hear that.
              A: It happened spur of the moment. I didn’t intend for it.

        On cross-examination, Tanner admitted he was “pissed off” at J.R. and

suspected she had been engaged in sexual relations with someone else.

               Q: So you basically questioned everything that she said to
        you? A: Pretty much.
               Q: Your anger at [J.R.] was building up when you were in the
        car with her? A: I wasn’t angry with [J.R.].
               Q: You told Detective Weekley that you were angry with her,
        though; didn’t you? A: I might have told her that I was pissed off
        but I wasn’t angry.
               Q: So you were pissed off at her? A: Was a little pissed,
        yes.
               Q: And you felt that way in the car? A: Not really. Once I
        got in the car, it was okay. You know, we was driving—we were
        driving off and we were heading home; and once I started trying to
        talk to her, I mean, it wasn’t really a conversation; and it just
        happened.
               Q: It was in the car that you had the conversation about the
        Busch Light and the Kools? A: Yes.
               Q: And you smelled [J.R.] in the car, correct? A: Yes.
               Q: You smelled her vagina? A: Yes.
               Q: And so you’re concerned at the time that perhaps she
        had had sexual relations with another man? A: I couldn’t—I
        couldn’t really just say that, you know. I just know that there was
        something different. So I don’t know what she had been doing. So
        I couldn’t say she was with another man. She could have been
        with another woman.
               Q: But that thought crossed your mind in the car? A: It
        would cross any man’s mind.
               Q: So that’s a yes? A: Yeah.

        When asked about past physical altercations, Tanner admitted pushing

J.R. down in the snow one day and knocking her out. Tanner also recalled J.R.

had a scar on her head from a time when he pushed her against the wall of their

home.
                                          6


         Tanner entered a plea of not guilty based primarily on his contention he

did not intend to injure J.R. that severely. On August 26, the matter was tried to

the bench; on October 9, the district court issued a guilty verdict. The court

sentenced Tanner to ten years in prison for willful injury and two years for

domestic assault, to be served consecutively.        He was also ordered to pay

$264.50 in attorney fees and $251.18 to the Crime Victim Compensation

Program. The sentencing order indicated “costs and fees are due immediately

and shall be considered delinquent if not paid within [thirty] days of today’s date.”

Tanner appeals.

         II.   Scope and Standard of Review

         Sufficiency-of-the-evidence claims are reviewed for errors at law. State v.

Thomas, 561 N.W.2d 37, 39 (Iowa 1997). “[T]he trial court’s factual findings are

binding on appeal if supported by substantial evidence.” State v. Taylor, 689

N.W.2d 116, 130 (Iowa 2004).         Substantial evidence is evidence that could

convince a rational trier of fact of the defendant’s guilt beyond a reasonable

doubt.     State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).         We review the

evidence in the light most favorable to the State to determine if there is

substantial evidence. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001).

         We review the district court’s grant or denial of attorney fees for an abuse

of discretion. NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 469

(Iowa 2010). “An abuse of discretion will only be found when a court acts on

grounds clearly untenable or to an extent clearly unreasonable.”            State v.

Hopkins, 860 N.W.2d 550, 553 (Iowa 2015) (citation omitted).
                                         7


       III.   Analysis2

              A.     Willful-Injury Charge

       Tanner argues the record does not include evidence supporting inferences

he acted with the specific intent to cause serious injury, as required for a

conviction of willful injury causing serious injury.   See Iowa Code § 708.4(1)

(2013) (defining willful injury causing serious injury as “an act which is not

justified and which is intended to cause serious injury to another” that “causes

serious injury to another”).

       The element of intent is seldom susceptible to proof by direct evidence.

State v. Sinclair, 622 N.W.2d 772, 780 (Iowa Ct. App. 2000). Proving intent

usually depends on circumstantial evidence and the inferences a fact-finder may

draw from the evidence. Id. “[T]he facts and circumstances surrounding the act,

as well as any reasonable inferences to be drawn from those facts and

circumstances, may be relied upon to ascertain the defendant’s intent.” State v.

Schminkey, 597 N.W.2d 785, 789 (Iowa 1999).

       Tanner claims he lacked the specific intent to cause J.R.’s serious injuries.

Tanner admitted to previously assaulting J.R. at least twice. Tanner blamed J.R.

for “always provoking him into hitting her,” indicating “she had given him a

disgusted look right before this had happened.” Tanner expressed no concerns

to officers for her condition and admitted to officers she feared he would kill her.

He told the officers, hospital employees, and his cousin he had “messed up.”


2
 Insofar as the State challenges Tanner’s preservation of these issues on appeal, we
assume, without deciding, that they were preserved. Because we consider Tanner’s
arguments on the merits, we need not consider Tanner’s alternative claim that his
counsel was ineffective for failing to preserve these issues.
                                          8


Tanner conceded he was “a little pissed” at J.R. and questioned who she had

been with that night, alluding that he did not trust her.              He physically

demonstrated striking J.R., showing how he used a closed fist and landed two

punches to the left side of her face and jaw with his right hand.

       The medical and physical evidence shows J.R. suffered extensive injuries

and ongoing problems resulting from the forceful blows Tanner inflicted upon her

face and head. An emergency room doctor testified the amount of force required

to fracture a jaw in multiple places is “quite a bit.” She opined Tanner may have

inflicted more than two punches, or J.R.’s head may have struck the window or

another hard surface of the car, resulting in three brain contusions and multiple

bone fractures. Additionally, Tanner was focused on his own legal predicament

and was not personally concerned about J.R.’s serious condition.

       After considering the record as a whole, we find there was substantial

evidence Tanner acted with the specific intent to seriously injure J.R..

              B.     Domestic Abuse Charge

       Tanner makes two challenges to his conviction for domestic abuse assault

with intent to inflict serious injury: (1) there is not substantial evidence to support

he had the requisite specific intent, and (2) there is not substantial evidence to

support the district court’s finding he was in a domestic relationship with J.R..

For the reasons discussed above, Tanner’s first challenge fails. Compare Iowa

Code § 708.4(1) (defining willful injury causing serious injury as requiring “intent[]

to cause serious injury to another”), with id. § 708.2A(2)(c) (defining domestic

abuse assault as requiring “intent to inflict a serious injury upon another”).
                                         9


       With regard to the domestic-relationship claim, J.R. testified at trial that

she and Tanner had lived together since September 2013 and had a sexual

relationship.    Tanner told Officer Hengeveld he and J.R. “lived together in

Toledo,” and he told Detective Weekley they had lived together since September.

We find there is substantial evidence of record to support the district court’s

finding that Tanner and J.R. were in a domestic relationship.

                C.   Attorney Fees

       Tanner claims the district court’s order to pay court-appointed attorney

fees and victim compensation was deficient because the court failed to consider

his reasonable ability to pay. At sentencing, the court ordered Tanner to pay

$251.18 to the Crime Victim Compensation Program and $264.50 in appointed

defense attorney certified fees. The sentencing order stated “costs and fees are

due immediately and shall be considered delinquent if not paid within [thirty] days

of today’s date.”

       In this case, the sentencing order contained the plan of restitution—the

total amount of restitution owed by Tanner to the Crime Victim Compensation

Program and his attorney. The district court’s inclusion of an established due

date—“costs and fees are due immediately and shall be considered delinquent if

not paid within [thirty] days of today’s date”—constituted a restitution plan of

payment. It was proper for Tanner to raise the issue on direct appeal because,

when the plan of restitution and restitution plan of payment are part of a

sentencing order, a defendant has the right to direct appeal. State v. Kurtz, 878

N.W.2d 469, 472 (Iowa Ct. App. 2016). “We conclude [Tanner] is able to appeal

the restitution order, including the court’s failure to consider his ability to pay,
                                          10


because the plan of restitution and the restitution plan of payment were part of

the sentencing order from which [Tanner] had a right of appeal.” See id. (citing

State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984)).

       Generally, “restitution ordered to the victim is made without regard to the

defendant’s ability to pay.” State v. Wagner, 484 N.W.2d 212, 215-16 (Iowa Ct.

App. 1992); see also Iowa Code § 910.2(1). “However, restitution is ordered for

crime victim assistance reimbursement, for public agencies, for court costs

including correctional fees, for court-appointed attorney fees, for contribution to a

local anticrime organization, and for the medical assistance program only to the

extent the defendant is reasonably able to pay.” Kurtz, 878 N.W.2d at 472 (citing

Iowa Code § 910.2(1)).       “Constitutionally, a court must determine a criminal

defendant’s ability to pay before entering an order requiring such defendant to

pay criminal restitution pursuant to Iowa Code section 910.2.” Goodrich v. State,

608 N.W.2d 774, 776 (Iowa 2000). “A defendant who seeks to upset a restitution

order, however, has the burden to demonstrate either the failure of the court to

exercise discretion or an abuse of that discretion.”        State v. Van Hoff, 415

N.W.2d 647, 648 (Iowa 1987).

       “Thus, before ordering payment for court-appointed attorney fees and

court costs, the court must consider the defendant’s ability to pay.” Kurtz, 878

N.W.2d at 473. In this case, we agree with Tanner the record does not reveal

the court considered whether Tanner was able to pay the aforementioned fees.3



3
 Tanner argues his affidavit of financial status revealed he had no ability to pay; but
while his first affidavit indicated he was employed prior to his incarceration, the
presentence investigation report contains a limited employment history and limited
                                            11


Because we cannot determine whether the court reasonably exercised its

discretion when it ordered restitution for attorney fees and victim compensation,

we vacate that portion of the sentence and remand for a determination of

Tanner’s reasonable ability to pay.

       JUDGMENT AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED.




information directed at ability to pay. We will not speculate as to what conclusions the
district court may have drawn from the limited information in the record.
         We note, however, at the sentencing hearing, Tanner offered no argument or
evidence relating to ability to pay. Defense counsel stated reasons to seek suspending
the fines, but offered no argument seeking relief from restitution. In his allocution,
Tanner made no such plea either. Our case law has relaxed preservation-of-error rules
regarding appealing an abuse of discretion on sentencing issues. See, e.g., State v.
Lathrop, 781 N.W.2d 288, 293 (Iowa 2010) (concluding “errors in sentencing may be
challenged on direct appeal even in the absence of an objection in the district court”).
We question whether that relaxed standard should allow a defendant to fail to present
facts on an issue that requires the court to consider certain facts in the exercise of its
discretion, then complain on appeal the court failed to consider facts the defendant failed
to present.
