               IN THE SUPREME COURT OF IOWA
                               No. 13–0738

                         Filed January 23, 2015


STATE OF IOWA,

      Appellee,

vs.

DARION AUBREA LOVE,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Pottawattamie County,

James S. Heckerman, Judge.



      Defendant seeks further review of a court of appeals decision

affirming his convictions for assault with intent to inflict serious injury

and willful injury.   DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN
PART, AND CASE REMANDED WITH INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Amy

Zacharias, Assistant County Attorney, for appellee.
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APPEL, Justice.

      In this case, we are called upon to consider whether the offense of

assault with intent to inflict serious injury merges with the offense of

willful injury causing bodily injury based upon the instructions given in

a case involving a violent domestic altercation.     After considering the

specific instructions given to the jury at this trial, which established the

legal framework for the jury’s factual deliberations, we conclude the

offenses must merge.

      I. Factual and Procedural Background.

      The State charged Darion Love in a three-count trial information.

Count I alleged kidnapping in the first degree in violation of Iowa Code

sections 710.1 and 710.2 (2011). Count II charged Love with attempted

murder in violation of Iowa Code sections 707.1 and 707.11. Count III

charged Love with willful injury causing bodily injury in violation of Iowa

Code section 708.4(2).      Love denied the charges and raised the

affirmative defenses of intoxication, diminished responsibility, and

justification.

      The case proceeded to trial. The evidence revealed that Jennifer

Pruett and Love had been dating for approximately five years and had a

minor son together. On May 4, 2012, they spent the night drinking in

Omaha.      They returned to Pruett’s house in Council Bluffs at about

10:30 p.m. and resumed drinking. They had sex. When Love tried to

initiate sex again, Pruett refused. Love got upset and threw a weight at a

living room wall, shattering a mirror.    Frightened, Pruett ran into the

bedroom and locked the door. Love pounded on the door, threatening to

break the windows out of her car if she did not let him in.          Pruett

relented.   When she opened the door, Love took a swing at her and

missed. Love’s errant blow punched a hole in the wall. Pruett ran to the
                                      3

bed, and when Love came after her, she grabbed a ceramic coffee mug

and threw it at him, hitting Love in the forehead and cutting his scalp.

Love then punched and kicked Pruett, bit her, hit her with the legs of a

broken TV tray, burned her with a cigarette, and poured fingernail polish

remover on her wounds.

        In the morning, Love drove Pruett to the hospital.        She was

hospitalized for two days with both eyes bruised and swollen shut. She

had a fractured nose and additional bruising on her legs, back, and

arms.

        The jury was instructed on kidnapping in the first degree,

attempted murder, and willful injury causing bodily injury.            The

attempted murder instruction included assault with intent to inflict

serious injury as a lesser included offense.

        Specifically, Instruction No. 26 relating to willful injury causing

bodily injury, stated in pertinent part:

               Under Count III; The State must prove all of the
        following elements of Willful Injury Causing Bodily Injury:

             1. On or about the 5th day of May, 2012, the
        Defendant assaulted Jennifer Pruett.

              2. The Defendant specifically intended to cause a
        serious injury to Jennifer Pruett.

              3. Jennifer Pruett sustained a bodily injury.

              4. The Defendant was not justified.

        The jury acquitted Love of kidnapping in the first degree and

attempted murder but found him guilty of the lesser included charge of

assault with intent to inflict serious injury. The jury also convicted Love

of willful injury causing bodily injury. The district court sentenced Love

to concurrent indeterminate prison terms of five years for willful injury

and two years for the assault conviction.
                                     4

      Love timely appealed. The only claim raised on appeal was that

the district court’s sentence of Love for two separate crimes was illegal

because the assault conviction should have merged with the willful

injury conviction under Iowa’s merger statute. See Iowa Code § 701.9

(stating “[n]o person shall be convicted of a public offense which is

necessarily included in another public offense of which the person is

convicted”).   We transferred the case to the court of appeals, which

affirmed. We granted Love’s application for further review.

      II. Standard of Review and Issue Preservation.

      A district court’s failure to merge convictions as required by statute

results in an illegal sentence. Such claims may be raised at any time.

See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995). Review of an

illegal sentence for lack of merger is for correction of errors at law. State

v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997) (citing Iowa R. App. P.

[6.907]).

      III. Discussion of Merger Issue.

      A.    Positions of the Parties.     Love makes the straightforward

argument that the jury was never instructed there might be multiple

convictions of the same crime. Love argues that in this case the jury was

instructed it could find him guilty of willful injury as a lesser included

offense of attempted murder, and it also could find him guilty of assault

with intent. But the instructions never asked the jury to determine if

there were two or more separate and distinct criminal acts.

      The State counters that notwithstanding the instructions, the

evidence offered at trial was plainly sufficient to support multiple

criminal acts under State v. Velez and its progeny. See 829 N.W.2d 572,

581–84 (Iowa 2013) (finding factual basis to support defendant’s guilty

plea under either the competed-acts test or the break-in-the-action test
                                      5

to two counts of willful injury causing serious injury to one victim who

suffered at least two serious injuries from multiple strikes). As a result,

the State reasons the jury could well have found that Love committed

two separate crimes, one crime of willful injury and a distinct, separate

crime of assault with intent.

      B. Analysis. There is substantial agreement in this case on two

basic points. First, both sides agree there was sufficient evidence in the

record to support two separate assaults under Velez. Second, the State

does not seriously dispute that assault with intent is a lesser included

offense of willful injury.      The question is which of these competing

principles provides the rule of decision in this case.

      We think Love has the better argument.             In this case, the

instructions developed by the parties and approved by the district court

did not ask the jury to engage in the fact-finding necessary under Velez

to support separate acts of assault. See 829 N.W.2d at 576–77. There

was no instruction, for example, asking the jury to determine whether

there was a sufficient “break in the action” necessary to support a finding

of multiple assaults under Velez. See id. at 582–83 (noting “[w]e have

previously used a break-in-the-action test to determine if separate acts

have been committed”); cf. State v. Ross, 845 N.W.2d 692, 701–06 (Iowa

2014) (considering application of Velez tests in case involving multiple

crimes in context of intimidation with a dangerous weapon); State v.

Copenhaver, 844 N.W.2d 442, 447–49 (Iowa 2014) (considering question

of whether the defendant committed two separate and distinct robberies).

While the factual record may have supported such a determination, the

jury simply was not asked to consider this factual issue.       In State v.

Folck, we said:
                                    6
      In the present case, defendant subjected his victim to three
      incidents of sexual abuse within a short period of time, all
      within the confines of his automobile. One was an act of
      fellatio, the other two were sexual intercourse. Assuming,
      without deciding, that these different assaults upon different
      parts of the body could have formed the basis for finding
      defendant had committed separate and distinct crimes, [Iowa
      R. Crim. P. 2.6(1)], we hold this was precluded by the
      manner in which the case was tried, submitted, and decided.

325 N.W.2d 368, 376 (Iowa 1982); accord State v. Flanders, 546 N.W.2d

221, 225 (Iowa Ct. App. 1996) (“The State can convict a defendant of

both kidnapping in the first degree and sexual abuse if there are separate

and distinct occurrences of sexual abuse and the case is presented in a

manner that requires the fact finder to make separate factual findings

the separate and distinct occurrences happened.” (Emphasis added.));

see State v. Newman, 326 N.W.2d 788, 792–93 (Iowa 1982) (noting that

from start to finish the State treated the crime as one continuing event,

and “[t]he State cannot depart from that course now”); see also State v.

Morgan, 559 N.W.2d 603, 611–12 (Iowa 1997) (same).

      Instead, under the instructions, the jury was to determine whether

Love could be convicted of a list of crimes beginning with the most

serious crime of kidnapping and descending to the least serious crime of

assault with intent. The jury began at the top and worked its way down

the instructions, finding the defendant not guilty of kidnapping in the

first degree and attempted murder, but then finding the defendant guilty

of willful injury and assault with intent. Again, however, the jury was

never asked to do the fact-finding necessary to support two separate

assaults.

      As a result, we cannot agree with the State’s argument that

because the evidence might have supported such a determination the

jury found Love guilty of two separate acts of assault.        Under the

instructions in this case, the jury was only asked to proceed serially
                                    7

through a list of crimes and determine which crime was supported by the

totality of the record.       Under the unique circumstances of the

instructions given in this case, and after comparing the marshaling

instructions and statutory elements of willful injury and assault with

intent, we conclude the offenses should merge. See State v. Hickman,

623 N.W.2d 847, 850 (Iowa 2001) (noting the test of merger is purely a

review of the legal elements and does not consider the facts of a

particular case); State v. Jeffries, 430 N.W.2d 728, 738–39 (Iowa 1988)

(same). There is no question that as a general proposition, the crime of

willful injury cannot be completed without also completing the crime of

assault with intent.   See, e.g., State v. Blanks, 479 N.W.2d 601, 606

(Iowa Ct. App. 1991) (noting “assault with intent was a lesser-included

offense of willful injury [and as] such, the trial court should have merged

the verdicts”); see also State v. Winstead, 552 N.W.2d 651, 654 (Iowa Ct.

App. 1996) (same).

      Under   the    unique   circumstances   presented    by   the   serial

instructions in this case, we conclude the crimes must merge even

though under different instructions, the evidence might have been

sufficient to support separate crimes under a Velez break-in-the-action

theory. As a result, the judgment and sentence imposed upon Love for

assault with intent is unlawful and must be vacated. See Iowa R. Crim.

P. 2.6(2) (prohibiting a defendant from being convicted of both greater

and lesser included offenses); State v. Belken, 633 N.W.2d 786, 802 (Iowa

2001).   The conviction related to willful injury, however, is valid and

remains undisturbed.
                                    8

      IV. Conclusion.

      For the above reasons, Love’s conviction of assault with intent is

vacated and the case remanded to the district court for sentencing on the

willful injury conviction.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

CASE REMANDED WITH INSTRUCTIONS.

      All justices concur except Mansfield, J., who concurs specially.
                                     9

                                                  #13–0738, State v. Love

MANSFIELD, Justice (concurring specially).

      I join in the court’s well-reasoned opinion but write separately to

set forth my views on how the court’s decision should be implemented in

our district courts in the future.

      We have recently decided a series of multiplicity cases, presenting

the question whether the defendant committed one or more than one

criminal act. See State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014); State

v. Copenhaver, 844 N.W.2d 442, 447 (Iowa 2014); State v. Gines, 844

N.W.2d 437, 441 (Iowa 2014); State v. Velez, 829 N.W.2d 572, 577 (Iowa

2013). Gines and Velez, however, involved guilty pleas in which the only

issue was whether there was a factual basis to conclude the defendant

had committed multiple crimes. See Gines, 844 N.W.2d at 441; Velez,

829 N.W.2d at 576–77. Ross and Copenhaver were jury trials, but the

issue raised by the defendants in those cases was the statutory unit of

prosecution, not the possibility that both convictions were based upon

the same conduct.      See Ross, 845 N.W.2d at 698; Copenhaver, 844

N.W.2d at 447–49.

      When the instructions permit the jury to convict the defendant

twice of the same offense (or of an offense and a lesser included offense)

based on the same conduct, and two guilty verdicts are returned, merger

must follow. In State v. Flanders, the court of appeals explained,

            The State can convict a defendant of both kidnapping
      in the first degree and sexual abuse if there are separate and
      distinct occurrences of sexual abuse and the case is
      presented in a manner that requires the fact finder to make
      separate factual findings the separate and distinct
      occurrences happened.

546 N.W.2d 221, 225 (Iowa Ct. App. 1996) (emphasis added).             In

Flanders, the instructions did not separate the sexual abuse that was the
                                          10

basis for the defendant’s sexual abuse conviction from the sexual abuse

that   was     the    basis   for   the   defendant’s   first-degree   kidnapping

instruction.    Id.   Therefore, merger was required even though the jury

could have found two separate acts of sexual abuse if asked to do so.

See id. As the court put it,

       We agree with the State there was evidence sexual abuse
       took place both in the bar and in the pick-up and each act
       could have formed the basis for separate and distinct
       findings of a count of sexual abuse. However, the jury was
       instructed on the course of conduct and not asked to find
       two distinct and separate acts.

Id.; accord State v. Newman, 326 N.W.2d 788, 793 (Iowa 1982) (“We do

not foreclose the State’s right to convict a defendant of both kidnapping

in the first degree and sexual abuse if the case is presented to the jury in

that way and the jury makes findings accordingly. A defendant should

not be allowed to repeatedly assault his victim and fall back on the

argument his conduct constitutes but one crime.”); State v. Folck, 325

N.W.2d 368, 376 (Iowa 1982) (“Assuming, without deciding, that these

different assaults upon different parts of the body could have formed the

basis for finding defendant had committed separate and distinct crimes,

. . . we hold this was precluded by the manner in which the case was

tried, submitted, and decided.”).

       The court reiterates this basic proposition today, and rightly so.

See generally Simmons v. State, 899 P.2d 931, 933, 937 (Alaska Ct. App.

1995) (finding that merger of two counts of being a felon in possession of

a firearm was required because “although the evidence presented at trial

might theoretically have supported a finding of interrupted possession,

the jury was never required to consider or decide the issue”); State v.

Perry, 968 P.2d 674, 679 (Kan. 1998) (merging aggravated battery

conviction with attempted murder conviction when the instructions “do
                                      11

not require the jury to distinguish between the pistol whipping and the

shooting to determine whether two separate acts occurred[, n]or do the

jury verdict forms distinguish the separate acts of violence claimed by

the State”); Nicolas v. State, 44 A.3d 396, 411–12 (Md. 2012) (holding

that where the factual record is ambiguous as to whether the jury found

the defendant guilty of assault and resisting arrest based upon the same

acts, merger is required); see also Harp v. Commonwealth, 266 S.W.3d

813, 818 (Ky. 2008) (“We again instruct the bench and bar of the

Commonwealth that in a case involving multiple counts of the same

offense, a trial court is obliged to include some sort of identifying

characteristic in each instruction that will require the jury to determine

whether it is satisfied from the evidence the existence of facts proving

that each of the separately charged offenses occurred.”).

      If the State wishes to avoid this outcome, it must ensure the

defendant is charged and the jury is instructed in a way that requires a

finding of separate conduct for each conviction.        For example, in this

case, the evidence showed that the defendant brutally kicked the victim,

then had one or more phone calls, then beat her repeatedly with a

broken end table leg, then had more phone calls, and finally picked up

nail polish remover and poured it into her face.          Had the jury been

instructed separately on the separate incidents of the kicking, the

beating with the table leg, and the pouring of the nail polish remover,

this could have supported multiple assault convictions (or multiple

willful injury convictions, if separate injuries resulted).

      Once the State proposes instructions that eliminate the possibility

the same conduct will be used to convict the defendant twice for the

same offense or convict the defendant of both a greater offense and a

lesser included offense, the ball is in the defendant’s court.        If the
                                          12

defendant believes separate convictions still cannot be pursued because

there was only one unit of prosecution, then the burden shifts to the

defendant to object to the instructions and verdict forms. The district

court would consider the defendant’s objection.                If the district court

found as a matter of law that the separate counts involve separate

criminal acts, it would overrule the objection and submit the separate

counts to the jury.       If the district court agreed with the defendant, it

would allow only one of the counts to go to the jury. And if the court was

uncertain whether more than one potential criminal act was involved, it

could ask the jury to make a finding on this issue, based upon the

legislature’s definition of the offense and using the standards we have

discussed in Velez, 829 N.W.2d at 579–84, and Ross, 845 N.W.2d at

698–700. 1

       Of course, even if the defendant failed to object to the instructions

and verdict forms, he or she could later argue that merger of the

convictions was required, because the error preservation rule does not

apply to a defendant’s statutory claim of an illegal sentence. See State v.

        1I believe in most cases the determination whether more than one potential

criminal act was involved could be made as a matter of law. But in a case where it is
possible to divide up the conduct into discrete segments in the jury instructions, yet it
is debatable whether each segment can be treated as a separate criminal act, and the
jury was not instructed to make appropriate findings despite the defendant’s request,
then a retrial would be necessary. See Feddiman v. State, 558 A.2d 278, 289–90 (Del.
1989) (upholding defendant’s conviction of eight counts of unlawful sexual intercourse
with the same victim where the jury was instructed “ ‘to find the defendant guilty as to
each count, you must find that a separate and distinct act occurred’ ” and the jury was
also instructed on factors to consider); State v. Frisbee, 156 P.3d 1182, 1186–87, 1190
(Haw. 2007) (ordering a new trial where the defendant was convicted of two kidnappings
based on a single course of conduct with a single victim and no “merger instruction”
was given); cf. Commonwealth v. Suero, 987 N.E.2d 1199, 1202–04 (Mass. 2013)
(merging two convictions where the defendant was convicted of indecent assault and
battery for moving a girl’s nightclothes and then rape for engaging in oral sex on her,
even though the jury was instructed that the crimes “ ‘must be based on proof of wholly
separate acts,’ ” because as a matter of law “the conduct supporting the indecent
assault and battery was incidental and necessary to the rape”).
                                       13

Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). But in that event, merger

would   not   occur   so   long   as   substantial   evidence   supported   a

determination that two separate criminal acts had occurred. See State v.

Merrett, 842 N.W.2d 266, 275 (Iowa 2014) (noting “[t]he instructions as

given became the law of the case”). Any other challenge from a defendant

who had failed to object at trial would have to be raised as an ineffective-

assistance-of-counsel claim.
