                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0892
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN JAMES ZOBEL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Karen

Kaufman Salic, District Associate Judge.



      Justin Zobel appeals from his convictions and sentences for domestic

abuse assault causing bodily injury, domestic abuse assault, third-degree

burglary, and possession of marijuana. AFFIRMED.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



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

         Justin Zobel appeals from his convictions and sentences for domestic

abuse assault causing bodily injury, a serious misdemeanor, in violation of Iowa

Code     section   708.2A(2)(b)   (2016);       domestic   abuse     assault,    a   simple

misdemeanor, in violation of section 708.2A(2)(a); third-degree burglary, a class

“D” felony, in violation of sections 716.1 and 716.4; and possession of marijuana,

second    offense,   an   aggravated    misdemeanor,        in     violation    of   section

124.401(4)(m) and (5). Zobel contends the trial court erred in refusing to instruct

the jury on the self-defense theory and alleges a number of errors during

sentencing. Because we find the trial court did not err in refusing to instruct the

jury on the justification defense and find no abuse of discretion or error by the

sentencing court, we affirm.

       I. Background Facts & Proceedings.

       Zobel’s convictions for third-degree burglary and possession of marijuana

were entered pursuant to a written Alford plea. The underlying facts of those

convictions are not relevant to the appeal.          Zobel’s domestic-abuse-assault-

causing-bodily-injury and domestic-abuse-assault convictions arose from a

dispute between Zobel and Katie Barnish in the early morning hours of July 4,

2015, after which Barnish ended up with a black eye.                 Zobel and Barnish

previously dated and have a child together, “G.”

       At trial, Zobel did not dispute he hit Barnish causing the black eye, but he

did dispute the way in which the injury occurred. Barnish testified Zobel punched

her in the face after the dispute had progressed outside the house. Barnish
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stated she was attempting to walk back inside the home and was holding G.

when Zobel intentionally hit her. However, Zobel testified he hit Barnish in the

face when she was violently trying to wake him while he was sleeping on the

floor of G.’s room. Specifically, Zobel testified:

              Q. And when did you wake up? A. I woke up to being pulled
       on by my shorts and hit—like hit in the face, hit in the back, hit in
       the back of the head, and I don’t know, just like I said, I can’t say
       exactly how long it was but that’s how I was woken.
              ....
              Q. And did you know what was going on? A. No, I had no
       clue. I just knew I was just being hit and yelled at, screamed at.
              Q. What did you do? A. I reacted. I rolled over and threw a
       punch, first thing I did.
              Q. Did you throw a punch or swing your arm? A. Kind of
       rolled over and swung to get somebody off me because I had
       somebody in my face more or less in a reaction . . . .
              ....
              Q. When she got hit, was than an intentional act on your
       part? A. No. It was more of an act in defense.
              Q. So it was accidental? A. I believe so, yes.
              Q. Were you looking at her face at the time your hand struck
       it? A. No. I just rolled over to defend myself.

       Based on the facts as asserted in Zobel’s testimony, defense counsel

requested that the court instruct the jury on the justification defense. The court

refused to give the instruction. The jury ultimately found Zobel guilty on both

domestic-abuse counts.

       The sentencing hearing was held on May 23, 2016. The court sentenced

Zobel to an indeterminate prison term not to exceed five years on the third-

degree-burglary conviction, an indeterminate term not to exceed two years on the

possession-of-marijuana conviction, a thirty-day sentence on the domestic-

abuse-assault conviction, and a one-year term on the domestic-abuse-assault-
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causing-bodily-injury conviction, all sentences to be served consecutively. Zobel

now appeals.

       II. Jury Instruction.

       Zobel first asserts the trial court erred in refusing to instruct the jury on the

justification defense. We review the court’s refusal to give the requested jury

instruction for correction of errors at law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d

699, 707 (Iowa 2016).       “It is error for a court to refuse to give a requested

instruction where it ‘correctly states the law, has application to the case, and is

not stated elsewhere in the instructions.’” Deboom v. Raining Rose, Inc., 772

N.W.2d 1, 5 (Iowa 2009) (citation omitted). “Any error in the instructions given

‘does not merit reversal unless it results in prejudice.’” Id. (citation omitted).

       In refusing defense counsel’s request for a justification-defense jury

instruction, the court explained:

               As far as the self-defense instruction, there’s not been
       sufficient evidence produced to justify instructing the jury on self-
       defense. The defendant’s testimony, while he used the term self-
       defense, was that it was basically not—he didn’t have a specific
       intent to commit an assault, that he admitted the fact of striking her,
       and there weren’t the grounds included in his testimony to justify
       giving that self-defense instruction so that won’t be given.

When defense counsel later reasserted the issue, the court further explained:

       As the court indicated yesterday, there are some threshold—or
       there is a threshold for the evidence to be submitted in order to give
       the self-defense instruction. The court does not find that that has
       been met. Further, the defendant’s testimony seemed to me he
       wasn’t sure what he was doing and it was kind of instinctive, not an
       intentional act, so that’s a different issue than self-defense and he
       can certainly pursue that but based on the case law and the court
       rules, self-defense instruction will not be granted.
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The court determined there was not substantial evidence to support the defense

theory of justification. We agree the justification defense is not applicable under

these facts.

       Iowa Code section 704.3 defines the justification defense: “A person is

justified in the use of reasonable force when the person reasonably believes that

such force is necessary to defend oneself or another from any imminent use of

unlawful force.” Here, Zobel’s testimony stated he accidentally hit Barnish in an

attempt to stop her from hitting Zobel in the back of the head and pulling on his

shorts.   Zobel described his actions in the incident as a “reaction,” not as

necessary to defend himself. See State v. Rains, 574 N.W.2d 904, 915 (Iowa

1998) (concluding there was not substantial evidence to support the submission

of the justification-defense instruction because there was “no evidence that

defendant had a ‘reasonable belief’ that force was necessary to defend himself”).

During cross-examination, Zobel stated, “I didn’t purposely ever intently swing at

[Barnish].” In essence, his defense was that his assault was accidental rather

than intentional—not that it was justified.1

       While the jury was not instructed on the justification defense, it was

instructed on specific intent. The jury was instructed Zobel could not be found

guilty if he did not have the specific intent to cause pain or injury to Barnish and,

in turn, specific intent required Zobel to be aware of doing the act and that the act

was done voluntarily and with a specific purpose in mind.               This instruction


1
  See State v. Delay, 320 N.W.2d 831, 835 (Iowa 1982) (“Self-defense may operate as
justification only if the act committed by the defendant was defensive . . . .” (quoting 6
Am. Jur. 2d Assault and Battery § 160 (1963)).
                                           6


addressed Zobel’s argument he did not intend to hurt Barnish but that he was

reacting to her violent attempt to wake him. In his closing argument, defense

counsel emphasized the argument Zobel lacked the requisite intent:

       [Zobel] woke up to someone hitting him on the back of the head
       and pulling on his pants to the point that they ripped, he had no
       idea what was going on and struck out to stop the assault on him.
       His hand hit Miss Barnish’s face and that’s when she got injured.
       He said that he didn’t intend to assault her but was only trying to
       stop from being hit by her any further.

The jury instructions given in this case allowed the jury to properly consider

Zobel’s recitation of the facts and arguments in defense.             The justification

defense was not applicable, and Zobel was not prejudiced. Thus, the trial court

did not err in refusing to instruct the jury on the justification defense.

       III. Sentencing Errors.

       Zobel also contends the district court erred at sentencing in (1)

considering impermissible factors, (2) failing to state the reasons for imposing

consecutive sentences, and (3) imposing a domestic-abuse surcharge in the

written judgment but not in the oral pronouncement of the sentence.

       We review the allegations the court considered impermissible factors and

failed to state reasons for the sentence for an abuse of discretion. See State v.

Witham, 583 N.W.2d 677, 678 (Iowa 1998); see also State v. Oliver, 588 N.W.2d

412, 414 (Iowa 1998). We review claims of an illegal sentence for correction of

errors at law. Kurtz v. State, 854 N.W.2d 474, 478 (Iowa Ct. App. 2014).

       A. Consideration of Impermissible Factors. Zobel first takes issue with the

court’s following statement at the sentencing hearing:
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      There are certainly some things that you have done of late that are
      going to serve you well long term. My concern is that, as I’m sure
      you can imagine, pretty [much] everybody that sits there in your
      chair tells me the same thing, they’re sorry, they won’t see me
      again, they’ve made decisions about how to live their life differently.
      Some of those people are flat out lying to me. Some of them are
      very sincere in it but not going to be able to carry it out, and others
      are sincere about it and they get it done. You know, you’ve been in
      and out of courtroom[s] since you were a kid. A lot of your
      circumstances are unchanged. I think your parents have always
      supported you, have been there for you, sometimes I imagine
      probably a little bit to your detriment, that you might be further along
      if you had to struggle a little bit more because you do have a very
      strong safety net in being able to go home. A lot of people in your
      situation their parents would lock the doors and throw a deadbolt on
      and pray you didn’t break in and steal all their stuff, so you have
      that, but you’ve always had that. That’s not a new development,
      and that’s not really anything that’s in your control; it’s their good
      grace and their good favor and their care for you. . . . [I]n your
      case, pretty much everything that could be offered to you, has been
      offered to you, and most of those cases you’ve chosen not to take
      advantage of the support and services offered to you and kind of
      repeated this pattern.
              The argument that [defense counsel] makes, and I can’t say
      it’s a bad one, you know, there is always the option of sending you
      to prison [if unsuccessful on probation], but that isn’t without risk.
      We have assault offenses here, we have burglary offenses here, of
      a business, you know, . . . We have a drug offense, and it’s just
      untold the possible risk that you pose to the community because
      there’s so many issues that you need to work on, and based on all
      of those considerations, I just don’t think that can happen in the
      community.

      Zobel first argues the court improperly considered the honesty and

success of other defendants sentenced by the court.          Zobel contends, “The

sentence imposed should be based on the particular defendant who is being

sentenced.” However, the district court did not conclude that Zobel had more or

less likelihood to successfully rehabilitate based on a consideration of other

defendants’ success. Rather, the court stated the possible range of outcomes

regarding attempts to rehabilitate and then continued to evaluate Zobel’s specific
                                        8


circumstances in determining the appropriate sentence in this matter.           The

court’s statement regarding its experience with sentencing other defendants did

not constitute an improper consideration.

      Zobel also argues the court improperly considered Zobel’s relationship

with his parents. However, we have previously held a sentencing court did not

err in considering a defendant’s “upbringing” because it “was in response to the

mitigating circumstances offered by [defendant’s] counsel.” State v. Scribner,

No. 13-1715, 2014 WL 7343340, at *2 (Iowa Ct. App. Dec. 24, 2014). Similarly

here, Zobel first raised the support of his parents as a mitigating factor. The

court therefore did not err in subsequently considering Zobel’s relationship with

his parents.

      B. Stated Reasons for Consecutive Sentences. Zobel next contends the

court did not state the reasons for imposing consecutive sentences as required.

      Pursuant to Iowa Rule of Criminal Procedure 2.23(3)(d), the court is

required to “state on the record its reason for selecting the particular sentence.”

However, “[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 decision.” State v. Hennings, 791 N.W.2d 828, 838 (Iowa

2010), overruled on other grounds by State v. Hill, 878 N.W.2d 269, 275 (Iowa

2016). Although a “[s]entencing court should . . . explicitly state the reasons for

imposing a consecutive sentence, . . . in doing so the court may rely on the same

reasons for imposing a sentencing of incarceration.” Hill, 878 N.W.2d at 275.
                                        9


      Here, the court stated, “I’m going to order that each of these sentences be

served consecutively for the reasons I’ve previously touched on; also, the distinct

nature of each of those.”       The court previously addressed Zobel’s age,

employment, criminal history, his familial circumstances and support, his positive

behavior in jail, and the specific nature of his crimes in determining it was

appropriate to impose a sentence of incarceration. The court stated it relied on

those reasons and the distinct nature of Zobel’s offenses in imposing consecutive

sentences. This did not constitute an abuse of discretion.

      C. Discrepancy Between Oral Sentencing Pronouncement and Written

Judgment. Last, Zobel asserts the sentence is illegal because the court did not

impose a domestic-abuse surcharge on each of the domestic-abuse-assault

convictions in its oral sentencing pronouncement but imposed surcharges in the

written judgment. Iowa Code section 911.2B requires the court to “assess a

domestic abuse assault, . . . surcharge of one hundred dollars if an adjudication

of guilty . . . has been entered for a violation of section 708.2A, 708.11, or

710A.2, or chapter 709.”      Thus, the sentencing court’s sentences for the

domestic-abuse-assault convictions by oral pronouncement that did not include

the domestic-abuse surcharges were illegal. See State v. Hess, 533 N.W.2d

525, 527 (Iowa 1995) (“When a court imposes a sentence which statutory law

does not permit, the sentence is illegal, and such a sentence is void and we will

vacate it.”). However, by imposing the required domestic-abuse surcharges in

the written judgment order, the district court remedied what would have been an

illegal sentence if the surcharges were not imposed. See State v. Buchanan, No.
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13-1999, 2015 WL 162028, at *3 (Iowa Ct. App. Jan. 14, 2015). We therefore

find the sentencing court did not err.

       IV. Conclusion.

       Because we find the trial court did not err in refusing to instruct the jury on

the justification defense and find no abuse of discretion or error by the

sentencing court, we affirm.

       AFFIRMED.
