                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-2091
                               Filed December 20, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DON N. FRANKLIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Mark Hostager,

District Associate Judge.



      Don Franklin appeals following a bench trial after which he was found

guilty of one count of interference with official acts and two counts of assault

upon a police officer. REVERSED AND REMANDED.




      Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Kelly Huser, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

      Don Franklin appeals following a bench trial after which he was found

guilty of one count of interference with official acts and two counts of assault

upon a police officer.     Franklin asserts he was denied his right to self-

representation and there is insufficient evidence to sustain the assault

convictions. We find sufficient evidence to support the assault convictions. But

because Franklin’s right to self-representation was improperly denied after he

reasserted his right, we reverse and remand for a new trial.

I. Background Facts.

      Viewing the evidence in the light most favorable to the State, the record

shows the following. On July 23, 2015, Franklin and a friend were sitting at a bar

in Dubuque.    The friend was smoking a cigarette inside the bar, which is

prohibited. The owner of the bar, David Lorenz, walked up to the friend, took the

cigarette, and threw it out. A verbal argument between the owner, Franklin’s

friend, and Franklin ensued. Lorenz went outside the bar and, using a flashlight,

flagged down a patrol officer who was in his vehicle across the street.

      Officer Jonathan Brokens pulled across the street—going the wrong way

on the one-way street—and stopped his vehicle in front of the bar. He exited the

vehicle and was approached by Lorenz, who was followed by Franklin. The

officer told Franklin to get off the street. When Franklin did not do so, Officer

Brokens placed his hands on Franklin and directed him off the street. Franklin

swatted the officer’s hand away moved toward the sidewalk. Officer Brokens

pulled out his pepper spray and sprayed Franklin’s face. Two other officers,

Corporal Deutsch and Officer Scott, arrived on the scene. Officer Brokens told
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Franklin he was under arrest. All three officers were yelling at Franklin to go to

the ground. Franklin did not get on the ground and asked repeatedly why he was

being arrested.     Officers Scott and Brokens tried to grab Franklin.             Franklin

pushed the officers away, causing Officer Brokens to fall to the ground, scraping

his knuckle as a result. Both Corporal Deutsch and Officer Scott then sprayed

more pepper spray at Franklin. The officers said Franklin was “taking a stance”

and Officer Brokens then struck Franklin on the legs with his asp and Officer

Scott tackled Franklin to the ground. As a result of the tackle, Officer Scott

scraped his right elbow.

       On July 24, 2015 the State filed a trial information officially charging

Franklin with interference with official acts, and two counts of assault against a

peace officer.1 Franklin appeared for arraignment on August 11 and indicated he

wished to represent himself. The district court found Franklin knowingly and

voluntarily waived his right to counsel.

       On October 19, the parties appeared for trial. Franklin refused to sit at

counsel table and remained seated in the back of the courtroom.2 He refused to

stand when directed to do so by the court. The court addressed Franklin on the


1
  An additional charge of possession of marijuana was charged, but the trial court
granted Franklin’s motion for judgment of acquittal on that charge.
2
  Franklin’s reasons for his behavior and verbal assertions during this time align with the
“sovereign citizen” movement. See, e.g., Fisherman v. State, No. A15-1903, 2016 WL
3961939, at *3 (Minn. Ct. App. July 25, 2016) (noting Fisherman averred “his guilty plea
was coerced; he was ‘not properly informed what was lawful and unlawful;’ . . . that he
rescinded all signatures waiving his right to a trial; that he was ‘coerced . . . under fraud
and deception by all parties by deceiving petitioner to believe the said court has subject
matter jurisdiction;’ and that there was no subject matter jurisdiction because ‘accused
persons get charged/indicted not by laws, but by codified versions of laws’ . . .; and
further averred that he was unaware of being considered a ‘STRAWMAN/
CORPORATION and only knows himself to be a Living Being, Flesh and Blood, living
breathing soul,’ . . . typical of the Sovereign Citizen Movement”).
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record and indicated it was the court’s position Franklin had been extremely

disruptive. The court further warned Franklin that if he did not sit at the counsel

table, the court would remove Franklin from representing himself and instead

appoint stand-by counsel. The court then adjourned at 9:23 a.m. and indicated

trial would commence at 9:30 a.m.

       When trial commenced, Franklin indicated he believed he was being held

under duress but did sit at counsel table. The parties then began jury selection.

The State’s voir dire was completed largely without an incident. However, during

Franklin’s voir dire, he made several attempts to strike for cause potential jurors

who knew his stand-by counsel, Les Blair. In addition, on multiple occasions

Franklin expressed his position that the court did not hold any jurisdiction over

him. Eventually, Franklin indicated he would leave because he did not believe

the district court was following the law.    The court responded it would find

Franklin in contempt and issue a warrant for his arrest if he left the courtroom.

Franklin responded that he would no longer participate so the court “might as

well” arrest him. The court then found Franklin in contempt and ordered his

arrest. These events occurred in the presence of the prospective jurors.

       Following the removal of the prospective jurors, the State moved for a

mistrial.   The court declared Franklin had by his actions waived his right to

represent himself. The court elevated attorney Blair from stand-by counsel to

defense counsel. The court thereafter granted the motion for mistrial and reset

trial for October 26, 2015, which date was rescheduled for November 9.

       While the case was still set for a jury trial, prior to the trial beginning,

attorney Blair indicated Franklin wished to waive his right to a jury trial and
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instead proceed with a bench trial. Attorney Blair then made an oral motion for

the court to allow Franklin to resume representing himself. In support, counsel

noted the trial was now a bench trial instead of a jury trial, it had always been

Franklin’s wish to represent himself, and Franklin’s conduct was no longer

disruptive. The court ruled as follows:

                All right. I am not aware of any authority or guidelines and
       have not been given any on whether or not and under what
       circumstances a forfeited or waived right such as that would be
       reclaimed but I am—I am ruling that I do not believe that under the
       facts of this case that there is a sufficient basis. I don’t find a
       sufficient basis to change Judge Richter’s ruling in that regard
       simply on the basis that the trial is now a bench trial rather than a
       jury trial and so that’s my ruling on that.

       Franklin now appeals.       He is not contesting the district court’s initial

removal from his own defense during the October 19, 2015 mistrial. He does,

however, challenge the court’s refusal to grant his request to represent himself

during the November 9-10 bench trial. He asserts his right to self-representation

was violated.

II. Scope and Standard of Review.

       We must first address whether the State introduced sufficient evidence for

a fact finder to find Franklin guilty beyond a reasonable doubt. We address this

issue first because the Double Jeopardy Clause would not permit a retrial of the

charges if there was insufficient evidence of guilt presented at trial. See State v.

Kern, 831 N.W.2d 149, 158 (Iowa 2013).

       “We review challenges to the sufficiency of the evidence presented at trial

for correction of errors of law.” Id.
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         We review questions of a constitutional dimension de novo based on the

totality of the circumstances.    State v. Johnson, 756 N.W.2d 682, 686 (Iowa

2008).

III. Analysis.

         A. Sufficiency of the evidence. Franklin contends the evidence to show he

acted with intent was insufficient to sustain his assault convictions. Iowa Code

section 708.3A(4) (2015) has three elements: (1) an assault, (2) against a peace

officer, and (3) the defendant knew the person was a peace officer. On appeal,

we must decide whether there was substantial evidence to support a guilty

verdict. See Kern, 831 N.W.2d at 158. Evidence is substantial if a rational finder

of fact could determine a defendant is guilty beyond a reasonable doubt. State v.

Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We consider the record evidence

viewed in the light most favorable to the State, “including all reasonable

inferences that may be fairly drawn from the evidence.” State v Howse, 875

N.W.2d 684, 688 (Iowa 2016) (citation omitted).

         To commit an assault, the person must act with the intent to cause pain or

injury, the intent to have physical contact that will be insulting or offensive, or the

intent to place another in fear of immediate physical contact. See Iowa Code

§ 708.1.     Intent may be inferred from the defendant’s actions and the

circumstances of the transaction. State v. Copenhaver, 844 N.W.2d 442, 452

(Iowa 2014).

         Viewing the evidence—and the inferences that fairly may be drawn from

the evidence—in the light most favorable to the State, we find substantial

evidence to support the assault convictions.         The evidence shows Officers
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Brokens and Scott were both in full uniform and arrived in police vehicles.

Franklin slapped at and pushed the officers. Section 804.12 provides:

               A person is not authorized to use force to resist an arrest,
       either of the person’s self, or another which the person knows is
       being made either by a peace officer or by a private person
       summoned and directed by a peace officer to make the arrest, even
       if the person believes that the arrest is unlawful or the arrest is in
       fact unlawful.

In slapping and pushing the officer, a rational fact finder could find Franklin acted

with intent to have physical contact that would be insulting or offensive. Because

there is sufficient evidence to support the assault convictions, we turn to the

question of whether Franklin is entitled to a new trial.

       B. Self-representation.

               The Sixth Amendment to the United States Constitution
       guarantees that “in all criminal prosecutions, the accused shall
       enjoy the right . . . to have the Assistance of Counsel for his
       defense.” U.S. Const. amend. VI. The Fourteenth Amendment of
       the Federal Constitution makes this right binding on the states.
       Faretta v. California, 422 U.S. 806, 807 (1975). Faretta interpreted
       the Sixth Amendment to mean that it “does not provide merely that
       a defense shall be made for the accused; it grants to the accused
       personally the right to make his defense.” [Faretta, 422 U.S.] at
       819.
               The Sixth Amendment right to counsel is in effect until
       waived. State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). In
       contrast, the Sixth Amendment right to self-representation is not
       effective until asserted. Id. Before the right to self-representation
       attaches, the defendant must voluntarily elect to proceed without
       counsel by “knowingly and intelligently” waiving his or her Sixth
       Amendment right to counsel. Faretta, 422 U.S. at 835; Rater, 568
       N.W.2d at 658. The defendant’s request to proceed without
       counsel must be “clear and unequivocal.” Id. In addition, “courts
       ‘indulge every reasonable presumption against waiver’ of
       fundamental constitutional rights . . . .” Johnson v. Zerbst, 304 U.S.
       458, 464 (1938) (footnotes omitted) (quoting Aetna Ins. Co. v.
       Kennedy, 301 U.S. 389, 393 (1937)).

State v. Martin, 608 N.W.2d 445, 449-50 (Iowa 2000).
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       Here, Franklin clearly invoked his right to represent himself prior to the

bench trial.    The State asserts once Franklin forfeited his right to self-

representation by his conduct, the court’s refusal to allow him to reassert that

right was not an abuse of discretion.

       We acknowledge the trial court has “considerable discretion over matters

related to the orderly conduct of trial.” Johnson, 756 N.W.2d at 689; see also

State v. Harris, 222 N.W.2d 462, 464-65 (Iowa 1974). And we recognize “[t]he

right of self-representation is not a license to abuse the dignity of the courtroom.”

Faretta, 422 U.S. at 834 n.46. But, the trial court’s “duty to control and conduct

its court in an orderly, dignified and proper manner,” Schroedl v. McTague, 169

N.W.2d 860, 867 (Iowa 1969), must be balanced against the defendant’s

constitutional right of self-representation.

       Illinois v. Allen, 397 U.S. 337, 338 (1970), offers a useful analogy. There,

the United States Supreme Court addressed whether a defendant’s right to

confront the witnesses against him could be lost by the defendant’s disorderly

and disruptive conduct. The Court found the constitutional right to confrontation

and the concomitant right to be present at trial, can be lost “if, after he has been

warned by the judge that he will be removed if he continues his disruptive

behavior, he nevertheless insists on conducting himself in a manner so

disorderly, disruptive, and disrespectful of the court that his trial cannot be carried

on with him in the courtroom.” Allen, 397 U.S. at 342. However, the Court

continued: “Once lost, the right to be present can, of course, be reclaimed as

soon as the defendant is willing to conduct himself consistently with the decorum
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and respect inherent in the concept of courts and judicial proceedings.” Id. at

342-43.

       Here, we conclude Franklin could reclaim his right of self-representation

“as soon as he was willing to conduct himself consistently with the decorum and

respect inherent in the concept of the courts and judicial proceedings.” Id. The

district court’s refusal to allow Franklin to reclaim his right to self-representation

here was without adequate rationale. The record affirmatively shows the court

found Franklin competent to represent himself and that he was voluntarily

exercising his informed free will.     See Faretta, 422 U.S. at 835.         Franklin

displayed no disruptive or disrespectful behavior on the day of the bench trial. In

light of the fact we must “indulge every reasonable presumption against waiver,”

Martin, 608 N.W.2d at 450, we conclude that in forcing Franklin to accept court-

appointed counsel, the district court deprived him of his constitutional right to

conduct his own defense. See Faretta, 422 U.S. at 836.

       Harmless-error analysis is not applicable where there is a violation of the

right of self-representation.   Rater, 568 N.W.2d at 661; accord Martin, 608

N.W.2d at 453 (reaffiming Rater position).         Consequently, we reverse the

convictions and remand for a new trial.

       REVERSED AND REMANDED.
