                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1289
                             Filed October 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BROOKE LYNN TRIMBLE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris,

District Associate Judge.



      A defendant appeals her sentence for domestic abuse assault and violation

of a no-contact order.      SENTENCES VACATED AND REMANDED FOR

RESENTENCING.



      Jesse M. Marzen and Cynthia Tofflemire of Marzen Law Office, P.L.L.C.,

Waverly, for appellant.

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

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                       2


TABOR, Judge.

      The sentencing court described Brooke Trimble’s serious-misdemeanor

assault of her boyfriend as “somewhat of a reverse Me Too situation” before

imposing a term of 365 days, all but fifteen days suspended, and one to two years

supervised probation.   Trimble asks to be resentenced, alleging the court’s

remarks signaled its consideration of improper factors.    She also argues the

sentence was grossly disproportionate to the crime.

      In our review, we find the court’s “reverse Me Too” analogy revealed its

reliance on an unprosecuted and unproven charge.        Accordingly, we vacate

Trimble’s sentences for domestic abuse assault and the no-contact order violation

and remand for resentencing before a different judge.

I.    Facts and Prior Proceedings

      A neighbor summoned law enforcement to the residence of Brooke Trimble

and her boyfriend, B.M., in November 2017 after hearing screaming and banging

inside. B.M. told the responding deputy he and Trimble “got into an argument that

morning” and Trimble slapped him while he was holding their infant son. He also

said Trimble tackled him, held him down on the bed, and tried to remove his

clothes. B.M. said he refused Trimble’s sexual advances and was relieved when

the deputies responded to the neighbor’s 911 call. B.M. showed the deputies

bruising on both sides of his neck, as well as on his right bicep and chest. The

deputy reported Trimble was uncooperative and had to be restrained.

      The State charged Trimble with child endangerment; domestic abuse

assault causing bodily injury, first offense; and obstruction of emergency
                                              3


communications. She agreed to plead guilty to domestic abuse assault.1 At the

same hearing, Trimble also pleaded guilty to a later-incurred charge for violating

the no-contact order imposed following the November 2017 incident. In exchange,

the State agreed to recommend Trimble be sentenced to 365 days confinement

with all but six days suspended, one to two years supervised probation, completion

of the Iowa Domestic Abuse Program, and a $315 fine with surcharge and court

costs. Along with the sentencing recommendation, the State dismissed the child-

endangerment charge, an aggravated misdemeanor, and the obstruction-of-

emergency-communications charge, a serious misdemeanor.

       At the July 2018 sentencing hearing, the State followed through with its

promised recommendation of six days in jail, while Trimble asked for the two-day

statutory minimum term. B.M. gave a victim impact statement, recounting the

attack by Trimble after he told her he was going to the bank that November day:

       [S]he fired back, ‘Oh, so are you going to sleep with that girl from the
       bank?’ And she grabbed my shirt and said,. ‘We are having sex right
       now.’ I told her no and she began trying to pull me out of the
       vehicle . . . .
                Then she began clawing at my face and forcing me to kiss
       her. . . .
                She screamed at the top of her lungs that we are having sex
       right now. And she ripped off all my clothes, or ripped off all her
       clothes. And I told her no again.

B.M. also told the court: “Brooke has always made sure she was in control of

everything I did. Always intimidated me to do what she wanted me to do. . . . And

if I tried to stand up for myself or leave, she’d become violent.”


1
   Our supreme court decided recent amendments to Iowa Code section 814.6 (limiting
direct appeals from guilty pleas) and 814.7 (prohibiting resolution of ineffective-assistance-
of-counsel claims on direct appeal) apply only prospectively and do not apply to cases,
like this one, pending on July 1, 2019. See State v. Macke, 2019 WL 4382985, at *7 (Iowa
2019).
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       Then the district court addressed Trimble:

              In this case the court is going to punish you for the offense
       that you pled guilty to. The court is going to consider your
       rehabilitative potential, that the sentence will be designed to deter
       you and others similarly situated from committing this type of act in
       the future, and the sentence is designed to protect society.
              In listening to the victim impact statement, the first thing that
       came to the court’s mind was that we’re in somewhat of a reverse
       Me Too[2] situation here. It’s difficult to—well, it’s difficult not to turn
       on the TV and see some of the allegations made by a number of
       women across the United States against people who have assaulted
       them and violated them. The victim in this case has made his
       statement about how he has been basically violated by you on this
       particular occasion.

       After that foray into current events, the court noted Trimble had “no real

criminal record” other than traffic citations. The court then sentenced Trimble to

365 days confinement, all but fifteen days suspended, one to two years supervised

probation, a $315 fine with surcharge and court costs, and completion of the Iowa

Domestic Abuse Program. Additionally, the court sentenced her to seven days in




2
   In 2006 Tarana Burke founded the MeToo movement to help survivors of sexual
violence, particularly women and girls of color. Abby Ohlheiser, The Woman Behind ‘Me
Too’ Knew the Power of the Phrase When She Created It—10 Years Ago, Wash. Post,
Oct. 19, 2017, https://www.washingtonpost.com/news/the-intersect/wp/2017/10/19/the-
woman-behind-me-too-knew-the-power-of-the-phrase-when-she-created-it-10-years-
ago/. In October 2017, “the #MeToo movement exploded onto the popular media stage
after actress Alyssa Milano asked Twitter users to ‘write “me too” as a reply to [her] tweet’
if they had ‘been sexually harassed or assaulted.’” Angela Onwauchi-Willig, What About
#UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J. F. 105, 106
(2018) (alteration in original) (footnote omitted).
         It is unclear exactly what the sentencing court meant in dubbing Trimble’s crime a
“reverse Me Too” situation. The current #MeToo movement focuses on sexual violence
and workplace harassment. While reports from women outnumber those from men, the
movement is not a monolith. See, e.g., Anna North, When the Accused is a Woman: A
#MeToo Story’s Lessons on Gender and Power, Vox (Aug. 14, 2018),
https://www.vox.com/2018/8/14/17688144/nyu-me-too-movement-sexual-harassment-
avital-ronell (describing accusations by men against women).
                                            5


jail for violating a no-contact order, a simple misdemeanor,3 to run concurrently

with her sentence for the serious-misdemeanor domestic abuse assault.

       Trimble appeals, contending the court relied on improper sentencing factors

and subjected her to a sentence grossly disproportionate to the crime.

II.    Scope and Standards of Review

       We review sentencing decisions for an abuse of discretion. State v. Evans,

672 N.W.2d 328, 331–32 (Iowa 2003). Absent a showing of abuse of discretion or

a defect in sentencing procedure, including reliance on an impermissible factor,

the district court’s sentence will survive appeal.4 State v. Witham, 583 N.W.2d

677, 678 (Iowa 1998).

III.   Analysis

       In determining the appropriate sentence, a court considers the nature of the

offense,   attending    circumstances,     the   defendant’s    age,    character,   and

propensities, as well as chances for reform. State v. Hildebrand, 280 N.W.2d 393,

396 (Iowa 1979). No single factor should determine the sentence, and the court

must share its rationale on the record. Id. And a court “may not rely upon

additional, unproven, and unprosecuted charges unless the defendant admits to

the charges or there are facts presented to show the defendant committed the



3
  The parties do not address the fact no right of direct appeal exists for simple
misdemeanors; defendants must seek discretionary review. See Iowa Code § 814.6
(2017); Tyrrell v. Iowa Dist. Court, 413 N.W.2d 674, 675 (Iowa 1987). But when a party
seeks an improper form of review, rather than dismissing the case, we may treat the notice
of appeal as a request for discretionary review. See Iowa R. App. P. 6.108. We do so
here    and consider the sentence for the no-contact order violation together with the
assault sentence.
4
  We review constitutional claims de novo. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa
2009). Because we vacate Trimble’s sentence on improper-consideration grounds, we
need not address her cruel-and-unusual-punishment argument.
                                         6

offense.” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002). But we presume

it properly exercised its discretion absent an affirmative showing of reliance on

those uncharged offenses. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990).

Trimble made that showing here.

       Trimble argues the district court’s description of her crime as a “reverse Me

Too situation” shows the court relied on improper considerations in imposing

sentence.5 In response, the State contends the court’s comment was merely “a

timely reference to ongoing events.”      We agree with Trimble—the misplaced

reference to the cultural phenomenon reveals an abuse of discretion.

       The district court was entitled to consider B.M’s victim impact statement

when choosing a sentencing option. See Iowa Code § 910.5. Additionally, as the

State maintains, the fact the victim impact statement brought to the court’s mind a

phenomenon in the news does not alone show reliance on unproven or

unprosecuted offenses. Cf. State v. Anderson, No. 15–1180, 2016 WL 5407954,

at *14 (Iowa Ct. App. Sept. 28, 2016) (noting reference to “current public debate”

on gun control did not suggest court was “relying on it in imposing sentence”). But

here, unlike in Anderson, the current events were not relevant to the prosecuted

offense. Cf. id. Because the court relied on the unproven and unprosecuted

sexual offenses as described by B.M., we cannot dismiss the sentencing court’s

remark as simply referencing a recent news story.




5
 Because we reverse on this ground, we do not address Trimble’s argument the district
court’s characterization of Trimble’s offense as an aggravated misdemeanor when she
was being sentenced for a serious misdemeanor constituted reversible error.
                                             7


       The #MeToo movement started as a means to raise awareness and support

survivors of sexual assault; and in late 2017 (just before Trimble’s sentencing

hearing), the movement resurged, focusing on sexual harassment by superiors

over workplace subordinates. See Nancy Chi Cantalupo, And Even More of Us

Are Brave: Intersectionality & Sexual Harassment of Women Students of Color, 42

Harv. J.L. & Gender 1, 3–4 (2019).

       In the first three pages of B.M.’s four-page victim impact statement, he

detailed Trimble’s jealousy and unwanted sexual advances.                   The final two

paragraphs addressed how Trimble’s crime affected his life. After considering his

victim impact statement, the court explained “the first thing that came to the Court’s

mind” was that B.M. was recounting a “reverse Me Too situation.” The court

described “how [B.M.] has basically been violated[6] by [Trimble] on this particular

occasion.” But Trimble was not prosecuted for, nor did she admit to, sexual abuse

or assault with intent to commit sexual abuse. So the court’s reliance on the

alleged sexual nature of the assault is improper when sentencing Trimble for

domestic abuse assault. Likening the present situation to the #MeToo movement

demonstrates that the court considered the unproven allegations of sexual abuse

in sentencing Trimble, constituting reliance on an improper factor. See State v.

Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (remanding for resentencing in incest

case when court referred to unproven allegation that defendant paid victim money

in exchange for sex); see also State v. Glenn, No. 08-1530, 2010 WL 2598633, at


6
  The sentencing court’s use of the word “violated” further bolsters the conclusion it
considered uncharged allegations of sexual abuse. See Violate, Merriam-Webster’s New
Collegiate Dictionary (8th ed. 1973). (“[T]o do harm to the person or especially the chastity
of.”).
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*5 (Iowa Ct. App. June 30, 2010) (“Where a victim impact statement refers to an

unprosecuted or unproved crime, there must be affirmative evidence the district

court considered that alleged crime in imposing sentence.”).

      Moreover, even if we discounted the court’s remark during the hearing, it

doubled down in its written sentencing order. The court wrote: “The victim impact

statement, in part, constituted a reverse Me Too [m]ovement concern for the court.”

True, the court qualified its concern by explaining, “The notoriety and alleged acts

of criminal misconduct associated with the alleged offenses and violators in those

cases was not imputed to the defendant by the court.” But its qualification missed

the mark. The domestic-abuse assault did not justify a comparison to the #MeToo

movement when the State did not charge, nor did Trimble admit to, B.M.’s

allegations of sexual misconduct. Thus, in trying to disclaim reliance on the

notoriety of the media cases, the court reaffirmed its consideration of unproven

allegations. We cannot speculate about how much weight the sentencing court

placed on the unproven sexual aspect of Trimble’s actions; and thus, the

disclaimer is not sufficient to uphold the original sentence. See Lovell, 857 N.W.2d

at 243.   For these reasons, we vacate Trimble’s sentence and remand for

resentencing before a different judge.

      SENTENCES VACATED AND REMANDED FOR RESENTENCING.
