                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0738
                                 Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARION AUBREA LOVE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Pottawattamie County, James S.

Heckerman, Judge.



       Darion Love appeals from the sentences imposed upon his convictions of

assault with intent to inflict serious injury and willful injury. AFFIRMED.




       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.



       Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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DANILSON, C.J.

       Darion Love appeals from his convictions of assault with intent to inflict

serious injury and willful injury, contending the district court erred in not merging

the two sentences. Upon our de novo review, we conclude there was substantial

evidence to support the two separate convictions and the district court did not err

in refusing to merge the sentences. We affirm.

       I. Background Facts.

       Over the course of several hours on May 5 and 6, 2012, Darion Love beat

Jennifer Pruett, the mother of his child. We summarize: Pruett locked herself in

her bedroom to get away from an angry and intoxicated Love. Love gained entry

to Pruett’s bedroom. Pruett threw a cup at Love, hitting him in the forehead.

Love bit Pruett on the left arm and punched her in the face with his fist. When

Pruett fell to the floor, Love kicked her in the face and “stomp[ed]” her back.

Pruett tried to crawl to the bathroom, but Love grabbed her by the hair and

banged her head on the bathroom floor while continuing to punch her in the face

and kick her in the back. Love stopped his assault to call people to complain

about Pruett. Love stated he was going to kill Pruett. After dragging her back to

the bedroom from the bathroom doorway, Love beat Pruett with the wooden legs

off a TV table until she could no longer move. Love again got on the phone and

lit a cigarette. He then poured fingernail polish on Pruett’s face and put out his lit

cigarette behind Pruett’s left ear.

       The morning of May 6, Pruett presented to the emergency room with dried

blood on her clothing; both eyes bruised and swollen shut; mouth swollen;

numerous bruises—including long, linear bruises—on her arms, legs, and back;
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a sprained wrist and ankle; and her nose fractured. She was admitted “because

of the severe head trauma,” and she was unable to open her eyes. Pruett was in

the hospital for two days.

       Photographs taken at Pruett’s house after the event indicate there was

blood on her bedding, two walls of her bedroom, and the bathroom floor. The

broken legs of the TV table were scattered across the bedroom, splintered and

blood-stained. DNA testing determined the blood was Pruett’s.

       Love was charged in three counts: count one, first-degree kidnapping;

count two, attempted murder; and count three, willful injury causing bodily injury.

He raised an intoxication defense and argued he suffered from mental illness.

After a jury trial, Love was found guilty on count two of the lesser-included charge

of assault causing serious injury, and on count three of willful injury as charged.

The district court imposed concurrent sentences.

       Love now appeals, contending the sentences are illegal because the

convictions should merge.

       II. Scope and Standard of Review.

       Love’s appeal has constitutional implications and, therefore, our review is

de novo. See State v. Velez, 829 N.W.2d 572, 576 (Iowa 2013).

       III. Discussion.

       Love argues his conviction of assault with intent to inflict serious injury

should have merged with his conviction of willful injury. The State argues the

record supports two or more separate and distinct crimes. We conclude the case

was presented as a series of completed assaults, with a break in the action
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between the completed acts, which under the principles enunciated in Velez,

provides support for the two convictions. See 829 N.W.2d at 583.

              It is well established in Iowa law that a single course of
      conduct can give rise to multiple charges and convictions. See
      State v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992) (discussing
      how we typically resolve “[t]he question of whether the legislature
      intended that a criminal defendant may be cumulatively punished
      based upon a single incident”). “In considering a double jeopardy
      claim within the multiple punishments context, we are guided by the
      general principle that the question of what punishments are
      constitutionally permissible is no different from the question of what
      punishments the legislature intended to impose.” Id. at 57. In order
      to determine if Velez’s second conviction constitutes a violation of
      his double jeopardy protections, the key question we must answer
      is what the legislature intended would constitute a unit of
      prosecution under Iowa Code section 708.4. In our analysis of
      whether two distinct factual bases existed to accept Velez’s guilty
      plea, we analyzed legislative intent. We found that under both the
      break-in-the-action test and the completed-acts test, Velez
      committed two or more discrete acts of willful injury. Because the
      legislative intent was to punish these two or more acts, double
      jeopardy is not violated.

Id.

      More recently, our supreme court enunciated the following test:

      [O]ur decision in Velez and cases in other jurisdictions have
      considered certain factors to aid the fact finder in determining if the
      defendant’s assaultive conduct is one continuous act or a series of
      separate and distinct acts. These factors are (1) the time interval
      occurring between the successive actions of the defendant, (2) the
      place of the actions, (3) the identity of the victims, (4) the existence
      of an intervening act, (5) the similarity of defendant’s actions, and
      (6) defendant’s intent at the time of his actions.

State v. Ross, ___ N.W.2d ___, ___, 2014 WL 1128309, at *11 (Iowa 2014).

      As was the case in Velez, there was more than one “break in the action”

between the beatings inflicted upon Pruett.         With respect to the factors

enunciated in Ross, while the time interval between the successive assaults is

not completely clear, the interval was sufficient for Love to make several phone
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calls to family and friends and to light and smoke a cigarette. Love hit and kicked

Pruett in the bedroom; when she tried to crawl to the bathroom, he grabbed her

by the hair and hit her head against the bathroom floor, and then dragged her

back to the bedroom. As noted, intervening acts included phone calls and Love

lighting and smoking a cigarette. Love engaged in different acts of assault—first,

punching and kicking Pruett, and later using the broken table legs to beat Pruett.

       In Velez, the court described the incident that led to the defendant being

convicted of two counts of willful injury:

       Welsh described both a break in the action and a series of acts that
       would each constitute a completed act if serious injury resulted.
       Specifically, Welsh’s minutes of testimony describe Velez striking
       Kennedy “20 to 40 times” with a metal pole. Since either a single
       blow or a single series of blows caused each serious injury, we find
       that there were more than two completed acts, as Kennedy
       suffered at least two serious injuries. Similarly, we find a break in
       the action occurred. Velez stopped hitting Kennedy long enough to
       pat him down, and Welsh’s testimony infers Velez was looking for
       money. When he found no money, only a knife, Velez resumed
       hitting Kennedy. There was also a break in the action when
       Kennedy produced a lighter, which resulted in a break in the prior
       assault, followed by another discrete assault. These breaks in the
       action are sufficient to constitute two acts of willful injury when
       serious injury results.

829 N.W.2d at 583-84.

       There was substantial evidence from which the jury members could find at

least two completed assaults, each of which was accompanied by an intent to

inflict serious injury.   We therefore affirm the defendant’s convictions and

sentences.

       AFFIRMED.
