DES MOINES – A Mason City man who punched a woman in the face has lost an appeal in the case.
Justin Zobel appeals from his convictions and sentences for domestic abuse assault causing bodily injury, a serious misdemeanor; domestic abuse assault, a simple misdemeanor; third-degree burglary, a class “D” felony; and possession of marijuana, second offense. 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.
Zobel’s convictions for third-degree burglary and possession of marijuana were entered pursuant to a written Alford plea. 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. Garnish 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-causing-bodily-injury conviction, all sentences to be served consecutively.
In his appeal, Zobel took issue with the court’s following statement at the sentencing hearing:
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.
The Iowa Court of Appeals found 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 and affirmed his conviction.
