Mickael Clemann v. Iowa District Court for Scott County ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0863
Filed December 6, 2023
MICKAEL CLEMANN,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR SCOTT COUNTY,
Defendant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart Werling, Judge.
A criminal defendant petitions for a writ of certiorari to review his simple-
misdemeanor conviction. WRIT ANNULLED.
Matthew Paulson of Paulson, Vandersnick & Bradfield Law, Rock Island,
Illinois, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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BULLER, Judge.
In this case we are asked to decide a certiorari question prompted by an
unlikely chain of procedural events: When a criminal defendant is tried by jury for
an indictable offense, and the court enters judgment of acquittal on the greater
offense but not a lesser-included simple misdemeanor, is the defendant entitled to
adjudication by a different jury or a magistrate? We find that, on the peculiar facts
of this record, we need not answer whether the defendant was entitled to a simple-
misdemeanor jury trial. And we annul the writ of certiorari because the district
judge did not act illegally when adjudicating the simple misdemeanor.
I. Background Facts and Proceedings
The State charged Mickael Clemann with assault with intent to commit
sexual abuse, an aggravated misdemeanor in violation of Iowa Code
section 709.11(3) (2017), for molesting his fifteen-year-old niece E.F. In 2019,
E.F. dozed off at Clemann’s house while watching a movie and awoke to fingers
touching the skin of her left breast. E.F. started “freaking out” and the hand groping
her pulled away. E.F. “started to sit up” and saw Clemann sitting next to her. After
this, Clemann continued to stroke E.F.’s hair and hold her hand. E.F. “was scared
to death to move” and was afraid Clemann would touch her again.
E.F. disclosed the assault to her sister and her mother the night it happened.
E.F.’s mother immediately drove to get her from Clemann’s house. After E.F.’s
mother confronted Clemann, he asked his wife for forgiveness. In a police
interview, Clemann admitted touching E.F.’s upper-left chest area but claimed it
was not intentional.
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After the close of the State’s evidence at trial, the district court denied
Clemann’s motion for judgment of acquittal, finding the State had generated a fact
question on all elements of the offense. The only evidence put on by Clemann
was testimony from his teenage son, who indicated he did not see the assault or
see E.F. react to the assault. Clemann then moved for judgment of acquittal a
second time, arguing fondling a breast “may involve a sexual purpose, but it is not
a sex act” and is not sufficient to prove the charge. The district court accepted
Clemann’s argument that assault with intent to commit sexual abuse required an
additional overt act beyond “merely fondling the breast” and granted Clemann
judgment of acquittal on the top-level charge.1 This left the court with only the
lesser-included offense of assault, a simple misdemeanor in violation of Iowa Code
sections 708.1 and 708.2(6), to resolve.
After judgment of acquittal on the greater offense, the parties entered an
area not clearly addressed by our rules of criminal procedure, leading to
fragmented and opaque exchanges in the transcript. The district court first
proposed that the lesser-included offense could be submitted to the jury that heard
the trial evidence, but Clemann rejected this proposal and instead urged that the
simple misdemeanor “needs to be tried in front of a different jury”—one which had
1 We express no opinion on the propriety of the second judgment-of-acquittal
ruling. The State has not cross-appealed or otherwise sought review, and we
decline to speculate on whether such a request would have been granted by our
supreme court. See State v. Warren, 216 N.W.2d 326, 327 (Iowa 1974) (“An
appeal by the State cannot affect a judgment in favor of the defendant. For this
reason and others, a State appeal is permitted in criminal cases only when it
involves questions of law, either substantive or procedural, whose determination
will be beneficial to the bench and bar as a guide in the future.” (internal citations
omitted)).
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not heard the evidence or original trial information. Clemann then “mov[ed] for a
continuance” on this basis. The State resisted and urged submission to the trial
jury, analogizing to a domestic-abuse prosecution where the State had failed to
prove the domestic relationship. Clemann then withdrew his motion to continue,
and the court discharged the jury.
When the parties reconvened, the district court conveyed that the simple
misdemeanor should be tried to the court as factfinder. Clemann then requested
the “case be set down in front of a magistrate judge who handles the simple
misdemeanor assaults.” The court denied the request to transfer the matter to a
magistrate.
The same day—March 23, 2022—the district court found Clemann guilty of
simple-misdemeanor assault, imposed a thirty-day jail sentence to be served after
a thirty-day delay for Clemann to make arrangements, and issued a no-contact
order. Rather than appeal or move for a new trial under the simple misdemeanor
rules, Clemann filed a motion to reconsider on April 7, raising various rules-based
and constitutional claims. The court denied the motion on April 18. Clemann
petitioned the supreme court for a writ of certiorari and applied for discretionary
review on May 18.2 The supreme court granted certiorari and denied discretionary
review before transferring the matter to our court for resolution.
2 We note the petition for writ of certiorari is only arguably timely if deadlines are
calculated from resolution of the motion to reconsider filed pursuant to Iowa Rule
of Civil Procedure 1.904(2). Yet this petition for certiorari originated in a criminal
action. If the civil-rule 1.904(2) motion failed to toll criminal appellate deadlines,
this appellate action would be untimely. Because the parties did not brief
timeliness, we assume without deciding the petition was timely filed.
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II. Preservation of Error/Waiver
The State urges that Clemann waived his claim related to jury trial on the
simple misdemeanor. We agree. Following the judgment of acquittal, the court
was prepared to have the lesser-included offense “go to the jury.” Clemann’s
attorney rejected this proposal and asked for a “continuance” and a “different jury.”
This necessarily requested discharge of the trial jury, which the court granted. And
Clemann then requested trial in front of a magistrate. We find this waives or invites
any error related to the trial jury deciding the simple misdemeanor, as Clemann
turned down a jury-trial option before requesting a new trial with a new jury. See
State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) (“A party to a criminal proceeding
cannot assume inconsistent positions in the trial and appellate courts and, as a
general rule, will not be permitted to allege an error . . . in which he himself
acquiesced, or which was committed or invited by him, or was the natural
consequence of his own actions.” (alteration in original) (quotation marks and
citation omitted)).
We do not agree with the State, however, that Clemann waived his
complaint about which judge heard his case: the district judge or a magistrate.
Clemann preserved the substance of his argument that the simple misdemeanor
should be heard by a magistrate, and it is properly before us—at least for a claim
grounded in the rules of criminal procedure or state statutes.
To the extent Clemann urges state or federal constitutional claims, we find
those errors unpreserved. During the on-the-record exchange that followed the
judgment of acquittal, Clemann never urged a violation of his constitutional rights.
The first time he raised such a claim was in his Iowa Rule of Civil
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Procedure 1.904(2) “motion to reconsider,” which was too late to preserve a claim
that should have been raised before judgment while corrective action could be
taken. See Winger Contracting Co. v. Cargill, Inc., 926 N.W.2d 526, 543
(Iowa 2019) (re-affirming that a 1.904(2) motion cannot be used to preserve error
on a new claim that should have been raised earlier in the proceedings).
As a final point on waiver, we acknowledge Clemann may be arguing he
was entitled to have his simple-misdemeanor charge resolved by a different jury.
While this claim may also have invited error given his requests below, we
separately reject this claim because Clemann identifies no legal authority
supporting the notion that a trial jury cannot resolve guilt on lesser-included or
additional remaining offenses following a successful motion for judgment of
acquittal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support
of an issue may be deemed waiver of that issue.”).3
III. Standard of Review
Our review is for correction of errors at law. See State v. Mootz, 808 N.W.2d
207, 214 (Iowa 2012). In certiorari cases, “this court ‘may examine only the
3 Even if Clemann had not waived this claim, we would reject it. Our research has
found several instances of juries deciding cases after some counts were dismissed
by judgment of acquittal. See, e.g., State v. Cook, No. 21-0522, 2022
WL 17481442, at *1 (Iowa Ct. App. Dec. 7, 2022) (judgment of acquittal on eight
counts of attempted murder, remaining counts submitted to jury); State v. Sinn,
No. 17-0549, 2018 WL 2084844, at *3 (Iowa Ct. App. May 2, 2018) (judgment of
acquittal on theft, sexual abuse submitted to jury); State v. Douglass, No. 16-2221,
2018 WL 1865106, at *1–2 (Iowa Ct. App. Apr. 18, 2018) (judgment of acquittal on
burglary and sexual abuse, lesser-included offense of assault with intent to commit
sexual abuse submitted to jury). Clemann has offered no legal principle that would
render this procedure unlawful, nor has our research uncovered one.
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jurisdiction of the district court and the legality of its actions.’” State Pub. Def. v.
Iowa Dist. Ct., 633 N.W.2d 280, 282 (Iowa 2001) (citation omitted).
IV. Discussion
Having waived the jury claim and failed to preserve the constitutional
dimension of his complaints, the remaining question Clemann puts forth concerns
whether he was entitled to have a magistrate decide the lesser-included offense.
We conclude the district court did not err when it adjudicated the lesser-included
simple misdemeanor.
We have a unified court system, and “[d]istrict judges have the full
jurisdiction of the district court, including the respective jurisdictions of district
associate judges and magistrates.” Iowa Code § 602.6202. While it is true that,
in “exercising the jurisdiction of magistrates, district judges shall employ
magistrates’ practice and procedure,” id., Clemann has not identified any departure
from magistrate practice and procedure that prejudiced his substantial rights. We
also note that a district judge sitting as factfinder over a simple misdemeanor is
consistent with—not contrary to—the rules of criminal procedure, which provide
for an appeal procedure when “the original action was tried by a district judge.”
Iowa R. Crim. P. 2.73(3) (2022) (now, with slightly different language, at rule
2.72(4)(f)).
We also find the district judge adjudicating the lesser-included simple
misdemeanor here was an efficient use of judicial resources, appropriately
balanced with Clemann’s right to trial before a fair and impartial factfinder. And it
fits within the rules’ directive that, “[i]f no procedure is specifically prescribed by
these rules or by statute, the court may proceed in any lawful manner not
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inconsistent therewith.” Iowa R. Crim. P. 2.35(2) (effective through Sept. 15, 2023)
(now “removed as unnecessary” but not repudiated). The district judge already
heard all relevant evidence. And setting the matter for a new trial before a
magistrate would have required significant additional court resources and
compelling the teenage victim to testify in open court a second time about an
assault perpetrated against her by a family member. More, Clemann could have
filed a motion for new trial on the simple misdemeanor charge under rule 2.74 or
sought appellate review before another district court judge under rule 2.75—but he
chose not to. Whatever the merits of Clemann’s complaint that he did not want his
case decided by a jury that heard the original trial information or the State’s theory
of sexual intent, controlling case law requires we presume a judicial officer sitting
as factfinder will disregard such considerations. See State v. Decker, 744
N.W.2d 346, 356 (Iowa 2008) (“Judges routinely are called upon to consider the
admissibility of evidence that may be later excluded at trial. Judicial knowledge of
evidence which is subsequently not admissible does not ordinarily undermine later
judicial determinations in the case.”); State v. Matheson, 684 N.W.2d 243, 244
(Iowa 2004) (“[L]egal training helps equip those in the profession to remain
unaffected by matters that should not influence the determination.”). Clemann has
identified no illegality or prejudicial error, and we decline to disturb his conviction.
V. Disposition
Finding no constitutional claim properly before us and discerning no legal
error in the district judge exercising authority shared with magistrates, we annul
the writ of certiorari.
WRIT ANNULLED.