State of Iowa v. Trent D. Smith

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1202
                            Filed December 24, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.


TRENT D. SMITH,
     Defendant-Appellant.
________________________________________________________________

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

Harris, District Associate Judge.



      A defendant appeals his convictions for domestic abuse assault causing

bodily injury and domestic abuse assault.        AFFIRMED IN PART; SIMPLE

MISDEMEANOR DOMESTIC ABUSE ASSAULT CONVICTION VACATED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Jeremy Westendorf,

Assistant County Attorney, for appellee.



      Considered by Tabor, P.J., Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                         2



TABOR, P.J.

       As “happens often in domestic violence” cases, assault victim Mary Dean

recanted her allegation that Trent Daniel Smith, the father of her child, was her

attacker.   In light of her recantation, the prosecution resorted to proving the

identity of Dean’s assailant through her out-of-court statements. Hearing those

statements, the jury convicted Smith of two counts of domestic abuse assault.

On appeal, Smith raises hearsay challenges to the admission of Dean’s

statements to police officers and to emergency room personnel.

       We agree with Smith’s challenge regarding Dean’s audiotaped statements

to the officers. The district court improperly allowed the jury to hear a segment of

the recording during which Dean identifies Smith as her attacker. That recorded

identification was offered for the truth of the matter asserted and did not fall

within the hearsay exception for excited utterances. Iowa Rs. Evid. 5.801(c),

5.803(2). But we find Smith was not prejudiced by the erroneous admission

because the jury received the same information from a nurse and a doctor who

saw Dean in the emergency room.          The medical professionals testified the

domestic nature of the assault was pertinent to their diagnosis and treatment.

Accordingly, we find Dean’s disclosures to those professionals were admissible

under the hearsay exception under Iowa Rule of Evidence 5.803(4).
                                             3



       In addition, we conclude Dean’s sentences and convictions should merge

as indicated by the district court’s oral sentence pronouncement.1

I.     Background facts and proceedings

       The following facts, as presented to the jury, are relevant to our analysis of

Smith’s two hearsay claims.

       Smith and Dean have a six-year-old daughter in common. In the early

morning hours of June 9, 2012, Dean—who was home with her daughter—called

911 asking for help. Her plea to the 911 operator was laconic: “Just get here

thank you please.” Dean and her daughter were waiting in the car outside the

house when Waterloo Police Officers John Heuer and Luke LaMere responded

to the call.

       Dean initially told the police she had been attacked by an unknown

assailant. She reported being hit from behind, knocked down, and kicked in the

head and arms while on the floor. The police found no one in the house. After a

series of questions from Officer LaMere, Dean eventually confirmed that Smith,

the father of her child, was the person who assaulted her. Dean also told the

officer that Smith called her “a dirty whore.”

       The officers took Dean to Allen Memorial Hospital in Waterloo. She was

seen in the emergency room by nurse Trisha Knipper and Dr. Robert Mott.

Screening tools used in the emergency department included questions about


1
  The original opinion in this case was filed on November 13, 2014. On November 20,
Smith filed a petition for rehearing asking us to clarify the dispositional language to show
that we were vacating his lesser included conviction of simple misdemeanor domestic
abuse assault. We granted the rehearing on November 25, 2014. We now change the
dispositional language to reflect our original holding, but make no other changes to the
opinion filed on November 13, 2014.
                                         4



domestic violence. The nurse recorded Dean’s answers on her medical chart,

indicating the patient felt afraid and threatened by someone close to her and had

been hurt by someone. Dean told the nurse she was assaulted by “her baby’s

daddy” and reported she was in significant pain. Dean also told Dr. Mott she was

attacked by the father of her child.     Dr. Mott diagnosed Dean as having a

concussion, a cervical strain, and contusions to her face and upper arm. After

discharge from the hospital, the police prepared a statement for Dean to sign, but

she refused.

       The State charged Smith with two counts: (1) domestic abuse assault with

intent to commit serious injury, an aggravated misdemeanor in violation of Iowa

Code section 708.2A(2)(c) (2011), and (2) domestic abuse assault causing bodily

injury, a serious misdemeanor in violation of section 708.2A(2)(b). A jury trial

began on April 2, 2013. The State played for the jury the 911 recording and a

thirty-five-minute audio-recording of Dean speaking to police,2 as well as offering

testimony from police officers and the emergency room nurse and doctor.

       The State also presented expert testimony from an advocate for domestic

abuse victims. Seeds of Hope employee Barbara Rindels offered her opinion

that “often in domestic violence” cases, victims will recant because they love the

abuser and hope he will change or are scared of the abuser and fear reprisal if

they testify against him.




2
  The recording also has video from a dashboard camera, but does not show Dean or
the crime scene. In addition, the sound quality is very poor because the officer’s
conversation with Dean outside the car is competing with the pop music radio station
playing inside the car.
                                          5



       The prosecution called Dean to testify, but only asked her background

information about her relationship with Smith and the child they had in common.

Dean retook the stand in the defense case, testifying she lied about Smith to both

the police and the hospital staff because she was intoxicated that night.3

       On the first count, the jury found Smith guilty of a lesser included offense

of simple misdemeanor domestic abuse assault. On the second count, jurors

found him guilty of domestic abuse assault causing bodily injury, as charged.

The court sentenced Smith to one year in jail, suspending ninety-five days. The

court also imposed a fine of $315 plus a surcharge and court costs. The court

placed Smith on probation for one year and ordered him to complete the

batterers’ education program.

       In his appeal, Smith claims the district court improperly admitted hearsay

testimony and seeks a new trial.

II.    Analysis of hearsay claims

       We review Smith’s hearsay challenges for correction of errors at law. See

State v. Thompson, 

 (Iowa 2013). Hearsay is defined as an

out-of-court statement offered to prove the truth of the matter asserted. Iowa R.

Evid. 5.801(c). Hearsay statements cannot be presented to the jury unless they

fall within an exception or exclusion under the rules of evidence or another

provision. See State v. Newell, 710 N .W.2d 6, 18 (Iowa 2006). If the district

court wrongly admits hearsay evidence over a proper objection, we presume the

defendant suffered prejudice unless the record shows “the hearsay evidence did


3
  The testimony of the emergency room doctor contradicted her assertion of being under
the influence of alcohol.
                                          6



not affect the jury’s finding of guilt.” State v. Elliot, 

 (Iowa

2011).

         Smith flags two hearsay rulings he believes to be in error. First, he claims

the court mistakenly overruled his objection to police officer testimony and an

audio-tape exhibit which relayed to the jury Dean’s allegations that Smith struck

and kicked her.      Second, Smith contends the court erred in overruling his

objection to testimony from emergency room personnel repeating Dean’s

identification of Smith as her assailant. We will address each claim in turn.

         A. Statements to police

         After officers responded to Dean’s 911 call, they spoke with her outside of

her home.      The conversation was recorded using the audio capability of the

squad car “dash cam.” Dean initially told police she had gone upstairs in her

home, heard a noise at the door, went back downstairs, and was attacked from

behind. She claimed not to have seen her attacker. The officers were skeptical

of her account and continued to ask Dean questions. Eventually, Officer LaMere

asked Dean, “What’s his last name, Trent what?” She responded, “Trent Daniel.”

After checking with dispatch, the officers learned Dean’s ex-boyfriend was

named Trenton Daniel Smith. Dean then confirmed Smith had assaulted her.

         The State offered evidence of Dean’s out-of-court statements identifying

Smith as the person who assaulted her through the testimonies of Officer Heuer

and Officer LaMere. Before resting its case, the State also played for the jury the

tape recording of Dean’s conversation with the officers. On appeal, Smith claims

the district court erred in overruling his hearsay objections to this evidence.
                                         7



      The State presses two arguments in response.            First, it argues the

evidence was not entered to prove the truth of the matter asserted. See Iowa R.

Evid. 5.801(c).   Instead, the State claims the recording was offered to show

Dean’s reluctance to reveal the identity of her attacker and to show the officers’

responsive conduct. Second, the State argues these statements fell under the

hearsay exception for excited utterances. See Iowa R. Evid. 5.803(2).

      We turn first to the claim the evidence was not offered for the truth of the

matter asserted. Smith concedes Dean’s initial statements on the recording,

which did not implicate him, may have been offered to show her bias to protect

him. But he insists the statements identifying him as the perpetrator were offered

to prove the facts asserted. We agree. In analyzing the admissibility of an out-

of-court statement, “we look at the real purpose for the offered testimony, not just

the purposes urged by the prosecutor.” State v. Elliott, 

(Iowa 2011) (quoting State v. Sowder, 

 (Iowa 1986)). An

officer may explain the steps of his investigation by stating he took them in

response to a complaint without running afoul of the hearsay rule, but if the

officer’s testimony turns more specific “by repeating definite complaints of a

particular crime by the accused, this is so likely to be misused by the jury as

evidence of the fact asserted that it should be excluded as hearsay.” State v.

Doughty, 

 (Iowa 1984) (citing McCormick’s Handbook on

the Law of Evidence § 248, at 587 (2d ed. E. Cleary 1972)).

      Here, Smith’s identity was an essential element of the State’s case, and

the State did not question Dean about her identification of Smith during its case
                                        8



in chief because of her recantation. See State v. Tracy, 

(Iowa 1992) (finding reversible error when “the State places a witness on the

stand who it expects to give unfavorable testimony solely for the purpose of

introducing otherwise inadmissible evidence”). Accordingly, we find her out-of-

court identification of Smith as her assailant was being offered for its truth, and

thus constituted hearsay.

       The next question is whether Dean’s hearsay statements to the officers

fell within the scope of the excited utterance exception. An excited utterance is a

statement relating to a startling event or condition made while the declarant was

under the stress of the event. Iowa R. Evid. 5.803(2); State v. Richards, 

 (Iowa 2012). We assess the admissibility of a statement under

the excited utterance exception based on the following factors:

       (1) the time lapse between the event and the statement, (2) the
       extent to which questioning elicited the statements that otherwise
       would not have been volunteered, (3) the age and condition of the
       declarant, (4) the characteristics of the event being described, and
       (5) the subject matter of the statement.

State v. Atwood, 

 (Iowa 1999).

       In this case, the time lapse between the event and the statements at issue

was roughly two hours.      That stretch of time is not outside the realm of

admissibility.   See 

 at 782–83 (allowing statement made two and one-half

hours after startling event). Dean was an adult—twenty-nine years old at the

time of trial—but the record shows she remained upset and fearful at the time of

the interview with police. The excited-utterance exception can be invoked even

when the declarant is in the process of calming down and is “able to act rationally
                                         9



and function in a relatively normal manner.” See State v. Mateer, 

 (Iowa 1986). Moreover, the subject matter of Dean’s statement was a

traumatic event.

      Notwithstanding those circumstances, we find the most telling factor in this

case is the extent to which Dean’s declarations were elicited by the officers’

questioning.   We recognize not all statements prompted by questions are

automatically disqualified from the excited utterance exception. State v. Harper,

 (Iowa 2009) (finding excited utterances in response to

physician asking victim “what had happened”).       But here, Dean’s statements

identifying Smith as her attacker were the product of persistent police questioning

and would not have otherwise been volunteered. Dean was asked far more than

“what happened?” Officer Lamere had to pose several different inquiries to get

the name “Trent Daniel.” Given the extent of the police questioning, we find

Dean’s statements were not admissible under the excited utterance exception.

See State v. Cagley, 

, 681–82 (Iowa 2001) (upholding trial

court’s exclusion of statements offered as excited utterances, in part, because

they were in response to questions by police).

      Our determination that Dean’s statements to police were improperly

admitted is not the end of the inquiry. “In considering whether the admission of

hearsay is reversible error, we have held that notwithstanding the presumption of

prejudice from the admission of such evidence, the erroneously admitted hearsay

will not be considered prejudicial if substantially the same evidence is properly in

the record.” State v. Newell, 

 (Iowa 2006). The admission of
                                         10



hearsay statements can be harmless if other sources duplicate the testimony.

State v. Johnson, 

 (Iowa 1978).

       Our supreme court has examined when the cumulative nature of hearsay

evidence may render its improper admission to be non-prejudicial. Elliott, 

. In Elliott, the court stated:

       One way to show the tainted evidence did not have an impact on
       the jury’s verdict is to show the tainted evidence was merely
       cumulative. If the record contains cumulative evidence in the form
       of testimony, the hearsay testimony’s trustworthiness must
       overcome the presumption of prejudice.          We measure the
       trustworthiness of the hearsay testimony based on the
       trustworthiness of the corroborating testimony.

 (citations omitted).

       Dean’s hearsay statements to police were cumulative of her later

statements to an emergency room nurse and doctor, which we find in the next

division of this decision to be admissible under the hearsay exception for

statements made for the purposes of medical diagnoses and treatment. See

Iowa R. Evid. 5.803(4).     The United States Supreme Court has recognized

statements made in the course of receiving medical care as having been “made

in contexts that provide substantial guarantees of their trustworthiness.” White v.

Illinois, 

 (1992); but see United States v. Bercier, 

(8th Cir. 2007) (finding victim’s hearsay statements to treating physician were

prejudicial to defendant, but noting the government did not offer them under the

exception for medical diagnosis and treatment). Because Dean’s statements to

the nurse and doctor constituted trustworthy corroboration, we find Smith was not

prejudiced by admission of Dean’s hearsay statements to police.
                                       11



      B. Statements to medical professionals

      After interviewing Dean at her house, the officers took her to the

emergency room because she was experiencing significant pain. Smith argues

Dean’s statements to a nurse and doctor at the emergency room also should

have been excluded as hearsay. The State believes statements were admissible

under rule 5.803(4).      That rule provides the following statements are not

excludable even though the declarant is available as a witness:

      Statements made for purposes of medical diagnosis or treatment
      and describing medical history, or past or present symptoms, pain,
      or sensations, or the inception or general character of the cause or
      external source thereof insofar as reasonably pertinent to diagnosis
      or treatment.

Iowa R. Evid. 5.803(4).

      Emergency room nurse Trisha Knipper evaluated Dean’s condition when

she came to the hospital at about 2 a.m. on June 9, 2012. Knipper testified it

was part of her job to document complaints, diagnoses, and treatment. The

nurse asked Dean what happened, and Dean said “she was assaulted by her

baby’s daddy around midnight.”      Knipper testified that as a nurse she asks

patients about possible domestic violence situations as part of the hospital’s

general screening process. The nurse testified she asks if the patient “feels safe

where they live” and if there is “any domestic violence going on.” As part of this

screening process, Dean told the nurse that she was afraid of someone close to

her and had been “physically hurt by her baby’s daddy.” Knipper also testified

that in addition to pain medications, Dean was prescribed an anti-anxiety

medication to help her relax.
                                          12



       Dean also saw Dr. Robert Mott at the emergency room. Dr. Mott testified

Dean reported that she “was attacked by the father of her child.” He also testified

that knowing what had happened to a patient was “key” for providing the

necessary treatment.

       On appeal, Smith accepts that Dean’s statements to medical personnel

describing “that she’d been assaulted and kicked in the head would fall under the

medical treatment and diagnosis exception,” but argues “her statement

identifying Smith as her attacker would not.” He cites the general principle that

statements attributing blame or identifying persons inflicting an injury do not

satisfy the standard for medical pertinence under rule 5.803(4) in most cases.

See 7 Laurie Kratzky Doré, Iowa Practice Series, Evidence § 5.803:4, n.20

(2013) (acknowledging “Iowa has expansively construed” a hearsay exception for

victims of child abuse regarding the identity of their abuser); see also McCormick

on Evidence § 277 (6th ed. 2006) (“Descriptions of cause are similarly allowed if

they are medically pertinent, but statements of fault are unlikely to qualify.”).

       In response, the State directs us to the two-part test for admissibility of

statements under rule 5.803(4) set out in State v. Tracy, 

(Iowa 1992) (quoting United States v. Renville, 

 (8th Cir.

1985)). First, the motive in making the statement must be consistent with the

purposes of promoting treatment. 

 Second, the content of the statement must

be such as is reasonably relied on by a physician in treatment or diagnosis. 

Both Tracy and Renville involved child abuse victims.
                                        13



      In Renville, the court noted nothing in the record indicated the child’s

motive in making the statements to her physician was other than as a patient

responding to a doctor’s questioning for prospective treatment. 

.

The harder question was whether the content of the child’s statement—including

the identity of the alleged abuser—was reasonably relied upon by a physician in

treatment or diagnosis.      The Renville court determined the identity was

“reasonably pertinent to diagnosis or treatment” when the child abuser was a

member of the victim’s immediate household. 

 at 436–37.

      Our supreme court adopted the Renville holding, providing the following

analysis:

      Since child abuse often involves more than physical injury, the
      physician must be attentive to treating the emotional and
      psychological injuries which accompany this offense.          To
      adequately treat these emotional and psychological injuries, the
      physician will often times need to ascertain the identity of the
      abuser. Moreover, as Renville further notes, physicians have an
      obligation to prevent “an abused child from being returned to an
      environment in which he or she cannot be adequately protected
      from recurrent abuse.”

Tracy, 

 (internal citation omitted).

      The State asks us to extend the application of Tracy to adult domestic

violence victims, reasoning: “Although an adult is not dependent on health

professionals for relief from the abuse to the same extent as a child, domestic

violence can severely compromise an adult’s autonomy.” Ten years ago, in an

unpublished decision, a three-member panel of our court declined a similar

invitation. See Donald v. State, No. 03-1087, 

, at *4–5 (Iowa

Ct. App. Aug. 11, 2004) (holding “the rule in Tracy should not be expanded to
                                         14



permit the admission into evidence of statements made by an adult victim

identifying her abuser by name as statements-for-purposes-of-medical-diagnosis

exception to hearsay”).

       Today we reach a different conclusion regarding the extension of Tracy.

In Donald, the statements at issue were made by an adult sexual abuse victim

and the record did not show the defendant had ever been a member of her

household.      

   By contrast in this case, Dean and Smith had an ongoing

domestic relationship based on having a child in common.            See 

(2)(c) (defining domestic abuse as assault between parents of the same

minor child).     Their continuing contact was documented by Officer LaMere’s

testimony he had been to Dean’s home on a call about nine months earlier and

Smith had been there. Our supreme court has recognized “domestic violence is

a pattern of behavior, with each episode connected to the others.” See Richards,

 (quoting State v. Taylor, 

, 129 n.6 (Iowa

2004)).   The court also has allowed expert testimony on “battered women’s

syndrome” to explain “that continued exposure to domestic abuse leads to a

feeling of helplessness, where the victim often begins to believe what she is

being told by her abuser, i.e., that she is ignorant, stupid, ugly, a terrible mother,

etc. The victim feels trapped and unable to leave,” the abusive relationship. See

State v. Rodriquez, 

 (Iowa 2001). These realizations about

domestic violence show that, like child abuse, it is accompanied by emotional

and psychological injuries.        To adequately treat these emotional and
                                         15



psychological injuries, medical professionals need to ascertain the identity of the

abuser.

       Also in Donald, there was no evidence the emergency room nurse and

doctor who testified relied on the patient’s identification of the perpetrator as part

of their diagnoses or treatment. 

. Again by contrast in

this case, nurse Knipper and Dr. Mott testified information about the domestic

abuse assault was critical to their diagnosis and treatment. Knipper explained

the screening questions about intimate violence were even institutionalized as

part of the hospital’s intake forms. The medications prescribed also indicate the

medical professionals were treating Dean’s physical and psychological condition.

       Our conclusion that the identity of a domestic abuse assailant can be

medically pertinent to the declarant’s diagnoses and treatment has been reached

by several other jurisdictions. See, e.g., United States v. Joe, 

(10th Cir. 1993) (holding statement by estranged wife to physician that her

husband raped her was reasonably pertinent to her proper treatment); Moore v.

City of Leeds, 

 (Ala. Crim. App. 2008) (concluding adult victim’s

statement to physician that her injury resulted from altercation with her husband

was admissible because identity of perpetrator was related to treatment of

emotional and psychological injuries suffered by victim); Nash v. State, 

 (Ind. Ct. App. 2001) (concluding victim’s statement of identity

was reasonably pertinent to the effort of the emergency room staff in treating her,

to identifying the underlying cause of the sexual abuse and in seeking to prevent

further domestic abuse); People v. Pham, 

, 690–91 (N.Y. App.
                                         

) (holding “[d]etails of the abuse, even including the perpetrator’s

identity, may be relevant to diagnosis and treatment when the assault occurs

within a domestic violence relationship because the medical provider must

consider the victim’s safety when creating a discharge plan and gauging the

patient’s psychological needs”); State v. Moses, 

 (Wash. Ct.

App. 2005) (recognizing exception to general rule that statements attributing fault

are not relevant to diagnosis or treatment for domestic violence cases because

the identity of the abuser is pertinent and necessary to the victim’s treatment);

Oldman v. State, 

 (Wyo. 2000) (admitting adult victim’s

statement to emergency room physician that her husband had beaten and bit

her, finding “no logical reason” for not applying Tenth Circuit’s rationale in Joe to

“non-sexual, traumatic abuse within a family or household, since sexual abuse is

simply a particular kind of physical abuse”); Commonwealth v. O’Connor, 

, 129 (N. Mar. I. 2000) (noting “in spousal abuse cases, the

perpetrator’s identity may be essential to diagnosis and treatment of, for

example, situational depression); but see Johnson v. State, 

(Alaska 1978) (holding statements by severely beaten wife, who eventually died

from her injuries, identifying husband as assailant did not relate to her diagnosis

or treatment).

       The Supreme Court of Minnesota considered the admissibility of

statements by an injured woman to her treating nurse identifying the father of her

children as her assailant in State v. Robinson, 

 (Minn.
                                           17



2006).     The court declined to adopt a categorical rule of admissibility for

statements of identification by victims of domestic abuse, explaining as follows:

         We are not able to determine . . . the notion that the identification of
         the perpetrator of domestic violence is reasonably pertinent to
         medical diagnosis and treatment is generally accepted in the
         medical profession. . . . We can speculate that the medical
         profession may have evolved to recognize the importance of
         treating the whole person of a victim of domestic violence, including
         the emotional and psychological effects of past violence and the
         potential of future violence. But we can do no more than speculate.
         The record before us contains no medical expert testimony on the
         scope of the customary treatment of a victim of domestic violence
         or whether the identity of the domestic abuser is reasonably
         pertinent to that treatment.

Robinson, 

.           The Minnesota court did not foreclose the

possibility that it “might in the future adopt a properly limited categorical rule of

admissibility under the medical exception to hearsay for statements of

identification by victims of domestic violence” if it was presented with sufficient

evidentiary foundation. 

.

         Our decision that the district court properly allowed Dean’s statements to

the emergency room nurse and doctor under rule 5.803(4) is not a categorical

rule of admissibility for all identification statements in cases of domestic violence.

As indicated above, we are persuaded by the testimony of nurse Knipper and Dr.

Mott that the identity of Dean’s assailant as the father of her child was pertinent

to their medical diagnosis and treatment of Dean.              On the first step for

admissibility, we find Dean’s motive in giving information to the emergency room

nurse and doctor was consistent with promoting the treatment of her injuries. On

the second step, we find the content of her statements, including the

identification of her child’s father as her assailant, was reasonably relied upon for
                                        18



diagnoses and treatment decisions by the medical professionals in this case.

Accordingly, we find no error in the district court’s admission of Dean’s

statements at the hospital.

       Finally, we find the hearsay evidence admitted under rule 5.803(4) through

the doctor and nurse meets the degree of trustworthiness described in Elliott as

necessary to corroborate Dean’s identification of Smith as her attacker.

III.   Merging convictions

       Smith claims the district court erred by entering an illegal sentence when

the district court merged only the sentences and not the convictions of domestic

abuse assault and domestic abuse assault causing bodily injury.         The State

agrees we should vacate the conviction for the lesser included offense of simple

misdemeanor domestic abuse assault.          Violations of the merger doctrine are

reviewed for corrections of legal errors. State v. Rodriquez, 

 (Iowa 2001).

       During the oral pronouncement of Smith’s sentence, the district court

stated:

       It is the sentence of this court, pursuant to Iowa Code section
       903.1, that on the offense of Assault Domestic Abuse Causing
       Bodily Injury, which merges with the offense of Assault Domestic
       Abuse, you shall be confined in the Black Hawk County Jail for a
       term not to exceed 365 days, all of which shall be fully suspended
       during periods of your good behavior, except for 270 days.

But in the written sentencing order, the district court only merged the offenses

“for sentencing purposes.”    The parties agree “where there is a discrepancy

between the oral pronouncement of sentence and the written judgment and

commitment, the oral pronouncement of sentence controls.” State v. Hess, 533
                                  

, 528 (Iowa 1995). Therefore, we merge Smith’s convictions and

sentences.

      AFFIRMED IN PART; SIMPLE MISDEMEANOR DOMESTIC ABUSE

ASSAULT CONVICTION VACATED.