Opinion
No. 5-956 / 05-0266
Filed February 15, 2006
Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.
Earl Wayne Brown, Jr., appeals from his conviction of assault causing serious injury and domestic assault causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Gary Allison, County Attorney, and Dana E. Christiansen and Korie L. Shippee, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Earl Wayne Brown, Jr., appeals from his conviction of assault causing serious injury and domestic assault causing bodily injury. We affirm.
Brown was also convicted of false imprisonment, but does not raise an issue challenging that conviction on appeal.
I. Background Facts Proceedings.
The record indicates that Brown showed up unannounced at Holly Runge's rural West Liberty residence at approximately 12:30 a.m. on June 29, 2004. When Runge asked Brown to leave, he refused. Brown became angry and grabbed Runge by the hair, slammed her head against a couch, threw her to the floor, and repeatedly punched her with his fists while she was lying on the floor. As a result, Runge sustained a fractured collarbone, as well as multiple bruises on her chest and knees.
On September 9, 2004, Brown was charged in a three-count trial information with kidnapping in the third degree, a class "C" felony in violation of Iowa Code sections 710.1 and 710.4 (2003) (Count I); assault causing serious injury, a class "D" felony, in violation of sections 708.1 and 708.2(4) (Count II); and domestic assault causing injury, a serious misdemeanor, in violation of sections 708.1 and 708.2A(2)(b) (Count III). Brown pleaded not guilty, and the matter proceeded to trial.
The trial court submitted the offenses charged and false imprisonment as a lesser-included offense of kidnapping. The instructions pertinent to this appeal included the following:
INSTRUCTION NO. 25
The State must prove all of the following elements of Assault Causing Bodily Injury under Count II
1. On or about the 30th day of July, 2004, the defendant did an act which was intended to cause pain or injury, result in physical contact which was insulting or offensive, or place Holly Runge in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to her.
2. The defendant had the apparent ability to do the act.
3. The defendant's act caused a bodily injury to Holly Runge as defined in Instruction No. 26.
If the State has proved all of the elements, the defendant is guilty of assault causing bodily injury under Count II. If the State has failed to prove either element 1 or 2, the defendant is not guilty under Count II.
INSTRUCTION NO. 27
The State must prove all of the following elements of the crime of Domestic Abuse Assault Causing Bodily Injury under Count III:
1. On or about the 30th day of July, 2004, the defendant either did an act which was meant to cause pain or injury, result in physical contact which was insulting or offensive, or place Holly Runge in fear of immediate physical contact which would have been painful, injurious, insulting or offensive to her.
2. The defendant had the apparent ability to do the act.
3. The defendant's act caused a bodily injury to Holly Runge as defined in Instruction No. 26.
4. The act occurred between persons who are the parents of the same minor child.
If the State has proved all of these numbered elements, the defendant is guilty of Domestic Abuse Assault Causing Bodily Injury under Count III. If the State has proved only elements 1, 2 and 3, then the defendant is guilty of Assault Causing Bodily Injury under Count III. If the State has proved only elements 1, 2 and 4, the defendant is guilty of Domestic Abuse Assault under Count III. If the State has proved only elements 1 and 2, the defendant is guilty of Assault under Count III. If the State has failed to prove either element 1 or 2, the defendant is not guilty under Count III.
The jury returned verdicts finding Brown guilty of false imprisonment, assault causing serious injury, and domestic assault causing bodily injury. A judgment of conviction was subsequently entered, and Brown was sentenced accordingly.
On appeal, Brown raises the following issue:
The trial court erred in failing to adequately instruct the jury vis-à-vis criminal intent regarding counts II and III of the trial information. (This issue is raised as ineffective assistance of counsel claim.)II. Merits.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). "Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal." State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 102 (Iowa 1997)). To establish a claim of ineffective assistance of counsel, Brown has the burden to prove (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Ledezma, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). There is a strong presumption that the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). Looking at the totality of the circumstances, Brown must overcome this presumption. Irving v. State, 533 N.W.2d 538, 540 (Iowa 1995). We will not second guess trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). In other words, "[i]mprovident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily constitute ineffective assistance of counsel." State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999) (citing Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989)).
Moreover, in considering whether counsel was competent, "[the Iowa supreme court has] recognized that whether or not counsel objects to a particular instruction must be determined with regard to the theory of defense which is being employed in the case." State v. Boughton, 450 N.W.2d 874, 876 (Iowa 1990) (citing State v. Blackford, 335 N.W.2d 173, 178 (Iowa 1983)). To satisfy the second element, Brown must show there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994). Conclusory claims of prejudice are insufficient. State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002).
The gist of Brown's ineffective assistance of counsel claim is that the trial court had an essential duty to object to Instruction Nos. 25 and 27 because the instructions failed to clearly explain that each crime was a specific intent crime. We disagree.
In State v. Bedard, 668 N.W.2d 598, 601 (Iowa 2003), the court said:
In order for there to be a criminal assault, it must be shown that the act was either "intended to cause pain or injury to, or . . . intended to result in physical contact which will be insulting or offensive to another," or "intended to place another in fear of immediate physical contact, which will be painful, injurious, insulting, or offensive." Iowa Code § 708.1(1), (2). These elements of proof have caused us to describe the basic assault offense, either standing alone, or as the predicate for a more serious felonious assault, as a specific-intent crime. State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001).
Because the language used in Instruction No. 25 is the same as the supreme court interpreted to mean specific intent, no further clarifying language was needed to inform the jury that the submitted offense was a specific intent crime. We also are unable to discern any meaningful difference between the word "meant" as used in Instruction No. 25 and the concept of specific intent referred to in Bedard and Heard. Moreover, the challenged instructions tracked Iowa Uniform Jury Instructions 800.2.1 and 800.30.2. We are reluctant to disapprove uniform jury instructions. State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995). Under these circumstances, trial counsel had no duty to make a meritless objection to the court's proposed jury instructions. See State v. Hockins, 586 N.W.2d 707, 709 (Iowa 1998).
Even if we were to conclude otherwise, Brown is unable to establish the prejudice prong of his ineffective assistance of counsel claim. The record indicates that counsel conceded the merits of the assault counts in both her opening and closing statements. There is no resulting prejudice from an instructional error, where the theory of the error conflicts with the defense asserted. See State v. Negrete, 486 N.W.2d 297, 298-99 (Iowa 1992). We accordingly affirm Brown's convictions.