State of Iowa v. Kendra Kae Wessels ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1023
Filed August 31, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENDRA KAE WESSELS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
Kendra Kae Wessels appeals her convictions for operating a motor
vehicle while intoxicated, second offense, and assault on a peace officer.
AFFIRMED.
Edward W. Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Kevin R. Cmelik, Kelli A. Huser,
and Katie M. Krickbaum (until withdrawal), Assistant Attorneys General, for
appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
A jury found Kendra Kae Wessels guilty of operating a motor vehicle
while intoxicated, second offense, and assault on a peace officer. See Iowa
Code §§ 321J.2, 708.1(1), 708.3A(4) (2013). On appeal, Wessels argues “the
[district] court erred by failing to instruct the jury that assault as charged is a
specific intent crime.”
The State concedes “the district court should have included a specific
intent instruction,” but urges us to affirm Wessels’ judgment and sentence on the
ground that “any error in instructing the jury did not prejudice Wessels.” We are
persuaded by both prongs of the State’s argument.
The jury was instructed the State would have to prove the following
elements of assault on a peace officer:
1. On or about the 29th day of November, 2014, the
defendant did an act which was intended to cause pain or injury to,
or which was intended to result in physical contact which was
insulting or offensive to, Leighton Walker.
2. The defendant had the apparent ability to do the act.
3. Leighton Walker is a peace officer acting within his official
duties.
4. The defendant knew Leighton Walker is a peace officer.
The jury was separately given a general intent instruction, as follows:
To commit a crime a person must intend to do an act which
is against the law. While it is not necessary that a person knows
the act is against the law, it is necessary that the person was aware
she was doing the act and she did it voluntarily, not by mistake or
accident. You may, but are not required to, conclude a person
intends the natural results of her acts.
The jury was not given the standard specific intent instruction, which states:
“Specific intent” means not only being aware of doing an act and
doing it voluntarily, but in addition, doing it with a specific purpose
in mind. Because determining the defendant’s specific intent
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requires you to decide what [he] [she] was thinking when an act
was done, it is seldom capable of direct proof. Therefore, you
should consider the facts and circumstances surrounding the act to
determine the defendant’s specific intent. You may, but are not
required to, conclude a person intends the natural results of [his]
[her] acts.
Iowa Criminal Jury Instruction No. 200.2 (alteration in original). This was error.
See State v. Ambrose, 861 N.W.2d 550, 554 (Iowa 2015) (reviewing jury
instructions for errors of law).
The jury instruction on assault on a peace officer incorporated the assault
definition contained in section 708.1(2)(a) (“Any act which is intended to cause
pain or injury to, or which is intended to result in physical contact which will be
insulting or offensive to another, coupled with the apparent ability to execute the
act.”). In State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001), the Iowa Supreme
Court concluded this provision delineated a specific intent crime. The court
stated, “Although in the past we have defined the assault alternative in section
708.1(2) as a general intent crime, see State v. Ogan, 497 N.W.2d 902, 903
(Iowa 1993), we now hold this alternative is a specific-intent crime. We overrule
Ogan and those cases that hold otherwise.” Heard, 636 N.W.2d at 231.
The court reaffirmed this holding after the legislature amended the statute
to identify the crime as one of general intent. See State v. Fountain, 786 N.W.2d
260, 265 (Iowa 2010). The court reasoned as follows:
[W]e adhere to our prior decisions holding that the 2002
amendment “did not alter the substantive content of the statute.”
Our conclusion that assault includes an element of specific
intent is not inconsistent with the legislature’s action in amending
the statute. As we discussed, the legislature did not change the
elements of an assault; it merely designated assault as a general
intent crime.
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Id. (citation omitted). Based on this precedent, a specific intent instruction was
required.
We turn to whether the error in failing to give a specific intent instruction
was prejudicial. See id. at 265-66. The marshalling instruction on assault on a
peace officer correctly described the statutory specific intent requirement for the
crime. In light of this description, we conclude the district court’s failure to
separately instruct the jury that assault was a specific intent crime did not
prejudice Wessels. See State v. Keeton, 710 N.W.2d 531, 534 (Iowa 2006)
(acknowledging regardless of the specific label attached—specific intent or
general intent—the State must prove the elements of the crime and their
accompanying mens rea beyond a reasonable doubt); State v. Hall, No. 11-1524,
2012 WL 4900426, at *6 (Iowa Ct. App. Oct. 17, 2012) (citations omitted) (noting
“the instructional error was of little consequence here because the court included
the language of the assault statute in the marshalling instruction”).
In reaching this conclusion, we have considered whether the court’s
inclusion of a general intent instruction raised the possibility of jury confusion.
See State v. Pendleton, No. 13-1647, 2014 WL 6977188, at *5 (Iowa Ct. App.
Dec. 10, 2014) (“The absence of a general intent instruction removed the
possibility of jury confusion.”). We are persuaded the possibility was minimal.
The general intent instruction referred to “a crime” generally, making no
reference to assault. As noted, the marshalling instruction for assault on a peace
officer required the State to prove specific intent. Given the precise language of
the marshalling instruction, there was scant likelihood the jury would import the
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general intent instruction in deciding whether the State proved the elements of
assault on a peace officer.
We affirm Wessels’ judgment and sentences.
AFFIRMED.