Amended May 16, 2017 State of Iowa v. James Norman Harris

IN THE SUPREME COURT OF IOWA
No. 15–0940
Filed February 24, 2017
Amended May 16, 2017
STATE OF IOWA,
Appellee,
vs.
JAMES NORMAN HARRIS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, Gary E.
Wenell, Judge.
A defendant claims his trial counsel was ineffective for failing to
challenge the sufficiency of the evidence of an element of the going-
armed-with-intent offense and for failing to object to a jury instruction
omitting that element. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Patrick Jennings, County Attorney, and Terry C.
Ganzel, Assistant County Attorney, for appellee.
2
HECHT, Justice.
A late-night game of pool at a bar in Sioux City led to an argument
between the defendant and another man. The argument led to a physical
altercation outside the bar, and the other man sustained stab wounds.
For his actions in the fight, the defendant was convicted of going armed
with intent and willful injury causing bodily injury. On appeal, the
defendant contends his defense counsel provided ineffective assistance of
counsel in failing to challenge the sufficiency of the evidence supporting
submission of the going-armed-with-intent charge to the jury and failing
to object to the jury instruction on going armed with intent on the
ground it omitted the “going” element of that charge. We conclude
defense counsel was not ineffective in failing to challenge the sufficiency
of the evidence because the State produced substantial evidence of the
“going” element. We further conclude, however, that the jury instruction
omitted an element of the charged offense and defense counsel was
ineffective in failing to object to it.
I. Factual and Procedural Background.
The following facts are supported by substantial evidence in the
record. James Harris, his girlfriend, and Chance Niles were at the Dive
Bar in Sioux City around midnight on the evening of September 26,
2013. All three had consumed a significant amount of alcohol during the
evening. Harris and Niles wagered as they began a series of five late-
night games of pool. Harris accused Niles of cheating and the two men
yelled and hurled obscenities at each other. The bartender eventually
told the two men it was time to close the bar and they must leave.
Harris exited the bar ahead of Niles. When Niles came out of the
bar approximately five minutes later, he encountered Harris waiting
outside the bar. The conflict resumed and Harris and Niles pushed each
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other. Niles turned—intending to walk away from the fight—and Harris
struck him multiple times about the head and neck with a knife. As the
fight between the two men continued on the ground, Niles gained an
advantage and was on top of Harris. While the two men wrestled on the
ground, Harris’s girlfriend joined the fray by kicking Niles. The bartender
heard the commotion and went outside. He saw Niles on top of Harris
who was holding a knife in his hand. Niles eventually let Harris get up
and leave the scene with his girlfriend. Niles then went to the hospital
where medical personnel treated at least seven wounds on the back of
his head, his neck, and his arm.
Harris was subsequently charged with going armed with intent in
violation of Iowa Code section 708.8 (2013), a class “D” felony, and willful
injury causing bodily injury in violation of Iowa Code section 708.4(2),
also a class “D” felony. In his motion for judgment of acquittal at the
close of the State’s case-in-chief during the jury trial, defense counsel
challenged the sufficiency of the evidence supporting the going-armed-
with-intent charge, contending specifically that “the evidence lacks in
showing any intent on Mr. Harris’ part that he [intended] to use a
dangerous weapon in this matter.” 1 Counsel renewed his motion for
judgment of acquittal at the close of the evidence, contending in relevant
part “there was no going armed with intent because there was no knife
on [Harris].” Counsel’s motion did not specifically challenge the
sufficiency of the evidence supporting a finding that Harris moved any
distance while armed with a dangerous weapon and with the required
specific intent.
1Defense counsel also challenged the sufficiency of the evidence supporting the
willful injury claim, but the merits of that challenge are not before us in this appeal.
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Instruction No. 17—the marshalling instruction on the going-
armed-with-intent charge—read as follows:
In order to find the Defendant James Harris guilty of
Going Armed with Intent as charged in Count I of the Trial
Information, the State must prove all of the following
elements:
1. On or about the 26th day of September, 2013, here
in Woodbury County, Iowa, the defendant was armed with a
knife.
2. The knife was a dangerous weapon as defined in
Instruction No. 19.
3. The defendant was armed with the specific intent to
use the knife against another.
If you find the State has proved all of the elements, the
defendant is guilty of Going Armed with Intent. If the State
has failed to prove any one of the elements, the defendant is
not guilty of Going Armed with Intent.
Notably, this instruction did not include the element of going or moving
with specific intent to use it against Niles. Defense counsel did not
object to the omission.
Harris was convicted of going armed with intent and assault with
intent to inflict a serious injury—a lesser-included offense of willful
injury and an aggravated misdemeanor. The court sentenced Harris to
indeterminate terms of incarceration for five years on the charge of going
armed with intent and two years on the charge of assault with intent to
inflict serious injury, and ordered the terms to be served consecutively.
Harris appealed, claiming his defense counsel provided ineffective
assistance in failing to challenge the sufficiency of the evidence
supporting a finding that he moved (the “going” element of the offense)
while armed with a dangerous weapon and with the intent to use it
without justification against the person of another. See Iowa Code
§ 708.8. Harris also claimed counsel was ineffective for failing to object
5
to the omission of the “going” element in Instruction No. 17. 2 We
transferred the appeal to the Iowa Court of Appeals. On April 6, 2016,
the court of appeals decided in relevant part that (1) the evidence that
Harris “moved” while armed and with the requisite intent sufficiently
supported his conviction for going armed with intent and (2) Harris failed
to show he was prejudiced by his trial counsel’s failure to object to the
absence of the “going” element in Instruction No. 17. We granted
Harris’s application for further review.
II. Scope of Review.
Because defense counsel did not challenge the sufficiency of the
evidence supporting the submission of the going-armed-with-intent
charge to the jury and did not object to the omission of the “going”
element in Instruction No. 17, error was not preserved for our review on
either of these issues. State v. Horness, 600 N.W.2d 294, 297 (Iowa
1999). Consequently, our review of the merits of the issues turns on
whether Harris has established his counsel rendered ineffective
assistance. Id.
We review ineffective-assistance-of-counsel claims de novo. Id.
Harris bears the burden of proving by a preponderance of the evidence
that “(1) his trial counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006); accord Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct.
2052, 2064–65, 80 L. Ed. 2d 674, 693–94 (1984). Prejudice is
established if “there is a reasonable probability that, but for the counsel’s
2Harris also contends on appeal that the sentencing court abused its discretion
in failing to state reasons for imposing a consecutive sentence. Because we conclude
the conviction on the going-armed-with-intent charge must be reversed, we need not
address the sentencing issue.
6
unprofessional errors, the result of the proceeding would have been
different.” State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008) (quoting
Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)); accord Strickland,
466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In other words,
a party claiming prejudice arising from ineffective assistance of counsel
must establish a probability of a different result sufficient to undermine
our confidence in the outcome of the case. See id.; see also Anfinson v.
State, 758 N.W.2d 496, 499 (Iowa 2008).
III. Analysis.
The defendant alleges he received ineffective assistance of counsel
because his trial counsel failed to object to the sufficiency of the evidence
concerning the “going” element of the going-armed-with-intent offense
and to the omission of that element in the marshalling instruction for
that offense. Although ineffective-assistance claims are generally
addressed in postconviction-relief proceedings, “we will consider [them]
on direct appeal where the record is adequate.” Horness, 600 N.W.2d at
297. We conclude the record is adequate to address both claims of
ineffectiveness in this case.
In assessing the effectiveness of the assistance provided by Harris’s
trial counsel, we presume he acted competently. See id. at 298. The
presumption of competency in this context is overcome in this case if we
find Harris has proved his counsel’s performance “fell below the normal
range of competency.” Id. Trial counsel is not ineffective in failing to
urge an issue that has no merit. State v. McPhillips, 580 N.W.2d 748,
754 (Iowa 1998).
A. Sufficiency of the Evidence of “Going.” Iowa Code section
708.8 provides that “[a] person who goes armed with any dangerous
weapon with the intent to use without justification such weapon against
7
the person of another commits a class “D” felony.” Iowa Code § 708.8.
The phrase “going armed” is not defined in the statute. We have
previously held, however, that “armed” in this context means “the
conscious and deliberate keeping of a [dangerous weapon] on or about
the person, available for immediate use.” State v. Ray, 516 N.W.2d 863,
865 (Iowa 1994) (alteration in original) (quoting State v. Alexander, 322
N.W.2d 71, 72 (Iowa 1982)). We have also explained that the “going”
element of going armed with intent “necessarily implicates proof of
movement.” Id.; see also State v. Pearson, 804 N.W.2d 260, 265 n.1
(Iowa 2011).
In making determinations on the sufficiency of the evidence,
“we . . . view the evidence in the light most favorable to the state,
regardless of whether it is contradicted, and every reasonable inference
that may be deduced therefrom must be considered to supplement that
evidence.” State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979). “We will
uphold a trial court’s denial of a motion for judgment of acquittal if the
record contains substantial evidence supporting the defendant’s
conviction.” State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010).
“Evidence is substantial if it would convince a rational trier of fact the
defendant is guilty beyond a reasonable doubt.” State v. Jorgensen, 758
N.W.2d 830, 834 (Iowa 2008). Evidence relevant to an issue of fact can
be either direct or circumstantial, or both. State v. Stamper, 195 N.W.2d
110, 111 (Iowa 1972).
We turn now to the record in deciding whether a motion for
judgment of acquittal by trial counsel challenging the sufficiency of the
State’s proof of movement by Harris would have been meritorious had it
been made. A reasonable fact finder could find beyond a reasonable
doubt that Harris possessed and used a knife when he stabbed Niles
8
several times outside the bar. The bartender testified that he saw a knife
in Harris’s hand during the fight, and the medical evidence reveals
Niles’s wounds were consistent with a knife attack.
Although there is no direct evidence Harris possessed the knife as
he argued with Niles before exiting the building, a reasonable fact finder
could find based on circumstantial evidence that he did. The knife
attack occurred in close temporal proximity to an intense verbal conflict
between Harris and Niles inside the bar. After the heated verbal conflict
inside, Harris walked outside and leaned against an outside wall of the
building. He remained there smoking a cigarette for approximately five
minutes until Niles came outside and the physical altercation
commenced. We find no direct evidence tending to prove Harris gained
possession of the knife after walking outside or while waiting for his
girlfriend and Niles to come out of the bar. A reasonable fact finder could
find from the circumstantial evidence that Harris must have carried the
knife as he left the bar because it is unlikely that he gained possession of
it while leaning against the wall and waiting outside. Accordingly, we
affirm the conclusion reached by the court of appeals on this issue. A
reasonable fact finder could find Harris carried the knife as he moved
from inside the bar to the outdoors where he attacked Niles. 3 We have
3The State contends on appeal we should find the evidence of Harris’s movement
with the knife during the attack on Niles sufficient to support the conviction on the
going-armed-with-intent charge. In particular, the State suggests direct and
circumstantial evidence of the numerous stab wounds and disparate locations of blood
spatters together with other direct evidence of Harris’s acts during the assault suffice as
substantial evidence that Harris moved while using the knife as a weapon. As we find
other circumstantial evidence that Harris possessed the knife as he walked from inside
the bar to the location outside where the attack occurred constitutes substantial
evidence of the movement element, we need not decide whether any movement by
Harris while committing the other crime of which he was convicted could or would
support the going-armed-with-intent conviction.
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found movement of similar distances sufficient to satisfy the “going”
element. See Pearson, 804 N.W.2d at 265 n.1 (finding movement across
kitchen sufficient); State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994)
(finding movement from house to front yard sufficient). A motion for
judgment of acquittal based on the failure of proof of the “going” element
of the offense would have lacked merit and thus defense counsel did not
breach a duty in failing to assert it.
B. Instructional Error. In State v. Hopkins, we concluded the
defendant’s trial counsel failed to perform an essential duty when he
failed to object to an erroneous jury instruction. 576 N.W.2d 374, 380
(Iowa 1998). As we later explained, however, defense counsel’s failure to
object to a defective instruction is not necessarily a breach of duty. See
State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2008). In Ondayog, we left
room for the possibility that a defense counsel’s failure to object to an
erroneous lesser-included-offense instruction might have been motivated
by a strategic choice and therefore might not have constituted a breach
of duty. Id. (noting trial counsel’s failure to object could have been part
of a strategic decision to give the jury the option to convict on a lesser
crime rather than three “higher offenses”). In this case, we comprehend
no possible strategic reason for failing to object to the omission of the
“going” element in Instruction No. 17. The defect in Instruction No. 17—
the omission of the movement element—was obvious given our recent
decision in Pearson. 4 Accordingly, we conclude defense counsel
breached a duty in failing to object to the flawed instruction.
4Indeed, the State’s brief concedes the failure to object to the omission of the
“going” element “was likely a breach of an essential duty.” The State offers no possible
strategic reason for defense counsel’s failure to object.
10
The question remains whether Harris’s conviction on the going-
armed-with-intent charge must be reversed as a consequence of defense
counsel’s breach of duty. Harris contends on appeal that our decision in
Pearson requires reversal. In Pearson, the defendant—a juvenile
offender—was charged with first-degree robbery, willful injury, and going
armed with intent. Pearson, 804 N.W.2d at 262. Pearson objected to the
marshalling instruction on the going-armed-with-intent charge on the
ground it omitted movement as an element of the offense. State v.
Pearson, No. 09–1798, 2010 WL 5050575, at *2 (Iowa Ct. App. Dec. 8,
2010), aff'd, 804 N.W.2d 260. The court overruled this objection. Id.
Pearson appealed from his conviction on first-degree robbery and
going armed with intent. We transferred the appeal to the court of
appeals, which ruled in relevant part that Pearson was entitled to a new
trial because of the instructional error on the going-armed-with-intent
charge. Id. at *3. We granted further review in the case but exercised
our discretion to decide only the issue of whether the district court had
erred in ruling on Pearson’s motion to suppress a statement he made
before trial to a social worker. Pearson, 804 N.W.2d at 265. In a
footnote to our decision on further review, we nonetheless expressed our
agreement with the court of appeals determination that the erroneous
omission of an element of the offense from the marshalling instruction
required a new trial. Id. at 265 n.1. Notably, we did not reveal in the
footnote whether we agreed with the legal standard applied by the court
of appeals in deciding Pearson suffered prejudice as a consequence of the
instructional error. 5
5We recently noted a split of authority on the question of whether a harmless
error analysis should be applied when error is preserved on a jury instruction
erroneously omitting an element of a charged offense. State v. Schuler, 774 N.W.2d
11
We conclude Pearson is not controlling here. In that case, the
defendant preserved the instructional error for our review by objecting to
the instruction. Harris must address the instructional error from a
different vantage point, however, because his trial counsel did not object
to Instruction No. 17. Thus, we must apply the familiar prejudice
framework prescribed for ineffective-assistance-of-counsel claims. See
Reynolds, 746 N.W.2d at 845 (stating claimant must demonstrate there
is “a reasonable probability that, but for the counsel’s unprofessional
errors, the result of the proceeding would have been different” (quoting
Bowman, 710 N.W.2d at 203)).
In assessing the probability of a different result if the elements of
going armed with intent had been correctly stated in the marshalling
instruction for that offense, we consider whether our confidence in the
outcome of Harris’s trial is undermined by omission of the element of
movement in Instruction No. 17. See id. Although we concluded above
that substantial evidence supported a finding of movement sufficient to
uphold Harris’s conviction on the going-armed-with-intent charge, that
conclusion does not control our determination of whether prejudice
flowed from the flawed marshalling instruction. Upon review of the
record, we conclude our confidence in the jury verdict is undermined
because the evidence of Harris’s movement was not great and the flawed
jury instruction did not require the jury to make a finding on that
___________________________
294, 299 (Iowa 2009) (noting some jurisdictions apply the harmless error analysis
applied by the United States Supreme Court in Neder v. United States, 527 U.S. 1, 10,
119 S. Ct. 1827, 1834, 144 L. Ed. 2d 35, 48 (1999), while other jurisdictions do not). In
Schuler, we also noted some dissonance in our treatment of the prejudice issue in cases
presenting instructional errors preserved for our review. Id. at 299–300 (contrasting
State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983) (applying harmless error analysis),
with State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (reversing a conviction based
upon a flawed instruction without harmless error analysis)).
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element of the crime. Thus, Harris suffered prejudice as a consequence
of defense counsel’s failure to object to the omission of the movement
element from the marshalling instruction. He is thereby entitled to a
jury trial with a proper marshalling instruction on the factual element of
movement.
IV. Conclusion.
We conclude defense counsel did not breach a duty in failing to
challenge the sufficiency of the evidence of Harris’s movement in the
motion for judgment of acquittal. Defense counsel breached a duty,
however, in failing to object to the absence of the movement element in
the marshalling instruction for the going-armed-with-intent offense.
Because our confidence in Harris’s conviction of that offense is
undermined under the circumstances presented here, we reverse that
conviction and remand.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.