No. 4-831 / 03-1867Court of Appeals of Iowa.
Filed January 13, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
William Pace appeals from the judgment entered on his conviction, following jury trial, for assault causing serious injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
HECHT, J.
William Pace appeals from the judgment entered on his conviction, following jury trial, for assault causing serious injury, in violation of Iowa Code sections 708.1 and 708.2(4) (2003). We reject his contention trial counsel provided ineffective assistance in failing to request a specific intent instruction, and therefore affirm.
From the facts introduced at trial, a reasonable juror could have found the following. Georgia Brown arrived in Des Moines from Texas, but did not have a place to live or stay. While discussing her situation on a phone at a convenience store, William Pace offered to help her. She agreed to accompany him to his home, where she could stay the night. At Pace’s trailer, the two played cards and Pace propositioned her for sex. After a later dispute over whether the trailer door should be closed or open, Brown decided to leave. As she began walking away, Pace followed her and punched her in the face.
At the time Freddie Lee was passing by in his truck. He observed the altercation between Brown and Pace, pulled his truck over, and exited it to help her. After chasing away the man, later identified as Pace, Lee helped Brown into his truck which he drove to a nearby Quik Trip for help. Brown was later diagnosed with an open and complex fracture of the right lower jaw, which required two surgeries to repair.
Following the presentation of evidence at trial, the court gave the following marshalling instruction on the charge of assault causing serious injury:
1. On or about the 8th day of June, 2003, the defendant did an act which was meant to cause pain or injury.
2. The defendant had the apparent ability to do the act.
3. The defendant caused a serious injury to Georgia Brown.
On appeal, Pace maintains he was provided ineffective assistance when his trial counsel failed to object to this instruction and failed to request that specific intent language be included in it.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313
(Iowa 1999). In order to show ineffective assistance of counsel one must prove by a preponderance of the evidence (1) his counsel failed to perform an essential duty and (2) prejudice resulted State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Pace must prove that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. Atley, 564 N.W.2d at 833. We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record before us is adequate to determine Pace’s claims of ineffective assistance of counsel.
In 2001, our supreme court overruled a previous line of case and declared in State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001), that assault is a specific intent crime. Following the entry of that opinion, apparently in response, the Iowa legislature amended Iowa Code section 708.1 to provide that assault as defined in section 708.1 “is a general intent crime.” However, in a later case, State v. Bedard, 668 N.W.2d 598, 601
(Iowa 2003), our supreme court again addressed the intent requirement of an assault charge. Without specifically again declaring assault a specific intent crime and after acknowledging the recent statutory amendment to section 708.1, the court noted
this amendment did not alter the substantive content of the statute as it pertains to the elements of the crime. The intent elements discussed in Heard
remain as part of the definition of the offense and continue to be matters that the State must prove by evidence beyond a reasonable doubt.
Id.
This case does not require us to decide whether assault is a general intent crime, as expressly stated in the section 708.1
and as urged by the State on appeal, or whether proof of Pace’s specific intent is a prerequisite for his conviction, as was decided by the court in Heard and again suggested in Bedard.
We assume, without deciding, only for purposes of this case that assault is, as urged by Pace, a specific intent crime. We conclude the instruction given by the district court adequately conveyed to the jury the State’s burden to prove Pace acted with the specific intent to cause pain or injury to Brown.
The marshalling instruction for assault causing serious injury clearly required the State to prove the “defendant did an ac meant to cause pain or injury.” (Emphasis added.) Webster’s defines “meant” as “to have in mind as a purpose: intend.” Webster’s Ninth New Collegiate Dictionary 736 (1986). We discern no meaningful distinction between the concepts of “specifically intended” and “meant.” Because the instruction given by the district court adequately communicated the intent element which Pace now contends was omitted, we conclude trial counsel did not breach a duty owed to his client. See State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (determining counsel is not ineffective for failing to raise a meritless issue).
AFFIRMED.