marshalling instruction in Iowa

2020He concedes his trial counsel never objected to the marshaling instruction and that error is not preserved for our review, but he claims this failure rendered his trial counsel ineffective.1 See State v. Fountain, 786 N.W.2d 260, 262-63 (Iowa 2010) (noting objections to jury instructions are waived on direct appeal if not raised before closing arguments but observing that ineffective-assistance claims are an exception to the error-preservation rules).

2014Because we find counsel’s performance was deficient in regard to the justification instructions and Gomez was prejudiced by the error, we reverse his assault conviction on that basis.2 2 For purposes of a potential retrial, we note pursuant to State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010), the district court should inform the jurors the specific intent instruction applies to the intent necessary to commit assault. 5 The district court provided the jury with the following marshalling instruction for assault resulting in bodily injury: 1.

2020See State v. Thorndike, 860 N.W.2d 316, 321 (Iowa 2015) (examining a superfluous alternative in the marshalling instruction).

2020Consequently, Fiems “must affirmatively demonstrate counsel’s alleged deficiency undermines our confidence in the verdict and therefore resulted in prejudice entitling [her] to a new trial.” See id. at 321–22.

2018See 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. Wessels, No. 15-1023, 2016 WL 4543719 , at *2 (Iowa Ct. App. Aug. 31, 2016); State v. Hall, No. 11–1524, 2012 WL 4900426 , at *6 (Iowa Ct. App. Oct. 17, 2012) (noting “the instructional error was of little consequence here because the court included the language of the assault statute in the marshalling instruction”).

2016See 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”).

2015For example, in State v. Hanes, we noted the trial court gave an incorrect instruction when the last sentence of the instruction improperly suggested that the defendant need not have specific intent at the time of the alleged act, notwithstanding previous language in the marshalling instruction that provided a correct statement of the law. 790 N.W.2d 545 , 555–56 (Iowa 28 2010).

2015For example, in State v. Hanes, we noted the trial court gave an incorrect instruction when the last sentence of the instruction improperly suggested that the defendant need not have specific intent at the time of the alleged act, notwithstanding previous language in the marshalling instruction that provided a correct statement of the law. 790 N.W.2d 545, 555-56 (Iowa 2010).

2015Strickland, 466 U.S. at 694 .

2014To establish the ineffectiveness of trial counsel, Ewing must prove his attorney’s performance fell below “an objective standard of reasonableness,” and “the deficient performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687-88 , 104 S. Ct. 2052, 2064 , 80 L.

2021It is true the district court must “give a requested jury instruction if it correctly states the applicable law” governing a question the jury must decide “and is not embodied in other instructions.” Id. at 707 (citation omitted).

2016See Alcala, 880 N.W.2d at 707 .

2020See id. 17 In addition, Mathews told Krueger he had not sold anything for three years.

2019See Banes, 910 N.W.2d at 639 .

2017See id.

2017See id.

2016See State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005).

2015See State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005).

2015Because a marshalling instruction must include all essential elements of the crime, see State v. Billings, 242 N.W.2d 736, 738 (Iowa 1976), we are unable to say counsel did not breach an essential duty by failing to object.

1979Defendant relies on our cases such as State v. Billings, 242 N.W.2d 736, 737 (Iowa 1976) and State v. Straw, 185 N.W.2d 812, 816 (Iowa 1971), which require the listing of all essential elements in a marshalling instruction where one is given.

1983In his argument on appeal, defendant relies on State v. Watts, 223 N.W.2d 234, 237 (Iowa 1974), a concealed weapons prosecution where we held it was erroneous to instruct on the nature of the weapon which the statute proscribed in a separate instruction rather than in the marshalling instruction.

1976Although it was necessary that the marshalling instruction include all elements of the offense, State v. Watts, 223 N.W.2d 234, 237 (Iowa 1974), it was not necessary for those elements to be defined in the same instruction.

1979Defendant relies on our cases such as State v. Billings, 242 N.W.2d 736, 737 (Iowa 1976) and State v. Straw, 185 N.W.2d 812, 816 (Iowa 1971), which require the listing of all essential elements in a marshalling instruction where one is given.

1979Defendant relies on our cases such as State v. Billings, 242 N.W.2d 736, 737 (Iowa 1976) and State v. Straw, 185 N.W.2d 812, 816 (Iowa 1971), which require the listing of all essential elements in a marshalling instruction where one is given.

1985We said: The facial appeal of such an argument is diminished in most situations where practical considerations make it unlikely that the inclusion of a particular element in the marshalling instruction would have produced any difference in the verdict of the jury. 335 N.W.2d 173, 178 (Iowa 1983).

1985Id. at 178 .

2025To sustain a driving-while-license-denied-or-revoked charge, “the State must prove beyond a reasonable doubt that the defendant’s license had been 7 revoked, and the defendant operated a motor vehicle while his license was revoked.” State v. Stone, 764 N.W.2d 545, 548 (Iowa 2009); accord State v. Thompson, 357 N.W.2d 591, 594 (Iowa 1984) (“In the marshalling instruction, the State was required to prove beyond a reasonable doubt that (1) defendant’s license had been revoked, and (2) defendant had operated a motor vehicle while his license was thus revoked.

2025To sustain a driving-while-license-denied-or-revoked charge, “the State must prove beyond a reasonable doubt that the defendant’s license had been 7 revoked, and the defendant operated a motor vehicle while his license was revoked.” State v. Stone, 764 N.W.2d 545, 548 (Iowa 2009); accord State v. Thompson, 357 N.W.2d 591, 594 (Iowa 1984) (“In the marshalling instruction, the State was required to prove beyond a reasonable doubt that (1) defendant’s license had been revoked, and (2) defendant had operated a motor vehicle while his license was thus revoked.

2025See, e.g., State v. McCullough, No. 08-1380, 2009 WL 2185549 , at *1–3 (Iowa Ct. App. July 22, 2009).

2024Viewing the evidence in the light most favorable to the State while affording the jury its right “to weigh the evidence and place credibility where it belongs,” State Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (citation and internal quotation marks omitted), the jury could rationally conclude that Elliott was guilty as an aider and abettor “by knowingly advising or encouraging the act in some way before or when it [was] committed.” For his second challenge, Elliott claims there was insufficient evidence to support his conviction “for assault causing serious injury because [he] did not injure an

2023See Wickes, 910 N.W.2d at 565 .

2023See State v. Wissing, 528 N.W.2d 561, 565 (Iowa 1995) (finding no abuse of discretion regarding the district court’s decision not to define an instruction that was a correct statement of the law).

2022“To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds on appeal.” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004).

2021See id.

2020And, under the marshalling instruction here, the State had to prove the unwilling “victim- viewers” were “offended by the conduct.” See State v. Bauer, 337 N.W.2d 209, 212 (Iowa 1983).

2020Indeed, the State “agrees with Goodson’s point that [the sexual abuse alternative] subsumes the marshalling instruction for the charge of third-degree sexual abuse into the analysis, which seems like it would fit the preliminary test for merger in Blockburger and section 709.1.” But the State argues that, because the burglary instruction 14 also included the domestic-abuse alternative, “it would be incorrect to state that establishing first-degree burglary required proof of sexual abuse.” Our supreme court has held, however, that “[i]f the greater offense is defined alternatively and the State