State Of Iowa v. Fountain

• Decision Date: 30 July 2010
• Docket Number: No. 07-0999.,07-0999.
• Citation: 786 N.W.2d 260
• Parties: STATE of Iowa, Appellee,v.Emmanuel FOUNTAIN, Appellant.
• Court: Iowa Supreme Court

786 N.W.2d 260

STATE of Iowa, Appellee,v.Emmanuel FOUNTAIN, Appellant.

No. 07-0999.

Supreme Court of Iowa.

July 30, 2010.

COPYRIGHT MATERIAL OMITTED

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Stephen Holmes, County Attorney, and Keisha Cretsinger, Assistant County Attorney, for appellee.

BAKER, Justice.

The defendant, Emmanuel Fountain, appeals from his conviction for the offense of domestic abuse assault causing bodily injury. He contends his counsel was ineffective in failing to request a specific intent instruction. Fountain argues that with a specific intent instruction the jury may have found that he did not intend to make any insulting or offensive physical contact with his then girlfriend, Levita Alexander. We conclude the trial court erred in failing to give a specific intent instruction because the crime of assault includes a specific intent element; however, because we cannot determine whether Fountain's counsel was ineffective on this record, we preserve any claim based on ineffective assistance of counsel for postconviction relief. On this record, Fountain's conviction is hereby affirmed.

I. Background Facts and Proceedings.

In October and November of 2006, Levita Alexander and Emmanuel Fountain lived together in an Ames apartment. Sometime in November, Alexander decided to end the relationship and moved out of the apartment. At the time, Alexander and Fountain had one child together, four-month old Carmello, and Alexander was expecting their second child. On December 26, 2006, Alexander and Carmello returned to the apartment they once shared with Fountain to retrieve Alexander's belongings. At approximately 5:40 a.m. on December 27, a 911 call was made alleging Fountain had assaulted Alexander.

Fountain was charged by trial information with serious assault-domestic abuse in violation of Iowa Code sections 708.1, 708.2A(2)( b ), and 236.2 of the Iowa Criminal Code. A jury trial was held, and the jury found Fountain guilty of domestic abuse assault causing bodily injury.

Fountain appealed. Fountain claimed he received ineffective assistance of counsel based on his attorney's failure to request a specific intent instruction. His appeal was routed to the court of appeals. The court of appeals affirmed Fountain's conviction. Fountain filed an application for further review with this court, requesting that his conviction be reversed and he be given a new trial. We granted further review.

II. Preservation of Error.

When submitting the charges to the jury at the close of Fountain's trial, the court gave a general intent instruction. Fountain's attorney made no objection to this instruction before it was submitted to the jury and did not request an instruction on specific intent. Fountain claims the district court erred by failing to instruct the jury on specific intent because assault has a specific intent element, and he received ineffective assistance of counsel based on his attorney's failure to request such an instruction.

Normally, objections to giving or failing to give jury instructions are waived on direct appeal if not raised before counsel's closing arguments, and the instructions submitted to the jury become the law of the case. See Iowa R. Civ. P. 1.924; State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988). Fountain, however, raises failure to instruct the jury on specific intent in the context of an ineffective-assistance-of-counsel claim. Ineffective-assistance-of-counsel claims are an exception to the traditional error-preservation rules. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). Fountain, therefore, may raise this claim on direct appeal. Iowa Code § 814.7(2) (2005); ¹State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). If a claim of ineffective assistance of counsel is raised on direct appeal from the criminal proceedings, the court may address it if the record is adequate to decide the claim. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). If the record is not adequate, the defendant may raise the claim in a postconviction action. Iowa Code § 814.7(3).

III. Merits.

A. Analytical Framework. Fountain's erroneous instruction claim is raised in the context of an ineffective-assistance-of-counsel claim. Thus, we must decide whether it can be determined as a matter of law that Fountain's counsel was ineffective in failing to request a specific intent jury instruction on Fountain's domestic abuse assault charge and whether the record demonstrates Fountain was prejudiced because of this error. Graves, 668 N.W.2d at 869. Counsel has no duty to raise an issue that has no merit. State v. Wills, 696 N.W.2d 20, 24 (Iowa 2005). Therefore, we must first “assess whether the record demonstrates, as a matter of law, the existence or absence of a meritorious [claim]” or error. Graves, 668 N.W.2d at 869.

B. Specific Intent Instruction. Fountain was charged with domestic abuse assault causing bodily injury. At trial, the jury was given a general intent instruction. Fountain claims this instruction was erroneous, because assault is a crime of specific intent, not general intent.

1. Iowa Code section 708.1. Assault is defined in section 708.1 of the Iowa Code. That statute provides in pertinent part:

An assault as defined in this section is a general intent crime. A person commits an assault when, without justification, the person does any of the following:

1. 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.

2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

....

2. Jury Instructions. At Fountain's trial, the court gave the following general intent instruction:

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 he was doing the act and he did it voluntarily, not by mistake or accident. You may, but are not required to, conclude a person intends the natural results of his acts.

Fountain contends that assault is a specific intent crime, and the trial court should have given Iowa Criminal Jury Instruction 200.2 published by the Iowa State Bar Association. This instruction reads:

“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 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 Bar Ass'n Iowa Crim. Jury Instructions 200.2 ( available at http:// iabar. net).

“General intent is only the intention to make the bodily movement that constitutes the act that the crime requires,” while specific intent requires an act calculated to produce a result that the law forbids. 21 Am. Jur. 2d Criminal Law §§ 118, 119 at 221-22 (2008). We have recognized a similar distinction between the two types of intent:

“Specific intent is present when from the circumstances the offender must have subjectively desired the prohibited result. General intent exists when from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of any subjective desire to have accomplished such result.”

State v. Redmon, 244 N.W.2d 792, 797 (Iowa 1976) (quoting 1 H.C. Underhill Underhill's Criminal Evidence § 55 (6th ed. 1973)).

3. Iowa Case Law. Under the common law, Iowa courts defined assault as “an attempt to apply unlawful physical force to the person of another, coupled with the apparent present ability to execute the [act].” State v. Straub, 190 Iowa 800, 801, 180 N.W. 869, 869 (1921). Under this definition, assault was defined as a general intent crime. See Redmon, 244 N.W.2d at 797.

In 1976, the Iowa legislature enacted Iowa Code section 708.1 containing its current elements. See 1976 Iowa Acts ch. 1245(1), § 801 (codified at Iowa Code § 708.1 (1979)). This section became effective January 1, 1978. ² Id. ch. 1245(4), § 529. It was at this time the legislature added the requirement that the act constituting assault must be done with the intent to make physical contact that is insulting or offensive to another. Iowa Code § 708.1(1) (1979). Despite the inclusion of specific intent elements, we continued to hold that assault remained a general intent crime even after the legislature amended the statute to its current form. See, e.g., State v. Ogan, 497 N.W.2d 902, 903 (Iowa 1993) overruled by State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001); State v. Brown, 376 N.W.2d 910, 913-15 (Iowa Ct.App.1985).

In Heard, we overruled prior precedent and determined that based on the statutory elements, an assault under Iowa Code section 708.1(2) included a specific intent element. Heard, 636 N.W.2d at 231. We held that the definition of assault contained in the Iowa Code required an action done with the “intent to achieve some additional consequence so as to qualify as a specific-intent crime.” Id. at 232.

Four months after the Heard decision, the Iowa legislature amended the assault statute, adding the following sentence: “An assault as defined in this section is a general intent crime.” 2002 Iowa Acts ch. 1094, § 1 (codified at Iowa Code § 708.1 (2003)). This amendment was in response to the Heard decision. H.F. 2546 Explanation, 79th Gen. Assem., Reg. Sess. (Iowa 2001)....