State v. Harris

• Decision Date: 24 February 2017
• Docket Number: No. 15-0940,15-0940
• Parties: STATE of Iowa, Appellee, v. James Norman HARRIS, Appellant.
• Court: Iowa Supreme Court

891 N.W.2d 182

STATE of Iowa, Appellee,

v.James Norman HARRIS, Appellant.

No. 15-0940

Supreme Court of Iowa.

Filed February 24, 2017

Rehearing Denied March 29, 2017

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.

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 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.

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 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 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 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...