                IN THE SUPREME COURT OF IOWA
                              No. 08–0532

                           Filed June 25, 2010


STATE OF IOWA,

      Appellee,

vs.

JAMES ALEXANDER EVANS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Eliza J.

Ovrom, Judge.



      Defendant claims trial counsel was ineffective for failing to

challenge submission of a jury instruction that included assault as

defined under Iowa Code section 708.1(1) (2005) as a lesser-included

offense to the crime of attempt to commit murder. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, John Sarcone, County Attorney, and Frank Severino,

Assistant County Attorney, for appellee.
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PER CURIAM.

       The defendant, James Evans, appeals from his conviction for

assault and contends his trial counsel was ineffective in failing to object

to the instruction on assault as a lesser-included offense of attempt to

commit murder.        He claims we should overrule Blanford v. State, 340

N.W.2d 796 (Iowa Ct. App. 1983), and State v. Powers, 278 N.W.2d 26

(Iowa 1979), to the extent those decisions hold assault is a lesser-

included offense of attempt to commit murder. We hold that assault is a

lesser-included offense under Iowa Code section 708.1(1) (2005). Evans’s

counsel was not ineffective for failing to object to the inclusion of assault

as a lesser-included offense of the charges submitted.

       I.    Background Facts and Proceedings.

       James Evans was accused of robbing the Mister Money Store on

South East 14th Street in Des Moines on June 26, 2007.                 He was

charged with four crimes: (1) attempted murder in violation of Iowa Code

section 707.11, (2) first-degree robbery in violation of Iowa Code sections

711.1 and 711.2, (3) intimidation with a dangerous weapon with intent

in   violation   of   Iowa   Code   section   708.6,   and   (4) eluding   while

participating in a felony in violation of Iowa Code section 321.279(3).

       A jury trial was held. The matter was submitted to the jury at the

close of the trial. The court submitted jury instructions on assault with

intent to inflict serious injury in violation of Iowa Code sections 708.1(1)

and 708.1(2) as lesser-included offenses of attempted murder. The jury

found Evans guilty of assault with intent to inflict serious injury, first-

degree robbery, intimidation with a dangerous weapon with intent, and

eluding while participating in a felony.

       Evans appealed.       In his appeal, he challenged his conviction for

assault with intent to inflict serious injury, claiming that attempted
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murder does not include the lesser-included offense of assault with

intent to inflict serious injury under the Iowa test for lesser-included

offenses. He also claimed he was denied effective assistance of counsel

because his attorney failed to object to the submission to the jury of

assault as a lesser-included crime. He did not challenge his three other

convictions.

       His appeal was routed to the court of appeals.                The court of

appeals found that assault was a lesser-included offense of attempt to

commit murder and affirmed his conviction. He filed an application for

further review, which we accepted.

       II.      Scope of Review.

       Generally we preserve ineffective-assistance-of-counsel claims for

postconviction relief; however, we will address these claims on direct

appeal if the record is sufficient. State v. Lane, 726 N.W.2d 371, 392–93

(Iowa 2007). We find the record adequate to address Evans’s claim.

       To establish an ineffective-assistance-of-counsel claim, a defendant

must demonstrate by a preponderance of the evidence that:                  “ ‘(1) his

trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.’ ” Anfinson v. State, 758 N.W.2d 496, 499 (Iowa

2008) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)). The

claim fails if either element is lacking. Id.

       III.     Discussion and Analysis.

       At Evans’s trial, the assault alternatives in both Iowa Code section

708.1(1) and section 708.1(2) were submitted to the jury. Evans’s sole

contention in this appeal is that assault as defined under Iowa Code

section 708.1(1) is not a lesser-included offense of attempted murder.1

       1Evans   was convicted of assault with intent to inflict serious injury under
instructions that contained both subsections (1) and (2) of Iowa Code section 708.1.
Because the conviction of that count was under a general verdict, we cannot determine
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We recently held in a companion case that assault as defined in Iowa

Code section 708.1(1) is a lesser-included offense of attempted murder.

State v. Braggs, __ N.W.2d __, __ (Iowa 2010); see also Iowa R. Crim. P.

2.6(3) (“In cases where the public offense charged may include some

lesser offense it is the duty of the trial court to instruct the jury, not only

as to the public offense charged but as to all lesser offenses of which the

accused might be found guilty under the indictment and upon the

evidence adduced, even though such instructions have not been

requested.”).

       Because an objection to assault, as defined under Iowa Code

section 708.1(1), as a lesser-included offense would have been without

merit, we find Evans’s counsel was not ineffective for failing to object to

the inclusion of assault as a lesser-included offense of attempted

murder.

       IV.    Disposition.

       We affirm Evans’s conviction and sentence.

       AFFIRMED.

       This opinion shall not be published.




which alternative was the basis of the jury’s verdict. Assault as defined in subsection
(2) requires:
       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.
Iowa Code § 708.1(2). Because the argument has not been made, we do not answer the
question whether an assault under subsection (2) is a lesser-included offense of
attempted murder, i.e., whether a threat may be sufficient to sustain a conviction for
assault under subsection (2) if intended to provoke fear and the defendant had the
apparent ability to execute the act threatened, but not support a charge of attempted
murder which requires the intent to do actual physical harm, not just instill fear of
future harm in the victim.
