                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1419
                              Filed June 19, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRICIA ANN HANNEGREFS,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Worth County, Rustin T. Davenport,

Judge.



      A defendant appeals her conviction for driving while barred. REVERSED

AND REMANDED.



      Scott M. Wadding of Kemp & Sease, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Richard Bennett, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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TABOR, Judge

       A jury convicted Tricia Hannegrefs of driving while barred, rejecting her

compulsion defense.       Hannegrefs contends her conviction must be reversed

because the jurors were not instructed the State had the burden to disprove her

claim she was compelled by her boyfriend to commit the driving offense. She

argues her trial attorney’s failure to object to the omission undermined her defense.

Because we agree counsel breached a material duty by not challenging the flawed

instructions and Hannegrefs was prejudiced, we reverse her conviction and

remand for a new trial.

I.     Facts and Prior Proceedings

       Hannegrefs lived with Tim Abrahamson, her boyfriend of ten years. In

September 2017, Abrahamson was fixing a motorcycle at the couple’s home and

decided to take it for a test drive. The bike broke down, forcing Abrahamson to

walk back home. Hannegrefs recalled Abrahamson enlisting her help in picking

up the motorcycle from the side of the road because “he couldn’t drive the car and

the bike.” Knowing her license was barred, she nevertheless drove the car home

at her boyfriend’s insistence.

       After the motorcycle excursion, according to Hannegrefs, Abrahamson

continued to pressure her to drive because they were late picking up his mother

from the hospital, where she was recovering from recent brain surgery.

              We had just gone to the motorcycle and were in a hurry to get
       down to Mom. And I know the car was almost dead on gas. And he
       just jumped in the passenger’s side and said, “Let’s go.”
              I’m like, “I don’t want to drive.”
              He goes, “Let’s go.”
              I go, “I don’t want to drive.”
              And he’s like, “You need to go. We have to go.”
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Tricia testified she succumbed to Abrahamson’s pressure because of his past

assaultive behavior:

                Q. Tricia, I don’t want to embarrass you; but do you have
       difficulty sometimes with [Tim]? A. There has been a . . . domestic
       assault on me once before back in—I forget what year it was, but
       yeah.
                Q. And so you’ve had experience with him actually assaulting
       you— A. Yeah.
                Q. —although he did not do so on this day? A. He hasn’t ever
       since that one time; but yeah, he’s done it once.
                Q. And so you were afraid he might do it again? A. Yeah.
       When he gets angry, yeah.
                Q. And my understanding of your testimony is, is he actually
       put the car in drive while telling you to, “Go, go, go”? A. Yeah.
                Q. Not listening to anything you might have—might have
       said? A. He doesn’t care if I have to sit in jail. He doesn’t care.

       On cross examination, Tricia explained:

               Q. How did he overpower you, then? A. Well, he—he started
       yelling at me to go, and I do not—I mean, he’s a lot bigger than me;
       and I felt like I had no choice.
               Q. And were you standing beside the passenger door at the
       time? A. No. I was trying to get out of the driver’s seat.
               Q. Well, there’s a door, and he was in the passenger’s seat,
       so he would have been on your right-hand side, and no one would
       have been obstructing you on your left-hand side to exit through the
       pass—or the driver’s side door; correct? A. When you have a man
       sitting here telling you to go and basically putting the car in drive and
       making you go, yeah.

       Hannegrefs was nearing the gas station when Deputy Shayne Hoch

recognized her in the driver’s seat. Believing Hannegrefs did not have a valid

license, Deputy Hoch pulled her over. Abrahamson was a passenger. The deputy

recalled Hannegrefs saying “she was going to get her—I’m not sure if she said

‘mom’ or ‘mother-in-law.’ I’m not sure exactly, but . . . [Abrahamson]’s mom was

in the hospital.”
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       The State charged Hannegrefs with driving while barred in violation of Iowa

Code section 321.561 (2017). She proceeded to a jury trial where she claimed

she was compelled to drive by threat of injury from Abrahamson. The jury received

this marshalling instruction:

                                INSTRUCTION NO. 14

               The State must prove both the following elements of Driving
       While Barred:
               (1)     That on or about September 23, 2017, the [d]efendant
       operated a motor vehicle in the State of Iowa.
               (2)     At the time of operation of the vehicle, the defendant’s
       privilege to operate a vehicle was barred as a habitual offender.
               If the State has proved both of these elements, the defendant
       is guilty of Driving While Barred. If the State has failed to prove either
       of the elements, the defendant is not guilty of Driving While Barred.

Over the State’s objection, the district court agreed Hannegrefs was entitled to

have the jury instructed on her compulsion defense. The court provided this

instruction:

                                INSTRUCTION NO. 15A

               The defendant claims that at the time and place in question,
       she was acting under compulsion. When a person is compelled to
       act by another’s threat of serious injury, and reasonably believes the
       injury is about to take place and can be avoided only by doing the
       act, then no crime has been committed.

       On appeal, Hannegrefs argues trial counsel was ineffective for failing to

object to these instructions because they did not communicate the State’s burden

to disprove Hannegrefs’s compulsion defense beyond a reasonable doubt.

II.    Standard of Review.

       Because claims of ineffective assistance of counsel are rooted in the Sixth

Amendment of the United States Constitution and article I, section 10 of the Iowa

Constitution, we review them de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa
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2006). To prevail on her ineffective-assistance claim, Hannegrefs must prove, by

a preponderance of the evidence, (1) counsel failed to perform an essential duty,

and (2) prejudice resulted. See id. While we often preserve ineffective-assistance

claims for development in postconviction-relief proceedings, we may decide them

on direct appeal when the record is adequate. Id. The record here permits us to

address Hannegrefs’s claim. See State v. Harris, 891 N.W.2d 182, 187 (Iowa

2017) (comprehending “no possible strategic reason for failing to object to the

omission of the ‘going’ element” of going armed with intent).

III.   Analysis.

       The compulsion defense limits liability for an otherwise criminal act when a

defendant is “compelled to [act] by another’s threat or menace of serious injury,

provided that the person reasonably believes such injury is imminent and can be

averted only by the person doing such act.”        Iowa Code § 704.10.       After a

defendant generates a fact question on the compulsion defense, the burden shifts

to the State to disprove the defense beyond a reasonable doubt. State v. Walker,

671 N.W.2d 30, 34 (Iowa Ct. App. 2003).

       Because neither the marshaling instruction nor the compulsion-defense

instruction explained the State’s burden to the jury, Hannegrefs now argues her

trial counsel was constitutionally remiss in not lodging an objection. On appeal,

the State acknowledges the jury did not receive an explicit instruction on its burden

of proof. But the State urges: “Counsel need not urge the giving of every possible

instruction to display competency, even where an instruction would otherwise be

available.” Brewer v. State, 444 N.W.2d 77, 85 (Iowa 1989). In contrast to the

instant case, Brewer addressed counsel’s strategic decision not to request an
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accomplice instruction. Here, the State does not suggest, nor can we conceive of,

a strategic reason for declining to object to the failure to instruct on the State’s

burden to disprove the only defense asserted (and thus, the central issue at trial).

See State v. Virgil, 895 N.W.2d 873, 882 (Iowa 2017) (“Importantly, no claim is

made that Virgil’s defense counsel had a strategic reason to refrain from

requesting the definitional instruction.”).

       The State also contends defense counsel did not breach a material duty

because she informed the jury during closing arguments it was the State’s burden

to disprove the compulsion defense. In fact, defense counsel revisited that point

three times:

              Now, the other jury instructions talked about the State’s
       burden. It is also the State’s burden to convince you, beyond a
       reasonable doubt, that she did not act under . . . under compulsion
       to do so.
              So yes, you noticed I didn’t ask Deputy Hoch a whole bunch
       of questions. It’s fair and obvious from the State’s point of view. That
       is, why are we here? Why are we here? And they would have you
       believe that your time is being wasted, except for they have the
       burden to show you that she didn’t act under compulsion.
                ....
              And that’s where we’re at. The State has the burden to prove,
       as in the instruction in 15A, that she was not acting under threat of
       serious injury, she was not acting—she was doing this of her own
       free will without any threats. That’s what the State has to prove.

But closing arguments cannot substitute for complete jury instructions.           See

Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553, 580 (Iowa 2017)

(“Closing arguments ‘generally carry less weight with a jury than do instructions

from the court. The former are usually billed in advance to the jury as matters of

argument, not evidence and are likely viewed as the statements of advocates; the
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latter . . . are viewed as definitive and binding statements of the law.’” (quoting

Boyde v. California, 494 U.S. 370, 384 (1990))).

       And even if defense counsel’s summation could mitigate instructional error,

in its rebuttal argument, the trial prosecutor exploited the omission of the burden

of proof:

              Instruction No. 2 says, “Whenever I instruct you the State
       must prove something, it must be by evidence beyond a reasonable
       doubt.” Well, we talked about the elements. Instruction No. 14 says,
       “The State must prove both of the following elements.” We talked
       about 15A. It says, “The defendant claims.” It doesn’t say the State
       must prove. It can’t prove a negative.
              [Defense counsel] talked to you before about the presumption
       of innocence in our jury voir dire. The whole point of the presumption
       of innocence is it’s difficult to prove a negative.
              How do I prove that she didn’t have a conversation with the
       deputy about her boyfriend? They didn’t ask about any. It doesn’t
       exist. I could play you a 45-minute CD—DVD, but how do I prove to
       you that something doesn’t exist? Is it my obligation to do so?
              The defendant claims—This is the defendant who is claiming
       the compulsion.

       The State’s rebuttal illustrates why it would be unreasonable for defense

counsel to rely upon closing arguments to clarify and cure instructions. While the

jury heard defense counsel’s accurate recitation of the burden of proof, the

prosecutor had the last word. And here, the prosecutor used that opportunity to

distort the burden of proof in the minds of the jurors, leaving defense counsel with

no ability to respond. See id. (“Haskenhoff cites no case holding the fatal omission

in the marshaling instruction could be cured by counsel during summation. To the

contrary, Haskenhoff’s counsel took advantage of the flawed jury instruction in her

closing argument.”); see also State v. Clay, 824 N.W.2d 488, 497–98 (Iowa 2012)

(“A prosecutor can argue the law, but cannot instruct the jury on the law. When

the prosecutor erroneously instructed the jury on the law, competent counsel
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should have been aware of the well-settled legal principles establishing it is the

province of the court to instruct the jury on the law.”).

       Once a defendant raises a viable compulsion defense, the burden returns

to the State to disprove that defense beyond a reasonable doubt. State v. Hibdon,

505 N.W.2d 502, 504 (Iowa Ct. App. 1993). And the instructions must convey that

burden to the jury. See id. at 505–06 (finding compulsion-defense instruction

adequately informed jury of State’s burden when it included the sentence: “Once

the defense has been properly raised by the defendant, the state has the burden

to disprove the defense beyond a reasonable doubt”).                    Iowa’s uniform jury

instructions provide this advice: “If the defense of compulsion is raised and

supported by the evidence, it should be included in the marshaling instruction.”

Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.35 cmt. (Compulsion)

(2018). We conclude counsel breached a material duty by not insisting the jury

instructions convey the State’s burden to disprove Hannegrefs’s defense. See

State v. Ondayog, 722 N.W.2d 778, 785 (Iowa 2006) (“[T]he failure to recognize

an erroneous instruction and preserve error breaches an essential duty.”).

       Having found a breach of duty, we turn to the prejudice prong. The State

again contends any risk of prejudice from the faulty instructions was mitigated by

defense counsel’s closing arguments. For the reasons discussed above, we reject

this argument. See Haskenhoff, 897 N.W.2d at 580.

       Next, the State urges us to find its evidence rebutting the compulsion

defense more persuasive than Hannegrefs’s trial testimony.1 But our weighing of


1
 In particular, the State asserts Hannegrefs “offered no testimony that she felt threatened
or that a failure to comply would result in harm from her boyfriend.” But later in its prejudice
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the evidence on appeal is not the measure of prejudice. Counsel’s failure to

request a proper instruction on the State’s burden of proof may result in prejudice

even if the record would permit us to find substantial evidence in support of

Hannegrefs’s conviction. See State v. Virgil, 895 N.W.2d 873, 882–83 (Iowa 2017)

(“While there was sufficient evidence to find Virgil and N.J. cohabitated, there was

also evidence from which a jury could have concluded otherwise.”).

       Hannegrefs’s testimony presented sufficient evidence of a compulsion

defense to raise a fact question for the jury. And the cold appellate record does

not position us to assess witness credibility and act as fact finders. See State v.

Lawler, 571 N.W.2d 486, 490 (Iowa 1997) (“To adopt the State’s position would in

substance discount or give no credibility to defendant’s evidence and version of

what happened and why it happened, thus precluding the jury’s consideration of

the crux of defendant’s defense in this case. In essence, a refusal to give a

requested jury instruction would be the equivalent of directing a verdict or granting

a motion for summary judgment for the State on this issue.”). Our confidence in

the outcome of Hannegrefs’s trial is undermined by the absence of an instruction

on the State’s burden to disprove her compulsion defense. We reverse and

remand for a new trial.

       REVERSED AND REMANDED.




argument, the State acknowledges Hannegrefs testified she feared her boyfriend would
harm her if she refused to drive. The State discounts this testimony as “fall[ing] short of a
credible compulsion offense.” Finally, the State asserts its video exhibit of the police
officer’s roadside encounter with Hannegrefs conflicts with her testimony she told the
deputy her boyfriend forced her to drive.
