                 IN THE SUPREME COURT OF IOWA
                              No. 15–0940

                         Filed February 24, 2017

                         Amended May 16, 2017

STATE OF IOWA,

      Appellee,

vs.

JAMES NORMAN HARRIS,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, Gary E.

Wenell, Judge.



      A defendant claims his trial counsel was ineffective for failing to

challenge the sufficiency of the evidence of an element of the going-

armed-with-intent offense and for failing to object to a jury instruction
omitting that element. DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.



      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.
                                          2

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
                                           3

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.


         1Defense counsel also challenged the sufficiency of the evidence supporting the

willful injury claim, but the merits of that challenge are not before us in this appeal.
                                     4

      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
                                           5

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


       2Harris   also contends on appeal that the sentencing court abused its discretion
in failing to state reasons for imposing a consecutive sentence. Because we conclude
the conviction on the going-armed-with-intent charge must be reversed, we need not
address the sentencing issue.
                                       6

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
                                       7

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, 281 N.W.2d 13, 18 (Iowa 1979).       “We will

uphold a trial court’s denial of a motion for judgment of acquittal if the

record   contains    substantial    evidence   supporting   the   defendant’s

conviction.”     State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010).

“Evidence is substantial if it would convince a rational trier of fact the

defendant is guilty beyond a reasonable doubt.” State v. Jorgensen, 758

N.W.2d 830, 834 (Iowa 2008). Evidence relevant to an issue of fact can

be either direct or circumstantial, or both. State v. Stamper, 195 N.W.2d

110, 111 (Iowa 1972).

      We turn now to the record in deciding whether a motion for

judgment of acquittal by trial counsel challenging the sufficiency of the

State’s proof of movement by Harris would have been meritorious had it

been made. A reasonable fact finder could find beyond a reasonable

doubt that Harris possessed and used a knife when he stabbed Niles
                                            8

several times outside the bar. The bartender testified that he saw a knife

in Harris’s hand during the fight, and the medical evidence reveals

Niles’s wounds were consistent with a knife attack.

       Although there is no direct evidence Harris possessed the knife as

he argued with Niles before exiting the building, a reasonable fact finder

could find based on circumstantial evidence that he did.                      The knife

attack occurred in close temporal proximity to an intense verbal conflict

between Harris and Niles inside the bar. After the heated verbal conflict

inside, Harris walked outside and leaned against an outside wall of the

building. He remained there smoking a cigarette for approximately five

minutes       until   Niles   came     outside    and     the   physical     altercation

commenced. We find no direct evidence tending to prove Harris gained

possession of the knife after walking outside or while waiting for his

girlfriend and Niles to come out of the bar. A reasonable fact finder could

find from the circumstantial evidence that Harris must have carried the

knife as he left the bar because it is unlikely that he gained possession of

it while leaning against the wall and waiting outside.                 Accordingly, we

affirm the conclusion reached by the court of appeals on this issue. A

reasonable fact finder could find Harris carried the knife as he moved

from inside the bar to the outdoors where he attacked Niles. 3 We have


       3The  State contends on appeal we should find the evidence of Harris’s movement
with the knife during the attack on Niles sufficient to support the conviction on the
going-armed-with-intent charge.        In particular, the State suggests direct and
circumstantial evidence of the numerous stab wounds and disparate locations of blood
spatters together with other direct evidence of Harris’s acts during the assault suffice as
substantial evidence that Harris moved while using the knife as a weapon. As we find
other circumstantial evidence that Harris possessed the knife as he walked from inside
the bar to the location outside where the attack occurred constitutes substantial
evidence of the movement element, we need not decide whether any movement by
Harris while committing the other crime of which he was convicted could or would
support the going-armed-with-intent conviction.
                                           9

found movement of similar distances sufficient to satisfy the “going”

element. See Pearson, 804 N.W.2d at 265 n.1 (finding movement across

kitchen sufficient); State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994)

(finding movement from house to front yard sufficient).                 A motion for

judgment of acquittal based on the failure of proof of the “going” element

of the offense would have lacked merit and thus defense counsel did not

breach a duty in failing to assert it.

       B.   Instructional Error.        In State v. Hopkins, we concluded the

defendant’s trial counsel failed to perform an essential duty when he

failed to object to an erroneous jury instruction. 576 N.W.2d 374, 380

(Iowa 1998). As we later explained, however, defense counsel’s failure to

object to a defective instruction is not necessarily a breach of duty. See

State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2008). In Ondayog, we left

room for the possibility that a defense counsel’s failure to object to an

erroneous lesser-included-offense instruction might have been motivated

by a strategic choice and therefore might not have constituted a breach

of duty. Id. (noting trial counsel’s failure to object could have been part

of a strategic decision to give the jury the option to convict on a lesser

crime rather than three “higher offenses”). In this case, we comprehend

no possible strategic reason for failing to object to the omission of the

“going” element in Instruction No. 17. The defect in Instruction No. 17—

the omission of the movement element—was obvious given our recent

decision in Pearson. 4          Accordingly, we conclude defense counsel

breached a duty in failing to object to the flawed instruction.



       4Indeed,  the State’s brief concedes the failure to object to the omission of the
“going” element “was likely a breach of an essential duty.” The State offers no possible
strategic reason for defense counsel’s failure to object.
                                        10

       The question remains whether Harris’s conviction on the going-

armed-with-intent charge must be reversed as a consequence of defense

counsel’s breach of duty. Harris contends on appeal that our decision in

Pearson requires reversal.          In Pearson, the defendant—a juvenile

offender—was charged with first-degree robbery, willful injury, and going

armed with intent. Pearson, 804 N.W.2d at 262. Pearson objected to the

marshalling instruction on the going-armed-with-intent charge on the

ground it omitted movement as an element of the offense.                  State v.

Pearson, No. 09–1798, 2010 WL 5050575, at *2 (Iowa Ct. App. Dec. 8,

2010), aff'd, 804 N.W.2d 260. The court overruled this objection. Id.

       Pearson appealed from his conviction on first-degree robbery and

going armed with intent.        We transferred the appeal to the court of

appeals, which ruled in relevant part that Pearson was entitled to a new

trial because of the instructional error on the going-armed-with-intent

charge. Id. at *3. We granted further review in the case but exercised

our discretion to decide only the issue of whether the district court had

erred in ruling on Pearson’s motion to suppress a statement he made

before trial to a social worker.        Pearson, 804 N.W.2d at 265.           In a

footnote to our decision on further review, we nonetheless expressed our

agreement with the court of appeals determination that the erroneous

omission of an element of the offense from the marshalling instruction

required a new trial. Id. at 265 n.1. Notably, we did not reveal in the

footnote whether we agreed with the legal standard applied by the court

of appeals in deciding Pearson suffered prejudice as a consequence of the

instructional error. 5


       5We recently noted a split of authority on the question of whether a harmless
error analysis should be applied when error is preserved on a jury instruction
erroneously omitting an element of a charged offense. State v. Schuler, 774 N.W.2d
                                          11

       We conclude Pearson is not controlling here.                In that case, the

defendant preserved the instructional error for our review by objecting to

the instruction.      Harris must address the instructional error from a

different vantage point, however, because his trial counsel did not object

to Instruction No. 17.         Thus, we must apply the familiar prejudice

framework prescribed for ineffective-assistance-of-counsel claims.                  See

Reynolds, 746 N.W.2d at 845 (stating claimant must demonstrate there

is “a reasonable probability that, but for the counsel’s unprofessional

errors, the result of the proceeding would have been different” (quoting

Bowman, 710 N.W.2d at 203)).

       In assessing the probability of a different result if the elements of

going armed with intent had been correctly stated in the marshalling

instruction for that offense, we consider whether our confidence in the

outcome of Harris’s trial is undermined by omission of the element of

movement in Instruction No. 17. See id. Although we concluded above

that substantial evidence supported a finding of movement sufficient to

uphold Harris’s conviction on the going-armed-with-intent charge, that

conclusion does not control our determination of whether prejudice

flowed from the flawed marshalling instruction.                 Upon review of the

record, we conclude our confidence in the jury verdict is undermined

because the evidence of Harris’s movement was not great and the flawed

jury instruction did not require the jury to make a finding on that

___________________________
294, 299 (Iowa 2009) (noting some jurisdictions apply the harmless error analysis
applied by the United States Supreme Court in Neder v. United States, 527 U.S. 1, 10,
119 S. Ct. 1827, 1834, 144 L. Ed. 2d 35, 48 (1999), while other jurisdictions do not). In
Schuler, we also noted some dissonance in our treatment of the prejudice issue in cases
presenting instructional errors preserved for our review. Id. at 299–300 (contrasting
State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983) (applying harmless error analysis),
with State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (reversing a conviction based
upon a flawed instruction without harmless error analysis)).
                                    12

element of the crime. Thus, Harris suffered prejudice as a consequence

of defense counsel’s failure to object to the omission of the movement

element from the marshalling instruction.    He is thereby entitled to a

jury trial with a proper marshalling instruction on the factual element of

movement.

      IV. Conclusion.

      We conclude defense counsel did not breach a duty in failing to

challenge the sufficiency of the evidence of Harris’s movement in the

motion for judgment of acquittal.    Defense counsel breached a duty,

however, in failing to object to the absence of the movement element in

the marshalling instruction for the going-armed-with-intent offense.

Because our confidence in Harris’s conviction of that offense is

undermined under the circumstances presented here, we reverse that

conviction and remand.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.
