                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0517
                              Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRUCE ERIC JOHNSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Martha L. Mertz,

Judge.



      Bruce Eric Johnson appeals his conviction for assault causing bodily

injury, alleging his trial counsel provided ineffective assistance by failing to

ensure the appropriate instructions were given to the jury. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                             2


SCOTT, Senior Judge.

       Bruce Eric Johnson appeals his conviction for assault causing bodily

injury, alleging his trial counsel provided ineffective assistance by failing to

ensure the appropriate instructions were given to the jury. We affirm.

       I.      Background Facts and Proceedings

       This matter arose from an incident that occurred in 2015.                 Johnson’s

mother and stepfather had been assisting Johnson financially.                  When they

determined they could no longer do so, they cancelled Johnson’s cell phone

service.    A confrontation between Johnson and his mother and stepfather

ensued. Johnson approached his stepfather, as his stepfather was seated at the

kitchen table, and struck him in the face. Johnson’s mother testified she tried to

restrain Johnson’s arm, but Johnson flung her against the kitchen counter.

Johnson admits walking into the kitchen—where he claims his stepfather had

been yelling at him—but contends he struck his stepfather as a reflex. At trial,

Johnson argued hitting his stepfather was justified because his stepfather had

begun to stand and raise his hands when Johnson approached him, causing

Johnson to reflexively hit him. Johnson denied making contact with his mother.

Johnson was convicted following a jury trial of one count of assault causing

bodily injury, in violation of Iowa Code sections 708.1(2) and 708.2(2) (2015),

with respect to striking his stepfather.1 Johnson appeals.2


1
   Johnson was found not guilty of assault causing bodily injury with respect to his
mother.
2
  In Johnson’s brief, he asserts he preserved error on his jury instruction challenges “via
the district court’s duty to properly instruct the jury on the law.” This is incorrect. In
order to preserve error for a challenge to the jury instructions, the party must raise the
issue before the district court. See State v. Spates, 779 N.W.2d 770, 773 (Iowa 2010)
(“[W]e have a long-standing requirement that, to preserve error on a trial court’s failure to
                                               3


       II.     Standard and Scope of Review

       We may consider an ineffective-assistance-of-counsel claim on direct

appeal, and our review is de novo. See State v. Thorndike, 860 N.W.2d 316, 319

(Iowa 2015). “To succeed on a claim of ineffective assistance of counsel, a

claimant must establish by a preponderance of the evidence: ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’” Id.

at 320 (citation omitted).

       III.    Analysis

       Through the rubric of ineffective assistance of counsel, Johnson raises

five challenges to the jury instructions given at trial: (1) the jury should have been

instructed on the lesser-included offense of simple assault; (2) a limiting

instruction should have been given on the use of impeachment evidence; (3) the

instructions did not contain all the necessary elements required to disprove

Johnson’s claim of justification; (4) the instructions failed to convey the State’s

burden of proof regarding specific intent; and (5) a cautionary instruction should




instruct on a lesser-included offense, ‘a defendant must request a lesser-included
offense instruction or object to the court’s failure to give it.’” (citation omitted)); State v.
Sallis, 262 N.W.2d 240, 248 (Iowa 1978) (“It is the trial court’s duty to instruct a jury fully
and fairly, even without request, but our adversary system imposes the burden upon
counsel to make a proper record to preserve error, if any, in this factual circumstance by
specifically objecting to instructions in their final form, requesting instructions and voicing
specific exception in event they are refused.”). However, because the complaints are
ultimately raised as ineffective-assistance-of-counsel claims, we need not address
further this error preservation issue. See State v. Fountain, 786 N.W.2d 260, 262–63
(Iowa 2010) (“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. 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.” (citations omitted)).
                                             4


have been given.       Johnson claims these individual errors, and the errors

cumulatively, constitute reversible error.

       The jury instructions contained a marshalling instruction that provided the

following:

               The State must prove all of the following elements of the
       crime of assault causing bodily injury as to [the stepfather]:
               1. On or about the 25th day of January 2015, the defendant
       either did an act which was meant to cause pain or injury, result in
       physical contact which was insulting or offensive, or place [the
       stepfather] in fear of immediate physical contact which would have
       been painful, injurious, insulting or offensive to him.
               2. The defendant had the apparent ability to do the act.
               3. The defendant’s act caused a bodily injury to [the
       stepfather] as defined in [another jury instruction].
               If the State has proved all of these elements, the defendant
       is guilty of assault causing bodily injury as to [the stepfather]. If the
       State has proved only elements 1 and 2, the defendant is guilty of
       assault. If the State has failed to prove either element 1 or 2, the
       defendant is not guilty.

              A.     Lesser-Included Offense Instruction

       As to Johnson’s first claim, the above marshalling instruction explicitly

provides direction regarding how the jury could reach a finding regarding the

lesser-included charge of assault. Further, the verdict form provided for a finding

of not guilty, guilty of assault causing injury, or guilty of simple assault. Because

this instruction was given, there has been no breach of a duty or resulting

prejudice.

              B.     Limiting Instruction

       In his second claim, Johnson argues his counsel should have sought a

limiting instruction regarding the proper use of impeachment evidence based on

his affirmative response to the prosecuting attorney’s question: “Sir, you’ve been

convicted of a crime of theft or dishonesty in the last ten years, have you not?” In
                                            5


light of the limited duration of this exchange, it is entirely possible Johnson’s

attorney elected not to seek a limiting instruction in order to avoid any further

focus on Johnson’s prior conviction.

       However, we need not address whether counsel breached an essential

duty by failing to object to this question or request a limiting instruction because

we conclude Johnson cannot establish prejudice. See Dempsey v. State, 860

N.W.2d 860, 868 (Iowa 2015) (“If we conclude a claimant has failed to establish

either of these elements, we need not address the remaining element.”) This

was an isolated general reference to Johnson’s prior criminal history. Johnson

did not dispute that he punched his stepfather in the face, and his only defense

was that his actions were justified by the act of his stepfather attempting to stand

up and raise his hands. Even if the question regarding Johnson’s prior criminal

history was improper and counsel could have successfully argued for a limiting

instruction that informed the jury on the proper use of this impeachment

evidence, there is no reasonable probability of a different outcome had a limiting

instruction been given. See State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008)

(noting to prove prejudice on an ineffective-assistance claim, a defendant must

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

the result of the proceeding would have been different,” which means our

confidence in the outcome is undermined (citation omitted)). We thus conclude

Johnson has failed to prove prejudice.

               C.     Justification Instruction

       Johnson next contends that, though the court instructed the jury on his

claim of justification, it “failed to relate the justification to the assault charge or to
                                          6


inform the jury what they are to do if they found the State had failed to prove lack

of justification.”

        Johnson correctly notes the marshalling instruction lacks any reference to

Johnson’s claim of justification.    Thus, in isolation, it enables a jury to find

Johnson guilty without any requirement to consider the impact of his justification

defense. The jury was provided an instruction entitled “Justification” that stated:

                A person is justified in using reasonable force if he
        reasonably believes the force is necessary to defend himself from
        any imminent use of unlawful force.
                If the State has proved any one of the following elements,
        the defendant was not justified:
                1. The defendant started or continued the incident which
        resulted in injury.
                2. An alternative course of action was available to the
        defendant.
                3. The defendant did not believe he was in imminent danger
        of death or injury and the use of force was not necessary to save
        him.
                4. The defendant did not have reasonable grounds for the
        belief.
                5. The force used by the defendant was unreasonable.

Again, Johnson correctly notes this instruction does not inform the jury what

impact should result if the jury were to find Johnson was “justified in using

reasonable force.”

        This court has previously considered a similar circumstance in State v.

Gomez, No. 13-0462, 2014 WL 1714451, at *2 (Iowa Ct. App. Apr. 30, 2014),

where “the court did not instruct the jurors how to proceed if they accepted [the

defendant’s] justification defense.” The panel reasoned:

        The marshalling instruction for assault did not include an element
        that [the defendant] acted “without justification.” That omission
        would not be a problem if the record lacked sufficient evidence to
        generate a jury question on justification . . . . But in this case the
        district court properly found sufficient evidence to generate a jury
                                         7


       question on justification. Therefore, the district court would have
       assisted the jurors by informing them—in the assault marshalling
       instruction—that they could not convict unless the State proved [the
       defendant] acted without justification. If a lack-of-justification
       element is not included in the assault marshalling instruction, then
       the justification instructions must inform the jurors how to proceed if
       they find the State did not prove defendant was acting without
       justification. . . .
               In the absence of an element requiring the State to prove the
       lack of justification, the jury could have mistakenly believed it could
       convict [the defendant] of assault if the State satisfied the three
       elements listed in the marshalling instruction. The jury had no
       guidance on how to apply the free-floating instructions on
       justification. Accordingly, [the defendant] was prejudiced by his
       attorney’s failure to object to the lack of connection between the
       assault and justification instructions.

Id. at *3 (citations omitted).   We would find the court’s reasoning in Gomez

directly applicable, but for one key distinction. In Gomez, the panel found “the

district court properly found sufficient evidence to generate a jury question on

justification.” Id. Here, the record does not support such a finding.

       Iowa Code section 704.3 defines the justification defense: “A person is

justified in the use of reasonable force when the person reasonably believes that

such force is necessary to defend oneself or another from any imminent use of

unlawful force.” But Johnson argues his swing was reactionary—a “reflex” that

he had no control over; he claimed his actions were an “accident.” Accordingly,

his argument is more that the punch was unintentional, which does not give rise

to a claim of justification. See State v. Delay, 320 N.W.2d 831, 835 (Iowa 1982)

(“Self-defense may operate as justification only if the act committed by the

defendant was defensive . . . .” (quoting 6 Am. Jur. 2d Assault and Battery § 160

(1963))). Self-defense assumes the act done is intentional but justified out of
                                             8

necessity to save oneself from harm. See State v. Benham, 23 Iowa 154, 160

(1867).

       The facts, even as presented by Johnson, indicate he approached his

stepfather while his stepfather was seated at the kitchen table. See State v.

Richards, 879 N.W.2d 140, 148 (Iowa 2016) (noting the State can prove

justification did not exist by proving beyond a reasonable doubt that the

defendant initiated the incident that resulted in injury). In addition, there is no

indication—or claim—that Johnson’s stepfather moved to strike Johnson, only

that he raised his hands. See id. (providing a defendant is not justified if the

State proves “[t]he defendant had no reasonable grounds” to believe “he was in

imminent danger of death or injury and that the use of force was not necessary to

save him”).    Also, there is no evidence Johnson was prevented from simply

leaving the premises. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993)

(providing a defendant is not justified if the State proves “[a]n alternative course

of action was available to the [d]efendant”). To the contrary, Johnson admits he

exited the house immediately after striking his stepfather.

       Assuming, without deciding, counsel breached a duty in failing to request

that the assault marshalling instruction include the lack-of-justification element,3

we conclude, based on these facts, there is no reasonable probability of a

different outcome. See Maxwell, 743 N.W.2d at 196. Even accepting Johnson’s

version of the altercation, his testimony does not establish he was justified in


3
  In addition, even in the absence of the inclusion of the justification element in the
assault marshalling instruction, during closing arguments defense counsel explained to
the jury that if they found his client’s actions justified under the instruction given, they
had to find him not guilty of assault.
                                         9


striking his stepfather. Johnson initiated the incident, there was no reasonable

basis for Johnson to believe he was in imminent danger of death or injury, and an

alternative course of action was available to Johnson that did not involve any risk

to life or safety. We conclude Johnson’s ineffective-assistance claim on this

issue fails.

                 D.   Specific Intent Instruction

       As quoted in its entirety above, the marshalling instruction provides, in

relevant part:

       On or about the 25th day of January, 2015, the defendant either did
       an act which was meant to cause pain or injury, resulting in
       physical contact which was insulting or offensive, or place [the
       stepfather] in fear of immediate physical contact which would have
       been painful, injurious, insulting or offense to him.

Johnson takes issue with the clause “meant to,” contending it insufficiently

imparts the State’s burden to prove he acted with specific intent. Johnson notes

the standard Iowa criminal jury instruction employs the language “intended to”

where the jury instructions in the instant matter used “meant to.”

       Johnson argues “meant” is the past participle of “mean” and “mean” can

be defined as to “[h]ave as one’s purpose or intention.”             Johnson defines

“intended” to mean “done on purpose,” and concludes the term is, thus, “better

suited to conveying the specific intent concept of committing an act.”

       As defined by Johnson, we find no meaningful distinction between the two

phrases.       The definition of “mean” relies upon the terms “purpose” and

“intention.” See Mean, Webster’s Third New International Dictionary Unabridged

(unabr. ed. 2002) (defining “mean” as “to have in the mind esp. as a purpose or

intention”). “Intended” is the past participle of “intend,” which is defined as “to
                                         10

have in mind as a design or purpose.”          See Intend, Webster’s Third New

International Dictionary Unabridged (unabr. ed. 2002).       Without a meaningful

distinction between the terms, we find no breach by Johnson’s attorney or

corresponding prejudice.

              E.      Cautionary Instruction

       Johnson contends his trial counsel breached a duty by failing to request

that the trial court include a cautionary instruction saying: “Nothing I have said or

done during the trial was intended to give any opinion as to the facts, proof, or

what your verdict should be.” Johnson goes on to admit “the trial transcript

depicts a presiding judge operating in an even-handed manner.”            After this

admission, Johnson identifies no behaviors by the presiding judge that needed to

be addressed or cured by such an instruction.        Instead, Johnson speculates

there might have been such actions. Accordingly, Johnson has failed to prove a

breach of duty or prejudice.     That is, Johnson has failed to demonstrate “a

reasonable probability that, but for the counsel’s unprofessional errors, the result

of the proceeding would have been different.” See Maxwell, 743 N.W.2d at 196

(citation omitted).

              F.      Cumulative Error

       Finally, Johnson argues the above errors cumulatively resulted in

prejudice.    See State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012) (“Iowa

recognizes the cumulative effect of ineffective-assistance-of-counsel claims when

analyzing prejudice under Strickland.”). Evaluating the claims made individually

and cumulatively, we conclude Johnson has failed to establish the result of the

proceeding would have been different if counsel had performed the acts Johnson
                                        11

claims should have been performed. See id. at 501–02 (noting if the defendant

raises one or more claims of ineffective assistance and the court analyzes the

prejudice prong without considering trial counsel’s alleged failures, the court can

dismiss the claims only if the alleged errors do not cumulatively amount to

prejudice).

       AFFIRMED.
