                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0794
                               Filed June 17, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CALVON DESMOND MILES,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Michael J.

Schilling, Judge.



       The defendant appeals from his convictions for willful injury causing bodily

injury and carrying weapons. AFFIRMED.



       Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



       Considered by Tabor, P.J., Greer, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GREER, Judge.

       Calvon Miles appeals from his convictions for willful injury causing bodily

injury and carrying weapons. Miles contends he received ineffective assistance

from trial counsel when counsel failed to object to the marshalling instruction for

willful injury causing bodily injury, which did not include all of the necessary

elements.1

       Here, the jury was instructed that to find Miles guilty of willful injury causing

bodily injury, the State had to prove all of the following:

             1. On or about the 25th day of September, 2018, [Miles] shot
       Aaron Stanley with a firearm.
             2. [Miles] specifically intended to cause a serious injury to
       Aaron Stanley.
             3. Aaron Stanley sustained a bodily injury.

Miles maintains his counsel should have objected to the third element, which

required the jury to find only that Aaron Stanley sustained a bodily injury without

finding Miles was the person who caused that bodily injury. In State v. Schuler,

774 N.W.2d 294, 298–99 (Iowa 2009), our supreme court reversed the defendant’s

conviction for this same issue.      There, the court concluded “sustained” and

“caused” are not synonymous and, under the facts in that case, it was possible the




1 Judgment was entered against Miles on April 23, 2019, so the amended Iowa
Code section 814.7 (2019) does not preclude him from raising this claim of
ineffective assistance on direct appeal. See State v. Damme, ___ N.W.2d ___,
___, 2020 WL 2781465, at *3 n.1 (Iowa 2020) (noting “the 2019 amendments to
Iowa Code sections 814.6 and 814.7 do not apply retroactively to direct appeals
from a judgment and sentence entered before the statute’s effective date of July
1, 2019” and “reiterat[ing] that date of the judgment being appealed controls the
applicability of the” amended code sections); see also Iowa Code § 814.7
(requiring defendants to raise claims of ineffective assistance of counsel in
application for postconviction relief rather than on direct appeal).
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jury convicted the defendant without finding the defendant was the cause of the

victim’s bodily injury. Schuler, 774 N.W.2d at 298–99.

            The procedural history is different here. Unlike in Schuler, Miles’s attorney

did not object to the jury instruction at trial, which is why Miles brings his claim as

one of ineffective assistance. In order to succeed on his claim, Miles has to

establish both that counsel breached an essential duty in not objecting to the

instruction and also that Miles was prejudiced as a result. See State v. Thorndike,

860 N.W.2d 316, 320 (Iowa 2015); see also State v. Maxwell, 743 N.W.2d 185,

196 (Iowa 2008) (“We have made it clear that ineffective-assistance-of-counsel

claims based on failure to preserve error are not to be reviewed on the basis of

whether the claimed error would have required reversal if it had been preserved at

trial.”).

            In response to Miles’s Schuler analysis, we note important distinctions in

the facts of this case and those in Schuler.           In Schuler, there was a violent

altercation involving multiple persons, any one of which could have caused the

victim’s injuries, as there was conflicting evidence as to who hit the victim and in

what manner. 774 N.W.2d at 298. Therefore, it was possible the jury could have

found the defendant assaulted the victim without finding that assault caused the

victim’s bodily injury. Id. at 299. There, the court could not assume “the jury

necessarily made an implicit finding on the causation issue.” Id.

            But here, there was no evidence of more than one actor. Stanley was

talking to his cousin’s girlfriend when one man walked toward Stanley and started

yelling about Stanley owing him money. The girlfriend then watched as Stanley

and the man started walking away together. A few minutes later, the girlfriend
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heard gunshots and, within another couple minutes, Stanley reappeared with one

gunshot to his leg. Stanley’s version of who shot him has changed—sometimes

naming Miles, sometimes accusing someone of a race different than Miles,

sometimes suggesting he does not know who shot him but knows it is not Miles—

but he has never suggested it was more than one person.2              Additionally, a

neighbor’s surveillance camera captured Stanley walking with one man—a man

who multiple witnesses identified as Miles and the girlfriend identified as the man

who walked up yelling. Stanley and the man identified as Miles are the only two

people caught on the camera immediately before gunshots rang out and Stanley

was hit.

       Under these facts, the jury’s finding that Miles shot Stanley with a firearm

(element 1) and Stanley sustained an injury (element 3) is tantamount to finding

Miles caused Stanley’s bodily injury. So Miles cannot establish he was prejudiced

by counsel’s failure to object to the instruction. See, e.g., State v. Boruch, No. 14-

1757, 2016 WL 4801325, at *3 (Iowa Ct. App. Sept. 14, 2016) (concluding the

defendant could not establish he was prejudiced when counsel failed to object to

the same jury instruction because of “the victim’s eye-witness account, statements

made by Boruch at the time of arrest, and other overwhelming evidence was

against him”); State v. Wilson, No. 10-1443, 2011 WL 6062042, at *5 (Iowa Ct.

App. Dec. 7, 2011) (concluding the defendant could not establish prejudice when

counsel failed to object to the same jury instruction “[b]ecause the first subsection

of the challenged jury instruction required the jury to find that [the defendant] shot


2 And, in fact, it is not clear how more than one person would have caused
Stanley’s single gunshot wound.
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[the injured party] with a handgun, and the second subsection required that [the

defendant] intended to cause serious injury, it follows that where only a single

defendant is involved, only that single defendant could have caused the injury

sustained by the victim”).

       Because Miles cannot establish prejudice, we affirm his convictions.

       AFFIRMED.
