                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0603
                              Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MILES LEAVENGOOD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Paul R. Huscher,

Judge.



      Miles Leavengood appeals his judgment and sentences for domestic

abuse assault causing bodily injury (second offense), assault causing serious

injury, and tampering with a witness. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Miles Leavengood appeals his judgment and sentences for domestic

abuse assault causing bodily injury (second offense), assault causing serious

injury, and tampering with a witness. Leavengood (I) challenges the sufficiency

of the evidence supporting the jury’s findings of guilt on the domestic-abuse-

assault and tampering-with-a-witness charges and (II) contends his trial attorney

was ineffective in failing to object to several jury instructions and in stipulating to

a serious injury.

I.     Sufficiency of the Evidence

       A.     Domestic Abuse Assault

       The State was required to prove the following elements of domestic abuse

assault:

              1. Miles Richard Leavengood and [S.B.] were household
       members who cohabited on July 6, 2014, or cohabited within the
       one year prior to July 6, 2014.
              2. On or about the 6th day of July, 2014, Miles Richard
       Leavengood did an act which was intended to cause pain or injury,
       or result in physical contact which was insulting or offensive to
       [S.B.]
              ....
              4. Miles Richard Leavengood’s act caused a bodily injury to
       [S.B.]

       Leavengood challenges the first element. With respect to this element,

the jury was instructed:

               The law defines “household members” as persons
       cohabiting with each other. “Cohabiting” does not require a sexual
       relationship, but does require more than dwelling or living together
       in the same place. To determine if Miles Richard Leavengood and
       [S.B.] were cohabiting at the time of the alleged offense, you may
       consider whether they had sexual relations while sharing the same
       living quarters; whether they shared income or expenses; whether
       they jointly used or owned property together; whether they held
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      themselves out as husband and wife; the continuity and length of
      their relationship; and any other facts shown by the evidence
      bearing on their relationship with each other.

A reasonable juror could have found this element satisfied based on

Leavengood’s admission that he was involved in an intimate relationship with

S.B. between July 2013 and July 2014 and S.B.’s testimony that she was in a

relationship with Leavengood in the year preceding trial. Substantial evidence

supports the jury’s finding of guilt on the domestic-abuse-assault charge. See

State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010) (setting forth standard of

review).

      B.     Tampering with a Witness

      The State was required to prove the following elements of tampering with

a witness:

            1. On or about the 6th day of July, 2014, Miles Richard
      Leavengood threatened or harassed [S.B.]
            2. Miles Richard Leavengood believed [S.B.] had been or
      might be summoned as a witness in any judicial proceeding.
            3. Miles Richard Leavengood intended to
                   a. Improperly influence the testimony of [S.B.]; or
                   b. Prevent testimony of [S.B.]; or,
                   c. Retaliate for lawfully done acts by [S.B.]

Leavengood takes issue with the first element.             He contends there is

insubstantial evidence that he threatened or harassed S.B.

      The jury received the following definitions of “threat” and “harass”:

      [A] “threat” is an expression of an intention to inflict evil, injury or
      damage on another. A person “harasses” another when, with intent
      to intimidate, annoy, or alarm the other, the person communicates
      with another by telephone, writing, or by electronic communication
      without legitimate purpose and in a manner likely to cause the other
      person annoyance or harm.
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       A reasonable juror could have found that Leavengood sent S.B. e-mails

(1) referring to her as a “snitch”; (2) citing the fact she got the “cops involved”; (3)

stating, and then retracting, an assertion that he would contact the department of

human services, presumably with respect to her two children; and (4) stating he

would turn off “the power and gas”—utilities which were in his name.                  A

reasonable juror could have determined these messages contained threats,

particularly in light of S.B.’s testimony that Leavengood was “either try[ing] to

scare [her] or intimidate [her] in some way where [she] wouldn’t say anything.”

Substantial evidence supports the threat alternative of tampering with a witness.

       We turn to the harassment alternative. Leavengood contends the State

had to prove he harassed S.B. in retaliation for something she lawfully did as a

witness. In his view, the record contains insufficient evidence to establish she

was a witness.

       The State responds that Leavengood failed to preserve error on this

contention. We disagree. Leavengood discussed the harassment portion of the

statute in his motion for judgment of acquittal, specifically stating S.B. “didn’t

think at the time that there was going to be a trial; that she would be a witness

anywhere.” This was sufficient to preserve the issue for review. See State v.

Schories, 827 N.W.2d 659, 664 (Iowa 2013) (noting counsel’s statements, while

conclusory, were sufficient to preserve error). Accordingly, we turn to the merits

of Leavengood’s challenge to the harassment portion of the tampering-with-a-

witness charge.

       The statute on tampering with a witness does indeed require proof of

witness status in connection with the harassment alternative. See Iowa Code
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§ 720.4 (2013) (stating a person commits the crime if the person, “in retaliation

for anything lawfully done by any witness or juror in any case, harasses such

witness or juror” (emphasis added)).         But the marshalling instruction on

tampering did not track the statute. Absent objection, the instruction became the

law of the case. See State v. Tyler, 873 N.W.2d 741, 752 n.8 (Iowa 2016).

       The first element of the instruction required a showing of a threat or

harassment.    The second element mentioned the word “witness” but only

required a showing that “Leavengood believed [S.B.] had been or might be

summoned as a witness in any judicial proceeding.” The third element included

the language cited by Leavengood—retaliation for lawfully done acts—but did not

tie the language to harassment or being a witness. The State simply had to

show Leavengood intended to

              a. Improperly influence the testimony of [S.B.]; or
              b. Prevent testimony of [S.B.]; or,
              c. Retaliate for lawfully done acts by [S.B.]

A reasonable juror could have found Leavengood harassed S.B. with his e-mails

believing she might be summoned as a witness and he intended to improperly

influence or prevent her testimony or retaliate for reporting the assault to police.

The e-mails and S.B.’s testimony amount to substantial evidence in support of

the harassment prong of the tampering charge.

II.    Ineffective Assistance of Counsel

       A.     Jury Instructions

       Leavengood claims his trial attorney was ineffective in failing to object to

several jury instructions and by stipulating S.B. sustained a serious injury. First,

he takes issue with the instructions on assault. He argues they did not include
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language requiring the State to prove he had “the apparent ability to act.” See

Iowa Code § 708.1(1)(a) (“A person commits an assault when, without

justification, the person does [a]ny act which is intended to cause pain or injury

to, or which is intended to result in physical contact which will be insulting or

offensive to another, coupled with the apparent ability to execute the act.”

(emphasis added)). Second, he challenges the instruction on tampering with a

witness because, as noted, the instruction failed to state “that under the

harassment alternative, the person harassed must be a witness as opposed to a

person who has been or may be summoned as a witness.” We preserve these

ineffective-assistance-of-counsel claims to allow Leavengood’s trial attorney an

opportunity to address the claims. See State v. Shortridge, 589 N.W.2d 76, 84

(Iowa Ct. App. 1998).      Because we are preserving these claims, we also

preserve Leavengood’s additional claim that counsel was ineffective in stipulating

to a serious injury.

       We affirm Leavengood’s judgment and sentence and preserve his

ineffective-assistance-of-counsel claims for postconviction relief.

       AFFIRMED.
