                 IN THE SUPREME COURT OF IOWA
                                  No. 07–0999

                               Filed July 30, 2010


STATE OF IOWA,

         Appellee,

vs.

EMMANUEL FOUNTAIN,

         Appellant.



         On review from the Iowa Court of Appeals.



         Appeal from the Iowa District Court for Story County, Lawrence E.

Jahn, Judge.



         The defendant appeals from his conviction for the offense of

domestic abuse assault causing bodily injury, claiming jury instruction

error.     DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.



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

Japuntich, Assistant State Appellate Defender, for appellant.



         Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, Stephen Holmes, County Attorney, and Keisha

Cretsinger, Assistant County Attorney, for appellee.
                                      2

BAKER, Justice.

      The defendant, Emmanuel Fountain, appeals from his conviction

for the offense of domestic abuse assault causing bodily injury.            He

contends his counsel was ineffective in failing to request a specific intent

instruction. Fountain argues that with a specific intent instruction the

jury may have found that he did not intend to make any insulting or

offensive physical contact with his then girlfriend, Levita Alexander. We

conclude the trial court erred in failing to give a specific intent

instruction because the crime of assault includes a specific intent

element; however, because we cannot determine whether Fountain’s

counsel was ineffective on this record, we preserve any claim based on

ineffective assistance of counsel for postconviction relief. On this record,

Fountain’s conviction is hereby affirmed.

      I. Background Facts and Proceedings.

      In   October   and   November       of   2006,   Levita   Alexander   and

Emmanuel Fountain lived together in an Ames apartment. Sometime in

November, Alexander decided to end the relationship and moved out of

the apartment.    At the time, Alexander and Fountain had one child

together, four-month old Carmello, and Alexander was expecting their

second child. On December 26, 2006, Alexander and Carmello returned

to the apartment they once shared with Fountain to retrieve Alexander’s

belongings. At approximately 5:40 a.m. on December 27, a 911 call was

made alleging Fountain had assaulted Alexander.

      Fountain was charged by trial information with serious assault—

domestic abuse in violation of Iowa Code sections 708.1, 708.2A(2)(b),

and 236.2 of the Iowa Criminal Code. A jury trial was held, and the jury

found Fountain guilty of domestic abuse assault causing bodily injury.
                                            3

      Fountain appealed.            Fountain claimed he received ineffective

assistance of counsel based on his attorney’s failure to request a specific

intent instruction. His appeal was routed to the court of appeals. The

court of appeals affirmed Fountain’s conviction.                   Fountain filed an

application for further review with this court, requesting that his

conviction be reversed and he be given a new trial. We granted further

review.

      II. Preservation of Error.

      When submitting the charges to the jury at the close of Fountain’s

trial, the court gave a general intent instruction.               Fountain’s attorney

made no objection to this instruction before it was submitted to the jury

and did not request an instruction on specific intent. Fountain claims

the district court erred by failing to instruct the jury on specific intent

because assault has a specific intent element, and he received ineffective

assistance of counsel based on his attorney’s failure to request such an

instruction.

      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.

See Iowa R. Civ. P. 1.924; State v. Taggart, 430 N.W.2d 423, 425 (Iowa

1988). 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. State v. Ondayog, 722 N.W.2d 778,

784 (Iowa 2006).        Fountain, therefore, may raise this claim on direct

appeal. Iowa Code § 814.7(2) (2005); 1 State v. Lucas, 323 N.W.2d 228,


      1Unless   otherwise specified, citations to the Iowa Code refer to the 2005 version.
                                      4

232 (Iowa 1982). If a claim of ineffective assistance of counsel is raised

on direct appeal from the criminal proceedings, the court may address it

if the record is adequate to decide the claim. See State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003).         If the record is not adequate, the

defendant may raise the claim in a postconviction action.        Iowa Code

§ 814.7(3).

      III. Merits.

      A.      Analytical Framework.       Fountain’s erroneous instruction

claim is raised in the context of an ineffective-assistance-of-counsel

claim. Thus, we must decide whether it can be determined as a matter

of law that Fountain’s counsel was ineffective in failing to request a

specific intent jury instruction on Fountain’s domestic abuse assault

charge and whether the record demonstrates Fountain was prejudiced

because of this error. Graves, 668 N.W.2d at 869. Counsel has no duty

to raise an issue that has no merit. State v. Wills, 696 N.W.2d 20, 24

(Iowa 2005).      Therefore, we must first “assess whether the record

demonstrates, as a matter of law, the existence or absence of a

meritorious [claim]” or error. Graves, 668 N.W.2d at 869.

      B.      Specific Intent Instruction.    Fountain was charged with

domestic abuse assault causing bodily injury. At trial, the jury was given

a general intent instruction.     Fountain claims this instruction was

erroneous, because assault is a crime of specific intent, not general

intent.

      1. Iowa Code section 708.1. Assault is defined in section 708.1 of

the Iowa Code. That statute provides in pertinent part:

             An assault as defined in this section is a general intent
      crime.      A person commits an assault when, without
      justification, the person does any of the following:
                                        5
             1. Any 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.
             2. Any act which is intended to place another in fear
      of immediate physical contact which will be painful,
      injurious, insulting, or offensive, coupled with the apparent
      ability to execute the act.
            ....

      2.   Jury Instructions.   At Fountain’s trial, the court gave the

following general intent instruction:

            To commit a crime a person must intend to do an act
      which is against the law. While it is not necessary that a
      person knows the act is against the law, it is necessary that
      the person was aware he was doing the act and he did it
      voluntarily, not by mistake or accident. You may, but are
      not required to, conclude a person intends the natural
      results of his acts.

      Fountain contends that assault is a specific intent crime, and the

trial court should have given Iowa Criminal Jury Instruction 200.2

published by the Iowa State Bar Association. This instruction reads:

            “Specific intent” means not only being aware of doing
      an act and doing it voluntarily, but in addition, doing it with
      a specific purpose in mind.
            Because determining the defendant’s specific intent
      requires you to decide what [he] [she] was thinking when an
      act was done, it is seldom capable of direct proof. Therefore,
      you should consider the facts and circumstances
      surrounding the act to determine the defendant’s specific
      intent. You may, but are not required to, conclude a person
      intends the natural results of [his] [her] acts.

Iowa Bar Ass’n, Iowa Crim. Jury Instructions 200.2 (available at

http://iabar.net).

      “General intent is only the intention to make the bodily movement

that constitutes the act that the crime requires,” while specific intent

requires an act calculated to produce a result that the law forbids. 21
                                          6

Am. Jur. 2d Criminal Law §§ 118, 119 at 221–22 (2008).                      We have

recognized a similar distinction between the two types of intent:

       “Specific intent is present when from the circumstances the
       offender must have subjectively desired the prohibited result.
       General intent exists when from the circumstances the
       prohibited result may reasonably be expected to follow from
       the offender’s voluntary act, irrespective of any subjective
       desire to have accomplished such result.”

State v. Redmon, 244 N.W.2d 792, 797 (Iowa 1976) (quoting 1 H.C.

Underhill, Underhill’s Criminal Evidence § 55 (6th ed. 1973)).

       3. Iowa Case Law. Under the common law, Iowa courts defined

assault as “an attempt to apply unlawful physical force to the person of

another, coupled with the apparent present ability to execute the [act].”

State v. Straub, 190 Iowa 800, 801, 180 N.W. 869, 869 (1921). Under

this definition, assault was defined as a general intent crime.                   See

Redmon, 244 N.W.2d at 797.

       In 1976, the Iowa legislature enacted Iowa Code section 708.1

containing its current elements. See 1976 Iowa Acts ch. 1245(1), § 801

(codified at Iowa Code § 708.1 (1979)).            This section became effective

January 1, 1978. 2       Id. ch. 1245(4), § 529.         It was at this time the

legislature added the requirement that the act constituting assault must
be done with the intent to make physical contact that is insulting or

offensive to another. Iowa Code § 708.1(1) (1979). Despite the inclusion

of specific intent elements, we continued to hold that assault remained a

general intent crime even after the legislature amended the statute to its

current form. See, e.g., State v. Ogan, 497 N.W.2d 902, 903 (Iowa 1993),



       2Prior to 1976, simple assault was not defined in the Iowa Code. In the 1975

Iowa Code, section 694.1 outlined possible punishments for a conviction of assault and
assault and battery, but it did not define the necessary elements of assault. Iowa Code
§ 694.1 (1975).
                                      7

overruled by State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001); State v.

Brown, 376 N.W.2d 910, 913–15 (Iowa Ct. App. 1985).

      In Heard, we overruled prior precedent and determined that based

on the statutory elements, an assault under Iowa Code section 708.1(2)

included a specific intent element. Heard, 636 N.W.2d at 231. We held

that the definition of assault contained in the Iowa Code required an

action done with the “intent to achieve some additional consequence so

as to qualify as a specific-intent crime.” Id. at 232.

      Four months after the Heard decision, the Iowa legislature

amended the assault statute, adding the following sentence: “An assault

as defined in this section is a general intent crime.” 2002 Iowa Acts ch.

1094, § 1 (codified at Iowa Code § 708.1 (2003)). This amendment was in

response to the Heard decision.        H.F. 2546 Explanation, 79th Gen.

Assem., Reg. Sess. (Iowa 2001). A year later, we addressed the effect of

this amendment on the definition of assault. See State v. Bedard, 668

N.W.2d 598, 601 (Iowa 2003). In Bedard, we concluded the “amendment

did not alter the substantive content of the statute as it pertains to the

elements of the crime.” Id.

      Since 2003, we have had the opportunity to address the intent

requirement for assault multiple times. See State v. Keeton, 710 N.W.2d

531, 533 (Iowa 2006); State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004).

In each of these cases, including the most recent case involving this

issue, Wyatt v. Iowa Department of Human Services, 744 N.W.2d 89, 94

(Iowa 2008), we focused on the elements of the crime. In each of these

cases, we found that regardless of the specific label attached to the

crime—specific intent or general intent—the state must prove the

elements of the crime and their accompanying mens rea beyond a

reasonable doubt. See, e.g., Keeton, 710 N.W.2d at 534.
                                     8

      The elements of assault under Iowa Code section 708.1 have not

changed since our decision in Heard. Under this section, a defendant

must commit an act that he intends to cause pain or injury to the victim

or to result in physical contact that would be insulting or offensive to the

victim or to place the victim in fear of physical contact that will be

injurious or offensive. Iowa Code § 708.1(1), (2). Because the elements

of these assault alternatives include an act that is done to achieve the

additional consequence of causing the victim pain, injury or offensive

physical contact, the crime includes a specific intent component.       See

Heard, 636 N.W.2d at 231–32.         Therefore, we adhere to our prior

decisions holding that the 2002 amendment “did not alter the

substantive content of the statute.” Bedard, 668 N.W.2d at 601.

      Our conclusion that assault includes an element of specific intent

is not inconsistent with the legislature’s action in amending the statute.

As we discussed, the legislature did not change the elements of an

assault; it merely designated assault as a general intent crime.         In

criminal law, the designation of an offense as a general intent crime may

carry with it certain consequences. Although we do not decide the effect

or constitutionality of this amendment to the assault statute, we believe

the amendment was simply an attempt to prevent a defendant charged

with assault from relying on the defenses of intoxication and diminished

capacity.   Heard, 636 N.W.2d at 233–34 (Neuman, J., concurring)

(stating “the defenses of intoxication and diminished responsibility . . .

are pertinent only to the specific-intent elements of a crime”); see also

Keeton, 710 N.W.2d at 533; Redmon, 244 N.W.2d at 797; Brown, 376

N.W.2d at 914–15.
                                      9

      Fountain is correct that the trial court erred in failing to instruct

on specific intent because the crime of assault includes a specific intent

element.

      C.    Ineffective Assistance of Counsel.       Having found merit in

Fountain’s claim that the trial court should have given a jury instruction

on specific intent, we must now address Fountain’s contention that his

counsel was ineffective for failing to request a specific intent instruction.

      The right to assistance of counsel under the Sixth Amendment to

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

Constitution is the right to “effective” assistance of counsel. Ondayog,

722 N.W.2d at 784.       To establish a claim of ineffective assistance of

counsel, the defendant must prove by a preponderance of the evidence:

(1) that trial counsel failed to perform an essential duty, and (2) that

prejudice resulted from this failure. State v. Lane, 743 N.W.2d 178, 183

(Iowa 2007). The claim fails if the defendant is unable to prove either

element of this test. Id. at 184.

      Fountain’s counsel did not request a specific intent instruction

even though numerous Iowa Supreme Court opinions have unequivocally

stated that assault includes an element of specific intent. “While there is

a strong presumption of counsel’s competence, that presumption is not

absolute or irrebutable.”      State v. Effler, 769 N.W.2d 880, 897 (Iowa

2009) (Appel, J., specially concurring) (citing Osborn v. State, 573 N.W.2d

917, 922 (Iowa 1998)).      The question we must answer “is whether a

normally competent attorney could have concluded that the question . . .

was not worth raising.” State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa

1982).     In Graves, we used this standard to determine that counsel

should     have   challenged   prosecutorial   use   of   “liar”   and   similar

phraseology to brand a criminal defendant. Graves, 668 N.W.2d at 881–
                                      10

82. As noted in a special concurrence in Effler, “Graves stands for the

proposition that a competent lawyer must stay abreast of legal

developments.” Effler, 769 N.W.2d at 897.

      Notwithstanding the legislature’s amendment of the assault

statute, we have clearly and repeatedly stated, that as the statute

currently reads, assault includes an element of specific intent.        See

Wyatt, 744 N.W.2d at 94; Keeton, 710 N.W.2d at 533–34; Taylor, 689

N.W.2d at 132; Bedard, 668 N.W.2d at 601; Heard, 636 N.W.2d at 231.

In addition, at the start of the trial, the judge stated:

             We’re still faced with the question of whether there
      ought to be a specific intent instruction on the assault. The
      Legislature defines assault as a general intent crime. There
      will certainly be an intent instruction. I believe in my set of
      instructions I have right now, I have not given [a] specific
      intent instruction, so if you want one, let me know on that.

      In Schoelerman, this court declared that “[a] normally competent

attorney . . . should either be familiar with the basic provisions of the

criminal code, or should make an effort to acquaint himself with those

provisions which may be applicable to the criminal acts allegedly

committed by his client.” Schoelerman, 315 N.W.2d at 71–72. The same

is true of case law. See Graves, 668 N.W.2d at 882. Fountain’s attorney

should have been aware of the case law declaring that assault includes

an element of specific intent.

      In addressing ineffective-assistance-of-counsel claims alleging the

use of an unreasonable trial strategy, however, we have stated:

      [C]laims of ineffective assistance involving tactical or
      strategic decisions of counsel must be examined in light of
      all the circumstances to ascertain whether the actions were
      a product of tactics or inattention to the responsibilities of
      an attorney . . . .
                                     11

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).           “While strategic

decisions made after [a] ‘thorough investigation of law and facts relevant

to plausible options are virtually unchallengable,’ ” trial strategies based

on an investigation that is “ ‘less than complete’ ” for the difficulty of the

issues presented is susceptible to claims of ineffective assistance of

counsel. Ledezma, 626 N.W.2d at 143 (quoting Strickland v. Washington,

466 U.S. 668, 690–91, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695

(1984)).

      After reviewing the facts of this case and the evidence presented,

we conclude only trial strategy could explain counsel’s failure to request

a specific intent instruction, as specific intent is a higher burden for the

state to prove. It appears to be undisputed that Fountain and Alexander

had consensual sex twice on the night in question, and it was not until

the third sexual encounter that an assault was alleged; however, it is

unclear whether the prosecution was alleging that the assault was

incidental to the third sexual encounter or whether the assault was

alleged to be a separate act unrelated to the sexual encounter.         If the

assault was alleged to be incidental to the sexual encounter a specific

intent instruction may have aided Fountain’s defense.          On the other

hand, if an assault separate from the sex was alleged and the defense

was simply that it did not occur, the distinction between a general intent

instruction and a specific intent instruction may not have aided

Fountain. If the defense strategy is to deny that any assaultive contact

occurred, the individual elements of assault become unimportant.

      Fountain    never   disputed   that   multiple   physical   encounters

occurred, but we cannot determine whether the defense strategy was to

deny that any assault occurred and argue that Alexander simply made

up the assault for reasons related to the custody of her son or was to
                                         12

contend that the alleged injuries were merely the unintended byproduct

of the sexual encounter.        On appeal and at trial, Fountain’s counsel

simply advanced the argument that the elements of an assault were not

present.

       We, however, are once again confronted with the situation where

we may have been able to decide this issue based on the record below,

but cannot because the record simply does not exist as neither the

opening statement nor the closing argument were reported.                      Both

opening statements and closing arguments are revealing of a party’s

strategy and may be necessary for this court to adequately review the

performance of counsel. We will not speculate about the tack taken at

trial in assessing whether a given strategy was either adequate or

prejudicial.      Because neither argument was reported, we cannot

determine either the prosecution’s theory of the case or the nature of the

defense strategy. 3

       “[P]ostconviction proceedings are often necessary to discern the

difference between improvident trial strategy and ineffective assistance.”

Ondayog, 722 N.W.2d at 786.           Such is the case here.        Although trial

counsel failed to request the proper instruction, we are unable on this
record to assess whether the failure constituted ineffective assistance of

counsel.      We therefore preserve this claim for possible postconviction

proceedings.

       IV. Disposition.

       We find that the trial court’s failure to give a specific intent

instruction was error; however, because we cannot determine whether


       3For the reasons outlined above, we have recently amended Iowa Rule of
Criminal Procedure 2.19(4) to require the reporting of opening statements and closing
arguments in criminal proceedings. See 2010 Iowa Ct. Order 0012 (effective August 16,
2010).
                                    13

Fountain’s counsel was ineffective on this record, we preserve any claim

based on ineffective assistance of counsel for postconviction relief. On

this record, Fountain’s conviction is hereby affirmed.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.
