                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0391
                                 Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENA ANN BROOKS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Dena Brooks appeals her conviction for willful injury causing bodily injury.

AFFIRMED.



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

Assistant Appellate Defender, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant

County Attorney, for appellee.



       Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                          2


VOGEL, P.J.

       Dena Brooks appeals her conviction for willful injury causing bodily injury.

Brooks asserts the district court erred in allowing the State to introduce evidence

of Brooks’s conduct after police arrived, and further erred in denying her motion

for judgment of acquittal. She also claims the court erred in failing to give a

limiting instruction regarding Brooks’s subsequent acts and a proper provocation

instruction. She alternatively frames this argument as an ineffective-assistance-

of-counsel claim. We conclude the district court did not err either in allowing the

evidence of Brooks’s subsequent conduct or in denying her motion for judgment

of acquittal. We further find trial counsel was not ineffective for failing to request

a different provocation instruction.          However, we preserve for possible

postconviction   relief   proceedings    on    Brooks’s   limiting-instruction   claim.

Consequently, we affirm.

I. Factual and Procedural Background

       The facts offered by the State and the facts offered by the defense differed

significantly. The jury could have found the following to be closest to the truth.

On August 4, 2012, Destiny Jones was at her sister’s house in Waterloo, Iowa,

along with other family members.        Neighbors Art and Rhonda Hanson, Tim

Roney, and defendant Brooks were sitting on the Hansons’ porch. An argument

ensued regarding Brooks’s son’s involvement in a shooting the day before. Both

groups were shouting at each other in harsh terms, primarily concerning the

shooting. One or more persons on the Hansons’ porch began shouting racial
                                         3


epithets at the Jones family, including the use of the n-word.1 Brooks made a

statement to the effect that she taught her children to protect themselves and she

will protect herself.

       Jones approached the grassy area between the houses, yelled at the

neighbors, and told them to stop using racially abusive language.            Brooks

continued to shout at Jones and her family. Brooks then leaned over the porch

railing and pushed Jones, after which she came down off the porch and the two

engaged in a physical altercation. Jones admitted she punched Brooks in the

ribs with her fist six or seven times, though she claimed she did not force Brooks

to the ground or otherwise restrain Brooks’s movement. Jones did not have a

weapon.

       Brooks then stabbed Jones with a pocketknife twice, once across the

abdomen and once near her left armpit. Jones crawled away from Brooks and

observed that her left side “was open” and bleeding. A witness observed Brooks

handing her knife to “a guy that was on the porch.”

       The Waterloo police were called.        Brooks was observed “screaming,

calling [Jones’s] mom a ‘cop caller.’” Once the police arrived, they observed

Jones’s wounds and moved to take Brooks into custody. Brooks resisted until

the police drew their weapons.       Officer Adam Liddle testified Brooks stated

“yesterday my son handled his own and today, I handled mine.”                  Upon

investigation of the scene, police found a black tie cap matching the hat worn by

Jones in the grassy area between the houses. In executing a search warrant,

1
  Jones and her family are African American and some mixed race children were also on
the porch. Brooks and the other neighbors involved are Caucasian, however, Brooks’s
two children are biracial.
                                           4


police found a folding pocketknife hidden behind the bushes outside the house.

The crime lab found thread and fibers on the knife consistent with the color of

Jones’s clothing.

       Brooks testified at trial, asserting the defense of justification.       Brooks

claims she was provoked into stabbing Jones because the Jones family was

making threatening comments, including that her son was “as good as dead”

after the prior day’s shooting. When she leaned over the porch rail, she claimed

Jones punched her, causing her glasses to fly off her head. She claims she then

went down to the grassy area to retrieve the glasses, was rushed by Jones, put

in a headlock, and repeatedly punched in the ribs. Unable to free herself, she

managed to pull out a pocketknife on her key chain and stab Jones. Brooks,

then freed from Jones’s grip, did not run away, as she had a rod in her leg,

impairing her mobility. Two of the officers who arrived described the scene as

chaotic, with ten to fifteen people involved in the heated mix. Rhonda Hanson’s

testimony supported Brooks’s version that she was not the aggressor, but, rather,

attempting to escape a frightening situation.

       Brooks was charged with willful injury causing serious injury, in violation of

Iowa Code section 708.4(1) (2011). A jury trial was held on February 1, 2013, in

which Brooks used the affirmative defense of justification. The jury returned a

verdict of guilty as to the charge of willful injury causing bodily injury, in violation

of Iowa Code section 708.4(2). On March 4, 2013, Brooks was sentenced to a

term of five years imprisonment. Brooks appeals.
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II. Evidentiary Ruling

       Brooks first asserts the district court erred in allowing the State to

introduce evidence regarding her behavior after the police arrived. Brooks claims

the evidence was irrelevant, highly prejudicial, and in contradiction to the court’s

pretrial ruling in which it granted Brooks’s motion in limine regarding the

admissibility of subsequent acts.       Brooks further asserts it was inadmissible

character evidence.2

       We     review     evidentiary   rulings    for   an    abuse     of   discretion.

State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001). An abuse of discretion

occurs when the trial court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.           Id. (internal citation

omitted). A ground or reason is untenable when it is not supported by substantial

evidence or when it is based on an erroneous application of the law. Id. (internal

citation omitted).

       At trial, various officers testified about Brooks’s behavior after their arrival,

including testimony that Brooks was uncooperative and belligerent. Testimony

was also elicited regarding Brooks’s behavior after being taken into custody and

her arrival at the police station. Brook’s motion in limine included this request:

“That the Jury not be told at any time by the State or the State’s witness(es) in

any form at any stage of the trial that the Defendant allegedly refused to




2
  Brooks also cites to Article 1, section 9 of the Iowa Constitution. However, to the
extent Brooks raises a constitutional argument, that particular claim was never raised in
the district court. Therefore, error was not preserved, and we decline to address the
merits of this claim. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (holding
the district court must rule on the issue for error to be preserved).
                                         6


cooperate, refused to make statements, or requested an attorney.” Prior to trial,

the following exchange occurred:

               The Court: The purpose of going on the record outside the
      hearing of the jury is to deal with the defendant’s Motion in Limine
      . . . . Two, that the jury not be told the defendant has allegedly
      refused to cooperate. As I understand it, she did make one
      statement about her son having taken care of business the day
      before and so she had to take care of business this date. Beyond
      that statement, [does the State] intend to get into anything else?
               The State: In fact I have admonished my officers to not
      indicate that, Your Honor.

After opening statements, Brooks objected to the State’s mention of her

behavior:

              [Defense Attorney]: Prior to opening statements, we took up
      the motion in limine which was filed by myself. One of the things in
      the motion in limine was that I requested that the State not make
      reference to defendant allegedly refusing to cooperate. At that time
      it is my recollection that [the State] indicated that [it] was not going
      to do any of that beyond referring to the alleged statement my client
      made about handling of business. Now, when I listened to [the
      State’s] opening statement [it] did in fact make mention that my
      client failed to cooperate with law enforcement and was
      uncooperative when the police arrived.
              The Court: Well, there’s no prohibition on that sort of
      evidence. That she failed to talk to them or wouldn’t talk to them
      certainly you have a right to insist that that evidence not be put
      before the jury because that could be viewed as being a violation of
      Miranda, but that she didn’t cooperate, what case law is there that
      you have that the State cannot show that she failed to cooperate?
              [Defense Attorney]: I do not have case law to cite to you at
      this time, Your Honor. However, based on just the plain language
      that [the State] said [it] was going to abide by, I would believe that
      that was improper of [it] to do so.
              The Court: Your motion is of record, but it’s denied. The
      State has every right to show whether she cooperated or not. It
      does not have a right she refused to talk. But if she was belligerent
      and using insulting language, the State has every right to show
      that.

      Brooks is correct in her assertion the State at first indicated it did not

intend to introduce evidence “that the Defendant has allegedly refused to
                                         7


cooperate.” However, in her motion in limine, Brooks did not specify that it was

her post-incident behavior and language she sought to exclude. With the issue

honed after opening statements, the district court distinguished between failing to

cooperate by invoking her right to remain silent as opposed to being “belligerent

and using insulting language.” Therefore, the introduction of this evidence did

not contradict any explicit court ruling, which is necessary to establish error. See

State v. Delany, 526 N.W.2d 170, 177 (Iowa Ct. App. 1994) (noting the district

court’s ruling on the motion in limine was equivocal, and therefore no violation

occurred when the State introduced evidence).

      Moreover, the State’s introduction of such testimony does not rise to the

level of prosecutorial misconduct. See, e.g., State v. Graves, 668 N.W.2d 860,

870–76 (Iowa 2003) (holding the prosecutor’s cross-examination of the

defendant about whether police officer made up testimony, as well as the

prosecutor’s closing argument in which he stated the defendant lied and virtually

called police officer a liar, amounted to prosecutorial misconduct).       Nor, as

Brooks claims, is this situation analogous to the State breaching a plea

agreement—there was no exchange of promises or detrimental reliance on the

State’s position, given such a generalized request in the pretrial motion.

Consequently, this argument is without merit.

      Furthermore, the district court did not abuse its discretion in admitting this

evidence.    Although in her motion in limine Brooks sought to keep out any

alleged “character” evidence, it too failed to specify her conduct at the scene of

the melee.    Additionally, Iowa Rule of Evidence 5.404(b) only applies when

character evidence is admitted for the purpose of showing the defendant’s
                                          8

propensity to commit certain acts. See State v. Sullivan, 679 N.W.2d 19, 24–25

(Iowa 2004) (“[A] specific exclusionary rule such as rule 5.404(b) is necessary to

exclude bad-acts evidence whose only relevancy is to illustrate the character of

the accused for purposes of establishing other actions in conformity with that

character”) (internal citation omitted). Here, the State did not offer evidence of

her belligerent state to show Brooks’s propensity to commit crimes or otherwise

not act in accordance with the law. Rather, it was offered to show her intent and

state of mind at the time of the incident and immediately thereafter, which was

important considering Brooks’s justification defense. Consequently, it was also

relevant and not unduly prejudicial. See Iowa R. Evid. 5.403 (only excluding

evidence where the danger of unfair prejudice substantially outweighs the

evidence’s probative value). Therefore, the district court did not err in admitting

this evidence.

III. Motion for Judgment of Acquittal

       Brooks further claims the court erred in overruling her motion for judgment

of acquittal. Brooks asserts the State failed to disprove, beyond a reasonable

doubt, her justification defense. Alternatively, Brooks requests we consider this

argument as an ineffective-assistance-of-counsel claim.      The State responds

Brooks failed to preserve error on this specific argument, considering the only

challenge made in Brooks’s motion concerned the State’s evidence of “serious”

injury, as opposed to the lesser crime of “bodily” injury.

       “The doctrine of error preservation has two components—a substantive

component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,

523 (Iowa 2011) (holding a one-page resistance that stated there was no legal
                                         9


basis for the State’s actions did not properly preserve error with respect to the

defendant’s constitutional claims). To preserve error on appeal, the party must

first state the objection in a timely manner, that is, at a time when corrective

action can be taken, in addition to the basis for the objection. Id. at 524. The

court must then rule on the issue. Lamasters v. State, 821 N.W.2d 856, 864

(Iowa 2012). “If the court’s ruling indicates that the court considered the issue

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” Id. (quoting Meier v. Senecaut, 641 N.W.2d 532,

540 (Iowa 2002)).

       Here, Brooks’s motion for judgment of acquittal asserted the evidence was

insufficient to show Jones suffered a serious injury, rather than merely a bodily

injury. She did not raise or argue the State’s failure to disprove her justification

defense. Therefore, the district court did not address this argument, and so error

was not preserved.

       To the extent Brooks frames this argument as an ineffective-assistance-of-

counsel claim, we review those claims de novo. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). To succeed on this claim, the defendant must show, first, that

counsel breached an essential duty, and, second, that she was prejudiced by

counsel’s failure. Id.

       To overcome Brooks’s justification defense, the State had to prove beyond

a reasonable doubt either Brooks started or continued the incident, she did not

believe she or another person was in imminent danger of death or injury, she did

not have reasonable grounds for the belief, or the force used by Brooks was

unreasonable.     See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
                                           10


Brooks testified Jones started the physical altercation; Jones testified it was

Brooks who started the fight. Accepting the State’s version of the incident was

sufficient for the jury to have concluded the State overcame Brooks’s justification

defense beyond a reasonable doubt.                See Iowa R. Crim. P. 2.21(3)

(“Corroboration of the testimony of victims shall not be required”); State v.

Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (“We find that the alleged victim’s

testimony is by itself sufficient to constitute substantial evidence of Defendant’s

guilt”). Consequently, any argument regarding the State’s failure to overcome

Brooks’s justification defense would be overruled. Because trial counsel had no

duty to raise a meritless argument, see State v. Greene, 592 N.W.2d 24, 29

(Iowa 1999), Brooks’s ineffective-assistance claim fails.

IV. Jury Instructions

       Brooks’s final issue asserts the district court erred in failing to give a

limiting instruction regarding Brooks’s subsequent acts, as well as a jury

instruction regarding provocation that “accurately reflects the law.” Alternatively,

Brooks frames this argument as an ineffective-assistance-of-counsel claim for

not requesting a limiting instruction and for failing to object to the provocation

instruction.   She asserts she was prejudiced because the jury would have

acquitted had the correct instructions been given.3

       A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. Straw, 709 N.W.2d at 133. We may

either decide the record is adequate and issue a ruling on the merits, or we may

3
  Because Brooks acknowledges trial counsel did not raise either issue before the district
court, error was not preserved. Consequently, we will address her arguments as an
ineffective-assistance claim.
                                        11

choose to preserve the claim for postconviction proceedings. Id. We review

ineffective-assistance-of-counsel claims de novo. Id. To succeed on this claim,

the defendant must show, first, that counsel breached an essential duty, and,

second, that he was prejudiced by counsel’s failure. Id.

       As an initial matter, the district court did not have an obligation to sua

sponte issue a limiting instruction advising the jury on how to view Brooks’s

conduct subsequent to her arrest. See, e.g., State v. McKettrick, 480 N.W.2d 52,

55 (Iowa 1992) (stating a limiting instruction is a matter of trial tactics). With

regard to whether trial counsel was ineffective for failing to request a limiting

instruction, we do not have an adequate record to address such a claim. See

State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective

assistance of counsel claims are best resolved by postconviction proceedings to

enable a complete record to be developed and afford trial counsel an opportunity

to respond to the claim”).     Therefore, this claim is preserved for possible

postconviction relief proceedings, where a more complete record may be

established. See Straw, 709 N.W.2d at 133.

       With respect to counsel’s failure to object to the provocation instruction,

Brooks failed to prove counsel breached an essential duty.         The instruction

stated: “Words of provocation and insulting nature may be considered, together

with all of the other evidence, to determine who started the incident and whether

the defendant’s apprehension of danger was reasonable.”         This is a correct

statement of the law, and any objection would not have resulted in a change of

the instruction.   See State v. Thompson, 836 N.W.2d 470, 478 (Iowa 2013)

(discussing provocation). Trial counsel did not breach an essential duty in failing
                                       12

to pursue a meritless argument. See Greene, 592 N.W.2d at 29. Therefore,

Brooks’s ineffective-assistance claim has no merit.

      Having considered all of Brooks’s arguments properly preserved for

appeal, we affirm her conviction.

      AFFIRMED.
