                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0787
                             Filed January 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHAN DANIEL RONNAU,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      A defendant appeals his jury conviction for first-degree kidnapping, first-

degree sexual abuse, and willful injury causing serious injury. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Sheryl Soich,

Assistant Attorneys General, for appellee.




      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                         2



MULLINS, Judge.

       Nathan Ronnau appeals from his jury conviction and sentence for

kidnapping in the first degree, sexual abuse in the first degree, and willful injury

causing serious injury. Ronnau challenges the sufficiency of the evidence for his

conviction of first-degree kidnapping. He further contends the district court erred

in denying his motion for new trial because the jury’s verdict was contrary to the

weight of the evidence.    Ronnau also alleges his attorney was ineffective in

failing to object to the jury instructions defining the crime of first-degree

kidnapping. We affirm.

I.     Background Facts and Proceedings

       On the evening of July 1, 2013, A.M. went to a bar at the corner of East

Locust Street and Iowa Street in Davenport to meet a friend.         She had five

alcoholic drinks at the bar and later left with Christopher McCray, whom she did

not previously know, just before closing time to go to his home and smoke

marijuana. Later, A.M. realized she had left her phone, keys, and cigarettes at

the bar, so McCray drove her back to the bar after it had closed and helped her

knock on the bar’s back door to retrieve her belongings.        The bar manager

responded to the knocks through the door but did not allow A.M. to come in. He

told her he could not find her things and suggested she check back later.

Ronnau had followed McCray into the area and sat on a bench next to the bar’s

back door, smoking a cigarette. After a few minutes, A.M. sat down next to him

and asked him for a cigarette. Ronnau handed her the cigarette he had been

smoking. McCray then had a brief conversation with A.M., and after checking
                                         3



with her to make sure she was comfortable with him leaving her there, McCray

left in his vehicle.   A.M. and Ronnau sat together on the bench for several

minutes. Ronnau introduced himself to A.M. as “David.” At one point, Ronnau

tried to lean in and kiss A.M., but she pulled away from him. She stood up

because she started to feel uncomfortable and knocked on the bar’s back door

again.

         After not receiving a response to her knocking, A.M. left the bar at

approximately 2:50 a.m. and started walking south on Iowa Street.        Ronnau

followed her. He called out to her asking for a cigarette. A.M. responded she

could not find her cigarettes and had just asked him for one. Ronnau caught up

to her about a block from the bar, next to an open lot, and put his arm around

her. Ronnau asked A.M. if she would walk him home. A.M. asked him where he

lived. Ronnau then put his arm around A.M.’s neck and began applying pressure

to her throat with the crook of his elbow. A.M. started experiencing difficulty

breathing and fell to the ground hard. She could hear Ronnau looking through

her purse and thought he said he was looking for a gun.            A.M. then fell

unconscious.

         When A.M. woke up, she was across the street, lying in a bush up against

the west exterior wall of the Dollar General store, with Ronnau on top of her.

Ronnau was choking her, and she was unable to do anything.             A.M. tried

screaming, but Ronnau grabbed her tongue with his fingernails and tried pulling it

out. Ronnau said he had a knife and threatened to kill her. A.M. tried fighting

back, punching Ronnau and scratching him on his left cheek. Ronnau started
                                        4



hitting A.M. harder with a closed fist. She had a bloody nose, and her tongue

was bleeding and missing a small chunk. At some point, A.M. had lost control of

her bodily functions and defecated on herself while Ronnau was strangling her.

      Ronnau penetrated her vagina and anus with his penis. He then forced

her to sit up and perform oral sex on him. A.M. feared Ronnau was going to kill

her. She began pleading for her life—telling Ronnau she was a single mother of

two children and screaming her ex-husband’s name. Ronnau then ended the

assault. He ran back north on Iowa Street and then east through the Dollar

General and Save-A-Lot parking lot.

      A.M. got up and tried to get dressed. She was missing her bra, her green

underwear, one of her shoes, and her purse. Her shirt was torn. She did not

know whether Ronnau was going to come back, so she left as quickly as she

could. She walked to her boyfriend’s house less than one-half mile away. She

tried knocking on someone’s door for help along her way, but no one answered.

A.M. reached her boyfriend’s duplex around 3:30 a.m. She pounded on the front

door to the duplex, and John Lopez, who lived on the first floor of the duplex, let

her in. Lopez observed A.M. to look “beat up” and “dirty.” He saw that her mouth

and tongue were bleeding, her hair had leaves in it, her neck had scratches and

red marks everywhere, she smelled like feces, her left breast was exposed

through a tear in her muddy shirt, her pants were dirty and unbuttoned, and she

was missing a shoe. A.M., visibly shaking and clearly traumatized, told Lopez

she had just been beaten and raped. A.M. told Lopez her attacker was a white
                                             5



male with brown hair who had either blue shorts or a blue shirt on.1 Lopez also

thought A.M. said she had been assaulted by the “Latin Kings,” though A.M.

stated later she thought she had been called a “Latin King Woman” during the

assault. Lopez had difficulty understanding her because her tongue “was all

swollen, purple, [and] bleeding.” Lopez tried calling A.M.’s boyfriend but could

not reach him, so he dialed 911 and handed the phone to A.M. A.M. hung up the

phone. The operator returned the call and dispatched officers to her location at

3:41 a.m.

       The officers arrived at A.M.’s location. A.M. experienced difficulty, both

physical and emotional, in discussing the incident with the officers.              During

transport to the hospital by ambulance, A.M. complained of throat and neck pain

and informed the paramedic she had been choked and lost consciousness during

the attack. She described her attacker for the paramedic as a white male, in his

twenties or thirties, around five foot six inches tall, with either dark blond or

brown, buzz-cut hair, and wearing a blue shirt. The paramedic later gave this

description to an officer at the hospital.

       Another officer left to search for a suspect matching A.M.’s description but

was unsuccessful. The officer then went to the crime scene where he observed

A.M.’s bra in a bush on the east side of Iowa Street next to the Dollar General

and her missing balled-up sock north of the bush along Dollar General’s exterior

wall. The officer found A.M.’s purse and missing shoe on the sidewalk across

the street and north of where he had found her bra and sock, next to an open lot.


1
 Lopez originally told police A.M. had said her attacker was wearing blue shorts.
However, at trial, Lopez testified A.M. could have said either blue shorts or a blue shirt.
                                          6



He also noticed the grass just west of the sidewalk was matted down and had

bloodstains in it. The officer was unable to find A.M.’s green underwear.

       At almost 4:00 a.m., firefighters were dispatched to a location 1.1 miles

from the bar after receiving a report that a man was asleep on the steps of a

residence.    The firefighters woke the man, who refused assistance and

immediately left the area.     The firefighters described him as a white male

between five feet eight inches and six feet tall.

       A.M. arrived at the hospital’s emergency room at 4:09 a.m. Due to a fatal

shooting earlier that night, A.M. was taken to an examination room, where she

waited for over an hour to be seen by medical personnel.            A.M. became

frustrated with having to wait while covered in her own blood and feces, and went

to the bathroom to urinate and clean herself with paper towels. A.M. was later

evaluated by medical personnel and cleared for a forensic examination. From

approximately 7:00 a.m. until 1:00 p.m., a Sexual Assault Nurse Examiner

(SANE nurse) conducted a sexual assault examination of A.M. The SANE nurse

observed debris and tenderness in A.M.’s vaginal area, and tenderness and

redness at the opening of her anus. During the examination, the SANE nurse

noticed A.M.’s neck had started to swell, her voice had become hoarse, and she

was having difficulty swallowing. Due to the swelling of her neck while at the

hospital, medical personnel conducted several tests, including a CT scan, which

revealed fluid stranding in her left upper neck. Medical personnel gave A.M.

medication to stop the swelling in her neck and released her that afternoon. A.M.

had deep bruises on both of her knees and had cuts, bruises, redness, swelling,
                                         7



and tenderness on her nose, forehead, chin, neck, knees, breasts, knuckles,

elbow, arm, and scalp. A.M. also complained of pain in her throat, the back of

her neck, and her lower back.

       Later that day, officers searched Ronnau’s apartment and seized two blue

dress shirts, a pair of dress pants, and menthol cigarettes.       On July 3, A.M.

positively identified Ronnau as her attacker in a photo array, and the officers

subsequently arrested Ronnau. The officers obtained a second search warrant

to collect evidence from Ronnau’s person and took photographs of his injuries.

Ronnau had a scratch on his left cheek, a small circular mark under his chin,

bruising on his right eyebrow, redness around his knuckles, small red marks on

his right wrist and hand, and scrapes on his left bicep and both knees.

       On August 1, the State filed a trial information charging Ronnau with one

count of first-degree kidnapping, a class “A” felony, in violation of Iowa Code

sections 703.1, 710.1(3), 710.1(4), and 710.2 (2013); one count of first-degree

sexual abuse, a class “A” felony in violation of sections 703.1, 709.1(1), and

709.2; and one count of willful injury causing serious injury, a class “C” felony, in

violation of sections 702.18, 703.1, and 708.4(1).

       A jury trial was held March 10–17, 2014.        A.M. testified she suffered

serious injuries as a result of Ronnau strangling her during the attack.        She

stated her voice was affected for four or five months after the attack and was still

experiencing some “crackling in it” at the time of trial. A.M. testified she had lost

her job in sales because of her inability to talk and control the tone or volume of

her voice. The SANE nurse and an ear, nose, and throat (ENT) expert physician,
                                         8



who did not personally examine A.M., both testified A.M. was subject to a

substantial risk of death as a result of Ronnau strangling her.

       Ronnau’s co-worker testified he was with Ronnau at the bar on the night

of the attack but left the bar around 2:00 a.m. without Ronnau.          He further

testified he observed Ronnau the next day at work with several scratches. He

thought Ronnau was “acting a little funny,” and noticed Ronnau made a point to

tell him numerous times throughout the day that he had passed out on

someone’s porch on his walk home from the bar the night before and was woken

by an ambulance or paramedics who allowed him to leave and walk home. He

also testified Ronnau told him that during his walk home he had gotten “into a

fight with a tree,” fell into the tree, and the tree won. He testified he did not see

any scratches on Ronnau when he saw him the night before at the bar.

       Kurt Brookhart, a cellmate of Ronnau’s at the Scott County Jail, testified

regarding conversations he had with Ronnau about the attack after Ronnau

approached him with a request for legal advice. Ronnau told Brookhart he was

intoxicated on the night in question and could not remember much of what

happened. Ronnau admitted to Brookhart that he shared a cigarette with A.M.

and that he tried getting her to go home with him.         Ronnau stated he had

approached A.M. from behind after she left the bar, put his arms around her, and

then she fell. He told Brookhart the next thing he remembered was sitting by a

wall before a struggle broke out and A.M. was hitting him. He remembered

having A.M. face down but said he did not remember why. He remembered

grabbing her by her hair and forcing her to perform oral sex on him. Ronnau told
                                            9



Brookhart A.M. started “getting loud,” would not “shut up,” and kept “just going on

about her kids.” Ronnau stated he “freak[ed] out,” “smack[ed]” her, and “[took]

off down Locust Street.” He talked to Brookhart about waking up on someone’s

lawn and then waking up again on someone’s steps before walking home.

Ronnau told Brookhart he started to realize what had happened and wanted a

cigarette. When Ronnau reached into his pocket, he pulled out A.M.’s green

underwear and some papers of hers, which he threw away in a trash bin on his

way home.

       No forensic evidence linked Ronnau to the attack. No seminal fluid or

DNA matching Ronnau could be found in any samples taken from A.M., her

clothes, or the paper towels that were recovered after she cleaned herself at the

hospital.2 Likewise, no DNA matching A.M. could be found on any samples

taken from Ronnau or his clothes. An Iowa Division of Criminal Investigation

(DCI) criminalist testified there are many reasons why seminal fluid may not be

found after a sexual encounter, including if the male wore a condom, if no

ejaculation occurred, or if the male had a low sperm count. She also testified

foreign DNA cannot always be detected in a woman’s vagina following a sexual

assault given how many millions of the woman’s cells are present. She stated

A.M.’s cleaning herself with wet paper towels and urinating after the attack at the

hospital, as well as any bacteria present in the anal region or saliva in her mouth,

could have diluted or washed away any foreign DNA prior to gathering samples.




2
 A.M. told the SANE nurse after the attack, and later testified at trial, that she did not
know whether Ronnau had ejaculated during the attack.
                                          10



         Ronnau did not testify at trial. He moved for judgment of acquittal after the

State rested and again at the end of all of the evidence. The court denied both

motions. On March 17, 2014, the jury found Ronnau guilty of one count of first-

degree kidnapping, one count of first-degree sexual abuse, and one count of

willful injury causing serious injury. On April 29, 2014, Ronnau filed a motion for

new trial. On May 8, 2014, the court denied Ronnau’s motion and sentenced him

to life without the possibility of parole for first-degree kidnapping pursuant to

section 902.1.3 Ronnau appeals.

II.      Scope and Standard of Review

         “On the issue of sufficiency of the evidence, we review claims for

correction of errors at law.”     State v. Robinson, 859 N.W.2d 464, 467 (Iowa

2015).    A jury finding of guilt will only be disturbed if it is not supported by

substantial evidence. Id. “Substantial evidence” is evidence that would convince

a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id. At

trial, the State must prove every element of the crime charged beyond a

reasonable doubt.      State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976).            The

State’s evidence must raise a fair inference of guilt and do more than create

speculation, suspicion, or conjecture. State v. Hamilton, 309 N.W.2d 471, 479

(Iowa 1981). In weighing the evidence, direct and circumstantial evidence are

equally probative. Iowa R. App. P. 6.904(3)(p). On appeal, we look at the record

as a whole, considering all of the evidence, and view it in the light most favorable

to the State. Robinson, 859 N.W.2d at 467. We review a district court’s ruling on


3
 The sexual abuse and willful injury convictions merged into the first-degree kidnapping
conviction at the time of judgment and sentencing.
                                        11



a motion for new trial based on whether the verdict was contrary to the weight of

the evidence for abuse of discretion. State v. Thompson, 836 N.W.2d 470, 476

(Iowa 2013). We review claims of ineffective assistance of counsel de novo.

State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

III.   Analysis

       Ronnau challenges the sufficiency of the evidence for his conviction of

first-degree kidnapping. Alternatively, he claims his attorney did not properly

challenge the elements of first-degree kidnapping in moving for judgment of

acquittal. Ronnau further contends the district court erred in denying his motion

for new trial because the jury’s verdict was contrary to the weight of the evidence.

Ronnau also alleges his attorney was ineffective in failing to object to the jury

instructions defining the crime of first-degree kidnapping and the element of

confinement and removal.

       A. Sufficiency of the Evidence

       A person commits the offense of kidnapping when the person either

confines another person or removes another person from one place to another,

without the consent or authority of the other person and with the “intent to inflict

serious injury upon such person, or to subject the person to a sexual abuse.”

Iowa Code § 710.1(3). First-degree kidnapping is defined as “when the person

kidnapped, as a consequence of the kidnapping, suffers serious injury, or is

intentionally subjected to torture or sexual abuse.” Iowa Code § 710.2.

       Ronnau argues the State failed to present substantial evidence to support

his conviction for first-degree kidnapping based upon a sexual assault.
                                            12



Specifically, he challenges the elements of “confinement or removal” and

“serious injury.”4

       1. Confinement or Removal

       Ronnau contends the State presented insufficient evidence to support the

verdict because any confinement or removal A.M. experienced did not have any

“significance independent from [the commission of] sexual abuse” but rather, was

merely incidental to the underlying sexual attack. See State v. Rich, 305 N.W.2d

739, 745 (Iowa 1981). He further claims any such confinement or removal did

not substantially increase the risk of harm to A.M., significantly lessen the risk of

detection, or significantly facilitate his escape following the commission of the

sexual abuse. See id. Ronnau alleges the State did not present any direct

evidence that he confined or removed A.M. from the west side of Iowa Street to

the east side of Iowa Street and there was no evidence that any confinement or

removal occurred beyond that ordinarily associated with the underlying offense of

sexual abuse. Ronnau claims it was “unclear where [A.M.] collapsed on the

street,” and A.M. did not know how long she had been unconscious or how she

got into the bush on the east side of Iowa Street.



4
  The State argues Ronnau failed to preserve error on the element of confinement or
removal by not specifically challenging the requirement that any confinement or removal
must be “more than incidental” to the sexual abuse in his motion for judgment of
acquittal at trial. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) (“To preserve
error on a claim of insufficient evidence for appellate review in a criminal case, the
defendant must make a motion for judgment of acquittal at trial that identifies the specific
grounds raised on appeal.”). In his motion for judgment of acquittal, Ronnau argued
there was “no direct evidence that Mr. Ronnau moved [A.M.].” In making its ruling on
Ronnau’s motion, the district court found “[A.M.’s testimony] that [Ronnau] subjected her
to sexual abuse vaginally and anally and forced her to give him oral sex, all of which
would satisfy the sex act requirement along with moving across the street would be the
removal issue.” We find Ronnau adequately preserved error on this issue.
                                        13



      The State points to evidence that an officer found A.M.’s purse and shoe

on the west side of Iowa Street, approximately one block south of Locust Street,

on the sidewalk next to an open lot. Just west of where her purse and shoe were

found, the officer observed an area of the grass that was matted down and had

bloodstains in it. It was 2:50 a.m. when Ronnau followed A.M. from the bar, put

his arm around her, strangled her, and caused her to fall to the ground and pass

out on the west side of Iowa Street. A.M. later woke up on the east side of Iowa

Street in a bush next to the west exterior wall of the Dollar General. No one else

was on the street, and although there was a street lamp nearby, the bush

provided cover for the assault.      A.M. testified Ronnau prevented her from

screaming for help by trying to pull out her tongue with his fingernails and

threatening to kill her with a knife.   Ronnau told Brookhart he remembered

putting his arm around A.M. and her falling down. Ronnau then remembered

being on the other side of the street next to the wall where a struggle with A.M.

occurred. Ronnau also remembered grabbing A.M. by her hair and forcing her to

perform oral sex on him. He told Brookhart she had started to get loud, so he

“freak[ed] out,” “smack[ed]” her, and fled the scene.

      Viewing the evidence in the light most favorable to the State, including all

reasonable inferences that may be deduced from the record, we determine

substantial evidence existed for the jury to find that as a consequence of

Ronnau’s acts of confinement or removal, A.M. was intentionally subjected to

sexual abuse. A reasonable jury could find that Ronnau’s strangling of A.M.—on

the west side of Iowa street, on the sidewalk next to an open lot until she passed
                                         14



out, and the subsequent transport of her to the east side of Iowa Street, into the

shadows and concealment of a bush, next to an exterior wall of a closed

commercial business at approximately 3:00 a.m.—substantially increased the

risk of harm to A.M. and significantly lessened the risk of detection. See Rich,

305 N.W.2d at 745 (“[The] defendant did not choose the restroom for his sexual

assault for the personal comfort of himself or his victim.      Rather his actions

indicate that he sought the seclusion of the restroom as a means of avoiding

detection.”).   Further, Ronnau significantly lessened the risk of detection and

significantly facilitated his escape from the scene of the attack by attempting to

rip out A.M.’s tongue when she tried screaming, threatening to kill her with a

knife, and beating her about the face before he fled the scene. Ronnau left A.M.

in a bush, having been brutally raped and strangled, and missing some of her

clothes. Based upon this evidence, we believe the record revealed sufficient

evidence upon which a jury could find Ronnau guilty of first-degree kidnapping

beyond a reasonable doubt.       See Robinson, 859 N.W.2d at 481–82 (asking

whether evidence presented “a sufficient basis to allow the jury to regard the

case as presenting more than sexual abuse”). We will not disturb the jury’s

verdict on the first-degree kidnapping count.

       2. Serious Injury

       A “serious injury” is defined as any “disabling mental illness” or any “bodily

injury” which “(1) [c]reates a substantial risk of death; (2) [c]auses serious

permanent disfigurement; [or] (3) [c]auses protracted loss or impairment of the

function of any bodily member or organ.” Iowa Code § 702.18. A “bodily injury”
                                         15



was defined for the jury as “physical pain, illness or any impairment of physical

condition.” A “substantial risk of death” was defined for the jury as “more than

just any risk of death, but does not mean that death is likely.”

       Ronnau argues the State presented insufficient evidence A.M. suffered a

serious injury to support his conviction for first-degree kidnapping. He contends

that although the act of strangulation created a substantial risk of death, A.M. did

not suffer a specific bodily injury that created such risk. He further asserts A.M.

did not suffer a bodily injury causing permanent disfigurement such as scars. He

contends her loss of consciousness and resulting loss of bodily control while

being strangled were only temporary. And, he claims the prolonged effects of not

being able to control the tone and volume of her voice for months after the attack

were not a substantial interference with her vocal cords’ function because she

was still able to speak and did not completely lose her voice. Therefore, he

argues, the injuries she suffered do not constitute a protracted loss or impairment

of a bodily member or organ.

       Viewing the evidence in the light most favorable to the State, we

determine substantial evidence existed for the jury to find that Ronnau’s

strangulation of A.M. created a substantial risk of death or caused the protracted

loss or impairment of the function of a bodily organ. Both the SANE nurse and

the ENT expert physician testified that Ronnau’s strangling of A.M. to the point

she lost consciousness during the attack and the later swelling of her throat,

which caused the potential for her airway to be blocked, created a substantial risk

of death. Further, A.M. testified she suffered lingering adverse effects in her
                                         16



voice and vocal cords for four or five months following the attack as a result of

Ronnau strangling her. A.M. stated that at first she was not able to talk, later she

could not control the tone or volume of her voice, and at the time of trial, she was

still experiencing some “crackling” in her voice. Therefore, we find the record

contained substantial evidence that A.M. suffered a serious injury and will not

disturb the jury’s verdict on the first-degree kidnapping count.

       B. Motion for New Trial

       Ronnau moved for new trial based on the claim that the jury’s verdict of

guilty was contrary to the weight of the evidence. He claims A.M.’s credibility

was severely undermined because she had ingested alcohol and marijuana

earlier that night and made contradictory statements regarding the attack. He

also complains there was little forensic evidence supporting the allegations that

A.M. was sexually assaulted.        Finally, he alleges that any evidence A.M.

sustained serious injuries as a result of the attack was minimal because her

injuries eventually healed.

       A trial court may grant a new trial “[w]hen the verdict is contrary to law or

evidence.” Iowa R. Crim. P. 2.24(2)(b)(6); see also State v. Ellis, 578 N.W.2d

655, 659 (Iowa 1998). A verdict is contrary to the weight of the evidence where

“a greater amount of credible evidence supports one side of an issue or cause

than the other.” Ellis, 578 N.W.2d at 658 (quoting Tibbs v. Florida, 457 U.S. 31,

37–38 (1982)). “A trial court should not disturb the jury’s findings where the

evidence they considered is nearly balanced or is such that different minds could
                                        17



fairly arrive at different conclusions.” State v. Shanahan, 712 N.W.2d 121, 135

(Iowa 2006).

      For the same reasons we found there was sufficient evidence to overrule

the motion for judgment of acquittal, we cannot say the evidence preponderates

heavily against the jury’s guilty verdict. Accordingly, the district court did not

abuse its discretion in denying Ronnau’s motion for new trial. See Thompson,

836 N.W.2d at 491. We affirm the order denying Ronnau’s motion for new trial.

      C. Ineffective Assistance of Counsel

      To succeed on a claim of ineffective assistance of counsel, Ronnau must

show by a preponderance of the evidence: “(1) his trial counsel failed to perform

an essential duty, and (2) this failure resulted in prejudice.”    Thorndike, 860

N.W.2d at 320 (quoting State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012));

accord. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to prove

either prong is fatal to the claim. Shanahan, 712 N.W.2d at 142. “[W]e measure

counsel’s performance against the standard of a reasonably competent

practitioner.” Thorndike, 860 N.W.2d at 320 (quoting State v. Clay, 824 N.W.2d

488, 495 (Iowa 2012)). Prejudice is the reasonable probability of a different

outcome. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). In examining

Ronnau’s claims, we presume his trial attorney performed his duties competently.

See Thorndike, 860 N.W.2d at 320.

      Ronnau alleges his trial attorney provided ineffective assistance by failing

to object to the jury instructions defining (1) the crime of first-degree kidnapping

and (2) the element of confinement or removal.        An ineffective-assistance-of-
                                         18



counsel claim may be raised and decided on direct appeal when the record is

adequate to address the claim. Iowa Code § 814.7(2), .7(3). Here, the record is

adequate to address Ronnau’s claims.

       1. First-Degree Kidnapping Marshalling Instruction

       The challenged marshalling instruction stated:

              Under Count 1, the State must prove all of the following
       elements of Kidnapping in the First Degree:
              1. On or about the 2nd day of July, 2013 in Scott County,
       Iowa, the defendant confined or removed [A.M.] from the west side
       of Iowa Street to the east side of Iowa Street.
              2. The defendant did so with the specific intent to:
                      a) inflict serious injury upon [A.M.]; or
                      b) subject [A.M.] to sexual abuse.
              3. The defendant knew he did not have the consent or
       authority of [A.M.] to do so.
              4. As a result of the confinement or removal, [A.M.] suffered
       a serious injury or was subjected to sexual abuse or intentionally
       subjected to torture.

       Ronnau asserts counsel should have objected because element 4 of the

marshalling instruction does not correctly state the law on first-degree kidnapping

since Iowa Code section 710.25 requires that the victim must suffer a serious

injury, or be intentionally subjected to torture or sexual abuse, “as a consequence

of the kidnapping” rather than “as a result of the confinement or removal.” He

claims this element of the instruction does not explicitly reference the crime of

kidnapping, which requires specific intent, but instead merely mentions

“confinement or removal” without more. He argues the instruction allowed the




5
  Iowa Code section 710.2 provides in pertinent part: “Kidnapping is kidnapping in the
first degree when the person kidnapped, as a consequence of the kidnapping, suffers
serious injury, or is intentionally subjected to torture or sexual abuse.” (Emphasis
added.)
                                         19



jury to convict him of first-degree kidnapping without proof that he committed the

predicate kidnapping.

       As the State argues, when the phrase “as a result of the confinement or

removal” is read in context, it is clearly referring to the defendant’s kidnapping of

the victim. The rest of the instruction required that Ronnau confine or remove

A.M. to the opposite side of the street, that he do so without her consent, and

that he have the specific intent to seriously injure or sexually abuse her.

Furthermore, it is clear that when the marshalling instruction is read in

conjunction with the instruction defining confinement or removal, examined

below, the jury instructions in this case correctly conveyed the law and elements

of the offense of first-degree kidnapping. See State v. Bennett, 503 N.W.2d 42,

45 (Iowa Ct. App. 1993) (“In evaluating [jury instructions], we must read all of the

instructions together, not piecemeal or in artificial isolation.”).     Accordingly,

assuming Ronnau’s trial counsel had a duty to object to the marshalling

instruction, we cannot find Ronnau suffered prejudice as a result of counsel’s

omission.

       2. Confinement or Removal Element

       The challenged instruction6 stated:

              In these instructions, “confinement” or “removal” requires
       more than what is included in the commission of the crime of
       Kidnapping. A person is “confined” when her freedom to move
       about is substantially restricted by force, threat or deception. The
       person may be confined either in the place where the restriction
       began or in a place to which she has been removed.


6
 The instruction tracked the uniform Iowa Criminal Jury Instruction 1000.5 (2012),
promulgated by a committee of the Iowa State Bar Association and approved by our
court in State v. Ripperger, 514 N.W.2d 740, 750 (Iowa Ct. App. 1994).
                                        20



              No minimum time of confinement or distance of removal is
       required. It must be more than slight. The confinement or removal
       must have significance apart from the suffering of serious injury, or
       sexual abuse or intentional torture.
              In determining whether confinement exists, you may
       consider whether:
              1. The risk of harm to [A.M.] was increased.
              2. The risk of detection was reduced.
              3. Escape was made easier.

       Ronnau contends counsel should have objected because the jury

instruction was missing critical “intensifiers” required by our case law. Under

Rich, the risk of harm to the victim must be substantially increased, the risk of

detection must be significantly reduced, and the chance of escape must be

significantly facilitated, as a result of the confinement or removal. 305 N.W.2d at

745.

       After Ronnau’s case was tried in 2014, our supreme court decided

Robinson, in which the defendant challenged the same uniform jury instruction.

859 N.W.2d at 487 (Wiggins, J., specially concurring).       The Robinson court

dismissed the kidnapping charges for insufficient evidence, viewing the jury

instructions as law of the case. Id. at 482. One justice wrote separately to opine

that the confinement instruction “constituted reversible error.”       Id. at 487

(Wiggins, J., specially concurring). The special concurrence expressed: “Even a

cursory review of our caselaw would have revealed we repeatedly emphasized

the risk of harm must be substantial and the lessened detection and ease of

escape must be significant.”     Id. at 492.    The special concurrence stated

reasonably competent counsel would have considered the claim regarding the
                                           21



confinement instruction to be “worth raising”—despite the fact that our appellate

courts have said we are reluctant to disprove of uniform instructions.7 Id.

       Assuming Ronnau’s trial counsel had a duty to object to the confinement

instruction without the intensifiers, we cannot find Ronnau suffered prejudice as a

result of his counsel’s omission. On our de novo review of the record, we find no

reasonable probability the jurors would have acquitted Ronnau of kidnapping if

they had been instructed that in determining the existence of confinement or

removal, they could consider whether the risk of harm to A.M. was substantially

increased, whether Ronnau’s risk of detection was significantly reduced, or

whether Ronnau’s escape from the scene of the assault was significantly

facilitated.

       Based on the overwhelming evidence that Ronnau confined and removed

A.M. from the west side of Iowa Street to the east side of Iowa Street, without her

consent, and intentionally subjected her to sexual abuse or serious injury, we find

no reasonable probability of a different outcome had counsel objected to the

uniform jury instruction.

       Therefore, upon our review of the record, we affirm Ronnau’s conviction

for first-degree kidnapping.

       AFFIRMED.




7
  The special concurrence also urged a “reformulation of the ISBA’s instruction” to
“include the concept that the defendant’s confinement of the victim substantially
increased the risk of harm, significantly lessened the risk of detection, or significantly
facilitated the risk of escape.” Robinson, 859 N.W.2d at 492. We note the ISBA
committee has made that change to Iowa Criminal Jury Instruction 1000.5 (2015).
