                     IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0265
                               Filed May 25, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY D. EGGERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mitchell County, Gregg R.

Rosenbladt, Judge.



      The defendant appeals following his conviction and sentence for the crime

of injury or interference with a police service dog, a serious misdemeanor, in

violation of Iowa Code section 717B.9(1) (2013). AFFIRMED.




      Karl G. Knudson, Decorah, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., Vogel, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.

        Gary Eggers challenges his conviction and sentence under Iowa Code

section 717B.9(1) (2013). He contends a pretrial agreement between the parties

was breached, violating his right to due process and resulting in an unfair trial.

He also argues the verdict is not supported by substantial evidence. Finally, he

maintains he received ineffective assistance of counsel.

        I.    Background Facts & Proceedings

        On March 28, 2014, a sheriff’s deputy from the Mitchell County Sheriff’s

Office went to Gary Eggers’ home to serve Eggers with an arrest warrant and to

take Eggers into custody. When Eggers saw the deputy, he initially drove his

vehicle down his driveway as though to leave the property, before reversing

course away from the deputy, who had parked at the end of Eggers’ driveway,

back toward his house. The deputy—seeking to intimidate Eggers—took his

service dog, Winnie, out of the car, and the two began running toward the house.

Eggers exited his vehicle and walked to the house.

        Eggers, the deputy, and the dog arrived at the house’s front door nearly

simultaneously. A struggle ensued, with Eggers inside the house and the deputy

and his dog outside trying to force their way into the house. During this struggle,

Winnie’s rear paw got stuck in the door jamb of Eggers’ door, causing her to yelp

once.    The door was opened and closed twice.        When the deputy informed

Eggers the dog’s paw was stuck in the door, Eggers opened the door to allow the

dog to be freed and then shut the door again.
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       Winnie sustained cuts to the padding of her paw as a result. She was

taken to a veterinarian for treatment, where she received stitches. She was off

duty for two weeks to recover.

       Eggers was charged under Iowa Code section 717B.9. Subsection (1) of

that section provides “[a] person who knowingly, and willfully or maliciously

torments, strikes, administers a nonpoisonous desensitizing substance to, or

otherwise interferes with a police service dog, without inflicting serious injury on

the dog, commits a serious misdemeanor.” Subsection (2) creates a class “D”

felony for a person who, inter alia, “knowingly, and willfully or maliciously . . .

tortures” or “injures, so as to disfigure or disable, a police service dog.” Eggers

was charged with both crimes.

       On the morning of trial, counsel had a discussion with the presiding judge.

The parties agreed to treat the serious-misdemeanor charge as a “lesser

included” offense of the felony charge. The State also agreed that, as to the

felony charge, its theories of prosecution were limited to two of the six possible

bases for the crime (“[t]ortures a police service dog” and “[i]njures, so as to

disfigure or disable, a police service dog”).     The court noted, “We’ll have to

reengineer the jury instructions a little bit, but if both counsel are in agreement on

going that direction, I can, too, and we can just read [the felony charge] and then

treat [the serious-misdemeanor charge] as a lesser included.”            During this

discussion, Eggers’ counsel also confirmed he would not be raising either self-

defense or justification as a defense.
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       Among the jury instructions the jury eventually received were numbers ten

and eleven.    Instruction ten provided the State needed to prove these two

elements:

       1. On or about March 28, 2014, the defendant injured a police
          service dog so as to disfigure or disable it.
       2. The defendant did so knowingly and willfully or maliciously.

Instruction eleven provided the State needed to prove these two elements:

       1. On or about March 28, 2014, the defendant tormented, struck,
          or otherwise interfered with or injured a police service dog.
       2. The defendant did so knowingly and willfully or maliciously.

       During both opening and closing arguments, the prosecutor referred to

Eggers “slamming” the door on Winnie’s paw multiple times.             During closing

argument, the prosecutor argued, “By simply avoiding the officer and the dog and

running into the house and shutting the door he interfered with the police service

dog.” At that point, defense counsel objected that this was a misstatement of the

law, and the lawyers engaged in a discussion with the court outside the presence

of the jury. When the jury returned, the court instructed the jury to disregard the

prosecutor’s statement about what constitutes interference.           During closing

argument, the prosecutor also referred to the jury instructions:

       So take an example here. If the State has proven that Mr. Eggers
       knowingly and willfully interfered with a police service dog, I’ve
       proven number 11. Injury doesn’t enter into the equation on
       number 11, okay, it’s not a part of it. It can be. It’s an option.
       Doesn’t have to. I don’t have to have any injury. Interference is
       enough. Knowingly and willfully interfering is enough. If I’ve
       proven that, I’ve proven number 11. I think I have proven number
       11, I think I’ve proven number 10. I’ve definitely proven number 11.
               Sometimes in my own mind I look at things, you know, I
       [analyze] things and I look and say, which is—you know, which is
       better? I can be pretty sure of two things at one time but think
       maybe be a little more sure of one than the other. You know, I
       think both are true, but I definitely think this is. I don’t think that’s
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         that unusual. So if I were to put this in those kind of terms, I would
         say, okay, you know, I think—I think I’ve proven number 10, I think
         I’ve proven number 11, I’m pretty sure, but, okay, I know I’ve
         proven number 11. I think I’ve proven number 10, but I know I’ve
         proven number 11.

At that point, Eggers’ counsel objected on the basis that the prosecutor was

expressing a personal belief.       The court noted the objection and asked the

prosecutor to refrain from expressing any personal belief.

         The jury found Eggers guilty of a serious misdemeanor. Eggers made a

motion for a new trial, which was denied.        Eggers was sentenced.       He now

appeals.

         II.      Standard of Review

         Claims a defendant’s right to due process was violated are reviewed de

novo. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). We review claims

regarding sufficiency of the evidence for correction of errors at law. State v.

Dewitt, 811 N.W.2d 460, 467 (Iowa 2012).

         Claims of ineffective assistance of counsel are reviewed de novo. State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). This is our standard because such

claims have their basis in the Sixth Amendment to the United States Constitution.

State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).            To prevail on a claim of

ineffective assistance of counsel, Eggers must prove by a preponderance of the

evidence (1) counsel failed to perform an essential duty and (2) prejudice

resulted from the failure. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa

2011).         To establish prejudice, Eggers must show there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. See State v. McCoy, 692 N.W.2d 6, 25
                                         6

(Iowa 2005). Eggers’ claim fails if either element is lacking. See Everett v. State,

789 N.W.2d 151, 159 (Iowa 2010).         An attorney’s improvident trial strategy,

miscalculated tactics, or mistakes in judgment do not necessarily amount to

ineffective assistance of counsel. State v. Ondayog, 722 N.W.2d 778, 786 (Iowa

2006).      Furthermore, because tactical decisions by counsel must be judged

within the context of the totality of the circumstances on a case-by-case basis, it

is often necessary to preserve such allegations for postconviction proceedings so

that the record can be more fully developed. Id.; see also Iowa Code § 814.7(3)

(2013) (“If an ineffective assistance of counsel claim is raised on direct appeal

from the criminal proceedings, the court may decide the record is adequate to

decide the claim or may choose to preserve the claim for [postconviction

proceedings].”).

         III.   Analysis

         Eggers contends the inclusion of “otherwise interfered with” in jury

instruction eleven constitutes a breach of the parties’ pretrial agreement to limit

the State’s theories to “torture” and “injury,” while presenting the serious-

misdemeanor charge as a lesser-included offense of the felony. He contends

this breach is a violation of due process that resulted in an unfair trial. Assuming

without deciding Eggers has preserved error on this issue, we can find nothing in

the record to support his belief the parties had such an agreement. The parties

agreed that certain elements of the felony charge—for example, whether Eggers

set a booby trap device to kill the dog—were irrelevant.          See Iowa Code

§ 717B.9(2)(c).    But there was no equivalent narrowing of the misdemeanor
                                          7


charge. Because there was no pretrial agreement, there was no breach, and

consequently, no due process violation.

       Eggers next argues the verdict was not supported by substantial evidence.

The finding below is “binding on appeal if supported by substantial evidence.”

State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). We consider all the

evidence and the record in the light most favorable to the factfinder’s decision

and draw all legitimate inferences in support of the verdict. State v. Hearn, 797

N.W.2d 577, 580 (Iowa 2011).

       There are two elements of the crime of which Eggers was convicted: (1)

tormenting, striking, administering a nonpoisonous desensitizing substance to, or

otherwise interfering with a police service dog; and (2) doing so knowingly, and

willfully or maliciously. See Iowa Code § 717B.9(1). Without needlessly setting

forth the facts of the case again, we believe substantial evidence supports the

verdict. Evidence sufficient to convince a rational trier of fact the defendant is

guilty beyond a reasonable doubt exists. See Jorgensen, 758 N.W.2d at 834.

The district court did not err in denying Eggers’ motion for a new trial.

       Finally, Eggers contends his counsel was ineffective—first, for failing to

object to prosecutorial misconduct. We find the record adequate to address this

claim. Namely, he points to three separate instances of alleged prosecutorial

misconduct.    The first instance is the attorney’s misstatement of the law on

interference during closing argument.      The second instance is the attorney’s

alleged expression of personal opinion (“I know I’ve proven number 11”) during

closing argument. The third instance is the attorney’s repeated references in
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opening and closing argument to “slam,” “slamming,” or “slammed” in reference

to Eggers’ closing of his door on the day in question.

      When the prosecutor misstated the law on interference, defense counsel

objected, the jury was excused, the lawyers met with the court, and when the jury

returned, the court issued an instruction to the jury. Eggers now contends two

subsequent statements were a resumption of improper argument meriting

objection or mistrial. Those two statements are, “The second and third time that

door was shut Eggers knew that dog was physically obstructed.          That’s the

point,” and “Instruction eleven doesn’t require injury.” These do not misstate the

law or resume the alleged improper argument.             Eggers’ counsel was not

ineffective here; counsel objected timely to the prosecutor’s misstatement and

the court told the jury to disregard the prosecutor’s misstatement of the law. The

subsequent statements challenged here do not merit an objection.

      The prosecutor’s alleged expression of personal opinion was objected to

by defense counsel. The court noted the objection and cautioned the prosecutor.

We cannot say Eggers’ counsel was ineffective in so acting.

      The references to “slamming” the dog’s foot in the door do not misstate

the facts in evidence. The deputy agreed several times with the prosecutor’s

characterization of the incident as “slamming.” Therefore, we would not say this

language, while perhaps emotional, is inflammatory.

      Eggers also alleges his counsel was ineffective for failing to raise

justification as a defense to the serious-misdemeanor charge.       This claim is

preserved for possible postconviction relief to allow defense counsel an

opportunity to be heard. See State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).
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       He also claims counsel was ineffective in failing to object to the inclusion

of the “otherwise interfered with” language in the jury instructions. The record is

sufficient for us to address this argument.      This claim relates to the alleged

agreement between Eggers and the State and would have required Eggers to

object to the inclusion of an element of the crime in the jury instructions. Such an

objection would have been meritless. See State v. Ray, 516 N.W.2d 863, 866

(Iowa 1994) (“It is axiomatic that ineffectiveness of counsel may not be

predicated on the filing of a meritless motion.”).

       AFFIRMED.
