                    IN THE COURT OF APPEALS OF IOWA

                                       No. 14-0168
                                   Filed April 22, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH MICHAEL EVENSON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Cerro Gordo County, Karen R.

Salic, District Associate Judge.



       A defendant challenges his conviction for eluding, contending the district

court should have instructed on specific intent. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Attorney General, for appellant.

       Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Carlyle D. Dalen, County Attorney, and Rachel Ginbey,

Assistant County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

        The question in this appeal is whether the crime of eluding, in violation of

Iowa Code section 321.279(1) (2013), is a general or specific intent crime.

Joseph Evenson argues he is entitled to a new trial because the district court

classified eluding as a general intent crime and instructed the jury accordingly.

We are persuaded the district court committed no error and affirm the conviction.

        Before analyzing the propriety of the jury instructions, we provide a brief

history of Evenson’s prosecution. On September 18, 2013, Evenson was driving

a friend’s car (the friend was a passenger and her young children were riding in

the backseat) when he encountered a police officer. The officer knew of an

outstanding warrant for Evenson’s arrest and followed him. Evenson drove “at a

very fast rate of speed,” and the officer pursued him with his lights and sirens

activated. Evenson eventually jumped from the moving car and left the scene on

foot.   Officers found a number of controlled substances abandoned on the

driver’s side floor of the car.

        Eluding was one of nine counts originally alleged against Evenson in the

trial information. The other counts included child endangerment, possession of a

prescription drug without a prescription, possession of morphine, possession of

marijuana, possession of methamphetamine, possession of hydrocodone,

possession of alprazolam, and possession of hydromorphone.               The State

dismissed the prescription drug count before the jury trial. The trial ran from

January 14 through January 16, 2014.
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       During the conference on jury instructions, defense counsel asked the

court to define specific intent for the jury. Counsel argued that the word “willfully”

in the eluding statute indicated it was a specific intent crime. The prosecutor

argued eluding was a general intent crime. The district court declined to give the

specific intent instruction, explaining the concept of willfulness was “entirely

different” from the concept of specific intent and concluding “all of the crimes

alleged here are general intent crimes.”

       The jury returned not-guilty verdicts on all counts with the exception

eluding.   The court sentenced Evenson to one year in jail on the eluding

conviction and imposed a fine of $315.

       On appeal, Evenson alleges the district court erred in failing to give the

jury an instruction on specific intent to define the term “willfully” in the eluding

instruction. We review his allegation for the correction of legal error. State v.

Marin, 788 N.W.2d 833, 836 (Iowa 2010).

       The court provided the following marshalling instruction:

       The State must prove both of the following elements of Eluding:
              1. On or about the 18th day of September, 2013, the
       defendant was driving a motor vehicle.
              2. The defendant willfully failed to bring the motor vehicle to
       a stop or otherwise eluded a marked official law enforcement
       vehicle driven by a uniformed peace officer after being given a
       visual and audible signal to stop.

 See Iowa Code § 321.279(1).

       The court instructed the jury on general intent, as follows:

       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
                                          4



       accident. You may, but are not required to conclude a person
       intends the natural results of his acts.

       Defense counsel requested an instruction on specific intent.            Iowa

Criminal Jury Instruction No. 200.2 explains the specific-intent concept as

follows:

              “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.

       According to Evenson’s appellate argument, “he did not willfully fail to stop

after both the sirens and lights were activated because his failure to stop from the

time of the signals was not purposeful.” Evenson reviews varying definitions of

willfully from Iowa case law and gleans that it has been interpreted to mean

deliberate, purposeful, voluntary, or not accidental.       See generally State v.

Azneer, 526 N.W.2d 298, 299 (Iowa 1995). He then concludes “willfully” in the

context of the eluding statute means it is a specific intent crime.

       Evenson’s conclusion that eluding requires proof of specific intent does

not flow logically from the case law definitions of willfulness. Whether a crime

requires proof of general or specific intent is an inquiry independent of the mens

rea required by a criminal statute. See State v. Keeton, 710 N.W.2d 531, 533

(Iowa 2006) (citing In re M.S., 896 P.2d 1365, 1383–84 (Cal. 1995) (Mosk, J.,
                                            5



concurring) (“Indeed, ‘specific intent’ and ‘general intent’ do not define criminal

mental states.”)).1

       To decide if a crime requires general or specific intent, we read the

language of the statute “in the light of its manifest purpose and design.” In re

D.S., 856 N.W.2d 348, 352 (Iowa 2014) (quoting State v. Neuzil, 589 N.W.2d

708, 711 (Iowa 1999)).       To assist in distinguishing between crimes requiring

general and specific intent, our supreme court sketched out the following guide:

       When the definition of a crime consists of only the description of a
       particular act, without reference to intent to do a further act or
       achieve a further consequence, we ask whether the defendant
       intended to do the prescribed act. This intention is deemed to be a
       general criminal intent. When the definition refers to defendant’s
       intent to do some further act or achieve some additional
       consequence, the crime is deemed to be one of specific intent.

Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981) (quoting P. Johnson, Criminal

Law, 329 (1975)); see also State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996)

(holding statute criminalizing interference with official acts did not require intent to

do further act or achieve some additional consequence). Specific-intent crimes

designate “a special mental element which is required above and beyond any

mental state required with respect to the actus reus of the crime.” Neuzil, 589

N.W.2d at 711 (quoting Buchanan, 549 N.W.2d at 294, and declining to read a

specific intent element into the stalking statute).




1
  Keeton also cited the Model Penal Code § 2.02, at 230 & n.3 (1985) for the proposition
that the four categories of culpability (purposely, knowingly, recklessly, and negligently)
stood in place of the specific-intent/general-intent dichotomy, “which has been such an
abiding source of confusion and ambiguity in the penal law.” Keeton, 710 N.W.2d at
533.
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       When we read the language of section 321.279(1) in light of its manifest

purpose to protect the motoring public, we find no specific intent element. The

State must prove the defendant willfully failed to stop his or her car or otherwise

eluded or attempted to elude a marked squad car driven by a uniformed officer

after being signaled to stop with lights and sirens. Iowa Code § 321.279(1). The

critical act is continuing to drive away or taking evasive action after receiving

obvious direction to stop from law enforcement.2 The statute does not require

proof the defendant intended to do some further act or to achieve some

additional consequence. Cf. State v. Francois, 577 N.W.2d 417, 421 (Iowa 1998)

(holding escape or attempt to escape under section 719.4 was a general intent

crime despite legislature’s use of term intentionally).            This conclusion is

consistent with our prior unpublished cases discussing the intent element of

eluding. See State v. Pierce, No. 03-0485, 2004 WL 434048, at *1 (Iowa Ct.

App. Mar. 10, 2004) (holding attempting to elude was a general intent crime);

See also State v. Tubbs, No. 10-0758, 2011 WL 768756, at * 3 (Iowa Ct. App.

Mar. 7, 2011) (finding counsel was not ineffective for declining to object to

general intent instruction in eluding case).

       AFFIRMED.




2
  Evenson argues he pulled over ten to fifteen seconds after being signaled which was a
“reasonable passage of time” and did not necessarily “reflect a willful failure to stop.”
Whether Evenson voluntarily complied after police activated their lights and sirens was a
question for the jury and did not hinge on the absence of a specific-intent instruction.
