                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0904
                                 Filed June 24, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DOUGLAS ALLEN SAYLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.



      Douglas Sayler appeals following his conviction for second-degree

criminal mischief. CONVICTION AFFIRMED; DISMISSAL ORDER VACATED

AND REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Joseph A. Fraioli, Assistant

Appellate Defender, for appellant.

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

General, Matthew Wilber, County Attorney, and Thomas Nelson, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., Mullins, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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POTTERFIELD, P.J.

      Douglas Sayler appeals following his conviction for second-degree

criminal mischief, in violation of Iowa Code sections 716.1 and .4 (2013). He

contends there was insufficient evidence his actions were not justified to sustain

the conviction. He also asserts trial counsel was ineffective in failing to seek an

additional jury instruction and in not adequately supporting a claim of juror

misconduct.    Finally, Sayler urges he was improperly assessed costs on a

dismissed charge of assault causing bodily injury. We affirm the conviction. We

vacate the order to dismiss the charge of assault causing bodily injury and

remand with instructions that the district court enter a corrected order, assessing

no costs with respect to the dismissed charge.

I. Background Facts and Proceedings.

      Sayler was convicted of criminal mischief in the second-degree after his

neighbors, the Whitneys, who were driving home on the evening of January 17,

2013, came across Sayler walking on their private drive. The Whitneys pulled

their vehicle alongside Sayler and told him he had previously been informed by

themselves and the sheriff not to enter their property.        Angry words were

exchanged. Sayler yelled at the driver to exit the vehicle and “fight like a man.”

Sayler hit the passenger door, the hood, and the driver’s side door of the

neighbors’ car with his walking stick.      As passenger Carrie Whitney was

attempting to locate her cell phone to call police, Sayler sprayed her with pepper

spray. The Whitneys then drove away, and Sayler returned to his house. When

Deputy Sheriff Eric Shea questioned Sayler at his residence later about the
                                        3


encounter, Sayler stated he did not know what the officer was talking about, he

had not been on the road, and he had been home all evening.

      The State charged Saylor with criminal mischief and assault causing

bodily injury, and the case was tried to a jury.        At the close of the State’s

presentation of evidence, Sayler moved for a judgment of acquittal on the

criminal mischief charge, arguing the State had not proved specific intent to

damage the vehicle. That motion was overruled. Sayler stated he had been hit

by the Whitneys’ vehicle during the encounter. He testified he had acted in self-

defense:

              Q. Why did you hit the Whitneys’ vehicle with your walking
      stick? A. Because it was a tailgate, and I didn’t think on a truck that
      should make any difference to anyone, but it should—if they’re not
      paying any attention to you, you have to do something to get their
      attention.
              Q. After you hit the vehicle with your walking stick and the
      vehicle still didn’t leave, what did you do? A. I was becoming
      enraged and extremely frustrated that I didn’t have any way of safe
      egress from the situation, and so I struck the side of the vehicle,
      and I screamed louder, you know, to—well, I screamed louder for
      him to remove himself.
              ....
              A. Well, he was—actually what he was doing is he was—at
      that point he was operating his vehicle—he was hot dogging it. He
      was trying to like edge it closer to the edge, forward and reverse,
      and just a few feet forward and back and spinning the wheels, and I
      don’t know why he was doing that.
              Q. Did you feel there was any safe way for you to leave the
      situation? A. Safe way, absolutely not. I was trying to think of what
      would be the least damaging way for me to leave the situation.

      On cross-examination, Sayler testified further:

             Q. Okay. After you struck the vehicle with your walking stick,
      why did you subsequently spray the entire can of pepper spray in
      the vehicle? A. I thought they had been warned sufficiently that
      they had committed an assault and battery, and that they had a
      requirement to what do you call it, stop, and—stop and render aid.
      The law says stop causing harm. And, yes, I wanted them to stop
                                        4


      causing harm, and I told them specifically, remove the vehicle, it’s a
      threat.
              Q. Okay. Remove the vehicle from the roadway. You
      expected them to leave? A. Well, I expected them to remove it
      some distance that would give me a chance to repair myself to
      safety.
              ....
              Q. All right. I just have a couple more questions for you, Mr.
      Sayler. Was an alternative course of action available to you that
      night besides striking the vehicle with your walking stick? A. I could
      have probably done harm to myself in trying to extricate myself, and
      that would have probably been used against me. They would say
      looks like you’ve been brawling tonight, and that’s pretty much an
      automatic conviction if they want to say that I got in front of his
      vehicle and he had to strike me in order to go home. So really I
      was trying to stay safe myself, and my first duty at that time was to
      myself and not to anyone else. I did have—and I had a duty to the
      public, I had a duty to—to some extent to the occupants of the
      vehicle.
              ....
              Q. Did you believe you were in imminent threat or injury? A.
      Actually when I got up around their window and they were just a
      wall towards me, yes, I thought they were going to do something,
      that would they would try to obfuscate, they would wipe me out,
      wipe me out and give them every opportunity to lie and call it
      whatever you will and exonerate themselves and I just wouldn’t
      ever really get my say. Yes, I felt that my life was very much in
      danger at that time. I felt that my life was possibly in danger many
      times, the several times that Whitneys come along to me on that
      public road and said, I’m going to have you arrested, you’re
      trespassing. That’s a threat on my life, to my knowledge. They’re
      going to put you in jail because you appear in public.

      The jury was instructed that to prove criminal mischief the State had to

prove all the following elements:

             1. On or about January 17, 2013, the defendant damaged,
      altered, defaced, or destroyed a 2001 Chevrolet Suburban
      belonging to Mark and Carrie Whitney.
             2. The defendant acted with the specific intent to damage,
      deface, alter, or destroy the property.
             3. When the defendant damaged, defaced, altered, or
      destroyed the property, he did not have the right to do so.

      As to Sayler’s claim of self-defense, the jury was instructed:
                                         5


              A person is justified in using reasonable force if he
      reasonably believes the force is necessary to defend himself from
      any imminent use of unlawful force.
              If the State has proved any one of the following elements,
      the defendant was not justified:
              1. The defendant started or continued the incident which
      resulted in injury.
              2. An alternative course of action was available to the
      defendant.
              3. The defendant did not believe he was in imminent danger
      of death or injury and the use of force was not necessary to save
      him.
              4. The defendant did not have reasonable grounds for the
      belief.
              5. The force used by the defendant was unreasonable.

      In closing argument, the defense argued Sayler had attempted to move

out of the way but the Whitneys continued the confrontation, and Sayler “didn’t

know what else he could possibly do.” The State argued there was an alternative

course of action—“It was an open road.”

      During deliberations, the jury sent a question to the court, “[D]oes he have

to exhaust all alternative courses of action? Or does he only have to try one of

the alternate actions available?” The court responded, “The instruction sets out

the law. Please reread the instruction.” The jury found Sayler guilty of second-

degree criminal mischief.1 The jury was polled, and each juror indicated it was

their verdict. The jury did not, however, reach unanimity on the count of assault

causing bodily injury, nor on the lesser included charge of simple assault.

      The State subsequently moved to dismiss the charge of assault causing

bodily injury. On March 4, 2014, the court ordered the dismissal of the assault




1
 The jury determined the cost of repair or replacement was more than $1000 but not
more than $10,000.
                                         6


count. The order provides “the charge of assault causing bodily injury . . . is

dismissed with costs assessed to the defendant.”

       Sayler moved for a new trial, claiming in part the criminal mischief verdict

was a compromise verdict.        Defense counsel’s motion generally described

statements purportedly made by jurors that the criminal mischief verdict was the

result of compromise. The prosecutor resisted, noting Iowa Rule of Evidence

5.606 does not allow a juror to testify about statements made during

deliberations.   The court overruled the motion for new trial.         Sayler was

sentenced to a five-year term and was given credit for time served; the sentence

was suspended.

       On appeal, Sayler asserts (1) the trial court erred in denying his motion for

judgment of acquittal because the State failed to meet its burden that his actions

were not justified, (2) he was denied effective assistance of counsel, and (3) the

court erred in taxing costs on a dismissed charge.

II. Scope and Standards of Review.

       We review sufficiency-of-the-evidence claims for a correction of errors at

law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

       Claims of ineffective assistance of counsel, however, which arise from the

Sixth Amendment to the United States Constitution, are reviewed de novo. State

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

       Because statutory construction is involved, we review the assessment of

costs in the order dismissing a charge for errors of law. See State v. Dudley, 766

N.W.2d 606, 624 (Iowa 2009).
                                         7


III. Discussion.

       A. Sufficiency of the evidence.       “A person is justified in the use of

reasonable force when the person reasonably believes that such force is

necessary to defend oneself . . . from any imminent use of unlawful force.” Iowa

Code § 704.3. When a defendant raises justification as a defense, the State is

required to prove the absence of justification. State v. Shanahan, 712 N.W.2d

121, 134 (Iowa 2006). Sayler contends there is not sufficient evidence of the

absence of justification.

       In assessing the sufficiency of the evidence, we are obliged to view the

record in a light most favorable to the State. State v. Showens, 845 N.W.2d 436,

439-40 (Iowa 2014). “We will uphold a verdict if substantial record evidence

supports it.” Id. (citation and internal quotation marks omitted). “If the evidence

could convince a rational trier of fact the defendant is guilty of the charged crime

beyond a reasonable doubt, it is substantial.” Shanahan, 712 N.W.2d at 134.

       Whether the defendant acted without justification was a fact question for

the jury to decide. See Iowa R. Crim. P. 2.21(2); State v. Badgett, 167 N.W.2d

680, 683 (Iowa 1969).       “[T]he jury is at liberty to believe or disbelieve the

testimony of witnesses as it chooses and give such weight to the evidence as in

its judgment the evidence was entitled to receive.” State v. Blair, 347 N.W.2d

416, 420 (Iowa 1984); accord Shanahan, 712 N.W.2d at 135. “The function of

the jury is to weigh the evidence and ‘place credibility where it belongs.’”

Shanahan, 712 N.W.2d at 135.

       We conclude the State presented sufficient evidence that Sayler’s actions

were without justification, and thus, there is substantial evidence to sustain the
                                        8


conviction. From the evidence presented, the jury could have found the State

proved any of the following: Sayler “started or continued the incident which

resulted in injury,” “an alternative course of action was available to” Sayler,

Sayler “did not believe he was in imminent danger of death or injury and the use

of force was not necessary to save him,” or Sayler “did not have reasonable

grounds for the belief” he was in imminent danger. When the Whitneys first

addressed Sayler on the road, Sayler walked away from them—continuing

toward the Whitneys’ house, rather than away from their property and toward his

own home. The country road on which the encounter occurred was adjacent to

open area over which Sayler could have walked to his home. From Sayler’s own

testimony the jury could have determined he did not believe he was in imminent

danger of death or injury or that such a belief was unreasonable.         There is

substantial evidence rebutting Sayler’s justification claim to sustain the

conviction.

      B. Effective assistance of counsel.     We ordinarily preserve ineffective-

assistance-of-counsel claims for postconviction-relief proceedings, particularly if

the challenged actions of counsel implicate trial tactics or strategy that might be

explained in a fully developed record. Clay, 824 N.W.2d at 494. We will resolve

such claims on appeal only when the record is adequate. Id.

              1. Claim of juror misconduct. Sayler complains that trial counsel

provided only hearsay statements from jurors that the verdict was a compromise,

which was a breach of an essential duty.

      Our supreme court has recently explained:
                                         9


       Ineffective assistance of counsel constitutes deficient performance
       by counsel resulting in prejudice, with performance being measured
       against an objective standard of reasonableness, under prevailing
       professional norms. Not every claim of ineffective assistance, even
       a meritorious one, requires reversal of a criminal conviction. To
       prevail on a claim of ineffective assistance of counsel, a claimant
       must satisfy the Strickland [v. Washington, 466 U.S. 668, 687
       (1984)], test by showing (1) counsel failed to perform an essential
       duty; and (2) prejudice resulted. Unless a defendant makes both
       showings, it cannot be said that the conviction resulted from a
       breakdown in the adversary process that renders the result
       unreliable.

Id. at 494-95 (alterations, citations, and internal quotation marks omitted). We

presume counsel performed competently. Id. at 495. We deny the claim if the

defendant fails to establish either prong. See id. at 495-96.

       Here, Sayler contends trial counsel should have presented affidavits from

jurors rather than hearsay and “had trial counsel supplied the court with

something other than mere hearsay . . . it is very likely the court would not have

denied Sayler’s motion for a new trial.” But, evidence purported to show juror

misconduct “must comply with Iowa Rule of Evidence 5.606(b).” State v. Blair,

798 N.W.2d 322, 327 (Iowa Ct. App. 2011).            Under that rule, jurors are

“incompetent to testify as to any matter or statement occurring in the course of

deliberation.” Id. Because juror affidavits would not have been proper evidence

to support Sayler’s claim of jury misconduct, counsel did not breach an essential

duty in not submitting such affidavits. See State v. Brubaker, 805 N.W.2d 164,

171 (Iowa 2011) (“We will not find counsel incompetent for failing to pursue a

meritless issue.”).

              2. Failure to request an additional instruction. Sayler also contends

counsel failed to request an additional instruction outlining exceptions to the
                                        10

alternative-course-of-action requirement of his justification defense. See Iowa

Crim. Jury Instruction No. 400.10 (informing jury that the defendant need not

pursue an alternative course of action “[i]f the alternative course of action

involved a risk to [his] life or safety, and [he] reasonably believed that”).

However, Sayler must prove prejudice by a preponderance of the evidence.

Clay, 824 N.W.2d at 496. “‘In determining whether this standard has been met,

we must consider the totality of the evidence, what factual findings would have

been affected by counsel’s [asserted] errors, and whether the effect was

pervasive or isolated and trivial.’” Id. (quoting State v. Graves, 668 N.W.2d 860,

882–83 (Iowa 2003)).     “Counsel’s unprofessional errors resulting in the mere

impairment of presenting the defense is not sufficiently prejudicial.” Id. Sayler

was not impaired in presenting his defense, and we conclude it is not more likely

that an altered outcome would have occurred had the additional instruction been

given. Sayler has failed to establish his ineffectiveness claims.

       C. Assessed costs on dismissed charge.          Iowa Code section 815.13

provides in pertinent part “fees and costs are recoverable by the county or city

from the defendant unless the defendant is found not guilty or the action is

dismissed.” The assault charge was dismissed here. “[I]t is elementary that a

winning party does not pay court costs.”       Dudley, 766 N.W.2d at 624.     We

therefore vacate the March 4, 2014 order dismissing the charge of assault

causing bodily injury and remand with instructions that the district court enter a

corrected order, assessing no costs with respect to the dismissed charge.

       CONVICTION       AFFIRMED;      DISMISSAL      ORDER         VACATED   AND

REMANDED WITH DIRECTIONS.
