                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1609
                              Filed August 5, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL JAN MENTON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Joseph M.

Moothart, District Associate Judge.



       Michael Menton appeals his conviction for animal torture, in violation of

Iowa Code section 717B.3A (2013). AFFIRMED.



       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, Linda Fangman, County Attorney, and Israel Kodiaga, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, P.J.

       Michael Menton appeals his conviction for animal torture, in violation of

Iowa Code section 717B.3A(3)(a)(1) (2013).           He claims trial counsel was

ineffective for failing to raise the issue of whether the criminal statute under which

he was convicted was void for vagueness. He also raises a sufficiency-of-the-

evidence claim, arguing the State failed to prove he had the “depraved or sadistic

intent” to inflict severe pain on the animal, as well as that the dog actually

suffered severe physical pain. He further asserts counsel was ineffective for

failing to object to the jury instructions, which did not define “severe physical

pain,” as well as failing to object to claimed prosecutorial misconduct during the

State’s closing argument.

       We conclude Iowa Code section 717B.3A is not void for vagueness,

sufficient evidence supported Menton’s conviction, and he did not show his

counsel was ineffective.       Consequently, we affirm Menton’s conviction and

sentence for animal torture.

I. Factual and Procedural Background

       Based upon the record, the jury could have found the following facts:

Menton, his sister Hope Menton (Hope), her boyfriend, her teenage son, and her

teenage daughter, M.M., were all living in the same residence at the time of the

incident. At approximately 6:30 on the morning of May 28, 2014, Hope and

Menton were arguing. This woke M.M., who then went downstairs. She and

Menton also began to yell at each other, which woke everyone in the house and
                                          3


resulted in a physical altercation in which Menton shoved M.M.                Menton

appeared intoxicated.1

       Menton has a pit bull dog named Crystal. After Menton attacked M.M., the

dog bit Menton’s wrist, which drew blood but otherwise did not result in serious

injury. M.M. testified the dog did this to protect her. After the dog bit Menton,

she went back to her dog bed, and Menton followed her. The closest witness

testified Menton “kicked and punched”—while M.M. stated Menton “kicked and

stomped”—the dog for approximately two minutes, until a family friend pulled

Menton off of the dog.

       M.M. then took the dog outside to get her away from Menton. Menton

followed, grabbing a knife with a six inch blade from the kitchen sink and

declared: “If she makes me bleed, I’ll make her bleed.” Menton went outside and

attacked the dog with the knife. M.M. testified Menton attempted to stab the dog

five to six times but only cut her twice, because he was intoxicated.2 Menton was

eventually pulled off of the dog.      The police were called while Menton was

stabbing the dog.3

       Evidence established the dog suffered two long, vertical slashes on her

right front leg, which were not attended to by a veterinarian; however, the

attending animal control officer applied an antibiotic. Hope testified the wounds

were shallow, but after the incident, the dog was walking slowly and favoring her



1
  Others were also present in the house that morning.
2
  M.M. stated she believed he was intoxicated because he was staggering and otherwise
had trouble walking. The other testimony during trial supported the conclusion Menton
was very intoxicated during this incident.
3
  Once the police arrived, Menton attempted to flee. When asked to stop and show his
hands, Menton did not do so, and the officer tased him before placing him under arrest.
                                        4


right side. The bleeding from her leg wounds stopped the day she was stabbed,

but she continued to limp for days afterward. Additionally, several witnesses

testified to the dog’s personality and behavior prior to May 28; specifically, she

was noted to be a sweet dog who did not engage in aggressive behavior.

       As a result of this incident, the State charged Menton on June 5, 2014,

with animal torture, in violation of Iowa Code section 717B.3A(3)(a)(1). A jury

trial was held from August 12 to 15, 2014, in which Menton asserted the defense

of intoxication. Menton moved for a judgment of acquittal, asserting a sufficiency

argument, which the district court denied. The jury returned a guilty verdict. On

September 24, 2014, the district court sentenced Menton to a term of

incarceration not to exceed two years and renewed the no-contact order in favor

of M.M. and the dog. Menton appeals his conviction.

II. Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.       State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). A defendant may raise this claim on

direct appeal if the record is adequate to address the claim, and we may either

rule on the merits or preserve the claim for possible postconviction proceedings.

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.

       We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view the

record in the light most favorable to the non-moving party—here, the State—and

make all legitimate inferences and presumptions that may be reasonably
                                         5

deduced from the evidence. Id. If substantial evidence supports the verdict, we

will affirm. Id. Evidence is substantial if it would convince a reasonable trier of

fact the defendant is guilty beyond a reasonable doubt. Id.

III. Vagueness

       Menton first argues trial counsel was ineffective for failing to assert Iowa

Code section 717B.3A(1) is void for vagueness, as applied to Menton. He claims

the meaning of the phrase “severe physical pain” is unclear, particularly given

that pain is a subjective experience. Additionally, Menton asserts the legislature

failed to define the offense so a reasonable person would understand the

prohibited conduct by using the subjective phrase “severe physical pain” as

opposed to a “serious injury,” which is an objective phrase. Consequently, he

claims, a conviction achieved pursuant to this statute is unconstitutional, and

counsel was ineffective for failing to assert this argument.

       Courts presume statutes are constitutional and “a challenger must prove

the unconstitutionality of the statute beyond a reasonable doubt.”         State v.

Heinrichs, 845 N.W.2d 450, 455 (Iowa Ct. App. 2013). The challenger must

“negate every reasonable basis to sustain” the statute.        Id. Additionally, the

vagueness doctrine is defined in the following manner:

       First, a statute cannot be so vague that it does not give persons of
       ordinary understanding fair notice that certain conduct is prohibited.
       Second, due process requires that statutes provide those clothed
       with authority sufficient guidance to prevent the exercise of power
       in an arbitrary or discriminatory fashion. Third, a statute cannot
       sweep so broadly as to prohibit substantial amounts of
       constitutionally-protected activities, such as speech protected under
       the First Amendment.
                                            6

Id. at 454. When determining whether a statute is unconstitutionally vague, we

must focus on whether “the defendant’s conduct clearly falls within the

proscription of the statute under any construction,” and whether defendant had

“fair warning [his actions] fell within the statutory prohibition.” State v. Musser,

721 N.W.2d 734, 745 (Iowa 2006).

       Iowa Code section 717B.3A(1) states: “A person is guilty of animal torture,

regardless of whether the person is the owner of the animal, if the person inflicts

upon the animal severe physical pain with a depraved or sadistic intent to cause

prolonged suffering or death.”

       Here, Menton takes issue with the severe-physical-pain element contained

in this statute. Menton is correct that the code does not define severe physical

pain and that pain is a subjective experience, especially as must be interpreted

as between a dog victim and a human jury. However, these words have an

ordinary meaning, and a reasonable person would understand the connotation.

A New York court stated it well when it noted: “[T]he term ‘extreme physical pain’

uses ordinary terms to express ideas that find adequate interpretation in

everyday usage and understanding. The term ‘extreme physical pain’ is not so

vague that men of common intelligence must necessarily guess at its meaning

and differ as to its application.”4 See People v. Knowles, 709 N.Y.S.2d 916,

919–20 (N.Y. 2000) (internal citations omitted).

       Given its “everyday usage and understanding,” we conclude Iowa Code

section 717B.3(1) is not void for vagueness.             A reasonable person would

4
  We also find it persuasive that Congress declined to define “severe physical pain” in
the code section describing torture, though it defined “severe mental pain and suffering.”
See 18 U.S.C. § 2340(1), (2) (2015).
                                          7


understand the meaning of severe physical pain; consequently, Menton could

interpret from this phrase that his conduct of punching, stomping, kicking and

stabbing the dog would cause the animal to suffer severe physical pain. See

Webster’s Third New Int’l Dictionary 2081 (2003) (defining the word severe as

“inflicting physical discomfort or hardship,” “inflicting pain or distress,” and “of a

great degree or an undesirable or harmful extent”); see also Iowa Code

§ 717B.3A(3)(a)(1); Musser, 721 N.W.2d at 745. Therefore, we do not agree

with Menton’s claim the statute is void for vagueness. As a result, trial counsel

did not breach an essential duty in not pursuing this vagueness argument, and

Menton’s ineffective-assistance claim fails. See State v. Greene, 592 N.W.2d 24,

29 (Iowa 1999) (noting counsel does not breach an essential duty when he

declines to assert a meritless argument).

IV. Sufficiency of the Evidence

       Menton next claims the district court erred in denying his motion for

judgment of acquittal because the State failed to meet its burden showing

Menton satisfied the elements of the crime of animal torture. Specifically, relying

on the vagueness argument discussed above, he asserts the evidence was

insufficient to show the dog suffered severe physical pain, because “severe

physical pain” necessarily should accompany “severe physical injury.” He claims

a serious injury must be established, but herethe prosecution failed to show the

dog suffered a serious injury. Alternatively, he frames this as an ineffective-

assistance-of-counsel argument. He further argues he did not have the intent

necessary to commit the crime of animal torture, that is, he did not injure the dog

with the depraved or sadistic intent to cause prolonged suffering or death.
                                        8


      To commit the crime of animal torture, the defendant must act with a

depraved or sadistic intent so as to cause the animal prolonged suffering or

death. See Iowa Code § 717B.3A(3)(a)(1). The jury was instructed:

              Depraved intent or sadistic intent means more than an intent
      to cause prolonged suffering or death.
              Depraved intent means acting with a purpose that was:
              1. Perverted or
              2. Heinous/shockingly atrocious (extreme wickedness,
      brutality or cruelty) or
              3. Heinous/odious (hateful) or
              4. Morally horrendous/moral depravity (shameful wickedness
      or an extreme departure from ordinary good morals as to be
      shocking to the moral sense of the community or an act of
      vileness).
              Sadistic intent means intent to derive pleasure from inflicting
      physical or mental pain upon another person or animal.

      Given this standard, substantial evidence supports the jury’s finding that

Menton acted with the requisite intent necessary to commit this crime. Evidence

showed Menton stomped, kicked, and punched the dog while she was lying in a

corner on her bed.    The assault lasted for approximately two minutes until

Menton was pulled off of the dog, and the dog was taken outside. Menton then

grabbed a knife and went after the dog again, stabbing her twice following his

declaration that he wanted to make her bleed. Viewing the evidence in the light

most favorable to the verdict, a reasonable person could conclude beyond a

reasonable doubt that Menton had the “depraved or sadistic intent to cause

prolonged suffering or death.” See Iowa Code § 717B.3A(1); see also Quinn,

691 N.W.2d at 407.

      Notwithstanding, the State asserts, and we agree, that Menton failed to

preserve error with regard to the physical-pain argument, given he did not raise

this issue in his motion for judgment of acquittal. See Lamasters v. State, 821
                                         9


N.W.2d 856, 864 (Iowa 2012) (holding the issue must be presented to the district

court, which must then rule on it before error can be preserved). But because

Menton also frames this argument as an ineffective-assistance claim, we will

address it in that framework.

       As noted above, we have concluded section 717B.3A is not void for

vagueness. Moreover, “severe physical pain” are common words that are easily

understood; consequently, they are not vague to a point a reasonable person

would not be aware that he was committing a crime when attacking an animal

causing an animal severe physical pain. See Heinrichs, 845 N.W.2d at 455.

       Furthermore, substantial evidence supports the jury’s conclusion the dog

suffered such pain. Menton beat her for approximately two minutes then stabbed

her with a knife, and for days afterward, by her behavior, she appeared to be

suffering from her injuries. Though the lacerations were not particularly deep,

she continued to bleed and limp long after she was stabbed.           Viewing this

evidence in the light most favorable to the verdict, it is reasonable to conclude

the injuries Menton inflicted on the dog caused severe physical pain.

Consequently, trial counsel had no duty to assert a meritless objection, and

Menton’s claim fails.   See Greene, 592 N.W.2d at 29 (noting counsel is not

ineffective for declining to assert a meritless argument).

V. Ineffective Assistance

       Menton’s final argument asserts trial counsel was ineffective in two

additional respects. First, that counsel failed to object to the jury instructions,

which did not define “severe physical pain.” His second argument claims counsel

breached an essential duty when not objecting to statements made by the
                                         10


prosecutor   during    closing   arguments,    which    constituted   prosecutorial

misconduct. He asserts he was prejudiced by counsel’s failures and that he

should be granted a new trial.

      With respect to the jury-instruction argument, we find no breach of duty.

As noted above, “severe physical pain” is a phrase of common meaning and

easily within the average person’s understanding. See Knowles, 709 N.Y.S.2d at

919–20.   Consequently, trial counsel had no duty to object to the lack of a

definitional jury instruction, and Menton’s ineffective-assistance claim fails. See

Greene, 592 N.W.2d at 29 (noting counsel is not ineffective for failing to assert a

meritless argument).

      Regarding Menton’s prosecutorial-misconduct claim, he complains of the

following statement made by the State:

              What do we know about the dog? What would the dog tell
      us if she were able to come up these steps and sit on this chair and
      talk to you? What would the dog say? She’ll say, she was just
      man’s best friend. I just tried to—he tried to make the dog look like
      a pit bull, like a dangerous vicious creature. Tried to say she was a
      pit bull and that pit bulls bite. But what do we know about the dog
      from the testimony we heard here? All we know is that she was—
      she was loving and that’s what the dog would say, she’d say, I just
      love to cuddle. I could cuddle all of us here right now and just be
      happy. I just love being a dog and being happy and being innocent.
              She may tell you that I didn’t like violence, say, I don’t like
      violence and I only intervened when my master was being violent to
      my family. I only intervened to say, please, stop it. You’re causing
      a big ruckus in the morning. We’re just waking up. I was just
      intervening because I was worried he was being aggressive to
      someone who is family; that I was trying to ask him to reason and
      to be a reasonable person. That’s all. And that the only way,
      maybe, he could understand my asking was to grab his attention. I
      didn’t bite him, I just grabbed his attention. Hey, please stop this
      nonsense. And then he—he stabbed me. The dog’s character was
      on record. She didn’t do nothing, we are told. She never had a
      history of attacking people. They repeatedly told us she was just
                                         11


       loving, sweet. She was a sweet dog. She was man’s best friend.
       Now, her innocence is gone.

       We do not agree with Menton’s claim these statements amount to

prosecutorial misconduct.      While the State cannot “make inflammatory or

prejudicial statements regarding a defendant in a criminal action,” he is entitled

some latitude during closing arguments. See State v. Graves, 668 N.W.2d 860,

874 (Iowa 2003).      No one in the courtroom speaks “dog.”          Therefore, the

characterization of what the dog was experiencing through the testimony of the

observing witnesses, could well be sorted out by the jury. Such characterization

by the prosecutor does not rise to an inflammatory statement such that the

prosecutor, “vouch[ed] personally as to a defendant’s guilt or a witness’s

credibility.” See State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983). Moreover,

these statements were based on the record—the State elicited testimony

regarding the dog’s character and behavior prior to the date of the crime. The

testimony was clear on the day of the incident: the dog was attempting to protect

M.M. from Menton’s aggressive conduct.            Arguments based on evidence

presented at trial are permissible. See Graves, 668 N.W.2d at 874. Nor did the

prosecutor express his personal beliefs during closing argument.            See id.

Consequently, the State did not engage in prosecutorial misconduct, and this

claim is without merit. Additionally, trial counsel is not ineffective if he fails to

assert a meritless argument; therefore, Menton’s ineffective-assistance claim he

asserts on appeal fails. See Greene, 592 N.W.2d at 29.
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      For these reasons, we affirm Menton’s conviction and sentence to animal

torture, in violation of Iowa Code section 717B.3A(3)(a)(1).

      AFFIRMED.
