              IN THE SUPREME COURT OF IOWA
                               No. 09–0195

                            Filed April 29, 2011

STATE OF IOWA,

      Appellee,
vs.

RONALD RAY MURRAY, JR.,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Benton County, Robert E.

Sosalla, Judge.



      On further review, defendant contends the district court erred by

giving jury instructions on both general and specific intent when the

crimes charged only required proof of specific intent.      DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

AFFIRMED.



      Mark   C.    Smith,   State   Appellate   Defender   and   Dennis   D.

Hendrickson, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant

Attorney General, David C. Thompson, County Attorney, and Anthony H.

Janney, Assistant County Attorney, for appellee.
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HECHT, Justice.

      Defendant was convicted of second-degree robbery and second-

degree theft.    He appeals, contending the district court erred by

instructing the jury on both specific and general intent when he was

charged only with crimes requiring proof of specific intent. The court of

appeals affirmed, and on further review we also affirm.

      I. Background Facts and Proceedings.

      A jury could have found the following facts from the evidence

presented at trial.   At about noon on November 19, 2007, Ronald

Murray, Jr., walked into a bank in Keystone, Iowa, with a gun. He wore

a blue jacket with a white hood tied down tight around his face.        He

waved the gun and told the teller to give him all the money in the drawer

or a bomb would go off in the restaurant nearby. The teller gave him the

money, and Murray left. Several people who knew Murray saw him in

the vicinity of the bank near the time of the robbery wearing a blue jacket

with a white hood. Upon learning of the robbery, one of them reported

Murray’s address to the police, who located Murray early that afternoon.

A white hooded sweatshirt, a blue jacket, a soft-air pistol, two bank

money bands, and cash were found in his car.

      Murray was ultimately charged with robbery in the second degree,

theft in the second degree, and threats. After a jury trial, Murray was

acquitted of the threats charge, but was convicted of both second-degree

robbery and second-degree theft.

      Murray appealed his conviction, arguing the district court

erroneously instructed the jury on both general and specific intent,

though he was charged with only specific intent crimes. We transferred

the case to the court of appeals, which concluded Murray was not
                                     3

prejudiced by the jury instructions and affirmed his conviction.        We

granted Murray’s application for further review.

      II. Scope of Review.

      We review alleged errors in jury instructions for correction of errors

at law. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Errors in jury

instructions are presumed prejudicial unless “the record affirmatively

establishes there was no prejudice.” State v. Hanes, 790 N.W.2d 545,

551 (Iowa 2010). We do not consider an erroneous jury instruction in

isolation, but look at the jury instructions as a whole. State v. Fintel,

689 N.W.2d 95, 104 (Iowa 2004).

      III. Discussion.

      The jury received the following relevant instructions.
                           INSTRUCTION NO. 16
            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 accident. You may, but are
      not required to, conclude a person intends the natural
      results of his acts.

                          INSTRUCTION NO. 17
            “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 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 acts.

                        INSTRUCTION NO. 18
           The State must prove all of the following elements of
      Robbery In The Second Degree:

      1.    On or about the 19th day of November, 2007, the
            defendant had the specific intent to commit a theft.
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      2.    In carrying out his intention or to assist him in
            escaping from the scene, with or without the stolen
            property, the defendant:

            a. Committed an assault on [the bank tellers].

            b. Threatened [the bank tellers] with or purposely put
            [the bank tellers] in fear of immediate serious injury.

            If the State has proved all of the elements, the
      defendant is guilty of Robbery In The Second Degree. If the
      State has failed to prove any one of the elements, the
      defendant is not guilty of Robbery In The Second Degree.

                           INSTRUCTION NO. 19
             With regard to Instruction No. 18 an assault occurred
      if a person committed an act which was intended to cause
      pain or injury and/or resulted in physical contact which was
      insulting or offensive and/or placed another in fear of an
      immediate physical contact which would have been painful,
      injurious, insulting or offensive to the other.

      Murray objected to the use of instruction 16 defining general

criminal intent, arguing that all of the charged crimes, as well as all

lesser-included crimes, required proof of specific intent.    The district

court overruled the objection and gave the instruction to the jury. On

appeal, Murray argues the inclusion of instruction 16 rendered the jury

instructions confusing and permitted the jury to find him guilty of the

charged crimes based upon a finding that he possessed only general

intent rather than specific intent. Because we cannot tell which type of

intent the jury relied upon, he argues, we must presume the instruction

was prejudicial and reverse his conviction.

      The State does not dispute that robbery, theft, and threats are

crimes requiring proof of specific intent.    However, the State contends

that because assault, an element of robbery, is a general intent crime, it

was appropriate to include the general intent instruction.

      The type of intent required to sustain an assault conviction has

been the subject of much debate recently. See, e.g., Wyatt v. Iowa Dep’t
                                          5

of Human Servs., 744 N.W.2d 89, 94 (Iowa 2008); State v. Keeton, 710

N.W.2d 531, 533–34 (Iowa 2006). We find it unnecessary to revisit the

issue in this case.         As the State points out, instruction 19—an

instruction to which Murray did not object—misstated the required

elements of assault as set forth in Iowa Code section 708.1 (2007) and

included two options purporting to require only general intent. As the

jury was in fact instructed that it could find Murray committed assault

upon proof of general intent in this case, the State contends it was

therefore appropriate and nonprejudicial to include instruction 16,

defining general intent.      We agree under the circumstances presented

here.

        Instruction 19 allowed the jury to find Murray committed an

assault if he committed an act which was intended to cause pain or

injury, or committed an act which resulted in physical contact which was

insulting or offensive, or committed an act which placed another in fear

of an immediate physical contact which would have been painful,

injurious, insulting or offensive to the other. Two of the three assault

options presented in this instruction did not require proof that Murray

possessed the specific intent to cause the result, but rather required only

proof of a general intent to commit the act which resulted in physical

contact or placed another person in fear.               Although instruction 19

misstated the substance of section 708.1 as it relates to the intent

element of assault crimes, 1 Murray did not object to this instruction at

trial and on appeal concedes that the incorrect instruction is now the law



       1Section 708.1 provides that an assault has been committed when a person does

an act “which is intended to cause pain or injury” or “which is intended to result in
physical contact which will be insulting or offensive,” or “which is intended to place
another in fear of immediate physical contact.” Iowa Code § 708.1(1) and (2).
                                        6

of the case.     See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988).

Given that instruction 19 included general intent options for finding an

assault was committed, we cannot conclude instruction 16, defining

general     intent,   caused   reversible   error   under   the   circumstances

presented here.

         Nevertheless, Murray urges us to adopt the reasoning and result of

State v. Hague, No. 04–1024, 2005 WL 2989705, at *6–7 (Iowa Ct. App.

Nov. 9, 2005), in which the court of appeals concluded jury instructions

on both general and specific intent were confusing and justified a new

trial. Although unpublished court of appeals decisions do not constitute

controlling legal authority for our court, Iowa Court Rule 6.904(2)(c), we

have considered the decision and find its reasoning inapplicable here in

light of the procedural posture of this case. Accordingly, we vacate the

decision of the court of appeals and affirm the judgment of the district

court.

         DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.

         All justices concur except Waterman, Mansfield, and Zager, JJ.,

who take no part.
