                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1223
                                 Filed July 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RONALD E. VOWELS JR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Lee County, John G. Linn, Judge.



      Ronald E. Vowels Jr. appeals his convictions for willful injury causing

serious injury and going armed with intent. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

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

General, Michael P. Short, County Attorney, and Clinton R. Boddicker, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                          2



BOWER, J.

       Ronald E. Vowels Jr. appeals his convictions for willful injury causing

serious injury and going armed with intent. He claims there was insufficient

evidence to support his convictions and his counsel was ineffective. We find

sufficient evidence to support Vowels’s convictions and preserve the issue of

ineffective assistance of counsel for postconviction relief.

I.     Background Facts and Proceedings

       On the evening of February 24, 2013, Ronald Vowels participated in a

parking lot fight involving multiple parties. The only fact everyone agrees upon is

the end result: Vowels and his friend, Eric Mueller, were flat on the ground, and

Troy James left the area with a potentially life-threatening wound to his face.

       Earlier that evening, James arrived at Tena’s Tap in Fort Madison at the

request of a friend. Upon arrival, James testified he consumed one beer and one

shot. Also present at the bar was Vowels, who may have held a grudge against

James.1

       After approximately thirty minutes in the bar, James exited to the parking

lot to smoke a cigarette. The bartender, Mary Morrical, testified Vowels followed

James with a look on his face that led Morrical to believe Vowels was looking for

trouble. Outside the bar, Vowels confronted James while Mueller circled around

the other side of a nearby truck, effectively trapping James in place. The fight

ensued, with James knocking both Vowels and Mueller unconscious with one



1
  At trial, James testified he heard Vowels was upset with him because of allegations
James had “snitched off” Vowels’s parents in an earlier criminal action. Vowels
disagreed and testified he had no ill feelings towards James.
                                        3



punch each. Bleeding profusely, James walked back into the bar and went home

to tend to his wound. Unable to stop the bleeding at home, he went to a local

hospital where doctors determined eighteen stitches were required to close the

wound.    Because of an abnormally low platelet count, possibly caused by

extensive alcohol consumption, doctors testified James’s wound would not have

stopped bleeding on its own and could have cost him his life.

      Following the fight Morrical called 911. Officer William Kester arrived at

approximately 11:43 p.m. and found Vowels and Mueller lying unconscious on

the ground. Officer Kester determined the amount of blood on the ground could

not have come from the visible wounds of these two men. Another responding

officer searched the area for more blood and located a knife under a nearby

truck. The knife matched one Vowels admitted to owning. Vowels testified he

normally kept the knife in his left front pocket and offered no explanation of how

the knife could have ended up under the truck. During the investigation officers

were made aware of James’s wounds from a report the hospital made to law

enforcement.

      Vowels was interviewed by Officer Dave Doyle on February 27, 2013, and

initially informed the officer he had no recollection of the events before he was

knocked out. Vowels later admitted the knife was his and he had it with him on

the night in question. Vowels also told Doyle that he possibly stabbed James.

Vowels later apologized to Officer Doyle and hoped to apologize to James at

some point for what had occurred.
                                           4



       No one saw how James’s injury was sustained. Morrical heard a bar

patron say he was cut with a beer bottle. James did not see who cut his cheek or

how. Vowels claimed at trial to have no knowledge of how James sustained the

injury or how his knife ended up out of his pocket under the truck.

       Vowels was convicted by a jury. Twice he made a motion for judgment of

acquittal, each denied by the district court. The motions challenged “each and

every element of this case,” but specifically focused on the identity of the attacker

and possession of the weapon.          The district court found the State “put on

sufficient evidence on each element of the two crimes” and denied the motions.

Vowels’s trial counsel did not request a proximate cause instruction.

II.    Standard of Review

       Challenges to the sufficiency of the evidence are reviewed for correction

of errors at law. State v. Showens, 845 N.W.2d 436, 439–40 (Iowa 2014). All

evidence is viewed in the light most favorable to the State, including all

reasonable inferences. Id. The verdict will be upheld if substantial evidence in

the record supports it. Id.

III.   Discussion

       A.     Preservation of Error

       The parties disagree on whether error was preserved on Vowels’s claims

concerning the elements of intent and justification. The State contends Vowels

did not present the elements in either of his motions for judgment of acquittal.

Our review is strictly limited to the issues actually presented to the district court at

trial. State v. Moses, 320 N.W.2d 581, 585 (Iowa 1982). We will examine any
                                           5



issues considered by the district court, even if that consideration was “incomplete

or sparse.” Lamasters v. State, 821 N.W.2d 856, 865 (Iowa 2012). Vowels

argued to the district court that there was insufficient evidence on “each and

every element of the case.” Though he went on to focus more specifically on

select elements, we find he presented all elements to the district court, if in a

minimal manner. The district court likewise ruled broadly on “each element of the

two crimes.”        We find this ruling sufficient to preserve error on the issues

presented on appeal.

      B.       Sufficiency of the Evidence

      Vowels claims there is insufficient evidence to convict him of both

charges. He contends that a jury could not conclude he cut James because no

one saw him do so and James was unable to pinpoint when the cut occurred.

Additionally, there was conflicting evidence on whether James was cut with a

bottle or some other object.        Vowels also claims justification for his actions

because James was the aggressor. Additionally, Vowels asserts there is no

evidence he intended to inflict a serious injury on James because Vowels could

not have known James’s low platelet count would put him in mortal danger.

Vowels’s claims on the second charge are nearly identical.

               1.       Willful Injury

      Iowa Code section 708.4 (2013) requires proof of three elements for the

crime of willful injury. The State must prove: “(1) that there was an assault; (2)

with intent to commit serious injury upon another; and (3) serious injury is in fact

inflicted upon another.” State v. Hilpipre, 395 N.W.2d 899, 902 (Iowa Ct. App.
                                            6



1986). It is undisputed this case suffers from a lack of direct proof on these

elements.   However, circumstantial evidence can be sufficient, and in some

cases even superior, to direct proof. Id.

       The evidence is overwhelming that an assault occurred, and we find a jury

could conclude, beyond a reasonable doubt, that Vowels was the assailant. The

evidence showed Vowels, who is left handed, and Mueller followed James out of

the bar and effectively trapped him, leading to the altercation. After the fight,

Vowels was left unconscious on the ground, next to the truck, under which the

knife was located. It is reasonable for a jury to have concluded the knife was in

Vowels’s left hand and was dropped under the truck when Vowels was punched.

The wound to the right side of James’s face resulted. Considering the extensive

and persistent bleeding, we find it hard to conclude James had been cut before

the fight and was standing in the parking lot bleeding profusely when Vowels and

Mueller surrounded him.      Additionally, there is no evidence that James had

suffered any type of injury while in the bar. It is illogical to conclude James had

previously sustained his injury but did not notice it until after the fight. The most

probable scenario is that James sustained his injury during the fight, which

occurred while Vowels was the only person on the proper side of James’s face.

Vowels relied heavily on the fact that law enforcement did not send the knife

away for testing. However, photographs included in the record show what is

likely blood on the blade of the knife. The jury could reasonably conclude the

knife was recently used to stab James in the face, leaving his blood on the knife.

Circumstantial evidence adequately supports a single conclusion: Vowels cut
                                          7



James’s face during the fight.       Lastly, although Vowels initially denied any

involvement, he later acknowledged participating in the assault.

       Sufficient evidence exists on each of the other elements as well. Whether

with a beer bottle or a knife, Vowels inflicted a serious wound to James’s face. A

jury could conclude such an attack was intended to inflict a serious injury upon

James. 2 Though direct evidence of Vowels’s intent is impossible to obtain, the

nature of the attack makes his intent known. He, with another, surrounded and

attacked James without provocation. The initial point of attack was with a sharp

object to James’s face. Presuming Vowels intended the natural results of his

actions, a jury could conclude beyond a reasonable doubt that Vowels intended

to disfigure James or create a substantial risk of death. The result of the attack

created a substantial risk of death. James’s injury was serious, necessitating

surgical intervention and could have caused his death if left untreated. The State

was not required to show that death was likely, only that there was “a real hazard

or danger of death.” State v. Carter, 602 N.W.2d 818, 821 (Iowa 1999). We find

such a danger existed.

       The entirety of Vowels’s challenge to the evidence is an attack on the

credibility of the victim, James.    We decline to revisit or reassess the valid

credibility determinations made by the jury.




2
  A “serious injury” is defined as any bodily injury which causes a substantial risk of
death, permanent disfigurement, or a protracted loss or impairment of bodily function.
Iowa Code § 702.18 (1)(b)(1)–(3).
                                           8



              2.     Going Armed with Intent

       “A person who goes armed with any dangerous weapon with the intent to

use without justification such weapon against the person of another commits a

class ‘D’ felony.” Iowa Code § 708.8 (2013). Vowels claims the State failed to

prove the knife was the instrumentality used to inflict James’s injury.         We

disagree.   As previously discussed, there is ample evidence James’s injury

occurred in the parking lot during the fight. The only instrumentality found in the

vicinity of the fight that could have caused the injury was the knife, which Vowels

admitted to carrying in his left front pocket that night. No explanation was offered

to show how the knife came to be located under the truck, other than the

reasonable inference Vowels removed it to attack James and dropped it when he

was subsequently knocked out. James also testified he did not see Vowels open

the knife; the jury could reasonably believe Vowels exited the bar with the knife

open and ready to use. We find a jury could conclude, beyond a reasonable

doubt, the knife was used in the attack.

              d.     Justification

       Vowels claims the State failed to disprove his defense of justification. We

disagree.

       As reflected in jury instruction 17 in this case, to rebut the defense of

justification, the State needed to prove any one of five elements, including “the

Defendant started or continued the incident which resulted in injury.” See, e.g.,

State v. Mayes, 268 N.W.2d 387, 392–93 (Iowa 1979).             The overwhelming

evidence in this case shows Vowels initiated the confrontation.        He followed
                                            9



James out of the bar and with the help of Mueller, surrounded James. There was

no evidence James started the fight; all credible evidence showed James

retaliated after the initial attack by Vowels. We find the jury could conclude

Vowels was not justified in his actions.

       C.     Ineffective Assistance of Counsel

       Vowels claims his trial counsel was ineffective by failing to request a

proximate cause instruction.     His contention is that James’s life was only in

danger because of his low platelet count and that James’s consumption of

alcohol was the proximate cause of the injury, as opposed to the knife wound.

       When asserting an ineffective-assistance-of-counsel claim on direct

appeal, it is incumbent upon the defendant to establish a record adequate to

address the issue. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). When

the record is insufficient, we will preserve the issue for postconviction relief. See

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Based upon a review of the

record, we are unable to determine the reason Vowels’s trial counsel did not

request the proposed instruction.          Accordingly, we preserve his claim for

postconviction relief.

       AFFIRMED.

       Tabor, J. concurs; Vaitheswaran, P.J., dissents.
                                         10



VAITHESWARAN, P.J. (dissenting)

       I respectfully dissent. I would find insufficient evidence to support the

jury’s findings of guilt.

       Under Count I—willful injury causing serious injury—the jury was

instructed that the State would have to prove the following elements:

               1. On or about the 24th day of February, 2013, the
       Defendant assaulted Troy James by striking the right side of his
       face with a knife.
               2. The Defendant specifically intended to cause a serious
       injury to Troy James.
               3. The Defendant’s act caused Troy James to sustain a
       serious injury.
               4. The Defendant was not acting with justification.

In my view, the record lacks substantial evidence to establish that Vowels was

the person who struck the right side of James’s face with a knife or that Vowels

had the specific intent to cause a serious injury to him.

       No one disputes that James was assaulted. It also was undisputed that a

knife was discovered underneath a truck. The evidence of who owned the knife

was conflicting, with Vowels asserting it did not belong to him and a police officer

who questioned him stating that Vowels admitted it was his. Because we are

obligated to view the evidence in the light most favorable to the State, I agree a

reasonable juror also could have found that the knife belonged to Vowels. See

State v. Lamb, 573 N.W.2d 267, 268 (Iowa 1998).             Based on the officer’s

testimony, a reasonable juror could have found that Vowels had the knife in his

left front pocket at some point.

       That said, a reasonable juror was left to speculate as to when and how the

knife came out of Vowels’s pocket, whether it was the weapon used to slash
                                        11



James, whether Vowels was the person who did the slashing, and how the knife

landed under the truck. James testified that two men approached him. He could

not say which one cut him. Indeed, he did not even see a knife or “anything”

before he was slashed. He simply noticed the two men walking up on either side

of him and reacted by decking both of them. Both fell to the ground and lost

consciousness. At that point, a friend told James he was cut. Because the

potential assailants were out cold, James was not in a position to enlighten

himself on how he came to receive the cut.

       The majority states “[t]he most probable scenario is that James sustained

his injury during the fight, which occurred while Vowels was the only person on

the proper side of James’s face.” In my view, the only way the jury could have

found guilt was by conjecturing that because Vowels owned and possessed the

knife at some point, he must have been the person who committed the crime.

See State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010) (stating evidence that

merely raises suspicion, speculation, or conjecture is insufficient). I believe this

hypothesis does not amount to substantial evidence.          Accordingly, I would

reverse the finding of guilt on the willful injury causing serious injury count and

remand for entry of judgment of acquittal.

       The second count—going armed with intent—required the State to prove

the following elements:

              1. On or about the 24th day of February, 2013, the
       Defendant was armed with a knife.
              2. The knife was a dangerous weapon as defined in
       Instruction No. 22G.
                                       12



            3. The Defendant moved from one point to another while he
      was armed, having the specific intent to use the knife against
      another person.
            4. The Defendant was not acting with justification.

I can discern scant if any evidence to support a finding that Vowels “moved from

one point to another while he was armed, having the specific intent to use the

knife against another person.” I would reverse the finding of guilt on this count

and remand for entry of judgment of acquittal.
