                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1595
                              Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NOEL BENDER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Plymouth County, Patrick H. Tott,

Judge.



      Noel Bender appeals his judgment and sentence for domestic abuse

assault. REVERSED AND REMANDED.



      Priscilla E. Forsyth, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       Noel Bender appeals his judgment and sentence for domestic abuse

assault.   He contends his attorney was ineffective in failing to object to an

“intimate relationship” alternative in the marshalling instruction.

I.     Background Facts and Proceedings

       Bender met a woman and moved in with her approximately two months

later. Bender indisputably assaulted the woman.

       The State charged Bender with domestic abuse assault, third or

subsequent offense while being a habitual felon. See Iowa Code §§ 708.2A(1),

708.2A(4), 902.8, 902.9 (2015). The district court instructed the jury that the

State would have to prove the assault “occurred between persons who were in

an ‘intimate relationship’ . . . or occurred between persons who were household

members who resided together at the time of the assault.” The jury returned a

general verdict of guilty. Bender appealed.

II.    Jury Instruction-Intimate Relationship

       Iowa Code chapter 708 sets forth enhanced penalties for assaults that are

“domestic abuse as defined in section 236.2, subsection 2, paragraph ‘a’, ‘b’, ‘c’,

or ‘d’.” Id. § 708.2A(1). The statute does not authorize enhanced penalties for

assaults that are domestic abuse as defined in section 236.2(2)(e). Subsection

(e) refers to assaults “between persons who are in an intimate relationship or

have been in an intimate relationship” and states “[a] person may be involved in

an intimate relationship with more than one person at a time.”                  Id.

§ 236.2(2)(e)(1), (2).
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       Bender only disputes the “domestic abuse” element of domestic abuse

assault. In his view, the district court “erroneously instructed the jury that the

definition of domestic abuse includes intimate relationships as defined in Iowa

Code [s]ection 236.2(2)(e)(1) and (2).” Because his attorney failed to object to

the instruction on this basis, he raises the issue under an ineffective-assistance-

of-counsel rubric.

       To succeed, Bender must show (1) the breach of an essential duty and (2)

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We find the

record adequate to address this claim. See State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012).

       The State essentially concedes Bender’s attorney breached an essential

duty in failing to object to the jury instruction that erroneously allowed the State to

prove domestic abuse based on an intimate relationship. See State v. Perkins,

875 N.W.2d 190, 193-94 (Iowa Ct. App. 2015) (concluding defendant’s guilty plea

to domestic abuse lacked a factual basis where defendant “admitted that he had

been in an intimate relationship” with the victim, but “specifically denied living

with [her]”); see also State v. Ondayog, 722 N.W.2d 778, 785 (Iowa 2006)

(“[F]ailure to recognize an erroneous instruction and preserve error breaches an

essential duty.”).    The State focuses on the prejudice prong of Bender’s

ineffective-assistance-of-counsel claim, arguing Bender “cannot carry his burden

to prove the reasonable probability of a different outcome.”            See State v.

Maxwell, 743 N.W.2d 185, 197 (Iowa 2008) (“When the submission of a

superfluous jury instruction does not give rise to a reasonable probability the

outcome of the proceeding would have been different had counsel not erred, in
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the context of an ineffective-assistance-of-counsel claim, no prejudice results.”).

We are not persuaded by the State’s argument.

       As discussed, the district court instructed the jury on two alternative

means of establishing a “domestic” relationship: (1) the persons were in an

“intimate relationship” or (2) the persons were “household members.” The State

presented evidence supporting both alternatives and highlighted both in its

opening statement and closing argument. Bender conceded he had sex with the

woman and, while characterizing the sex as “casual,” focused most of his

testimony on the “household member” alternative. He pointed to several facts

cutting against a finding of household membership, including the absence of his

name on the lease or utility bills and the minimal number of personal items in the

woman’s home. In light of this record, jurors very well could have found guilt

under the less contentious but erroneously-included “intimate relationship”

alternative rather than the heavily-disputed “household member” alternative.

Jurors were instructed they need not agree on a theory as long as they were

unanimous on the verdict. We cannot tell from the general verdict form which

alternative they chose. On our de novo review, we conclude Bender proved a

reasonable probability of a different outcome had counsel objected to the

inclusion of the “intimate relationship” alternative.

       A recent opinion with a similar issue does not alter our conclusion. See

State v. Thorndike, 860 N.W.2d 316 (Iowa 2015). In Thorndike, the court was

asked to decide whether counsel was ineffective in failing to object to a jury

instruction containing a superfluous alternative.       Id. at 322-23.   The court

concluded the defendant failed to establish prejudice because (1) “the alternative
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. . . did not contradict another instruction given . . . or misstate the law,” (2) the

record was “devoid of any evidence that would have allowed the jury to find” guilt

on the superfluous ground, and (3) the State made no argument that the

superfluous alternative was applicable. Id.

           Thorndike is distinguishable. Unlike the jury instruction in that case, the

jury instruction here admittedly misstated the law. See Maxwell, 743 N.W.2d at

197 (“Under the facts contained in this record, we do not believe the aiding and

abetting instruction misstated [the defendant’s] culpability in a material way.”).

And, as noted, the State presented evidence in support of the erroneously-

included “intimate relationship” alternative. Indeed, the State used those precise

terms in eliciting testimony from the woman who was assaulted. Finally, the

State invoked the erroneously-included alternative in arguing for a finding of guilt.

See State v. Simms, No. 15-0274, 2016 WL 4543496, at *4 (Iowa Ct. App. Aug.

31, 2016) (distinguishing Thorndike on the ground the record was “laden” with

references to four alternative means of committing the crime and “the prosecutor

stated, ‘There is evidence of all four and the State believes that you could find all

four’”).

           Because Bender proved his ineffective-assistance-of-counsel claim, we

reverse and remand for a new trial.

           REVERSED AND REMANDED.
