                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0051
                            Filed December 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSE AVALOS COVARRUBIAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      A   defendant    appeals    his   conviction   for   second-degree   robbery.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                         2


TABOR, Judge.

       A jury convicted Jose Avalos Covarrubias of robbery in the second degree.

The guilty verdict followed evidence that Avalos Covarrubias tried to steal a car

occupied by Deanna Sargent. On appeal, Avalos Covarrubias claims the State

failed to prove he specifically intended for Sargent to sustain a bodily injury. But

he misconstrues the element. To enhance robbery to second degree under Iowa

Code section 711.3 (2017), the State needed to show Avalos Covarrubias had

specific intent to commit an assault under section 708.1(2) and his act caused

bodily injury under section 708.2(2). Because the State’s proof satisfied that

element of second-degree robbery, we will not disturb the verdict.

       I.     Facts and Prior Proceedings

       On a July evening, Sargent was sitting in her parked car, speaking on her

cell phone. While she was talking to her mother, a stranger—later identified as

Avalos Covarrubias—approached her car, opened the driver’s door, and started

yelling. He told her to get out and give him the keys. Sargent turned off the car

and pulled the keys from the ignition. In a struggle with Avalos Covarrubias over

the keys, Sargent felt pain in her palm. She recalled “the key ripped the skin off

my hand.”

       After Sargent relinquished the keys, Avalos Covarrubias tried to grab the

cell phone from her hand.1 When he was unsuccessful, he threw the car keys back




1
 In his testimony, Avalos Covarrubias acknowledged approaching Sargent’s car but said
he only wanted to ask, “May I use your phone?”
                                              3


at her and ran away.        Police later determined Avalos Covarrubias was the

assailant.2

        In addition to the bloody scrape on her hand, Sargent reported a painful

“knot” in her palm. An x-ray at urgent care showed no broken bones, and Sargent

treated her wound with antibiotic cream and ibuprofen.

        The State originally charged Avalos Covarrubias with burglary in the first

degree and robbery in the second degree. But the State dismissed the burglary

charge and took only the robbery case to trial. The defense moved for judgment

of acquittal at the conclusion of the State’s evidence and again after Avalos

Covarrubias testified.     Defense counsel alleged “the State has not made a

prima    facie   case    that   there   was       an   intent   to   commit   a   theft   or

that an assault with bodily injury was committed.” Counsel added:

        And the reason I emphasize that element of the assault with bodily
        injury is to distinguish the robbery second from a robbery third. The
        code doesn’t give much direction, but the jury instructions that we
        would propose contain the element of the State requiring to show not
        just an assault but an assault that caused an injury . . . .

Counsel did not contend the State had to prove her client intended to cause the

bodily injury. The court denied the motions, finding the State’s evidence generated

a jury question. The jury returned a guilty verdict on robbery in the second degree.

See Iowa Code § 711.1, 711.3. Avalos Covarrubias appeals, challenging the

sufficiency of the evidence to support the verdict.




2
 In the struggle, Avalos Covarrubias dropped his Social Security card and a credit card,
both bearing his name. Sargent identified him through a matching photograph, which is
how police officers found and charged him.
                                          4


      II.      Scope and Standard of Review

      We review the district court’s denial of a motion for judgment of acquittal for

correction of errors at law. State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010).

The verdict must be supported by substantial evidence. Id. Substantial evidence

means enough proof for a rational trier of fact to find the defendant guilty beyond

a reasonable doubt. Id. For sufficiency challenges, we view the evidence in the

light most favorable to the verdict and draw all reasonable inferences from the

entire body of proof. State v. Schlitter, 811 N.W.2d 380, 389 (Iowa 2016). The

inferences must be fair and rise above suspicion, speculation, or conjecture. Id.

      III.     Merits

      Avalos Covarrubias raises a single, narrow issue: did the prosecution prove

beyond a reasonable doubt that he had the intent to commit an assault which

caused bodily injury? Revisiting the struggle over the car keys, he contends the

scrape on Deanna hand “was caused unintentionally.”

      Several jury instructions help us evaluate the defense argument. We start

with the marshalling instruction for robbery in the second degree. The State had

to prove:

             1. On or about the 15th day of July, 2017, the Defendant had
      the specific intent to commit a theft.
             2. To carry out that intention or to assist him in escaping from
      the scene, with or without stolen property, the defendant committed
      an assault causing bodily injury to Deanna Sargent.

      The court defined bodily injury for the jurors as “physical pain, illness, or any

impairment of physical condition.” See State v. McKee, 312 N.W.2d 907, 913

(Iowa 1981).

      The court also instructed the jury,
                                           5


                An assault is committed when a person does an act which is
       intended to cause pain or injury to another person; or any act which
       is intended to result in physical contact which will be insulting or
       offensive or any act which is intended to place another in fear of
       immediate physical contact which will be painful, injurious, insulting
       or offensive to another person, when coupled with the apparent
       ability to do the act.

And critical to the element challenged on appeal, the jury received the proper intent

instruction.

       “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 a person 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.

       Avalos Covarrubias contends the evidence “did not establish that [he] had

the requisite specific intent for assault causing bodily injury” because “there was

insufficient evidence to show that [he] specifically intended for Deanna to sustain

an injury.” He does not challenge the State’s proof of his specific intent to commit

the underlying assault. Nor does he challenge the evidence of his specific intent

to commit theft.

       To counter the defense argument, the State points out Avalos Covarrubias

cites no case law for the proposition that to commit an assault causing bodily injury

a defendant must have “specific intent for both the assault and the bodily injury.”

The State acknowledges Iowa precedent establishes specific intent as an element

of assault under section 708.1. But the State emphasizes,

       Beyond that, section 708.2 only requires specific intent in one
       circumstance. See Iowa Code § 708.2(1) (“A person who commits
       an assault, as defined in section 708.1, with the intent to inflict a
       serious injury upon another, is guilty of an aggravated
                                           6


         misdemeanor.” . . . ). The remaining alternatives under 708.2 do not
         require specific intent. See Iowa Code §§ 708.2(2)–(6).

We agree with the State’s interpretation.

         The legislature amended the robbery chapter in 2016.              Since that

amendment, when instructing on second-degree robbery, district courts must

include the applicable alternatives of serious, aggravated, or felonious assault—

under Iowa Code section 708.2, subsections 1 through 5—to distinguish the

offense from third-degree robbery. See State v. Ortiz, 905 N.W.2d 174, 182 (Iowa

2017).    Here, the court instructed on assault causing bodily injury, a serious

misdemeanor under section 708.2(2), as the enhancing element.               Unlike the

specific intent language in section 708.2(1), section 708.2(2) includes no

requirement that the person who specifically intends to commit an assault also

specifically intend to cause bodily injury. These adjacent provisions show the

legislature knew how to use language to add a second layer of specific intent, but

did not do so for the bodily-injury alternative. See Irving v. Emp’t Appeal Bd., 883

N.W.2d 179, 194 (Iowa 2016) (noting importance of difference in adjacent statutory

language).

         Consistent with this interpretation, the Iowa Supreme Court recently set out

the elements of assault causing bodily injury. State v. Benson, 919 N.W.2d 237,

240 (Iowa 2018). Those elements did not include an intent to commit bodily injury:

         To convict Benson of assault causing bodily injury, the State had to
         prove beyond a reasonable doubt that Benson committed an act
         “intended to cause pain or injury to, or which [was] intended to result
         in physical contact which [was] insulting or offensive to [Z.B.],
         coupled with the apparent ability to execute the act,” Iowa Code
         § 708.1(2)(a), and the act caused “bodily injury” to Z.B., id. §
         708.2(2).
                                          7

Id. Rather, the supreme court viewed section 708.2(2) as requiring specific intent

to commit an assault—which caused bodily injury. Id.

       Our substantial-evidence analysis begins with those elements of assault

causing bodily injury. On appeal, Avalos Covarrubias features Sargent’s testimony

that during their struggle he gripped the key fob, and her injury occurred because

she grabbed the jagged keys. He insists her injury was “unintentional” because

the keys caused the injury when they “were pulled from her hand.” But describing

the incident in passive voice does not shield Avalos Covarrubias from liability.

       Based on Sargent’s testimony, the jury could have reasonably found facts

to prove the elements of assault causing bodily injury. This evidence could support

an inference of intent “to cause pain or injury to, or which is intended to result in

physical contact which will be insulting or offensive to another, coupled with the

apparent ability to execute the act.” See Iowa Code § 708.1(2)(a). Or alternatively,

this evidence could support an inference Avalos Covarrubias intended to place

Sargent in fear of immediate physical contact that would be painful, injurious,

insulting, or offensive, coupled with the apparent ability to execute the act. See id.

§ 708.1(2)(b); see also State v. Keeton, 710 N.W.2d 531, 534 (Iowa 2006)

(upholding robbery conviction where defendant was trying to leave the store and

clerk struggled to wrest the cash from his grip). As mentioned above, Avalos

Covarrubias does not directly contest his intent to commit an assault.

       Sargent also testified the assault caused her pain and left her with a scraped

palm. From this testimony, the jury could reasonably find she suffered a bodily

injury. See State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997). Taking the evidence

in the light most favorable to the State and applying all reasonable inferences, the
                                         8


verdict is supported by substantial evidence that Avalos Covarrubias committed

an assault causing bodily injury. The district court properly denied his motions for

judgment of acquittal.

      AFFIRMED.
