                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1556
                             Filed January 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK WAYNE GEAR,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Lee (North) County, Mary Ann

Brown, Judge.



      Mark Gear appeals his conviction for assault on correctional staff causing

bodily injury. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Linda J. Hines,

Assistant Attorneys General, for appellee.




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



BOWER, Judge.

       Mark Gear appeals his conviction for assault on correctional staff causing

bodily injury claiming the district court erred by prohibiting testimony concerning a

doctor’s past ethics complaints and his trial counsel was ineffective. We affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS

       Gear is an inmate at the Iowa State Penitentiary and was assigned to the

Multiple Care Unit due to his Huntington’s disease.1             Tasha Whalen is a

registered nurse who works at the penitentiary. On the morning of May 24, 2013,

Whalen was administering medications to patients in the unit when Gear refused

to take all but one of his medications. He requested a list of his medications from

Whalen so that he could be more active in his treatment, and became upset

when she declined to give him the list. Whalen testified Gear had been “very

frustrated that week” and had refused to eat his breakfast that morning. In an

attempt to “de-escalate the situation” Whalen sat across the table from Gear and

discussed (for approximately ten minutes) the reasoning behind not allowing

Gear to have the list. During the conversation, Gear demanded to see the doctor

and his voice “started getting louder and he started getting a penetrating stare at

[Whalen], so [she] really started feeling a little threatened.” Whalen rose from the

table and asked Gear to go back to his cell.          Gear did not comply with the

1
        Huntington’s disease results from genetically programmed degeneration
        of brain cells, called neurons, in certain areas of the brain. This
        degeneration causes uncontrolled movements, loss of intellectual
        faculties, and emotional disturbance. . . . As the disease progresses,
        concentration on intellectual tasks becomes increasingly difficult and the
        patient may have difficulty feeding himself or herself and swallowing.
NINDS Huntington’s Disease Information Page, National Institute of Neurological
Disorders and Stroke, http://www.ninds.nih.gov/disorders/huntington/huntington.htm (last
visited Dec. 31, 2015).
                                          3



request. Whalen then asked correctional officer Rudy Perez to escort Gear to his

cell until the unit manager could speak with Gear. Gear complied with Perez’s

request and returned to his cell.

       Whalen continued administering medications to the other inmates in the

unit and, though Gear cursed at her, she assumed the confrontation was

finished.   Gear argued with Perez as Whalen gave medications to another

inmate. At Gear’s request, Perez retrieved Gear’s unfinished breakfast. During

this time, Perez merely closed Gear’s cell door and did not lock it as he had no

key. When Perez returned to Gear’s cell with his breakfast, Gear knocked the

food out of Perez’s hand and ran down the hallway toward Whalen, who had just

exited a cell about ten feet from Gear’s. Whalen testified Gear stated: “You bitch,

don’t you know what I’m doing time for? I’ve killed two cops, or tried to kill two

cops, or something to that effect.” Gear grabbed Whalen by the neck with one

hand and punched her in the face repeatedly with his other hand. Perez testified

he heard Gear call Whalen “a fucking bitch” as he ran toward her.              Perez

wrestled Gear off Whalen and activated the alarm.

       Whalen was treated at a local hospital where she was diagnosed with

multiple contusions, a large hematoma on her face, and lacerations. Ultimately,

Whalen suffered a black eye that caused her eye to swell shut and bruising to

her hand. She missed three days of work due the incident.

       Randy Van Wye, an investigator at the penitentiary, interviewed Whalen

about six days after the incident to obtain “all the facts before [he] talked with Mr.

Gear.” Van Wye interviewed Gear two weeks after the incident. After advising
                                        4



Gear of his Miranda rights, Van Wye asked for Gear’s version of the events.

Gear stated he knew Whalen was a nurse and he intended to hurt her; he knew

what he did was wrong.

      On January 12, 2013, the State charged Gear with assault on correctional

staff causing bodily injury, in violation of Iowa Code sections 708.1(1) and

708.3A(3) (2013). Gear pleaded not guilty and waived speedy trial. Gear filed a

notice of defenses on January 14, stating he would rely on the affirmative

defenses of diminished responsibility and/or intoxication. To substantiate these

defenses, Gear retained two expert witnesses to evaluate him and provide

testimony at trial. A jury trial began on August 18, and the jury returned a guilty

verdict. On September 12, Gear was sentenced to serve an indeterminate term

of imprisonment not to exceed two years to be served consecutively with Gear’s

current sentence. Gear now appeals.

II.   STANDARD OF REVIEW

      We review the court’s evidentiary rulings for an abuse of discretion. State

v. Putman, 848 N.W.2d 1, 8 (Iowa 2014). A district court abuses its discretion

when its decision rests on grounds or on reasons clearly untenable or to an

extent clearly unreasonable. Id. There will be no abuse of discretion found

unless a party has suffered prejudice.      Id.   The district court is given broad

discretion in evidentiary matters, and we will disturb its rulings only upon a

showing of abuse. Id.

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

Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). We look to see whether under the
                                          5



entire record and the totality of the circumstances counsel’s performance was

within the range of normal competency. Id. The inquiry is transformed into an

individualized fact-based analysis. Id.

III.     MERITS

         A.    Exclusion of Ethical Complaints

         Gear claims the district court erred by prohibiting him from cross-

examining the State’s medical witness about past ethical complaints.

         A defendant is given “reasonable latitude” in cross-examining a State’s

witness. State v. Houston, 439 N.W.2d 173, 177 (Iowa 1989). The trial court,

however, still exercises its sound discretion in determining the scope of cross-

examination. Id. “A witness’s credibility is placed in issue when that witness

testifies.” Id. Therefore, a defendant may question the credibility of a State’s

witness by attempting to impeach the witness by proper cross-examination.

State v. Droste, 232 N.W.2d 483, 489 (Iowa 1975); see Iowa Rs. Evid. 5.607,

5.608.    Cross-examination may include impeachment by inquiry into specific

instances of conduct. Iowa Rule of Evidence 5.608(b) allows such inquiries, in

the discretion of the court, if probative of the witness’s truthfulness or

untruthfulness. See Houston, 439 N.W.2d at 177.

         “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Iowa R. Evid. 5.403. We

employ a two-part test to decide whether evidence should be excluded under rule
                                         6



5.403.    See State v. Huston, 825 N.W.2d 531, 537 (Iowa 2013).           First, we

“consider the probative value of the evidence.” Id. Second, we balance the

probative value “against the danger of its prejudicial or wrongful effect upon the

triers of fact.” Id.

         Dr. Stephen Sparks (the medical physician at the penitentiary and Gear’s

treating physician) testified on behalf of the State.       During Gear’s cross-

examination of Sparks, Gear’s attorney asked, have “[y]ou ever had any ethical

complaints filed against you with the Board of Medicine?” The State then asked

to approach the bench, and a discussion was conducted off the record. The

court excused the jury, and the State voir dired Sparks for the purpose of

interposing an objection. During voir dire, Sparks stated he had been disciplined

by the Iowa Medical Board in 1985, 2001, and 2009. In 1985 and 2001, Sparks

was disciplined for substance abuse issues receiving five years’ probation for

each. In 2009, Sparks was placed on two years of probation for creating a

“hostile work environment and abuse [of] patients.” He stated he had an affair

with a nurse and there were allegations he made inappropriate comments to staff

and patients. Sparks completed his probation before trial, but was on probation,

for a short period of time, when he treated Gear. Sparks testified the allegations

made against him did not involve fraud or dishonesty.

         Gear explained he wanted to cross-examine Sparks to establish:

         That during the time of Doctor Sparks’s practice, he had been cited
         several times for excessive use of drugs and alcohol, engaging in a
         pattern of unethical and unprofessional conduct, including making
         inappropriate sexual comments to female co-workers and patients
         on numerous occasions and did engage with sexual relations with
         one or more female patients.
                                         7




Gear believed the questioning would be “relevant to the jury . . . if [Sparks]’s

engaging in certain conduct that is ethically questionable, given his purpose of

caretaking for others, that he should be held to that higher standard. . . . [I]t’s

relevant to how he’s treating his patients, if he’s also engaging in these other

behaviors while treating patients.”

       The court sustained the State’s objection. The court reasoned:

              In this case it would seem to me that in order for the
       probation or complaints made against Doctor Sparks that led to his
       probation to be relevant in this case, first of all, his probationary
       period needed to cover the time that he was treating Mr. Gear.
       Secondly, the topic of his probation must somehow relate to the
       opinions that he’s offering.
              And I think that someone who is alleged to have had
       substance abuse problems, that certainly could be relevant
       because it affects their credibility, it affects their recollection, it
       affects how they view everything; but the evidence here is that the
       matters for which Doctor Sparks was on probation related more to
       moral character than to his ability to provide medical care or at least
       the particular type of medical care that he was giving Mr. Gear
       during the period of time he was on probation.

       On appeal, Gear claims the evidence regarding Sparks’s discipline was

relevant and admissible because the circumstance of his probation may have

impacted Sparks’s bias as a witness.         Gear notes this is an issue of first

impression in Iowa (we agree) so he relies upon cases from outside of Iowa to

support his argument.2 For example, in Cetera v. DiFilippo, the district court

allowed defense counsel to cross-examine an expert medical witness (a

2
  See Richmond v. Longo, 604 A.2d 374, 376–79 (Conn. App. Ct. 1992) (holding that a
party should have been allowed to cross-examine a physician expert with evidence that
his license had been terminated due to his “mishandling” of cases); Creighton v.
Thompson, 639 N.E.2d 234, 239–40 (Ill. App. Ct. 1994) (allowing cross-examination of
an expert witness doctor about restrictions on his medical license (stemming from
inappropriate patient care) since the doctor had offered testimony regarding another
doctor’s failure to exercise an appropriate standard of medical care).
                                           8



physician specializing in internal medicine and infectious diseases) concerning a

reprimand on his medical license. 934 N.E.2d 506, 517 (Ill. App. Ct. 2010). The

reprimand was for the physician’s “failure to recognize the presence of

microhematuria in a patient.” Id. at 520. The plaintiff retained the physician to

opine about another physician’s negligent diagnosis. Id. at 513. In affirming the

district court, the Illinois Court of Appeals reasoned the reprimand was relevant

because it reflected on his “qualifications and had some tendency to lessen his

credibility as an expert.” Id. at 520.

       Here, Gear claims the ethical complaints had probative value because the

complaints affected the credibility of his testimony. We disagree. Unlike the

physician witness in Cetera, Sparks’s ethical complaints do not relate to his

ability to treat or diagnose his patients. Since the ethical complaints dealt with a

decades old substance abuse issue (that did not occur while he was providing

care to Gear) and Sparks’s inappropriate behavior at work—and not his ability to

care for his patients—the evidence was properly excluded by the district court.

The evidence of the ethical complaints would also have been more prejudicial

than probative if submitted to the jury. See Huston, 825 N.W.2d at 537. The

district court did not abuse its discretion.

       B.     Ineffective-Assistance-of-Counsel

       Gear claims his trial counsel was ineffective for failing to properly raise the

issue of whether there was sufficient evidence to prove he had the specific intent

to assault Whalen, and for failing to file a motion for new trial on the basis the

verdict was contrary to the weight of the evidence.
                                          9



         “If an ineffective-assistance-of-counsel claim is raised on direct appeal

from the criminal proceedings, we may decide the record is adequate to decide

the claim or may choose to preserve the claim for postconviction proceedings.”

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).           Upon our review of the

record, we find it adequate to address Gear’s ineffective-assistance-of-counsel

claim.      See id.     An ineffective-assistance-of-counsel claim requires a

demonstration of both ineffective assistance and prejudice. Ledezma v. State,

626 N.W.2d 134, 142 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668,

694 (1984)).      The ineffective-assistance prong requires proof the attorney

performed below the standard demonstrated by a reasonably competent attorney

as compared against prevailing professional norms. Id. The prejudice prong

requires proof that, but for the ineffective assistance, “the result of the proceeding

would have been different.”       Id. (citing Strickland, 466 U.S. at 694).      The

applicant must “show that counsel’s deficient conduct more likely than not altered

the outcome in the case.” Id. (citing Strickland, 466 U.S. at 693). Walls must

prove both the “essential duty” and “prejudice” elements by a preponderance of

the evidence. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).

         Gear’s trial counsel moved for judgment of acquittal at the close of the

State’s case and once more at the close of all the evidence. Gear’s counsel

made a general motion that did not address whether the State had proved the

specific intent element of assault on correctional staff causing bodily injury.

Therefore, Gear claims his counsel was ineffective.        Upon our review of the

record, we are convinced a judgment of acquittal referencing the State’s burden
                                            10



to prove Gear’s specific intent would not have been successful. Gear was not

prejudiced by his trial counsel’s failure to reference the specific intent element of

the charged offense.

         The jury was instructed the offense of assault on correctional staff causing

bodily injury3 requires the State to show:

                 1. On or about May 24, 2013, the defendant committed an
         assault upon Tasha Whalen.
                 2. At the time of the assault, Tasha Whalen was a health
         care provider employed by the Iowa Department of Corrections and
         the defendant knew Ms. Whalen was so employed.
                 3. The defendant had the apparent ability to do the act.
                 4. The defendant’s act caused a bodily injury to Tasha
         Whalen. If the State has proved all of the elements, the defendant
         is guilty of Assault on Correctional Staff Causing Bodily Injury. If
         the State has failed to prove any one of the elements, the
         defendant is not guilty of Assault on Correctional Staff Causing
         Bodily Injury . . . .

         Gear claims the State failed to show on the day of the incident Gear had

the capacity to form the specific intent required, as he was suffering from

Huntington’s disease, which negated the required specific intent.

         The jury received the following instruction4 on diminished responsibility:

                One of the elements the State must prove is that the
         defendant acted with specific intent. The lack of mental capacity to
         form a specific intent is known as “diminished responsibility.”
                Evidence of “diminished responsibility” is permitted only as it
         bears on his capacity to form specific intent.
                “Diminished responsibility” does not mean the defendant
         was insane. A person may be sane and still not have the mental
         capacity to form an intent because of a mental disease or disorder.
                The defendant does not have to prove “diminished
         responsibility;” rather, the burden is on the State to prove the
         defendant was able to, and did, form the specific intent required.

3
    See Iowa Code §§ 708.1(1), 708.3A(3).
4
  See also Anfinson v. State, 758 N.W.2d 496, 502 (Iowa 2008) (defining diminished
responsibility).
                                          11




       Dr. John Fell and Dr. Veronica Lestina served as Gear’s expert witnesses,

and both testified Gear did not have the capacity to form the requisite specific

intent at the time of the assault.      Fell testified Gear’s Huntington’s disease

caused him to have cognitive impairments and mental deficiencies that made him

unable to control his actions.     Lestina agreed with Fell and noted Gear was

acting instinctually at the time of the assault, and due to his borderline intellectual

functioning, complicated by the Huntington’s disease, Gear did not have control

over his actions.

       The State presented the testimony of nurse Whalen and Dr. Sparks. Both

noted they had at least daily interactions with Gear.         Whalen testified Gear

exhibited a few symptoms associated with Huntington’s disease, including

muscle incoordination, chewing and swallowing difficulties, and certain

behavioral symptoms. She also observed Gear was physically and mentally able

to express a desire to take a role in the treatment of his disease including

requesting a list of his medications. Sparks testified Gear was able to take care

of his basic needs like bathing, clothing, and eating. Gear would socialize and

perform work in the unit. Sparks opined even though Gear experienced mood

swings he appeared to be in control of his mental faculties.

       The State also presented the testimony of Randy Van Wye. Van Wye

recounted his interview of Gear.       In the interview, Gear admitted to hitting

Whalen and knowing it was wrong. Gear also stated he hit Whalen out of anger

due to his disagreement with her concerning his medication.
                                         12



       Upon our review, we find the evidence was sufficient for the jury to find

Gear had the specific intent required by Iowa Code sections 708.1(1) and

708.3A(3). Gear has failed to show he was prejudiced by the omission of a

reference to specific intent in his motion for judgment of acquittal because “the

result of the proceeding would [not] have been different.” Ledezma, 626 N.W.2d

at 142 (citing Strickland, 466 U.S. at 694).

       Similarly, Gear has not demonstrated he was prejudiced by his counsel’s

failure to file a motion for new trial because the jury verdict was not “contrary to

the law or evidence.” Iowa R. Crim. P. 2.24(2)(b)(6). A verdict that is contrary to

evidence means it is “contrary to the weight of the evidence.” Nguyen v. State,

707 N.W.2d 317, 327 (Iowa 2005). The “weight of the evidence” involves “a

determination by the trier of fact that a greater amount of credible evidence

supports one side of an issue or cause than the other.”        Id. For the above

reasoning, the “greater amount of credible evidence” supports the jury verdict.

Gear was not prejudiced by his counsel’s failure to file a motion for new trial

because the district court would have denied the motion. We find Gear did not

receive ineffective assistance of counsel and affirm Gear’s conviction.

       AFFIRMED.
