                    IN THE COURT OF APPEALS OF IOWA

                                     No. 12-2167
                                 Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM J. MOEHN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Michael G.

Dietrich, District Associate Judge.



       William Moehn appeals from judgment and sentences imposed upon his

convictions   of   aggravated     domestic    abuse     and   aggravated   assault.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED FOR

RESENTENCING.



       Mark C. Smith, State Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Patrick C. Jackson, County Attorney, and Justin Stonebrook, Assistant

County Attorney, for appellee.



       Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.

          William Moehn appeals from judgment and sentences imposed upon his

convictions of aggravated domestic abuse and aggravated assault. He contends

trial counsel was ineffective in failing to request a jury instruction defining specific

intent.    He also contends the district court considered an improper factor in

sentencing. We reject the ineffective-assistance-of-counsel claim, but vacate the

sentences and remand for resentencing.

          I. Background Facts and Proceedings.

          William Moehn and Kelli Moehn had been married for twenty-seven years

when, on April 13, 2012, Kelli went to their storage garage. With the assistance

of Darrin Schwind, the owner of a local garage door company, Kelli changed the

locking code of the garage door. Before Kelli left the area, William arrived and

attempted to open the storage garage. When his code did not work, he chased

Kelli to her van. Kelli was in her vehicle but was not able to lock the door.

William reached in and punched her and shook her. He then grabbed the bag

Kelli was carrying, which she was using as a purse. Schwind told William “to

knock it off and [William] told [Schwind] to shut the fuck up or I’m going to knock

you out also.” Schwind pulled out his cell phone to call 9-1-1 and William ran

back to his own car. Kelli yelled: “Stop, stop, don’t take that. I need that. Stop.”

Schwind moved to stand in front of William’s car to keep him from leaving. Kelli,

too, stood in front of William’s car.

          William revved the engine of his car and “lurched toward” the two, braked,

and advanced again. William’s car came in contact with Kelli and came “within

an inch” of Schwind. Schwind jumped out of the way towards the passenger side
                                         3


of the vehicle to avoid being struck.     Kelli moved to the driver’s side and—

through the still open driver’s side door—attempted to grab her bag. William had

his hand on the door. William “stomped on the gas, floored it, and spun out of

the alley and turned right” down the street. The door hit Kelli, causing her to roll

out into the middle of the street.

       As a result of this incident William Moehn was charged with aggravated

domestic abuse (against Kelli), in violation of Iowa Code sections 708.2A(2)(c)

and 236.2 (2011), and with aggravated assault (against Schwind), in violation of

sections 708.1 and 708.2(3).

       At trial, William testified in his own defense. He denied punching Kelli

when they struggled over her bag. He testified he “[g]ot the purse and ran to my

car,” and that it was his intent to “go home and see if there was any money in it.”

               Q. Well, were you—there was testimony that you were
       revving the engine and lurching the car at your wife and at Mr.
       Schwind. Is that accurate? A. I moved forward a little bit, but I
       didn’t move very much, just get them to move. And they moved.
               Q. Were you trying to do anything other than pass by them
       and leave the scene? A. No, I wasn’t.
               ....
               Q. Did you—Did you deliberately try to push the door open
       and run into her? A. No.
               Q. Could you explain exactly what happened then? A. She
       was hanging on to my door frame. My window was open. She was
       trying to reach in and get the purse that was sitting on my lap. And
       I moved it over to the passenger seat so she couldn’t get it. And
       then she ran out in front of the car and she—he moved and I went
       driving off. And she was still hanging on to my car door.
               Q. Did you ask her to let go? A. Yeah. I said I’m leaving,
       you better let go. And she didn’t let go of the car.
               Q. So if I understand correctly, she hung on to your car door
       and fell off of your car door as you were leaving? A. Yes.
               Q. You did not open your car door and strike her with your
       car door? A. No, I didn’t.
               Q. If she had gotten off the car and allowed you to close the
       door, would you have left without her getting hurt? A. Yes.
                                             4


              Q. At any point did you intend to strike Mr. Schwind with the
       car? A. No.
              Q. Did he present—How much difficulty did he present to
       you when—in being in your way? A. Not much. When I started
       moving up, he moved out of the way.
              Q. Did you intend in anything you did to injure Kelli Moehn?
       A. No. I didn’t intend to do nothing to her.
              Q. And she got her purse back— A. Yeah.
              Q. —later at home? A. Yeah, at home. Yes.
              ....
              Q. Now, what are your thoughts when—when you were in
       motion and Kelli fell off the door? A. I was hoping she didn’t get
       hurt, heading home to see if there was any money in the bag.

       On cross examination, the prosecutor asked, “So your intent was to

threaten them with that car to get them to move?” William responded, “No. But

my intentions was [sic] to leave and they wouldn’t—they were standing in front of

my car, so I’m leaving, move.”

       The jury found William Moehn guilty as charged and he now appeals.

       II. Ineffective assistance of counsel.

       Moehn contends his trial counsel was ineffective for failing to request a

jury instruction defining specific intent.

       The right to assistance of counsel under the Sixth Amendment to the

United States Constitution and article I, section 10 of the Iowa Constitution is the

right to “effective” assistance of counsel. State v. Ondayog, 722 N.W.2d 778,

784 (Iowa 2006). We review constitutional claims de novo. Id. at 783.

       “To establish a claim of ineffective assistance of counsel, the defendant

must prove by a preponderance of the evidence: (1) that trial counsel failed to

perform an essential duty, and (2) that prejudice resulted from this failure.” State

v. Fountain, 786 N.W.2d 260, 265-66 (Iowa 2010). “To establish prejudice, the

defendant must demonstrate the ‘reasonable probability that, but for counsel’s
                                         5


unprofessional errors, the result of the proceeding would have been different.’”

State v. Lane, 743 N.W.2d 178, 183 (Iowa 2007) (quoting Strickland v.

Washington, 466 U.S. 668, 694 (1984)). The ineffectiveness claim fails if the

defendant is unable to prove either element of this test. Fountain, 786 N.W.2d at

266.

       The jury received the following instructions.

                                 Instruction No. 12
              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. 13
               The State must prove all of the following elements of the
       crime of Aggravated Domestic Abuse Assault (Count I):
               1. On or about the 13th day of April, 2012, the defendant did
       an act which was intended to cause pain or injury to Kelli S. Moehn
       or which was intended to result in physical contact which was
       insulting or offensive to Kelli S. Moehn or which was intended to
       place Kelli S. Moehn in fear of immediate physical contact which
       would have been painful, injurious, insulting, or offensive to her.
               2. The defendant had the apparent ability to do the act.
               3. The defendant used or displayed a dangerous weapon in
       connection with the assault.
               4. The act occurred between family or household members.
               If the State has proved all of these numbered elements, the
       defendant is guilty of Aggravated Domestic Abuse Assault If the
       State has proved only elements 1, 2, and 3, then the defendant is
       guilty of Aggravated Assault. If the State has proved only elements
       1, 2, and 4, the defendant is guilty of Simple Domestic Abuse
       Assault. If the State has proved only elements 1 and 2, the
       defendant is guilty of Simple Assault. If the State has failed to
       prove either element 1 or 2, the defendant is not guilty.

                               Instruction No. 14
             The State must prove all of the following elements of the
       crime of Aggravated Assault (Count II):
             1. On or about the 13th day of April, 2012, the defendant did
       an act which was intended to cause pain or injury to Darrin W.
                                         6


      Schwind or which was intended to result in physical contact which
      was insulting or offensive to Darrin W. Schwind or which was
      intended to place Darrin W. Schwind in fear of immediate physical
      contact which would have been painful, injurious, insulting, or
      offensive to him.
             2. The defendant had the apparent ability to do the act.
             3. The defendant used or displayed a dangerous weapon in
      connection with the assault.
             If the State has proved all of these numbered elements, the
      defendant is guilty of Aggravated Assault. If the State has proved
      only elements 1 and 2, then the defendant is guilty of Simple
      Assault. If the State has failed to prove either element 1 or 2, the
      defendant not guilty.

                                   Instruction No. 15
              The definitions of certain terms used in these instructions are
      as follows:
                                       ASSAULT
              Concerning Instruction Nos. 13 and 14, an “Assault” is
      committed when a person has the apparent ability to do an act and
      does an act to another person which is meant to cause pain or
      injury; result in physical contact which will be insulting or offensive;
      or place another person in fear of immediate physical contact which
      will be painful, injurious, insulting, or offensive.
              ....
                              DANGEROUS WEAPON
              A “dangerous weapon” is any device or instrument designed
      primarily for use in inflicting death or injury, . . . [or] any sort of
      instrument or devise which is actually used in such a way as to
      indicate the user intended to inflict death or serious injury, and
      when so used is capable of inflicting death.

      Jury instructions are read together, not piecemeal. See State v. Bennett,

503 N.W.2d 42, 45 (Iowa Ct. App. 1993).

      The jury instructions did not include Iowa Criminal Jury Instruction 200.2,

which provides:

             “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] [she] 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
                                            7


         defendant’s specific intent. You may, but are not required to,
         conclude a person intends the natural results of [his] [her] acts.

         In Fountain, the defendant was charged with domestic abuse assault

causing bodily injury. 786 N.W.2d at 262. On appeal, the defendant contended

his counsel was ineffective in failing to request a specific intent instruction,

arguing that with a specific intent instruction the jury may have found that he did

not intend to make any insulting or offensive physical contact with his then

girlfriend. Id. The supreme court concluded that defense counsel breached an

essential duty in failing to request a specific intent instruction because his

“attorney should have been aware of the case law declaring that assault includes

an element of specific intent.” Id. at 266.

         But because opening and closing arguments were not reported,1 the

Fountain court concluded the record was inadequate to determine whether

defense counsel’s strategy was adequate or prejudicial.              Id. at 267.     The

supreme court observed:

                 After reviewing the facts of this case and the evidence
         presented, we conclude only trial strategy could explain counsel’s
         failure to request a specific intent instruction, as specific intent is a
         higher burden for the state to prove. It appears to be undisputed
         that Fountain and [his girlfriend] had consensual sex twice on the
         night in question, and it was not until the third sexual encounter that
         an assault was alleged; however, it is unclear whether the
         prosecution was alleging that the assault was incidental to the third
         sexual encounter or whether the assault was alleged to be a
         separate act unrelated to the sexual encounter. If the assault was
         alleged to be incidental to the sexual encounter a specific intent
         instruction may have aided Fountain’s defense. On the other hand,
         if an assault separate from the sex was alleged and the defense
         was simply that it did not occur, the distinction between a general
         intent instruction and a specific intent instruction may not have
         aided Fountain. If the defense strategy is to deny that any

1
    We are not similarly hamstrung.
                                         8


       assaultive contact occurred, the individual elements of assault
       become unimportant.

Id. at 266-67 (emphasis added).

       Here, as in Fountain, defense counsel failed to request a specific intent

instruction, which is an element of both assault charges. In failing to request a

specific intent instruction, pursuant to Fountain, we must conclude trial counsel

breached an essential duty. See id. at 266.

       But we conclude there is no probability the result of the trial would have

been different even if the jury had been instructed that “‘[s]pecific 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.” In both marshalling instructions, the jury

was instructed the State must prove Moehn did an act “intended to cause pain or

injury.” The jury was also instructed the State must prove that Moehn “used or

displayed a dangerous weapon in connection with the assault.” As the court

instructed, the dangerous weapon was Moehn’s car driven toward Kelli and

Schwind and “actually used in such a way as to indicate the user intended to

inflict death or serious injury.” The jury necessarily found Moehn “intended to

inflict death or serious injury” in the use of his vehicle. A separate instruction on

specific intent would not have changed the outcome of the trial.

       In Fountain, where consensual sexual relations had preceded the alleged

assaultive conduct, the defendant successfully argued that with a specific intent

instruction the jury may have found that he did not intend to make any insulting or

offensive physical contact with his then girlfriend. 786 N.W.2d at 262. The case

before us is not analogous.
                                            9


       In closing arguments, defense counsel noted that the jury instructions

required the State to prove that a dangerous weapon was used in connection

with the assault. He also noted the jury instructions defined a dangerous weapon

as “an instrument or device which is actually used in such a way as to indicate

the user intended to inflict death or serious injury.” Counsel argued William did

not intend to inflict a serious injury on Kelli with his car:

       He’s trying to get by two people. He’s going a little, he’s stopping,
       he’s going [a] little, he’s stopping. Anybody who has been to an
       Iowa football game or a concert or a big event has been in a
       situation where you’re trying to inch your car along and get where
       you’re going. There are people walking around and you’re doing
       the best you can to advance your car, get where you’re going and
       not hit anybody.
               And that’s exactly what Bill Moehn was doing. And he did it
       to—well, with respect to Darrin Schwind, that—didn’t hit him.

Concerning the charge related to Kelli, defense counsel argued “we’re back to

the question, did Bill use the car in such a way as to inflict serious injury on

Kelli?” The jury found he had.

       Moehn argues on appeal he was prejudiced because the instructions

given reduced the State’s burden of proof. The State, however, argues that the

instructions given adequately informed the jury that they were required to find the

defendant acted with specific intent in that they were told that he must have done

       an act which was intended to cause pain or injury to [each asserted
       victim] or which was intend to result in physical contact which was
       insulting to [each asserted victim] or which was intend to place
       [each asserted victim] in fear of immediate physical contact which
       would have been painful, injurious, insulting, or offensive.

The State contends the jury was thus informed the defendant had to have acted

“with a specific purpose in mind,” which is the essence of the specific intent

instruction. Though the wiser course is to include the specific intent instruction,
                                         10


because the question presented to the jury was whether Moehn used his vehicle

in a manner intended to inflict serious injury or death, we agree that Moehn has

suffered no prejudice by the omission and his ineffectiveness claim thus fails.

       III. Sentencing.

       Moehn also argues the sentencing court considered an inappropriate

matter at sentencing.

       A claim of an illegal sentence is not subject to traditional error preservation

rules. See State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003).

              The imposition of a sentence is generally within the
       discretion of the trial court and will be disturbed only upon a
       showing of abuse of discretion. An abuse of discretion will be
       found only when the discretion is exercised on grounds which are
       clearly untenable or to an extent clearly unreasonable. The use of
       an impermissible sentencing factor is viewed as an abuse of
       discretion and requires resentencing.

State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994) (citations omitted).

       A “trial court must carefully avoid any suggestions in its comments at the

sentencing stage that it was taking into account the fact defendant had not

pleaded guilty but had put the prosecution to its proof.” State v. Nichols, 247

N.W.2d 249, 256 (Iowa 1976); accord State v. Knight, 701 N.W.2d 83, 87 (Iowa

2005) (but noting “this prohibition does not preclude a sentencing court from

finding a lack of remorse based on facts other than the defendant’s failure to

plead guilty”).

       At Moehn’s sentencing, the district court stated, “The reasons for my

sentence, first of all, you didn’t accept your responsibility for your action. You

went to trial, and I felt you absolutely had no defense.         None.”    The State

concedes the sentencing court considered an improper factor. We are required
                                     11

to vacate the sentence and remand for resentencing. See Nichols, 247 N.W.2d

at 256.

      We affirm Moehn’s convictions and remand for resentencing.

      CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED

FOR RESENTENCING.
