                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-2078
                             Filed March 11, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEREMY MICHAEL NEWSOM,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Henry County, John M. Wright,

Judge.



      A criminal defendant appeals from his conviction for assault causing bodily

injury. AFFIRMED.



      John W. Pilkington of Nidey, Erdahl, Tindel & Fisher, P.L.C., Marengo, for

appellant

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Darin R. Stater, County Attorney, and Edward G. Harvey and Erin

Stensvaag, Assistant County Attorneys, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
                                           2



MULLINS, J.

          Jeremy Newsom appeals from his conviction for assault causing bodily

injury.    At trial, he asserted affirmative defenses of self-defense, defense of

others, and resisting a forcible felony.       The trial court, finding insufficient

evidence to support an instruction for resisting a forcible felony, declined to give

the instruction. Newsom contends this was in error. Newsom also contends the

trial court erred in refusing to give further instruction when the jury asked a

question during deliberations. We affirm.

I.        BACKGROUND FACTS AND PROCEEDINGS.

          Newsom’s girlfriend, Nicole Bresnahan, testified that on the day in

question, she was standing outside their home in the front yard. Newsom and

the couple’s children were inside. Joey and Crystal Marcos drove by the house

in a car. They began yelling profanities at Bresnahan from the car. Shortly

thereafter a group of people began walking down the street toward Newsom’s

and Bresnahan’s home including Joey and Crystal Marcos, Kairon McClenan,

Mitch Genck, Rebecca Dominquez, and Autumn Dorothy. Bresnahan went back

inside the house and informed Newsom what was happening. Newsom went

outside.

          McClenan later testified the group went to the house to entice or persuade

Newsom to fight. The men had taken their shirts off and were standing in the

street, yelling for Newsom to come out to the street and fight them. Newsom told

them to leave his property; they refused.          Newsom remained in his yard

throughout the incident. Newsom told Bresnahan to call police, which she did.
                                         3



       More people began approaching the home.           Newsom and Bresnahan

testified one of these people, later identified as Diego Alvarez, said that if

Newsom went inside, he would follow Newsom and shoot Newsom, Bresnahan,

and their children.1 Newsom picked up a baseball bat from the porch. Newsom

testified McClenan stepped onto Newsom’s yard with one arm behind his back.

Newsom swung the bat at McClenan and hit him on the left side of his jaw.

Newsom testified he was trying to hit McClenan’s arm, he believed McClenan

had a weapon, he believed his actions were necessary to protect himself from

imminent assault, and he had no alternative course of action.

       Dorothy testified McClenan never stepped on Newsom’s property, but that

Newsom repeatedly told the crowd to come onto his property. McClenan testified

Genck and Newsom had a disagreement and Genck wanted to settle it by

fighting Newsom. Genck testified he was standing in the street, arguing with

Newsom and urging him to put down the bat and “come at him like a man.”

According to Genck, Newsom threatened him, saying, “[C]ome in my yard; I’m

going to kill you; I’m going to hit you.” Crystal Marcos testified McClenan was

looking away from Newsom when Newsom hit him with the bat and that

McClenan would not have seen the bat about to hit him. McClenan did not take

any kind of defensive motion to block the bat or move his head. McClenan was

not carrying any weapon.

       Shortly after Newsom hit McClenan, police officers arrived on the scene,

and the crowd dispersed. The officers arrested Newsom. They charged several


1
 However, Genck testified Alvarez did not appear on the scene until after Newsom hit
McClenan.
                                          4



other participants with disorderly conduct. The charging officer testified Newsom

changed his explanation several times for why he hit McClenan. At one time he

explained McClenan had stepped onto his yard.             At another time, he said

McClenan “flinched” at him. At another time, he said McClenan threatened him

but did not clarify what McClenan had said. Still another time, Newsom said

McClenan had swung an arm at him.

       At trial Newsom asserted an affirmative defense of justification and

requested jury instructions on self-defense and defense of others, pursuant to

Iowa Code section 704.1 and .3 (2011), and justification for resisting a forcible

felony, pursuant to section 704.7. The district court found there was insufficient

evidence to support the proposed resisting forcible felony instruction and

declined to provide it but did provide instructions on the defense of self and

others.

       During deliberations, the jury submitted a question to the court. Finding

the instructions already stated the necessary law, the court declined to provide

further instruction and directed the jury to reread the instructions.       Following

deliberation, the jury found Newsom guilty of assault causing bodily injury, in

violation of Iowa Code sections 708.1 and 708.2(2).

       Newsom appeals contending the trial court abused its discretion in giving

the jury instructions. First, he argues the district court erred in not instructing the

jury regarding the justification for resisting a forcible felony under Iowa Code

section 704.7.    He claims this instruction differs from the other justification

instructions because it does not require the defendant to retreat or seek an
                                         5



alternative course of action. Second, he claims the court erred in not responding

to the jury question.

II.    STANDARD OF REVIEW.

       We review challenges to jury instructions for correction of errors at law.

State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013). “We review the related claim that

the trial court should have given the defendant’s requested instructions for an

abuse of discretion.” Id. An abuse of discretion occurs when the court’s decision

is based on a ground or reason that is clearly untenable or when the court’s

discretion is exercised to a clearly unreasonable degree. State v. Becker, 818

N.W.2d 135, 140 (Iowa 2012).

III.   ANALYSIS.

       A.     Resisting Forcible Felony Instruction.

       “A trial court must instruct on all material issues raised by the evidence.”

State v. Broughton, 425 N.W.2d 48, 51 (Iowa 1988). “In order to obtain such an

instruction, the defendant must produce substantial evidence to support it.” Id. at

52. “‘Substantial’ evidence means evidence which could convince a rational trier

of fact that the defendant has established his affirmative defense.” Id. Error in

giving or refusing to give a particular jury instruction does not merit reversal

unless it results in prejudice to the defendant. State v. Kellogg, 542 N.W.2d 514,

516 (Iowa 1996). “When the error is not of constitutional magnitude, the test of

prejudice is whether it sufficiently appears that the rights of the complaining party

have been injuriously affected or that the party has suffered a miscarriage of

justice.” Frei, 831 N.W.2d at 73-74.
                                         6



       In order to find Newsom guilty of assault causing bodily injury, the jury had

to find each of the following:

       1. . . . [T]he Defendant did an act which was meant to cause pain
          or injury to Kairon McClenan.
       2. The Defendant had the apparent ability to do the act.
       3. Defendant’s act caused a bodily injury to Kairon McClenan.
       4. The Defendant was not acting with justification.

Newsom complains the trial court should have given the jury instruction on

justification for resisting a forcible felony.   He contends the instruction for

resisting a forcible felony differs from the defense-of-self and -others instructions

because it does not require the defendant to retreat or seek an alternative course

of action. Newsom asserts the forcible felony that was being committed at the

time he hit McClenan was McClenan’s felonious assault on him.

       The jury instruction for defense of self provided:

              A person is justified in using reasonable force if he
       reasonably believes the force is necessary to defend himself from
       any imminent use of unlawful force.
              If the State has proved any one of the following elements,
       then the defendant was not justified.
              1. The Defendant started or continued the incident
                  which resulted in injury.
              2. An alternative course of action was available to
                  the Defendant.
              3. The Defendant did not believe he was in imminent
                  danger of death or injury and the use of force was
                  not necessary to save him.
              4. The Defendant did not have reasonable grounds
                  for the belief.
              5. The force used by the Defendant was
                  unreasonable.

       The instruction for defense of others provided:

             A person is justified in using reasonable force if he
       reasonably believes the force is necessary to defend another from
       any imminent use of unlawful force.
                                         7



               If the State has proved any one of the following elements,
        then the defendant was not justified:
               1. The defendant knew the person he helped had
                   started or continued the incident, or the defendant
                   himself started or continued the incident which
                   resulted in injury.
               2. An alternative course of action was available to
                   terminate defendant.
               3. The defendant did not believe the person he
                   helped was in imminent danger of death or injury
                   and the use of force was not necessary to save
                   the person.
               4. The defendant did not have reasonable grounds
                   for the belief.
               5. The force used by the defendant was
                   unreasonable.

        Newsom’s proposed jury instruction for resisting a forcible felony was Iowa

criminal jury instruction 400.6:

               A person is justified in using reasonable force against
        someone committing a forcible felony to prevent completion of the
        felony if [he]she] knows a (name of forcible felony) is being
        committed.
               If the State has proved any one of the following elements,
        the defendant was not justified:
               1. The defendant knew (name of forcible felony) was
                   not being committed by (name of victim).
               2. The defendant did not believe the force was
                   necessary to prevent the (name of forcible felony).
               3. The defendant did not have reasonable grounds
                   for the belief.
               4. The force used by the defendant was
                   unreasonable.

Thus, instruction 400.6 omits the requirement that the defendant have no other

available course of action. The jury instructions, however, are not themselves

laws.    In determining whether the law for resisting forcible felony differs

appreciably from defense of self or others, we must be guided by the statutes

and case law.
                                          8



       The resisting forcible felony defense is set out in Iowa Code section 704.7,

which provides, “A person who knows that a forcible felony is being perpetrated

is justified in using, against the perpetrator, reasonable force to prevent the

completion of that felony.” The state legislature enacted section 704.7 in 1976

and revised it in 1977, but Iowa courts have addressed it only once since that

time. In an unpublished disposition, the court of appeals found a trial attorney

was not ineffective for not raising a forcible felony affirmative defense where the

facts did not support the assertion that the victim was committing a forcible

felony. O’Shea v. State, No. 05-0331, 2006 WL 623593 *3 (Iowa Ct. App. Mar

15, 2006). In that case the court did not address whether the absence of an

alternative course of action was an element of proof capable of defeating the

affirmative defense of resisting forcible felony.

       Several cases dealing with resisting a forcible felony predate the 1976

enactment.    In State v. Harris, 222 N.W.2d 462, 467 (Iowa 1974), the Iowa

supreme court approved a trial court’s refusal to give a resisting forcible felony

instruction where a defendant shot and killed a man she believed was going to

assault her. The supreme court’s discussion emphasized that the “foundation of

both the doctrines of self-defense and prevention of felony” is “the necessity of

imminent danger of loss of life or great bodily harm.” Harris, 222 N.W.2d at 467.

Section 704.7 reflects this concept by its applicability only to forcible felonies.

Yet, the court in Harris found the defendant’s request for a justification instruction

was overly broad where it stated only that “some felony” was about to be
                                           9



committed, rather than a felony involving “imminent danger of loss of life or great

bodily harm.” Id.

       In State v. Shannon, 243 N.W. 507, 510 (Iowa 1932), the court dealt with

a statute preceding the current section 704.7 regarding protection of property

against felonious acts. Defense of property is not at issue here. The court also

dealt with defense of property against felonious acts in State v. Metcalfe, 212

N.W. 382, 382 (Iowa 1927). Thus, we acknowledge there is very little case law

to aid in our interpretation of section 704.7.

       The State points out an issue with the temporal operation of the defense

of resisting a forcible felony.    Section 704.7 provides a defense where the

defendant knows a forcible felony “is being perpetrated,” which apparently does

not allow the defendant to prevent a forcible felony before it happens. However,

in Harris, the court stated there was a justification defense when a person

observed “an atrocious, violent felony about to be or being committed.” Harris,

222 N.W.2d at 466 (emphasis added). O’Shea, the only case to interpret section

704.7, involved an ongoing felony already being committed. See O’Shea, 2006

WL 623593 at *1.

       Nonetheless, if the only difference between the instructions is, as Newsom

asserts, that defense of self and others require that there not be an alternate

course of action for the defendant to take, we view that argument as not viable

here because of the undisputed fact that Newsom never left his property and

because of the following jury instruction:

       If the defendant was on his property which he was legally
       occupying and the alternative course of action was such that he
                                         10



      reasonably believed he had to retreat or leave his position to avoid
      the confrontation, he was not required to do so and he could repel
      force with reasonable force.

Therefore, within the facts of this case, under none of the asserted justification

defenses was Newsom required to retreat or leave his position to avoid the

confrontation.

      Additionally, because the asserted felony was assault, the resisting

forcible felony justification would have been in substance indistinguishable from

the defense-of-self and -others instructions. The jury rejected Newsom’s claims

of self-defense and defense of others. As the instruction for resisting forcible

felony would have been indistinguishable, Newsom could not have been

injuriously affected by the exclusion of the instruction, nor did he suffer a

miscarriage of justice. See Frei, 831 N.W.2d at 73-74. Consequently, without

the necessity of addressing whether the evidence was sufficient to warrant the

requested instruction, we conclude the refusal did not result in prejudice to

Newsom.

      B.       Answer to Jury Question.

             While the jury is deliberating, the court may in its discretion
      further instruct the jury, in the presence of or after notice to counsel.
      Such instruction shall be in writing, be filed as other instructions in
      the case, and be a part of the record and any objections thereto
      shall be made in a motion for a new trial.

Iowa R. Civ. P. 1.925. We reverse the court’s decision whether to give further

instruction only for an abuse of discretion. State v. Watkins, 463 N.W.2d 15, 18

(Iowa 1990).
                                        11



       During deliberations, the jury asked, “If the State has not brought enough

evidence to prove beyond a reasonable doubt that Mr. Newsom did not have the

right to defend his property and family, then is Mr. Newsom not guilty on all

counts.”   Newsom requested that the court instruct the jury that the burden

remained on the State.      The court determined that the previous instructions

contained the answer to the question, and it did not want to interfere with

deliberations by emphasizing any particular instruction. The court responded to

the jury with the following statement, “I cannot answer your question. Please re-

read the instructions.”

       The jury had already been instructed on the elements of the charged

offenses, and on the defenses, which included the following language: “If the

State has proved any one of the following elements, the defendant was not

justified.” The following instructions explained the burden of proof:

                                   Instruction No. 2
       [T]he burden is on the State to prove guilt beyond a reasonable
       doubt. Whenever I instruct you the State must prove something, it
       must be by evidence beyond a reasonable doubt. If the State does
       not prove the defendant guilty beyond a reasonable doubt, your
       verdict must be not guilty.

                               Instruction No. 8
       The burden is on the State to prove the Defendant guilty beyond a
       reasonable doubt.

Giving the instruction Newsom requested would have been repetitious and

unnecessary. The jury was adequately instructed that the State was required to

prove at least one of the elements in order to defeat each justification defense,

and that anything the State was required to prove must be by evidence beyond a
                                        12



reasonable doubt. We discern no abuse of the court’s discretion in directing the

jury to re-read the instructions.



IV.    CONCLUSION.

       We conclude Newsom was not prejudiced by the district court’s refusal to

instruct the jury on the defense of resisting a forcible felony, as the facts of the

case render the instruction in substance indistinguishable from instructions

already given for defenses the jury rejected.      We further find the additional

response to the jury question would have been repetitious of previous

instructions and unnecessary. The court did not abuse its discretion in refusing

to give further instruction.

       AFFIRMED.
