               IN THE SUPREME COURT OF IOWA
                                  No. 08–1231

                           Filed November 12, 2010


STATE OF IOWA,

      Appellee,

vs.

ROBERT L. HANES,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

Jon Fister, Judge.



      Appellant seeks review of conviction for willful injury causing

serious bodily injury after jury trial.      DISTRICT COURT JUDGMENT

REVERSED; CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for appellant.



      Thomas      J.   Miller,   Attorney   General,   Elisabeth   Reynoldson,

Assistant Attorney General, Thomas J. Ferguson, County Attorney, and

Kim Griffith, Assistant County Attorney, for appellee.
                                     2

STREIT, Justice.

      Robert Hanes was convicted by a jury of willful injury causing

serious injury. At trial, the jury was instructed that potential penalties

would include fines; community service; supervised or unsupervised

probation; placement in a residential, correctional, or violator facility; or

confinement in a county jail or prison.         The jury instruction was

improper and prejudiced Hanes. We reverse and remand.

      I.   Background Facts and Prior Proceedings.

      Robert Hanes was convicted after a jury trial of willful injury

causing serious injury in violation of Iowa Code section 708.4(1) (2005).

The verdict is based on an incident between Hanes and Nathanial Taylor

on the morning of April 28, 2007. According to Taylor, he was walking to

a cigar store to redeem bottles and cans. Taylor claims one week earlier

Hanes had given him $2.25 to purchase gizzards for Hanes, and Taylor

did not purchase the gizzards or return the money. Hanes asked about

the money and was angry and yelling. Taylor offered Hanes his cans, but

Hanes pulled out a knife and said “I’m going to kill you” and “stabbed

[Taylor] in the face.”   Taylor then grabbed Hanes’s hand holding the

knife, hit Hanes in the head, and kicked Hanes until Hanes said “stop.”

Hanes picked up a bottle of whiskey and walked into the park.

      Hanes claimed he did not know Taylor and encountered him while

walking home. Hanes testified Taylor struck him with the bag of cans

and bottles, and Hanes struck back. Hanes testified he was defending

himself, and he had previous boxing experience.

      Hanes filed a direct appeal and alleged a number of trial errors.

First, Hanes complains a jury instruction improperly and incorrectly

referenced potential penalties. Second, Hanes argues the district court

improperly excluded hearsay testimony that should have been admitted
                                         3

under the exception for statements made for purposes of medical

diagnosis. The State argues this issue was not preserved.

         Third, Hanes raises a number of issues through the mechanism of

ineffective assistance of counsel because trial counsel did not object to

certain matters.        Hanes complains his trial counsel was ineffective for

failing to object to the instruction regarding serious injury and for failing

to object to the instruction regarding specific intent. Hanes raises ten

additional issues pro se, including an argument that he was prejudiced

by the prosecuting attorney’s statement that the defense could have

called additional witnesses if they had any information helpful to the

defense.     The court of appeals affirmed the conviction.     Hanes sought

further review.

         II. Scope of Review.

         This court reviews challenges to jury instructions for correction of

errors at law. Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa 2006).

Our review is to determine whether the challenged instruction accurately

states the law and is supported by substantial evidence. State v. Predka,

555 N.W.2d 202, 204 (Iowa 1996). Error in a particular instruction does

not require reversal unless the error was prejudicial to the complaining

party.    State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010).        When an

ineffective-assistance-of-counsel claim is raised on direct appeal, we may

choose to reach the issue if the record is adequate to decide the claim, or

we may choose to preserve the claim for postconviction proceedings.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

         III. Merits.

         A. Jury Instruction Regarding Punishment. The district court

gave a jury instruction regarding penalty—instruction number one—

which stated:
                                     4
             The duty of the jury is to determine if the defendant is
      guilty or not guilty.
            In the event of a guilty verdict, you have nothing to do
      with punishment.
             Criminal offenses may be punished by fines or
      community service; by supervised or unsupervised
      probation; by placement in a residential, correctional or
      violator facility; or by confinement in a county jail or prison;
      depending on the circumstances of the case. Accordingly,
      you may neither speculate on what any punishment in this
      case might be nor let it influence your verdict.

The district court explained the penalty instruction as follows:

      And it’s the stock instruction except that the second - - or
      the last paragraph is one that I’ve added and have been
      using because of questions that have come up from people
      during jury selection, whether they’re concerned about
      punishment in one case or another. Frequently it comes up
      with drug crimes where people are concerned about issues
      and disparity in sentencing and so forth. But I think it’s just
      emphasizing to the jury that they shouldn’t speculate on any
      possible punishments.

Defense counsel objected to the instruction, arguing the instruction

invites speculation on the part of the jury. Defense counsel also noted

that community service, probation, or placement in a residential facility

are not sentencing options for a forcible felony.       The district court

responded:

      Well that’s why I put in the language depending on the
      circumstances of the case because that is absolutely right
      what you said in forcible felonies, there isn’t community
      service and that’s one of those cases. And so I am going to
      leave it in. I don’t think it’s a misstatement of the law. And I
      disagree with you that it causes speculation. It would be
      fruitless to speculate in cases like that. So the objection is
      overruled.

      It is well-settled that juries should not be instructed regarding the

statutory penalty for the charged offenses. See State v. Purcell, 195 Iowa

272, 274, 191 N.W. 849, 850 (1923) (“The trial court should in all

criminal cases refrain from instructing the jury with regard to the
                                    5

punishment provided by statute for the crime with which a defendant is

charged.”); State v. O’Meara, 190 Iowa 613, 625–26, 177 N.W. 563, 569

(1920) (“With the penalty to be imposed, the jury had no concern, and

might not take the punishment to be inflicted into account, in passing on

the issue as to the guilt or innocence of the accused.”); State v. Hatter,

381 N.W.2d 370, 375 (Iowa Ct. App. 1985). As the court of appeals has

explained, “a trial has one purpose—to seek the truth,” and “[p]enalties

have nothing to do with the factual determination that a defendant did or

did not commit a crime.”       Hatter, 381 N.W.2d at 375.       It is the

legislature, and not the jury, that determines the appropriate penalty for

the crime. Id. “[K]nowledge of the penalty would only serve to confuse

and distract the jury from its unique and important judicial function.”

Id.

      The State argues the penalty instruction is consistent with the rule

prohibiting jury instruction on punishment because it “merely instructed

the jury that penalties for crimes in general range from fines to

imprisonment.”    We do not find this logic persuasive.     The issue of

punishment is not for the jury to consider or speculate about and

knowledge about punishment can serve to confuse or distract the jury.

Id. A generalized explanation of potential penalties wades into a topic

about which the “ ‘jury had no concern.’ ” Purcell, 195 Iowa at 274, 191

N.W.2d at 850 (quoting O’Meara, 190 Iowa at 625–26, 177 N.W. at 569).

Therefore, we hold the penalty instruction was improper.

      The State argues even if the jury instruction was improper,

reversal is not warranted under harmless-error analysis because Hanes

was not prejudiced.    We will not reverse unless an error in giving a

particular instruction was prejudicial to the complaining party. Spates,

779 N.W.2d at 775.    Prior case law regarding the showing required to
                                           6

establish prejudice has been, at times, contradictory. Compare State v.

Piper, 663 N.W.2d 894, 914 (Iowa 2003) (“Any error with respect to the

court’s instruction of the jury will not support reversal unless the

defendant shows prejudice.”), with State v. Davis, 228 N.W.2d 67, 73

(Iowa 1975) (“Error in instructing the jury is presumed prejudicial unless

the contrary appears beyond a reasonable doubt from a review of the

whole case.”).

       The requirement that a jury instruction error result in prejudice

before a conviction will be reversed mirrors the harmless-error analysis

this court undertakes for any alleged error in a criminal trial. See State

v. Jordan, 779 N.W.2d 751, 756 (Iowa 2010). This court has established

standards for conducting harmless-error analysis based on whether the

alleged error is of a constitutional magnitude.             When an error is of a

constitutional dimension, the State must show beyond a reasonable

doubt the error did not result in prejudice.               State v. Traywick, 468

N.W.2d 452, 455 (Iowa 1991).             Courts have applied this standard to

errors of a constitutional dimension in jury instructions. 1 See Rose v.

Clark, 478 U.S. 570, 583, 106 S. Ct. 3101, 3109, 92 L. Ed. 2d 460, 474

(1986) (holding the question for constitutional errors is whether “ ‘on the
whole record . . . the error . . . [is] harmless beyond a reasonable doubt’ ”

(quoting United States v. Hasting, 461 U.S. 499, 510, 103 S. Ct. 1974,

1981, 76 L. Ed. 2d 96, 107 (1983) (alteration in original))); see also State

v. Schuler, 774 N.W.2d 294, 299–300 (Iowa 2009) (applying the standard

that “prejudice is presumed but may be overcome upon a showing


       1Davis,as noted above, held that jury instruction error is presumed prejudicial
unless “the contrary appears beyond a reasonable doubt from a review of the whole
case.” 228 N.W.2d at 73. This is the proper standard for constitutional errors. To the
extent Davis suggests this is the standard for all jury instruction errors, regardless of
whether they are of a constitutional dimension, it is overruled.
                                       7

beyond a reasonable doubt that the error was harmless” to reverse and

noting but not deciding whether a jury instruction error regarding the

elements of an offense requires per se reversal).

      Similarly, the proper harmless-error analysis for errors in jury

instructions that are not of a constitutional dimension, such as the

penalty   instruction   here,     is   the   same     analysis   applied   to

nonconstitutional trial errors.    This court has held nonconstitutional

harmless-error analysis begins with the question: “ ‘ “Does it sufficiently

appear that the rights of the complaining party have been injuriously

affected by the error or that he has suffered a miscarriage of justice?” ’ ”

State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009) (quoting State v.

Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)); accord State v. Marin, 788

N.W.2d 833, 836 (Iowa 2010) (holding instructional error not of a

constitutional magnitude requires reversal when it sufficiently appears

“ ‘the rights of the complaining party have been injuriously affected or

that the party has suffered a miscarriage of justice’ ” (quoting State v.

Gansz, 376 N.W.2d 887, 891 (Iowa 1985))).           Under this analysis we

presume prejudice and reverse unless the record affirmatively establishes

there was no prejudice.     Jordan, 779 N.W.2d at 756; Paredes, 775

N.W.2d at 571; accord Marin, 788 N.W.2d at 836. Our holding to the

contrary in Piper, 663 N.W.2d at 914, is overruled.

      We have previously found this test of prejudice was met when

improperly admitted information was such that “ ‘the information

unquestionably ha[d] a powerful and prejudicial impact’ ” on the jury.

Sullivan, 679 N.W.2d at 30 (quoting United States v. Johnson, 27 F.3d

1186, 1193 (6th Cir. 1994)) (holding admission of prior bad acts was

prejudicial). Our analysis of prejudice is also influenced by an evaluation

of whether a jury instruction could reasonably have misled or
                                            8

misdirected the jury. See State v. Boner, 186 N.W.2d 161, 166–67 (Iowa

1971) (finding prejudice because the improper inclusion of the word

“negligent” may have led the jury to return a manslaughter conviction

based on a lack of due care unaccompanied by the necessary wanton

and reckless disregard or indifference to the safety of others); cf.

Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa

2000) (holding in a civil case the trial court commits prejudicial error

when an instruction “materially misstates the law, confuses or misleads

the jury, or is unduly emphasized”).                We apply the principles outlined

here to the defendant’s challenge to the penalty instruction. 2

       The State argues the penalty instruction was not prejudicial

because the instruction also emphasized the jury has “nothing to do with

punishment” and “may neither speculate on what any punishment in

this case might be nor let it influence [the jury’s] verdict.” Hanes argues

he was prejudiced despite this admonition because the jury instruction

improperly      suggested      probation,       a    fine,    community     service,    or

commitment to a residential facility were potential sentences, and the

jury could have been misled by this information.

       The State charged Hanes with willful injury causing serious injury
pursuant to Iowa Code section 708.4(1).                      Under Iowa Code section

702.11, the charged crime is considered a forcible felony.                   Iowa Code

section 907.3 prohibits use of deferred judgment and probation as

sentencing options for a forcible felony such as willful injury causing


       2The prejudice standard discussed above is appropriate where, as here, defense
counsel objected to the instructional error at trial. When reviewing a claim of ineffective
assistance of counsel because defense counsel failed to object, the defendant has the
burden to show that “ ‘there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” State v.
Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (quoting Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
                                      9

serious injury.     Although the jury was also presented with lesser-

included offenses, if they chose to convict for the charged offense, which

they did, probation, a fine, community service, or commitment to a

residential facility were not potential sentences.

      The State points to Purcell, which held although it was error to

instruct a jury on sentence, such error did not require reversal. Purcell,

195 Iowa at 275, 191 N.W. at 850. Purcell also stated, “It is obvious that,

if the court instructed the jury with regard to the penalty provided for the

crime charged, the penalty should be correctly given.” Id. at 275–76, 191

N.W. at 850. Here, however, the instruction was not accurate. While

generally, criminal conviction may lead to probation, fines, or community

service, in this particular case, conviction of the crime charged could not.

      The State argues Hanes was not prejudiced because the jury was

instructed that the jury has “nothing to do with punishment” and “may

neither speculate on what any punishment in this case might be nor let

it influence [the jury’s] verdict.”   We presume juries follow the court’s

instructions.    See State v. Owens, 635 N.W.2d 478, 483 (Iowa 2001).

Limiting instructions will at times help minimize potential prejudice. Id.

We have previously found harmless error when the trial court struck

erroneously     admitted   evidence   from   the   record   and   immediately

admonished the jury to disregard the evidence. State v. Johnson, 183

N.W.2d 194, 198 (Iowa 1971). Here, however, the jury admonition was

not in response to testimony improperly volunteered by a witness but

instead part of the same jury instruction containing inappropriate and

erroneous information.

      Although generally we presume juries follow instructions, here,

this is not enough to overcome the presumption of prejudice that arises

from the nonconstitutional jury instruction error because the penalty
                                    10

instruction was contradictory. It directed the jury not to speculate, but

also—incorrectly—suggested the defendant could receive a sentence

other than prison time, including a fine or probation. One could argue

the jury was not specifically instructed to consider the possible penalties.

To the contrary, however, the inclusion of such information in the jury

instructions caused the jury members to consider it. Jury members may

have had differing beliefs regarding what sentences were available when

they began serving on this jury, but after the district court’s instruction,

they all would have had an erroneous belief that the defendant could

receive only a fine, probation, or community service.

      An erroneous jury instruction cannot necessarily be overcome by

part of the same instruction which correctly states the law. See State v.

Leins, 234 N.W.2d 645, 648–49 (Iowa 1975) (reversing conviction when

jury instruction gave both improper subjective entrapment test and

proper objective entrapment test because the court was “unable to

discern which rule the jury applied and must therefore reverse for a new

trial”); cf. Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009)

(holding plaintiff in discrimination case was prejudiced because one jury

instruction incorrectly stated the standard for proving sex discrimination

and another jury instruction correctly stated the standard).      Based on

the language of the penalty instruction, the jury may have incorrectly

believed the district court always has discretion to sentence a defendant

to any of the listed options.     So, although the jury may not have

speculated as to which of the listed options would ultimately be used in

this case, the jury may have been prompted by this information to

minimize the importance and gravity of their verdict, thinking the

defendant might not be imprisoned.
                                       11

      Inclusion of the penalty instruction prejudiced Hanes. We reverse

the verdict and remand for a new trial.

      B. Additional Issues.       Although we reverse on the issue of the

penalty instruction, we take this opportunity to address those additional

issues which may arise on retrial. See Schuler, 774 N.W.2d at 300.

      1. Statement for purposes of medical diagnosis. Hanes argues the

district court erred by failing to allow a nurse practitioner who treated

Hanes’s injuries to testify regarding Hanes’s statements. Hanes asked

the nurse practitioner to testify regarding his physical complaint when he

arrived at the hospital for treatment. The State objected on grounds of

hearsay, and the district court sustained the objection, excluding the

evidence.

      Q. Okay. And when Mr. Hanes presented himself, your
      hospital - - to your hospital, what was his complaints? A.
      Mr. Hanes’ complaint is that he had been hit - -
      [Prosecutor] Objection, Your Honor, to the hearsay.
      [Defense] Purposes of medical treatment, Your Honor.
      The Court: It’s still - - If it’s - - it’s subject to that exception,
      but it’s not admissible because it would be exculpatory.

      Whether testimony is exculpatory or inculpatory is not a factor for

courts to consider in determining the admissibility of statements made

for purposes of medical diagnosis.          Iowa Rule of Evidence 5.803(4)

provides an exception from the hearsay rule when statements are

      made for purposes of medical diagnosis or treatment and
      describing medical history, or past or present symptoms,
      pain, or sensations, or the inception or general character of
      the cause or external source thereof insofar as reasonably
      pertinent to diagnosis or treatment.

      Statements made for such purposes are admissible, regardless of

whether they are exculpatory or inculpatory, if they fit within the two-

part test this court has adopted.           The two-part test requires the
                                   12

proponent of the statement to show: (1) the declarant’s motive in making

the statement is consistent with the purposes of promoting treatment,

and (2) the content of the statement must be such as is reasonably relied

on by a physician in treatment or diagnosis.       State v. Hildreth, 582

N.W.2d 167, 169–70 (Iowa 1998).         We have previously considered

whether a hearsay statement is exculpatory, but such consideration was

done in the context of admissions by a party-opponent, which are not

considered hearsay, Iowa R. Evid. 5.801(d)(2), and statements against

interest, an exception to the hearsay rule, Iowa R. Evid. 5.804(b)(3). See

State v. Veal, 564 N.W.2d 797, 808 (Iowa 1997) (holding “admissions by a

party-opponent . . . are admissible only when offered against the party

who made the statements” and “statements admitting to a lesser offense

are [not] against interest when offered to defend against a more serious

criminal charge”), overruled in part on other grounds by State v. Hallum,

585 N.W.2d 249, 253–54 (Iowa 1998).

      Although Hanes’s defense attorney asked the nurse practitioner

about “a dialogue initiated for purposes of diagnosis or treatment,”

Hildreth, 582 N.W.2d at 170, and it appears the nurse practitioner’s

answer would likely fall within the exception to the hearsay rule, because

there was no offer of proof, we do not know exactly what the nurse

practitioner would have answered. We need not address whether error

was preserved, whether the excluded testimony would meet the two-part

test, and whether Hanes was prejudiced because we reverse on other

grounds.

      2.   Jury instruction regarding serious injury.   Hanes objects on

appeal to a jury instruction—number eighteen—which defined “serious

injury.” Defense counsel did not object at trial. Hanes was charged with
                                    13

willful injury causing serious injury under Iowa Code section 708.4(1).

The serious injury instruction stated:

            A “serious injury” is a bodily injury which, if left
      untreated, creates a substantial risk of death or which
      causes serious permanent disfigurement, including scarring,
      or extended loss or impairment of the function of any bodily
      part or organ.

      Hanes argues this jury instruction was improper in two ways.

First, Hanes argues the words “if left untreated” improperly modified all

three options: risk of death, serious permanent disfigurement, and loss

or impairment of a bodily part or organ.      Second, Hanes argues the

inclusion of the phrase “including scarring” was also error.      Hanes

complains that under the facts of the case, inclusion of these two

phrases allowed the jury to find serious injury by speculating as to

whether and how the scarring, not the injury, would have been worse if

left untreated. Hanes claims this is emphasized because the victim was

treated by a plastic surgeon, and the jury might have believed the

scarring would have been much worse without such treatment.

      Serious injury is a defined term in the Iowa Code. According to

Iowa Code section 702.18:

            1. “Serious injury” means any of the following:
            ....
            b. Bodily injury which does any of the following:
            (1) Creates a substantial risk of death.
            (2) Causes serious permanent disfigurement.
            (3) Causes protracted loss or impairment of the
      function of any bodily member or organ.

The language of section 702.18 does not include the phrases “if left

untreated” or “including scarring.” The serious injury instruction given

at trial is identical to the Iowa State Bar Association’s Criminal Jury
                                        14

Instruction for serious injury—number 200.22—except that the language

“if left untreated” and “including scarring” were additions by the district

court.

         We agree with Hanes that the instruction improperly suggested

scarring will always be considered serious permanent disfigurement.

Serious permanent disfigurement is not defined and is a question for the

jury to decide. Scarring may in some circumstances rise to the level of

serious permanent disfigurement. See State v. Phams, 342 N.W.2d 792,

796 (Iowa 1983) (“We have recognized that the statutory definition of

serious     injury   includes   those   ‘injuries   which   leave   the   victim

“permanently scarred or twisted . . ., [in contrast to] a black eye, a bloody

nose, and even a simple broken arm or leg.” ’ ” (quoting State v. Epps,

313 N.W.2d 553, 557 (Iowa 1981) (alteration in original))). These cases

do not hold, however, that scarring is per se serious permanent

disfigurement.       A more proper jury instruction would not reference

scarring, but leave it to the jury to determine whether a scar constitutes

a serious permanent disfigurement.

         We also agree that to the extent the phrase “if left untreated” is

added to the statutory language, it would more properly be placed after

the phrase “creates a substantial risk of death.” The jury instruction as

written is not entirely clear and could suggest to a jury that an injury

which did not cause either serious permanent disfigurement or

protracted loss or impairment of the function of a bodily member or

organ, but could have without treatment, is always considered a serious

injury.    The statutory language defining serious injury does not allow

such a result. Iowa Code section 702.18(1)(b)(1) defines serious injury to

include a bodily injury which “[c]reates a substantial risk of death.”

(Emphasis added.) Addition of the words “if left untreated” to “creates a
                                     15

substantial risk of death” is not error because the risk is that the injury

would, if left untreated, result in death. In comparison, the risk that a

bodily injury would have caused serious permanent disfigurement or

protracted loss or impairment of the function of any bodily member

organ if left untreated is not included in section 702.18.      Iowa Code

section 702.18(1)(b)(2) defines serious injury to include a bodily injury

which “[c]auses serious permanent disfigurement.”       (Emphasis added.)

This language requires that the serious permanent disfigurement

actually occur. Similarly, section 702.18(1)(b)(3) defines serious injury to

include a bodily injury which “[c]auses protracted loss or impairment of

the function of any bodily member or organ.” (Emphasis added.) This

language requires that the protracted loss or impairment actually occur.

      Although the serious-injury instruction was not consistent with

the statutory definition, we need not address whether defense counsel’s

failure to object to the serious-injury instruction was deficient and

prejudicial because we reverse on other grounds.       Any instruction on

“serious injury” given upon retrial should track the statutory definition of

this term.

      3. Jury instruction regarding specific intent. Hanes claims the jury

instruction on specific intent—number twenty-one—erroneously failed to

require the jury to find the proper mental state existed at the time of the

offense. Defense counsel did not object to the specific-intent instruction

at trial. The specific intent instruction provided:

            “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 the defendant 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
                                       16
      intent. You may, but are not required to conclude a person
      intends the natural results of his or her acts.
            Specific intent does not have to exist for any particular
      length of time. It is sufficient if it exists at any time before the
      act.

(Emphasis added.)       The first two paragraphs of this instruction are

identical to the Iowa State Bar Association’s Criminal Jury Instruction

for specific intent—instruction number 200.2           The last paragraph was

added to the uniform instruction by the district court.                  It states:

“Specific intent does not have to exist for any particular length of time. It
is sufficient if it exists at any time before the act.”

      Hanes       complains   the   last    sentence      of   the   specific-intent

instruction allowed the jury to find specific intent if at any time prior to

the incident resulting in the victim’s injuries, the defendant had specific

intent. Hanes argues the jury could have improperly found Hanes had

specific intent to harm Taylor during the alleged incident when Hanes

paid Taylor $2.25 for gizzards and Taylor simply kept the money.

      The State argues other portions of the jury instructions require a

finding of specific intent at the time of the charged crime.             The State

points to the first paragraph of the specific-intent instruction which

states specific intent requires “being aware of doing an act and doing it

voluntarily, but in addition, doing it with a specific purpose in mind.” The

State also points to the marshalling instruction—number fifteen—which

stated in part:

             In order to convict the defendant of Willful Injury
      Causing Serious Injury, the State must prove each of the
      following elements:
            1.   On or about the 28th day of April, 2007, the
      defendant assaulted Nathan Taylor.
            2.    The defendant specifically intended to cause a
      serious injury to Nathan Taylor.
                                      17

The State argues when the jury instructions were read as a whole, these

additional portions of the instructions made it clear to the jury they were

required to find specific intent at the time of Taylor’s injury.

      A crime requires proof of specific intent when the statute’s

description of the proscribed act refers to the defendant’s “intent to do

some further act or achieve some additional consequence.” Eggman v.

Scurr, 311 N.W.2d 77, 79 (Iowa 1981) (quoting P. Johnson, Criminal Law,

329 (1975)).    The specific intent is linked to the proscribed act and

therefore must be present at the time of the proscribed act. We agree

with Hanes that the last sentence of the specific-intent instruction

improperly suggested the defendant need not have specific intent at the

time of the alleged act.

      However, because we reverse on other grounds, we need not

address whether defense counsel’s failure to object was deficient and

caused Hanes prejudice. It is sufficient for purposes of this appeal to

state the court should not instruct the jury upon retrial that the

defendant’s specific intent may exist at any time.

      4. Prosecution closing argument. Hanes argues the State’s closing

argument was improper in his pro se supplemental brief. Hanes argues

the State improperly suggested the defense should have called additional

witnesses. The State misconstrues Hanes’s objection to the prosecuting

attorney’s rebuttal.   The State suggests Hanes’s complaint is with his

own lawyer’s failure to call these two additional witnesses.       Instead,

Hanes’s complaint is the prejudicial nature of the prosecuting attorney’s

statement in rebuttal shifting the burden to call witnesses to the defense.

      The prosecution’s opening statement referenced two witnesses,

Paul McGonigle and Willie Brown, and explained their anticipated

testimony. The State then failed to call these witnesses. Hanes’s defense
                                     18

attorney highlighted this inconsistency in his closing argument, stating

“The state has the burden to prove its case. Where are these people if

they’re so important?” In response, the State argued in rebuttal:

            Now, the - - the defense brought up Paul McGonigle.
      And I mentioned Paul McGonigle in my opening. I also
      mentioned Willie Brown. You didn’t see them; did you? No,
      we didn’t call them. You know who else didn’t call them?
      The defense didn’t call them. The defense called witnesses.
      The defense can call any witness they so desire. If there was
      anything helpful for the defendant, the defense could have
      called Paul McGonigle or Willie Brown.
            ....
            . . . If there was anything the defense really wanted
      from either one of these individuals that they felt was
      beneficial or helpful to the defendant, they could have called
      them.

Hanes’s defense attorney did not object.
      The State bears the burden of proof in criminal cases.           It is
improper for the State to shift the burden to the defense by suggesting
the defense could have called additional witnesses.       “ ‘It is generally
improper for a prosecutor to comment on a defendant’s failure to call a
witness.   Such comment can be viewed as impermissibly shifting the
burden of proof to the defense.’ ”   Byford v. State, 994 P.2d 700, 709
(Nev. 2000) (quoting Rippo v. State, 946 P.2d 1017, 1026 (Nev. 1997)
(citation omitted)); cf. State v. Poppe, 499 N.W.2d 315, 318 (Iowa Ct. App.
1993) (“[T]he prosecutor’s suggestions about defendant counting on the
witnesses not coming in to testify comes extremely close to suggesting
the State does not bear the burden of proving defendant’s guilt.”).
      It was appropriate for defense counsel to call attention to the
State’s failure to call these witnesses after the State had outlined the
witnesses’ expected testimony in the opening statement.        It was not
proper for the State to attempt to shift the burden to the defense to call
the witnesses or to suggest the jury could infer from the defense’s failure
                                      19

to call the witnesses that they would not have said anything helpful to
the defense.     This situation is not one where the prosecutor generally
referenced an absence of evidence supporting the defense’s theory of the
case. See United States v. Emmert, 9 F.3d 699, 702–03 (8th Cir. 1993);
State v. Swartz, 601 N.W.2d 348, 353 (Iowa 1999).
         Some courts have held an attempt by the State to shift the burden
of proof may be cured by an instruction regarding the State’s burden of
proof.    Cook v. State, 872 S.W.2d 72, 73–74 (Ark. 1994). Because we
reverse on other grounds, we need not address whether defense counsel
was deficient and caused prejudice by failing to object to the prosecutor’s
statements. We trust the prosecutor will refrain from similar statements
upon retrial.
         IV. Conclusion.
         The penalty jury instruction incorrectly suggested penalties of a
fine, probation, or community service were available when they were not
statutorily permissible.      This instruction prejudiced the defendant
because it misled the jury with respect to the possible consequences of
its verdict and de-emphasized the gravity of the jury’s decision.        The
conviction is reversed and the case is remanded to the district court.
         DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.
         All justices concur except Cady, J., who dissents.
                                     20

CADY, Justice (dissenting).

      I respectfully dissent. I would conclude the instructional error by

the district court in this case does not require a reversal of the conviction

and the grant of a new trial. I reach this conclusion because the error

that occurred at trial was insignificant and did not result in any

prejudice.

      It has long been recognized in Iowa and across the nation that trial

error does not require a new trial when the error does not result in

prejudice. Hammond v. Sioux City & P.R. Co., 49 Iowa 450, 453 (1878);

see also 5 C.J.S. Appeal and Error § 965, at 327 (2007) [hereinafter

Appeal and Error] (citing the general rule).     Error inevitably operates

within a trial because a trial operates within the hands of humans. A

harmless-error standard of review for claims of trial error means the time

and expense of endless retrials can be avoided without jeopardizing the

requirement for a fair trial. See Appeal and Error § 965, at 327.

      The difficulty in applying the harmless-error review lies in

assessing the impact of the error on the verdict. In assessing whether a

defendant has been injuriously affected by instructional error, the

instruction itself must first be carefully considered.    In this case, the

district court properly instructed the jury that it must “determine if the

defendant is guilty or not guilty” and that they “have nothing to do with

punishment” in the event the verdict is guilty. See State v. Piper, 663

N.W.2d 894, 915 (Iowa 2003) (holding an instruction telling the jury it

had nothing to do with punishment was properly given).              The error

occurred, however, when the district court further instructed the jury on

the general types of punishment imposed for criminal offenses, including

fines, various forms of probation, and imprisonment.        This additional

information was not only extraneous, it informed the jury of sentencing
                                            21

options that would not actually be available to the sentencing court in

the event the jury returned a verdict of guilty on the crime of willful

injury.    The crime of willful injury is a forcible felony.                  Iowa Code

§ 702.11(1) (2005) (including willful injury causing serious injury in list

of offenses constituting forcible felonies). Probation is not an available

sentencing option for a forcible felony.            Id. § 907.3 (excluding deferred

judgment, deferred or suspended sentence, and probation from available

sentencing options for forcible-felony convictions).

       The majority finds prejudice because it was possible the jury used

the extraneous information in reaching its verdict. 3                      The majority

concluded the jury “may have” used the error to shirk its instructed duty

to return a verdict of guilty only if convinced beyond a reasonable doubt

and based only on the evidence presented at trial.                   It found the jury

could have ignored these instructions and used the extraneous

information to return a verdict of guilty under a belief that the district

court would not later impose a sentence of imprisonment. Not only does

this analysis use unsupported assumptions to create a false syllogism, it

ultimately creates an irrefutable prejudice standard based on the

existence of error itself.       At its core, the majority holds that prejudice
exists as long as it is conceivable that the jury could have considered

extraneous, erroneous information. This holding is contrary to the very



       3Importantly,   harmless error is a standard of judicial review that requires judges
to decide if error affected the verdict. See O’Neal v. McAninch, 513 U.S. 432, 436, 115
S. Ct. 992, 995, 130 L. Ed. 2d 947, 952 (1995) (stating the inquiry made by judges
regarding harmless error is whether “the error substantially influenced the jury’s
decision”). It does not direct judges to simply be convinced that a party has shown
prejudice or has not shown prejudice. Id. at 437, 115 S. Ct. 995, 130 L. Ed. 2d at 952
(citing Roger J. Traynor, The Riddle of Harmless Error 25–26 (1970) [hereinafter
Traynor]). Regardless of the assistance provided by counsel on the issue, “ ‘it is still the
responsibility of the . . . court, once it concludes there was error, to determine whether
the error affected the judgment.’ ” Id. (quoting Traynor at 26).
                                     22

purpose of the harmless-error doctrine as well as our test for assessing

the impact of error.   See State v. Massey, 275 N.W.2d 436, 439 (Iowa

1979) (stating the prejudice test applicable to trial errors not implicating

a constitutional right is premised upon a determination of “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”).   It is a step back to the nineteenth century Exchequer Rule

where retrials of cases “seemed to” come to an end only when “the parties

expired.” 7 Wayne R. LaFave, et al., Criminal Procedure § 27.6(a), at 100

(3d ed. 2007).

       We presume juries follow courts’ instructions. State v. Morrison,

368 N.W.2d 173, 176 (Iowa 1985).          Without such a presumption, our

jury system would have little meaning or purpose. In truth, this case

tests this conviction, and the outcome reveals the presumption is

illusory.

       Importantly, the district court did not instruct the jury to consider

the various types of punishment in reaching its verdict; it only informed

the jury of the types of punishment. Thus, this is not a case in which

the jury was instructed to do or consider something that was incorrect so

that we would presume the jury followed the incorrect directive in

reaching its verdict. This is also not a case in which the court gave two

conflicting directives so that it would be impossible to know if the correct

directive was followed. See State v. Leins, 234 N.W.2d 645, 648–49 (Iowa

1975) (reversing conviction when jury instruction included both improper

test and proper test for entrapment in same instruction and court could

not determine which rule the jury applied). More importantly, this was

not an error that gave the jury such damaging information that it could

not reasonably be expected to actually disregard it. See State v. Paden,
                                    23

199 Iowa 383, 386, 202 N.W. 105, 107 (1925) (holding certain evidence

proffered and subsequently stricken at trial caused incurable prejudice

because “[t]he evidence was toxic in character, and in our judgment it is

beyond the realm of human possibility that the mind of the jury was not

poisoned by the facts admitted”).

      Instead, the instruction only provided extraneous information to

the jury, information that is generally known by jurors independent of

the instruction by the district court. See State v. Sullivan, 679 N.W.2d

19, 30 (Iowa 2004) (stating prejudice is met only when the improper

information unquestionably has a powerful impact on the jury). We have

previously acknowledged that jurors not only “know that if they find a

defendant guilty, he will be punished,” but “[t]hey also know that the

more serious the offense . . . , the more severe the punishment.” Piper,

663 N.W.2d at 915.      To be practical, as judges should, most jurors

understand, right or wrong, that criminal defendants face either

probation or incarceration if convicted. Thus, the district court gave the

jury information consistent with common, preconceived notions.           By

analogy, we generally find erroneously admitted evidence to be harmless

when the evidence is merely cumulative of other evidence properly

admitted. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).

      Moreover, we examine jury instructions for reversible legal error by

considering the instructions as a whole, and “if some part was given

improperly, the error is cured if the other instructions properly advise the

jury as to the legal principles involved.” Thavenet v. Davis, 589 N.W.2d

233, 237 (Iowa 1999).    In this case, instead of instructing the jury to

consider the extraneous, incorrect information, the district court

immediately followed the extraneous information with a declaration to

the jury that it “may neither speculate on what any punishment in this
                                      24

case might be nor let it influence your verdict.”     Unlike the predicate

informational material provided to the jury on punishment, this portion

of the instruction was a specific directive or instruction for the jury to

follow, and along with the other instructions given, it properly advised

the jury of the legal principles applicable to the case. Consequently, the

jury was given extraneous information and immediately told to disregard

it.

      The question is, therefore, simple.     Do we or do we not believe

jurors follow instructions?     The jurors in this case were unequivocally

told to disregard punishment. While it was odd and inconsistent for the

district court to pass extraneous information along to the jury and then

tell the jury to not consider it, it is just as inconsistent to presume the

jury went ahead and considered the information.           By analogy, we

generally find the erroneous admission of evidence to be harmless when

the trial court strikes the evidence from the record and immediately

admonishes the jury to disregard the evidence.      State v. Johnson, 183

N.W.2d 194, 198 (Iowa 1971). Until now, we have believed jurors follow

instructions.

      I believe jurors serve the justice system with a deep and abiding

allegiance to their duties and responsibilities as instructed by the court.

This belief supports our presumption that jurors follow instructions.

Moreover, there is nothing about the extraneous information in this case,

or any other circumstance of the case, to support a conclusion that a

jury would be unable to disregard punishment after being informed of

the various types of punishment available in criminal sentencing. The

error in this case was harmless.       Under the standard applied by the

majority, the lack of prejudice becomes irrelevant because error will

always result in a new trial.
