                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1857
                            Filed December 23, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PAUL KENNETH HOWARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



      Paul Howard appeals his convictions for assault against a health care

provider, assault against another staff person, and disorderly conduct.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       Paul Howard was admitted to the emergency room of a Davenport

hospital for treatment of stab wounds he sustained after being accosted by three

men outside a bar. Howard did not cooperate with hospital personnel, including

nurse Caryn Clinton. The State eventually charged him with crimes arising from

his behaviors at the hospital. A jury found him guilty of assaulting a health care

provider, assaulting another staff person, and disorderly conduct.

       On appeal, Howard contends his trial attorney was ineffective in failing to

(1) challenge the sufficiency of the evidence supporting the assault-on-a-health-

care-provider count and (2) object to certain jury instructions. To prevail, Howard

must show counsel did not perform an essential duty and prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

I.     Ineffective Assistance—Sufficiency of the Evidence

       “A claim of ineffective assistance of trial counsel based on the failure of

counsel to raise a claim of insufficient evidence to support a conviction is a

matter that normally can be decided on direct appeal.” State v. Truesdell, 679

N.W.2d 611, 616 (Iowa 2004) (citing State v. Scalise, 660 N.W.2d 58, 62 (Iowa

2003)). “[I]f the record reveals substantial evidence, counsel’s failure to raise the

claim of error could not be prejudicial.” Id.

       The jury was instructed the State would have to prove the following

elements of assault on a health care provider:

              1. On or about the 12th day of April, 2014, the defendant did
       an act which was intended to cause pain or injury, result in physical
       contact which was insulting or offensive, or place Caryn Clinton in
       fear of an immediate physical contact which would have been
       painful, injurious, insulting, or offensive to Caryn Clinton.
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              2. The defendant had the apparent ability to do the act.
              3. Caryn Clinton was a health care provider.

(Emphasis added.)       In pertinent part, the jury was provided the following

definition of “health care provider”: “‘Health care provider’ means an emergency

medical care provider . . . who is providing or who is attempting to provide health

services as defined in Section 135.61 in a hospital.”          Iowa Code section

135.61(12) (2013) defines “health services” as “clinically related diagnostic,

curative, or rehabilitative services.”

       Howard contends Clinton “was no longer providing health services

because any diagnostic, curative, or rehabilitative services had ceased” at the

time of the assault. A reasonable juror could have found otherwise.

       A Davenport police officer testified he was called to the hospital to

investigate a stabbing. He arrived to find the stabbing victim “screaming, yelling

[and] cursing” at emergency room staff and “the whole emergency room in an

uproar.”

       Nurse Clinton stated Howard became agitated when he was told his

clothes and cell phone were at the branch that admitted him.             He “yell[ed]

profanities,” “threaten[ed]” the nurses, and “attempted to strike [her] in the face.”

The thought going through her mind was “this is going to hurt.” Clinton testified

she “was scared.”

       A clinical assistant confirmed Howard’s agitated state and his assaultive

conduct. He testified Howard “started cussing” and “threatening” him, then spat

at him and hit him on the side of his face, knocking his glasses off.
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       Although Howard testified he had scant recollection of these events,

reasonable jurors could have found from the testimony of the State’s witnesses

that Howard was cognizant of his surroundings throughout his one-and-one-half-

to two-hour stay.   On this score, they could have considered “coma” testing

performed every fifteen minutes, which revealed Howard was conscious and

aware, even while agitated.

       In sum, reasonable jurors could have found Clinton was providing health

services when Howard assaulted her. Because the record contains substantial

evidence to support this element, counsel’s failure to challenge the sufficiency of

the evidence on this ground could not be prejudicial.

II.    Ineffective Assistance—Jury Instructions

       Howard argues his trial attorney was ineffective in: (1) failing to challenge

the absence of a knowledge requirement in the marshalling instruction governing

assault on a health care provider, (2) failing to challenge a presumption of

knowledge in the instruction defining a health care provider, as well as confusing

terms in the same instruction, and (3) failing to object to the marshalling

instruction on disorderly conduct on the ground it specified a different alternative

than the alternative with which he was charged.

       We begin with the marshalling instruction governing assault on a health

care provider. As Howard asserts, this instruction did not explicitly require the

State to prove Howard knew Clinton was a health care provider. Knowledge is a

statutory requirement. See Iowa Code § 708.3A(4). This omission would have

been fatal to the State’s case but for the fact that the State presented extensive

evidence on the requirement.          As noted, Clinton testified to objective
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measurements of Howard’s conscious state. She also recounted the specific

epithet Howard hurled at her, a phrase showing an awareness of her gender.

She and her colleague provided detailed descriptions of the assaults and

Howard’s overall demeanor in the emergency room.            There was simply no

question Howard knew Clinton was a health care provider when he assaulted

her.

       Given the overwhelming evidence supporting the knowledge requirement,

the omission of this requirement from the jury instruction could only have had a

negligible effect on the verdict. See State v. Maxwell, 743 N.W.2d 185, 197

(Iowa 2008); State v. Boggs, 741 N.W.2d 492, 509 (Iowa 2007). We conclude

there is no reasonable probability the outcome would have been different had

counsel objected to the omission of the knowledge requirement in the

marshalling instruction. Strickland, 466 U.S. at 694.

       We turn to the instruction defining a health care provider. The instruction

contained the following presumption, drawn from the statute: “A person who

commits an assault under this section against a health care provider in a hospital

. . . is presumed to know that the person against whom the assault is committed

is a health care provider.” See Iowa Code § 708.3A(5)(d).

       The Iowa Supreme Court exhaustively discussed presumptions and their

constitutionality in State v. Rinehart, 283 N.W.2d 319, 321 (Iowa 1979). The

court stated, “In order for a [presumption] to pass constitutional muster, it must

be presented in such a manner that the jury is fully apprised of their option to

reject its application.”   Rinehart, 283 N.W.2d at 322.     The court found the

presumption in that case constitutional. Id. at 323. In a subsequent opinion,
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State v. Winders, 359 N.W.2d 417, 420 (Iowa 1984), the court concluded an

instruction specifying that a presumption could be “rebutted by the Defendant”

failed to pass constitutional muster because the jury could read the language as

impermissibly shifting the burden of proof to the defendant.

      The statutory presumption used here did not explicitly shift the burden of

proof to the defendant, but it also did not inform jurors they could reject

application of the presumption. While Howard cogently argues the presumption

crossed a constitutional line, we find it unnecessary to decide this issue because,

as discussed, the State presented overwhelming evidence that Howard knew

Clinton was a health care provider. In light of this evidence, the presumption was

superfluous.

      Howard also challenges the “health care provider” instruction on the

grounds that it included “technical” and inapplicable Code provisions and

excluded the definitional language of “health services as defined in Section

135.61.” Again, but for the State’s evidence on what occurred at the hospital,

Howard’s argument might hold sway.          Because the evidence overwhelmingly

established that Clinton was a “health care provider” and Howard knew she was,

we conclude Howard failed to establish Strickland prejudice.

      We are left with Howard’s challenge to the disorderly conduct instruction.

The instruction read as follows:

      The State must prove all of the following elements of Disorderly
      Conduct by using abusive epithets/threatening gestures:
             1. On or about the 12th day of April, 2014, the defendant
      was in a public place.
             2. The defendant engaged in fighting or violent behavior.
             If the State has proved both of the elements, the defendant
      is guilty of Disorderly Conduct by using abusive epithets/
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      threatening gestures. If the State has failed to prove either of the
      elements, the defendant is not guilty.

Howard argues counsel was ineffective in failing to object to this instruction on

the ground it required proof of a different alternative of disorderly conduct than

the charged alternative.

      The law is clear:

      If a trial information simply charges a violation of a statute in
      general terms without specifying the manner in which the offense
      was committed, the State may prevail by showing that the evidence
      is sufficient under any available theory. However, when a crime
      may be committed in different ways and the State specifies one
      way, the offense must be proved to have been committed in the
      manner charged.

State v. Smithson, 594 N.W.2d 1, 3 (Iowa 1999) (citation omitted).

      Where there is a variance between the crime charged and the proof
      at trial, we will require a new trial if a substantial right of the
      defendant is prejudiced. A variance between the information and
      the proof is prejudicial if the defendant is not fairly notified of the
      charges against him so that he may prepare to defend.

State v. Willet, 305 N.W.2d 454, 457 (Iowa 1981) (citations omitted).

      Howard was charged with a single alternative of disorderly conduct—

“direct[ing] abusive epithets or mak[ing] any threatening gesture which the

person knows or reasonably should know is likely to provoke a violent reaction by

another.” See Iowa Code § 723.4(3). The jury instruction made reference to this

alternative but required the State to prove the elements of a different

alternative—“[e]ngag[ing] in fighting or violent behavior in any public place or in

or near any lawful assembly of persons.” Id. § 723.4(1). To make matters even

more confusing, the prosecutor referred to subsections (2) and (3), but not (1), in
                                             8


reading a statement of the case to the jury. And, during closing argument, the

prosecutor referred to the elements of subsection (1) exclusively.

       As noted, the jury instruction required proof that Howard was in “a public

place.” The State presented scant if any evidence supporting this element. In

fact, the contrary was true. Clinton testified that when Howard arrived he was

moved “into one of our larger rooms.” The room had a curtain. While the curtain

was open, there is no indication members of the public could gain access. There

is also no indication Howard freely moved in and out of the room. When the

officer arrived, he was being held down on the bed and, when the assault took

place, he was still on the bed. We conclude the “public place” requirement was

not satisfied. If we were reviewing the jury instruction directly, rather than under

an ineffective-assistance-of-counsel rubric, reversal would be mandated because

the instruction was erroneous and the trial information furnished no notice of the

State’s intention to rely on subsection 1.

       The hurdle Howard faces is Strickland prejudice. The State presented

overwhelming evidence that Howard “direct[ed] abusive epithets or ma[de] a[]

threatening gesture which [he knew] or reasonably should [have] know[n] [was]

likely to provoke a violent reaction by another.” See Iowa Code § 723.4(3). In

light of this evidence, there is no reasonable probability the outcome would have

been different had counsel objected to the clearly erroneous instruction and

succeeded in having the elements of the “epithet” alternative rather than the

“public place” alternative included in the instruction.
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III.   Cumulative Error

       Howard contends cumulative errors mandate reversal. See State v. Clay,

824 N.W.2d 488, 500 (Iowa 2012) (stating reviewing courts “should look to the

cumulative effect of counsel’s errors to determine whether the defendant satisfied

the prejudice prong of the Strickland test.”). Having found no Strickland prejudice

on any of the grounds raised by Howard, we decline to find cumulative error. We

affirm Howard’s judgment and sentences.

       AFFIRMED.
