               IN THE SUPREME COURT OF IOWA
                           No. 133 / 06-0024

                        Filed December 28, 2007

STATE OF IOWA,

      Appellee,

vs.

JAMES DONALD LANE,

      Appellant


      Appeal from the Iowa District Court for Tama County, Douglas S.

Russell, Judge.



      Defendant appeals his conviction for threat of terrorism and

intimidation with a deadly weapon. AFFIRMED IN PART, REVERSED IN

PART AND REMANDED.



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

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant

Attorney General, Brent D. Heeren, County Attorney, and Richard Vander

Mey, Assistant County Attorney, for appellee.
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STREIT, Justice.

        We are asked to determine whether James Lane threatened to commit

terrorism while in police custody. We find Lane could not have been guilty

of the threat of terrorism when he made menacing statements to the sheriff

while in custody because there was no reasonable possibility he would

imminently act on those threats. It was error to deny Lane’s motion for

judgment of acquittal for the threat-of-terrorism charge. However, there

was sufficient evidence to submit the charge of intimidation with a

dangerous weapon to the jury because an imminent threat is not required

to be guilty of intimidation. Moreover, we find defense counsel’s failure to

request a specific jury instruction was not prejudicial. We therefore affirm

Lane’s conviction with respect to the intimidation count and reverse his

conviction for the threat of terrorism.

        I.    Facts and Prior Proceedings.

        On March 19, 2005, Lane’s brother told the Tama County Sheriff’s

Department Lane was at their mother’s home in violation of a protective

order. Officers verified there was a valid protective order requiring Lane to

stay away from his mother Dorothy Lane.

        Sheriff Dennis Kucera called Dorothy’s residence to see whether Lane

was there. Lane answered the telephone. The sheriff and several deputies

proceeded to Dorothy’s home in Traer. Sheriff Kucera knocked on the back

door.    Lane answered the door.     He was told he was under arrest for

violating the protective order. While being handcuffed, Lane made the

following statement: “Sheriff Kucera, you can take this how you want. That

Atlanta shooting is not going to be the only thing that’s going to happen. I

am going to come down, get a court schedule, and I’m going to take care of

all you mother fuckers.” Lane was referring to a courthouse shooting which
                                       3

occurred eight days earlier in Atlanta, Georgia. There, a man on trial for

rape, overpowered his guard and then killed a judge, a court reporter, and a

deputy sheriff before fleeing. Sheriff Kucera replied, “You don’t even want to

go there.” Lane continued, “You guys are all going to be sorry when I get a

court schedule.”

      Lane was placed in a deputy’s car and transported to the sheriff’s

office in Toledo. During the drive, Lane continued making comments. Lane

said he should have killed his ex-wife in the 1970s because he would have

only had to serve twelve-and-a-half years in prison. He also spoke of his

distrust of the judicial system and the government.

      While Lane was in the booking room of the jail, he said “You guys are

going to be sorry. You know, I will get a court schedule and be down there.”

He did not make any further reference to the Atlanta shooting. Other than

“running his mouth,” Lane was obedient at all times.

      Based on the statements Lane made to the officers, Lane was charged

with (1) intimidation with a dangerous weapon with the intent to injure or

provoke fear or anger in another, a class C felony and (2) threat of

terrorism, a class D felony. A jury found Lane guilty of the lesser included

offense of intimidation with a dangerous weapon and guilty as charged of

the threat of terrorism.

      On appeal, Lane claims there was insufficient evidence to convict him

on either count. He also alleges his trial counsel was ineffective by failing to

request a certain jury instruction.

      II.    Scope of Review.

      We review sufficiency-of-evidence challenges for correction of errors at

law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The trial court’s

findings of guilt are binding on appeal if supported by substantial evidence.
                                     4

Iowa R. App. P. 6.14(6)(a). The evidence is substantial if a rational fact

finder could find the defendant guilty beyond a reasonable doubt. State v.

Heard, 636 N.W.2d 227, 229 (Iowa 2001). “ ‘We view the evidence in the

light most favorable to the State, including legitimate inferences and

presumptions that may fairly and reasonably be deduced from the’ evidence

in the record.” Id. (quoting State v. Mitchell, 568 N.W.2d 493, 502 (Iowa

1997)).

      For ineffective-assistance-of-counsel claims, we review the totality of

the circumstances relating to counsel’s conduct de novo. State v. Risdal,

404 N.W.2d 130, 131 (Iowa 1987).

      III.   Merits.

      A.     Threat of Terrorism. Iowa Code section 708A.5 (2005) states

“[a] person who threatens to commit terrorism or threatens to cause

terrorism to be committed and who causes a reasonable expectation or fear

of the imminent commission of such an act of terrorism commits a class ‘D’

felony.”

      “Terrorism” means an act intended to intimidate or coerce a
      civilian population, or to influence the policy of a unit of
      government by intimidation or coercion, or to affect the
      conduct of a unit of government, by shooting, throwing,
      launching, discharging, or otherwise using a dangerous
      weapon at, into, or in a building, vehicle, airplane, railroad
      engine, railroad car, or boat, occupied by another person, or
      within an assembly of people.

Iowa Code § 708A.1(3).
      Lane argues the State did not present sufficient evidence to prove a

reasonable expectation Lane would imminently act on his threats. We agree.

      The legislature did not define the word “imminent” as used in section

708A.5. As a result, “ ‘we may refer to prior decisions of this court and

others, similar statutes, dictionary definitions, and common usage’ to
                                           5

determine its meaning.” State v. Shanahan, 712 N.W.2d 121, 142 (Iowa

2006) (quoting State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996)). In

Shanahan, we recognized the following definitions of “imminent” for

purposes of our self defense/defense-of-others statute: “ ‘ready to take

place,’ ‘near at hand,’ ‘hanging threateningly over one’s head,’ and

‘menacingly near.’ ” Id. (quoting Webster’s Third New Int’l Dictionary 1130

(2002)). Lane’s threats do not satisfy any of these definitions.
       Lane was in custody when he made the statements to the officers.

Because he had been arrested for violating a protective order, he was not

subject to release until after appearing in court. Iowa Code § 236.11. As a

practical matter, Lane would have been held in jail until at least the next

morning. Consequently, there was no reasonable likelihood Lane would

imminently act on his threats.

       The State contends “[t]he mere fact [Lane] was taken into custody

immediately after he made the threats in this case does not rule out the

possibility that he could escape and make good on the threats, or could

possibly enlist the aid of a confederate to act upon his threats.” While
nearly anything is possible, the statute requires a “reasonable expectation

or fear of the imminent commission of such an act of terrorism.”                     Id.

§ 708A.5 (emphasis added).          It was highly unlikely Lane would escape

custody. Moreover, there is no evidence in the record to suggest Lane was

capable of enlisting the assistance of another person while in custody.1

       The State complains “law enforcement officers should not have to wait

until a defendant, who has previously threatened them, comes after them

with a gun before they can make an arrest.” This statement ignores the fact

a person making threatening statements to police officers may be charged

       1After Lane arrived at the sheriff’s office, he declined the opportunity to make a

telephone call.
                                            6

with intimidation regardless of whether the person threatened imminent

harm. Moreover, the State seems to suggest imminence for purposes of

section 708A.5, threat of terrorism, should be based on the quality or

seriousness of the threat rather than the temporal aspect of the threat.

Certainly, our statute does not require a person to threaten the immediate

commission of an act of terrorism.               Nevertheless, it does require a

reasonable expectation the act is impending or about to occur. Lane’s

threats could not have been carried out until the next day at the earliest. If

we held that was sufficient for a threat of terrorism, we would be left with

the odd result of imminence meaning one thing for self defense and another

thing for terrorism. For these reasons, we find the district court erred in

denying Lane’s motion for judgment of acquittal on the terrorism count.

       B.     Intimidation with a Dangerous Weapon. Lane also claims

there was insufficient evidence to convict him of intimidation with a

dangerous weapon.2 Under Iowa Code section 708.6,

       A person commits a class “D” felony when the person shoots,
       throws, launches, or discharges a dangerous weapon at, into,
       or in a building, vehicle, airplane, railroad engine, railroad car,
       or boat, occupied by another person, or within an assembly of
       people, and thereby places the occupants or people in
       reasonable apprehension of serious injury or threatens to
       commit such an act under circumstances raising a reasonable
       expectation that the threat will be carried out.

(Emphasis added.)
       Lane claims the State failed to produce evidence to support a

reasonable expectation the threats would be acted upon. We find Lane

failed to preserve this error for appeal. While Lane’s counsel moved for a

judgment of acquittal on both counts, he focused on the lack of an


       2 Section 708.6 was formerly entitled “Terrorism.” See Iowa Code § 708.6 (2001). In
2002, the legislature changed the title to “Intimidation with a dangerous weapon” and
created chapter 708A, which now pertains to “Terrorism.” See 2002 Iowa Acts ch. 1075.
                                      7

imminent threat for purposes of the terrorism charge and neglected to

provide any grounds to support an acquittal on the intimidation charge.

See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding motion for

judgment of acquittal does not preserve error where there was no reference

to specific grounds).

      Lane alternatively argues his trial counsel’s failure to preserve error

deprived him of the effective assistance of counsel guaranteed by the Sixth

and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The test for determining whether

a defendant received effective assistance of counsel is “whether under the

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

within the range of normal competency.” Snethen v. State, 308 N.W.2d 11,

14 (Iowa 1981). The defendant must prove (1) counsel failed to perform an

essential duty, and (2) prejudice resulted. Id. To establish prejudice, the

defendant must demonstrate the “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.”    Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80

L. Ed. 2d at 698.

      We generally prefer resolving ineffective-assistance-of-counsel claims

on post conviction relief in order to give trial counsel an opportunity to

explain the reasons, if any, for his acts or omissions. See State v. Bass, 385

N.W.2d 243, 245 (Iowa 1986). We will, however, address such a claim on

direct appeal if the record is sufficient to do so. State v. Bumpus, 459

N.W.2d 619, 627 (Iowa 1990).

      In the present case, we see no reason to delay ruling on this issue.

Trial counsel’s explanation is not necessary because counsel did not fail to

perform an essential duty. Even if counsel had articulated grounds for the
                                      8

motion for judgment of acquittal on the terrorism charge, the district court

would not have granted the motion because the State presented sufficient

evidence for a jury to decide Lane’s statements created a “reasonable

expectation that the threat will be carried out.” Iowa Code § 708.6. See

United States v. Floyd, 458 F.3d 844, 849 (8th Cir. 2006) (“The district court

does not decide that a particular communication is a threat as a matter of

law, but whether there is sufficient evidence for a jury to decide that a

reasonable recipient would interpret it as a threat.”).

      We have previously said “[t]hreats need not be explicit; they may be

made by innuendo or suggestion.” Crone, 545 N.W.2d at 271 (citing State v.

McGinnis, 243 N.W.2d 583, 589 (Iowa 1976)). With respect to the motion for

a judgment of acquittal, the issue before the district court was whether

there was sufficient evidence for a reasonable jury to find “a reasonable

person of ordinary intelligence would interpret [Lane’s] statement as a

threat . . . in light of the surrounding circumstances.” State v. Milner, 571

N.W.2d 7, 10 (Iowa 1997).

      Lane referred to the Atlanta courthouse shooting only eight days after

it occurred. He said “[t]hat Atlanta shooting is not going to be the only

thing that’s going to happen. . . . I’m going to take care of all you mother

fuckers.” Although he never specifically said he was going to shoot people,

given the circumstances, it could reasonably be inferred that is what Lane

meant. See Floyd, 458 F.3d at 849 (holding recent newspaper article about

a judge’s family being murdered sent to a lawyer and two judges with the

words “Be Aware Be Fair” written at the top was sufficient evidence for a

jury to find the defendants guilty of mailing threatening communications).

Moreover, Lane was very angry when he made the statements to the police.

He admitted yelling and cursing at the officers because he wanted to make
                                      9

sure they heard him. The officers testified they did not think he was joking.

Instead, they took his threats very seriously. The district court properly

submitted the intimidation charge to the jury. Thus, Lane’s attorney was

not ineffective for failing to articulate grounds for an acquittal on this

charge.

      C.    Jury Instructions. Lastly, Lane alleges his trial counsel was

ineffective for failing to request an objective standard instruction for the

“reasonable expectation” component of both counts. He contends the jury

should have been instructed the State had the burden to prove a reasonable

person would expect the threat to be carried out based on the existing facts

and circumstances. We find it unnecessary to reserve this issue for post-

conviction relief. Since there was no prejudice, we need not determine

whether Lane’s trial counsel failed to perform an essential duty. See State v.

Cook, 565 N.W.2d 611, 614 (Iowa 1997) (noting the court may dispose of an

ineffective-assistance-of-counsel claim if the defendant fails to meet either

the breach of duty or prejudice prong).

      The jury was instructed the State must prove for intimidation with a

deadly weapon that

   1. On or about March 19, 2005, in Tama County, Iowa, the
      Defendant threatened to shoot a dangerous weapon at, into, or
      in a building occupied by another person.

   [and]

   2. The Defendant made the threat under circumstances raising a
      reasonable expectation that the threat would be carried out.

(Emphasis added.) As we have already alluded, the jury had to determine

whether a reasonable person would have expected Lane to act on his

threats as opposed to whether the officers themselves felt threatened. This

instruction does not state the jury should apply an objective or reasonable-
                                    10

person standard. See State v. Jackson, 305 N.W.2d 420, 424 (Iowa 1981)

(approving an instruction explaining reasonable expectation “means

whether, under the existing facts and circumstances, a reasonable person

would expect that the threat would be carried out”).      However, for an

ineffective-assistance-of-counsel claim, the defendant must demonstrate the

“reasonable probability, that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The evidence overwhelmingly

proved a reasonable person hearing Lane’s statements would have expected

him to act on his threats. He referenced a recent courthouse shooting while

yelling and cursing at the deputies. He told them more than once they were

going to be “sorry” when he got a court schedule. He expressed regret for

not killing his ex-wife. Considering the circumstances of Lane’s statements,

there is no reasonable probability the results would have been different.

      IV.      Conclusion.

      There was insufficient evidence to submit the threat-of-terrorism

charge to the jury. It was error to deny Lane’s motion for judgment of

acquittal on that count. With respect to the intimidation charge, there was

ample evidence of intimidation to support the jury’s finding of guilt. A new

trial for the intimidation count is not necessary because Lane was not

prejudiced by trial counsel’s failure to request an objective-standard jury

instruction.

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
