                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1054
                           Filed September 12, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ETHEN EDDIE RICHARD AYERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee County, Ty Rogers, District

Associate Judge.



      Ethen Ayers appeals his conviction of assault on a correctional officer

causing bodily injury. AFFIRMED.



      William R. Monroe of Law Office of William Monroe, Burlington, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2018).
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SCOTT, Senior Judge.

        Ethen Ayers appeals his conviction of assault on a correctional officer

causing bodily injury. He contends (1) his trial counsel was ineffective in failing to

object to several instances of alleged prosecutorial misconduct and (2) the district

court erred in declining to instruct the jury on a justification defense.1

I.      Background Facts and Proceedings

        Upon the evidence presented at trial, a reasonable jury could make the

following factual findings. On December 8, 2016, Correctional Officer Derek Dill

was working in the housing unit in the state penitentiary in which Ayers resides.

As a result of a previous lockdown on this date, inmates were restricted from taking

showers for a period of time. Sometime after the lockdown ceased, Ayers asked

Dill if he could take a shower. Dill told Ayers no, upon which Ayers requested to

speak with a correctional sergeant. According to Ayers’s subsequent interview

with an investigator, Dill responded, “I’m not doing nothing for you, shut the fuck

up and lay down.” At this point, Ayers began packing up his belongings in his cell,

having decided if Dill did not apologize to him he was going to attack Dill.

Thereafter, Dill did not apologize to Ayers, and Ayers “felt disrespected to the max.”

The lack of an apology “sealed the deal” for Ayers, and Ayers decided he was

going to attack Dill.



1
  In the “Statement of the Case” portion of Ayers’s brief on appeal, he passively suggests
his trial counsel was ineffective “for failing to effectively argue for and obtain a justification
defense.” No further argument is made concerning counsel’s effectiveness in relation to
the justification defense. Instead, in the “Argument / Discussion of the Merits” section of
Ayers’s brief, he only argues the district court erred in declining to instruct the jury on
defense of self or property. We will only consider the issue with which Ayers provides us
a substantive argument, whether the district court erred in declining to instruct the jury on
a justification defense. See Iowa R. App. P. 6.903(2)(g)(3).
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       Later, while inmates were enjoying recreational time, Dill was seated at the

correctional officer’s desk in the inmate housing unit writing a report. Video footage

from the prison shows that while Dill was writing his report, Ayers approached from

behind and punched Dill in the side of the face, knocking him to the floor. Ayers

then spit on Dill. In his subsequent interview with the penitentiary investigator,

Ayers unequivocally admitted to assaulting Dill. Dill suffered a laceration and

swelling under his right eye, two black eyes, a chipped tooth, and the dislodging of

two cavity fillings. Ayers generally asserted in his trial testimony that he attacked

Dill because he felt disrespected and he did not want to be seen as weak by the

other inmates. He testified he was forced to take action against Dill.

       Ayers was charged by trial information with assault on a correctional officer

causing bodily injury. A jury found him guilty as charged. Ayers appealed following

the imposition of sentence. Additional facts may be set forth below as are relevant

to the issues raised on appeal.

II.    Analysis

       A.     Ineffective Assistance of Counsel—Prosecutorial Misconduct

       Ayers contends his trial counsel was ineffective in failing to object to several

instances of alleged prosecutorial misconduct. We review ineffective-assistance-

of-counsel claims de novo. State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).

Ayers “must establish by a preponderance of the evidence that ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’” State

v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting State v. Harris, 891 N.W.2d

182, 185 (Iowa 2017)); accord Strickland v. Washington, 466 U.S. 668, 687 (1984).

We “may consider either the prejudice prong or breach of duty first, and failure to
                                          4

find either one will preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa

2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).

              1.     Reading of the Trial Information—Level of Offense

       First, Ayers contends his counsel was ineffective in relation to the

prosecutor engaging in misconduct by advising the jury during his recitation of the

trial information at the beginning of trial that the crime with which Ayers was

charged is an aggravated misdemeanor.            The record indicates, and Ayers

concedes, that when this statement was made, defense counsel began to voice

an objection. However, before the objection could be uttered, the court interjected,

admonishing the jury it was “not to consider the statement of counsel regarding the

level of offense.” Following opening statements, defense counsel requested a

recess and moved for a mistrial as a result of the statement. The district court

denied the motion, noting, among other things, its immediate admonishment of the

jury to disregard the reference to the level of the offense.

       Under these circumstances, we cannot say defense counsel performed

“below the standard demanded of a reasonably competent attorney” and therefore

failed to perform an essential duty. See Harrison, 914 N.W.2d at 206 (quoting

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)). Here, defense counsel

clearly intended to object to the statement, and after the court took the statement

into its own hands, counsel promptly moved for a mistrial. Counsel did not fail to

perform an essential duty. As to the prejudice prong, the court promptly instructed

the jury to disregard the reference to the level of the offense. “We presume juries

follow the court’s instructions.” State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010).
                                            5


The court’s instruction dissipated any prejudice flowing from the statement.

Counsel was not ineffective in this respect.

               2.     Reading of Trial Information—“True Information”

       Ayers’s next contention also concerns his counsel’s failure to object to the

prosecutor’s recitation of the trial information to the jury at the beginning of the trial,

wherein the prosecutor stated it was “A True Information.” Ayers contends use of

the word “true” improperly influenced the jury to believe the accusations against

him were true and was therefore a violation of his right to be presumed innocent.

He also argues the statement was an improper expression of opinion on the part

of the prosecutor and improperly appealed to the passion and prejudice of the jury.

       In order to establish the prejudice prong of an ineffective-assistance claim,

a defendant is required to “show that there is a reasonable probability that, but for

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

been different.” Strickland, 466 U.S. at 694. “[T]he question is whether there is a

reasonable probability that, absent the [alleged] errors, the factfinder would have

had a reasonable doubt respecting guilt.” Id. at 695. Upon our de novo review of

the record, we answer that question in the negative. In his interview with an

investigator after his assault of Dill and in his trial testimony, Ayers readily admitted

that the allegations against him were “true.”            Simply stated, the evidence

supporting the conviction was overwhelming. We find no reasonable probability of

a different outcome had the prosecutor never stated the trial information was “A

True Information.” Counsel was not ineffective.

               3.     Opening Statements
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      Next, Ayers complains of his counsel’s failure to object to the prosecutor’s

expressions in opening statements concerning what he expected the evidence

would show. Ayers specifically complains of the following statements on the part

of the prosecutor:

              So at the end of the day, folks, you know, I believe that we will
      be able to prove that the defendant committed an act that was
      intended to cause an injury upon the victim, that the victim was a
      correctional officer, the defendant definitely had the ability to do so,
      and that a bodily injury occurred.
              . . . . But I feel that after we’ve presented you with the
      evidence, that you will find the only right verdict, and that’s guilty, as
      I would have proven that to you beyond a reasonable doubt.
              So in the next few hours, you know, please take time—and
      you’ll be watching a video, you’ll have an opportunity to read, and
      you’ll have an opportunity to hear why he should be convicted in this
      matter. Thank you.

Ayers contends these statements were impermissible statements of personal

opinion on the part of the prosecutor. But Ayers chooses only selective language

from the prosecutor’s opening statement. He omits the portions of the opening

statement in which the prosecutor detailed the evidence that would be presented.

Furthermore, the complained of language does not even contain a statement of

opinion as to the outcome of the case or Ayers’s guilt, innocence, or credibility.

Instead, the prosecutor merely provided his summary of what the evidence would

show and stated his belief the evidence would be sufficient to support each

element of the crime charged. Prosecutors are allowed to express their belief in

opening statements that the evidence will support the charge.           See State v.

Shanahan, 712 N.W.2d 121, 139 (Iowa 2006) (“This so-called egregious statement

is nothing more than the prosecutor’s belief the evidence would support the charge

. . . .”); see also State v. Crafton, 56 N.W. 257, 529 (1893) (“In the opening of a
                                         7


case some latitude must be allowed counsel in stating what they expect to prove.”).

We find the prosecutor’s statements were permissible, and defense counsel was

therefore under no duty to object.     Alternatively, based on the overwhelming

evidence of Ayers’s guilt, we find no reasonable probability of a different outcome

had the challenged statements never been made.

             4.     Closing Arguments

      Next, Ayers contends the prosecutor engaged in misconduct during closing

arguments in a number of respects. First, Ayers complains of his counsel’s failure

to object to the prosecutor’s statement in rebuttal argument that Ayers “blind-sided

and cold-cocked” Dills. But the prosecutor was “entitled to some latitude during

closing argument in analyzing the evidence admitted” and was allowed to “argue

the reasonable inferences and conclusions to be drawn from the evidence.” See

State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003). Based upon the evidence

presented, the prosecutor’s description of the attack was a completely accurate

characterization. We find defense counsel was under no duty to object.

      Next, Ayers complains his counsel failed to object to the prosecutor stating

his own personal beliefs during closing rebuttal. But, similar to Ayers’s challenge

to the prosecutor’s opening statement, this is merely a challenge to the

prosecutor’s argument that the evidence presented was sufficient to establish the

elements of the charged crime. Again, we find this permissible and conclude

defense counsel was under no duty to object.          Alternatively, based on the

overwhelming evidence of Ayers’s guilt, we find no reasonable probability of a

different outcome had the challenged statements never been made in closing

arguments.
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       B.     Jury Instructions

       The court’s proposed marshalling instructions for the crime charged and the

lesser-included offenses required as an element of each offense that Ayers “did

an act which was intended to cause pain or injury or result in physical contact which

was insulting or offensive or place Derek Dill in fear of an immediate physical

contact which would have been painful, injurious, insulting or offensive to him.”

After the close of the evidence, Ayers’s counsel requested language to be added

to each instruction to require the act was done “without justification.”         Upon

questioning by the court, defense counsel specified she was referring to self-

defense as a justification for Ayers’s act of assaulting Dill.        The court then

questioned defense counsel concerning what evidence supported instructing the

jury on the issue of self-defense. Counsel pointed to Ayers’s indication in his trial

testimony “that he felt provoked into this.”       The court concluded there was

insufficient evidence to warrant instructing the jury on justification or self-defense.

       On appeal, Ayers argues the evidence presented “justified a jury question

on the issue of justification as to defense of self or [his] property . . . because it

could have convinced a rational fact finder that [he] established the affirmative

defense.”

       “Alleged errors in the submission or refusal to submit jury instructions are

reviewed for correction of errors at law.” State v. Tipton, 897 N.W.2d 653, 694

(Iowa 2017). “The district court has a ‘duty to instruct fully and fairly’ on the law

applicable to ‘all issues raised by the evidence.’” State v. Schuler, 774 N.W.2d

294, 297 (Iowa 2009) (quoting State v. Stallings, 541 N.W.2d 855, 857 (Iowa

1995)). “If substantial evidence in the record support’s a party’s legal theory, it is
                                            9

entitled to submit that theory to the jury.” Ludman v. Davenport Assumption High

Sch., 895 N.W.2d 902, 919–20 (Iowa 2017). “Evidence is substantial enough to

support a requested instruction when a reasonable mind would accept it as

adequate to reach a conclusion.” Id. at 920 (quoting Beyer v. Todd, 601 N.W.2d

35, 38 (Iowa 1999)).

        First and foremost, Ayers’s request for a justification instruction was limited

to the issue of self-defense, and Ayers never requested an instruction on his

appellate claim of defense of property. He has therefore failed to preserve error

on the defense-of-property claim. See Iowa R. Civ. P. 1.924 (“[A]ll objections to

giving or failing to give any instruction must be made in writing or dictated into the

record . . . specifying the matter objected to and on what grounds. No other

grounds or objections shall be asserted thereafter, or considered on appeal.”);

Iowa R. Crim. P. 2.19(5)(f) (“The rules relating to the instruction of juries in civil

cases shall apply to the trial of criminal cases.”). In any event, the record makes

abundantly clear that this justification defense does not apply to the facts of this

case.

        As to the self-defense claim, Ayers points to his testimony that he felt

disrespected by Dill, that other inmates observed such disrespect, and that this

could potentially lead to other inmates targeting him as a weakling. No evidence

was presented that attacking Dill was “necessary” for Ayers to defend himself from

“any imminent use of unlawful force” by another inmate, a correctional officer, or

anyone else for that matter. See Iowa Code § 704.3 (2016) (emphases added)

(defining when a person is justified in using reasonable force to defend oneself).

We affirm the district court’s refusal to instruct the jury on justification.
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III.   Conclusion

       We conclude trial counsel was not ineffective as alleged and the district

court appropriately declined to instruct the jury on a justification defense. We affirm

Ayers’s conviction of assault on a correctional officer causing bodily injury.

       AFFIRMED.
