                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0144
                              Filed August 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEFFREY MICHAEL HAPPE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Paul G. Crawford (trial)

and Steven P. Van Marel (appeal), District Associate Judges .



      A defendant challenges his conviction for third-degree harassment.

AFFIRMED.



      John L. Dirks of Dirks Law Firm, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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TABOR, Presiding Judge.

       Jeffrey Happe appeals his simple misdemeanor conviction for harassment

in the third degree. Happe contends the State offered insufficient evidence at trial.

He also alleges his trial counsel was ineffective for not objecting to the prosecution

as violating the separation of powers between the executive and judicial branches.

Because the proof was sufficient to sustain Happe’s conviction and no reason

emerges for counsel to raise a separation-of-powers claim, we affirm.

   I. Facts and Prior Proceedings

       During the first month of the 2018 spring semester, Happe and R.A. were

groupmates for a project in their graduate-level class at Iowa State University. The

group communicated through emails, calls, and texts. But R.A. testified Happe’s

messaging “very quickly escalated.” He called her many times a day, including

several calls after midnight. Once, Happe called R.A. claiming to be outside her

apartment and insisted she let him inside so they could talk immediately. Happe

told R.A. she “had to let him in” and “he had to talk to [her] right now.”          To

deescalate the situation, R.A. advised Happe to contact her by email Monday

through Friday between 8:00 a.m. and 5:00 p.m. But he ignored her request. She

testified: “[I]t felt like it was not about the group project with the amount of emojis

or jokes . . . it was an inappropriate relationship to have after I had kind of set

boundaries.”

       Beyond the calls, Happe showed up at R.A.’s work to leave her a note and

once followed her home after midnight from the student union. R.A. contacted

their professor about Happe’s conduct. In response, their professor said she

noticed Happe would wait until R.A. took a seat so he could sit near her and would
                                        3


wait for R.A. to leave the room so he could follow her. Their professor removed

Happe from the project in mid-February and directed him to finish the class online.

R.A. also contacted campus police. In turn, the police informed Happe that R.A.

wanted no more interaction with him. He agreed not to contact her.1

      That agreement held for six months. But in September, R.A. was sitting

next to a friend in the lounge of the Parks Library when Happe entered. He sat

down on the other side of her friend, which placed him about four feet from R.A.

The lounge could seat around twenty people comfortably, and only five people

were there. Feeling “pretty panicked,” R.A. texted her friend “this is the person

that was stalking me” and expressed that she “felt unsafe.” The friend agreed they

should leave the lounge.

      As they packed up their things, Happe “leaned over” and gestured toward

an abandoned water bottle, asking, “Hey, does this belong to you ladies?” R.A.

did not answer, but her friend said: “‘no’ very short.” Yet Happe persisted, trying

to engage the women in conversation about the weather. R.A. “couldn’t take it

anymore” and walked out of the building without her friend. R.A. reported the

encounter to campus police.

      Acting on R.A.’s complaint, the State charged Happe with harassment in

the third degree, a simple misdemeanor, in violation of Iowa Code

section 708.7(1)(b), (4) (2018). After a bench trial in October 2018, a district

associate judge found Happe guilty as charged. Happe appealed under Iowa Rule

of Criminal Procedure 2.73.      Another district associate judge affirmed the


1 Before trial, the prosecutor and defense counsel stipulated that police had
contacted Happe and “he understood [R.A.] did not want contact with him.”
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conviction. Happe then applied for discretionary review, which our supreme court

granted. The supreme court then transferred the case to our court for resolution.

   II. Scope and Standards of Review

       Happe’s two claims call for different standards of review.

       On his sufficiency challenge, we review for correction of legal error. See

State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). We view the evidence in the

light most favorable to the State. See State v. Fordyce, 940 N.W.2d 419, 425

(Iowa 2020). In bench trials, the court’s findings of fact have the effect of a special

verdict, binding us if substantial evidence supports them. Id.

       For his ineffective-assistance-of-counsel claim, we engage in de novo

review. See State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).

   III. Analysis

       A. Sufficiency of the Evidence

       To convict Happe of third-degree harassment, the State had to prove the

following:

                he “purposefully and without legitimate purpose”

                had “personal contact” with R.A.

                with the “intent to threaten, intimidate, or alarm” her.

See Iowa Code § 708.7(1)(b). The phrase “personal contact” means “an encounter

in which two or more people are in visual or physical proximity to each other.” Iowa

Code § 708.7(7)(b).        Personal contact may include physical touching or oral

communication, but neither is essential. Id. The harassment statute required the

State to prove that when Happe purposefully had personal contact with R.A., he
                                             5

possessed the “specific intent to threaten, intimidate, or alarm” her. See In re D.S.,

856 N.W.2d 348, 352–53 (Iowa 2014).

       In challenging his conviction, Happe alleges the State failed to prove that

(1) he had specific intent to threaten, intimidate, or alarm R.A. and (2) he acted

without legitimate purpose.2 We will consider each element in turn.

       (1)    Specific Intent

       An actor’s specific intent is a mental process seldom capable of direct proof.

State v. Walker, 574 N.W.2d 280, 289 (Iowa 1998). But specific intent “may be

shown by circumstantial evidence and the reasonable inferences drawn from that

evidence.” Id. Happe contends it was not reasonable to infer that he intended to

threaten, intimidate, or alarm R.A. by approaching her in a public place, the Parks

Library. He argues he had the “right to be in the same room” as R.A. and “a right

to ask if a water bottle belonged to her.”

       But Happe’s actions and surface-level innocuous statements do not exist

within a vacuum. They are influenced by his history with R.A. See State v. Evans,

671 N.W.2d 720, 725 (Iowa 2003) (considering “prior history between the two

parties” when examining intent for harassment conviction).         Happe knew his

unwelcome interactions with R.A. caused their professor to remove him from the


2 Within his substantial-evidence argument, Happe discusses two evidentiary
issues: (1) the acceptance of a stipulation that police told him not to contact R.A.
and (2) the admissibility of hearsay statements by their professor. But he does not
ask for a new trial based on evidentiary error. Instead, he insists the trial court
should not have considered that evidence in finding him guilty. Even if we assume
the court erred in admitting those two pieces of evidence, when conducting our
sufficiency review, we may consider all evidence admitted during the trial. See In
re Stenzel, 827 N.W.2d 690, 701 (Iowa 2013) (citing State v. Dullard, 668 N.W.2d
585, 597 (Iowa 2003)). Happe gains no ground in urging exclusion of those two
pieces of evidence as part of his sufficiency challenge.
                                          6


study group and relegate him to online class. And when campus police intervened

in the spring of 2018, Happe agreed not to contact R.A. As the State argues, these

remedial actions informed Happe that R.A. found his behavior threatening,

intimidating, or alarming.

         Yet the following September, when Happe encountered R.A. in the library

lounge, he chose to approach her. And not just to approach, but to sit four feet

away, despite ample seating at a greater distance. Not only that, he directed a

trivial question at R.A. and her friend as he noticed them leaving. And despite

receiving a curt answer from R.A.’s friend, he kept trying to engage them in

conversation.     A fact finder may presume the accused intended the natural

consequences of his acts. State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998).

Happe’s “behavior would easily cause [R.A.] to feel frightened, disturbed, or in

danger; such is the natural consequence of [Happe’s] acts, from which the

requisite intent for harassment may be inferred.” See Evans, 671 N.W.2d at 725.

The trial court reasoned: “Based on the defendant’s history with [R.A.], he should

have known better. Not just once, but twice engages in communication, verbal

communication, personal contact. I mean, he’s in physical proximity to [R.A.] as

well, so that definition of personal contact is satisfied.” In addressing Happe’s

specific intent, the court believed “given the background of the two parties, that his

contact was maybe not meant to threaten her, but maybe at the very least to

intimidate her or alarm her.”3


3   The trial court gave a colorful illustration of Happe’s behavior:
         Given the background that he’s had with [R.A.], this innocent
         comment from his perspective is consistent with the effect Jack
         Nicholson’s character has in The Shining when he bursts through the
                                         7


       To counter, Happe claims people routinely interact “in ways that are

offensive, concerning, or even creepy” to others without subjecting themselves to

harassment charges. But here, as in Evans, context is key. Evans had several

encounters with his victim during which she rebuffed his attention before he

showed up on her doorstep uninvited.          Id. at 722–724 (giving context to

harassment charges). Similarly, Happe knew that his prior advances made R.A.

so uncomfortable she reported him to their professor and police. He agreed not to

contact her. Then he approached her in the library lounge and made his presence

known. “It should not have been unexpected on [Happe’s] part that his conduct

would alarm [R.A].” See id. We find substantial evidence to support Happe’s

specific intent.

       (2)     Without Legitimate Purpose

       Happe next contends the State did not prove he acted “without legitimate

purpose” by interacting with R.A. in the library. Happe equates acting with no

legitimate purpose as acting with an “unlawful purpose.” Because he was lawfully

in the library, he contends the State could not satisfy this element of harassment.

       Our supreme court addressed this element in another harassment case

involving Evans. See State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003). The

court held: “Because there must be a specific intent to threaten, intimidate, or

alarm, the only legitimate purpose that will avoid the criminal status conferred by

the statute would be a legitimate purpose to threaten, intimidate, or alarm.” Id.




       door with an ax saying, “Here’s Johnny.” You know, that had the
       effect of a, “Here's Jeffrey” on [R.A.] And regardless of how innocent
       the defendant wants to portray his conduct, the court’s not buying it.
                                         8

      Happe paints that passage as “circular logic” and criticizes the Evans

decision for not giving an example of what would constitute “a legitimate purpose

to threaten, intimidate, or alarm.”4 Circular nor not, we are bound by our supreme

court’s rulings. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990)

(“We are not at liberty to overturn Iowa Supreme Court precedent.”).

      On appeal, Happe does not assert he had a legitimate purpose to act in a

way that would threaten, intimidate, or alarm R.A. See State v. Burt, No. 17-0546,

2018 WL 1629233, at *2 (Iowa Ct. App. Apr. 4, 2018) (rejecting defendant’s claim

he had a legitimate purpose to communicate with his sister when that

communication took the form of a threat). The trial court found Happe acted

without a legitimate purpose when he engaged in personal contact with R.A. in the

library lounge. The court noted: “I’m not buying that the real concern about the

water bottle’s ownership is a legitimate purpose here.”5 As detailed above, the

court found Happe aimed to intimidate or alarm R.A. through his otherwise

innocuous behavior. Substantial evidence buoys the trial court’s findings. Happe’s

alleged concern over the water bottle was an excuse to interact with R.A., knowing




4 We can imagine such an example. Let’s say a stranger ran up to another person
on the street and informed them Jack Nicholson was on a murderous ax rampage,
like his character in The Shining. For sure, the stranger’s purpose was to instill
alarm in the other person. But the stranger did not commit harassment because
the action served the legitimate purpose of warning of an impending attack. See
generally State v. Fratzke, 446 N.W.2d 781, 784 (Iowa 1989) (identifying protest
of government action as a legitimate purpose for offensive written communication).
5 Happe suggests that under the trial court’s rationale, only an act of “artifice or

subterfuge” would satisfy the without-legitimate-purpose element. We reject that
suggestion. The trial court believed Happe used the water-bottle inquiry as a ploy
to harass R.A. But it did not reckon that was the only means to show Happe’s
contact lacked a legitimate purpose.
                                          9


from their history that interaction would intimidate or alarm her. Like the district

court, we affirm Happe’s conviction for harassment.

      B. Ineffective Assistance of Counsel

      In his second claim, Happe alleges his counsel was constitutionally remiss

in not raising a separation-of-powers or due-process argument at trial. 6 Happe’s

allegations hinge on characterizing his harassment offense as the act of “breaking

a de facto, nonjudicial protective order.”      Because that characterization is

inaccurate, Happe cannot show ineffective assistance of counsel.

      To prove ineffective assistance, Happe must show (1) his attorney failed to

perform an essential duty and (2) prejudice resulted.           See Strickland v.

Washington, 466 U.S. 668, 687 (1984).           We presume counsel performed

competently unless Happe can prove otherwise by a preponderance of the

evidence. See State v. Doolin, 942 N.W.2d 500, 507 (Iowa 2020). “We measure

counsel’s performance objectively against the prevailing professional norms after

considering all the circumstances.” Id.

      To start, Happe contends the “police-imposed no-contact order” violated the

separation-of-powers doctrine under the Iowa Constitution, as well as his right to

due process of law. He argues Iowa Code chapter 664A makes “the issuance of




6 Last year, the legislature amended Iowa Code section 814.7 to bar appellate
courts from deciding claims of ineffective assistance of counsel on direct appeal.
See 2019 Iowa Acts ch. 140, § 28. But our supreme court decided those provisions
did not apply to judgments entered before July 1, 2019. State v. Macke, 933
N.W.2d 226, 228 (Iowa 2019). Because the district court affirmed judgment in
January 2019, we may consider Happe's ineffective-assistance claim on direct
appeal if the record is adequate. See State v. Kuhse, 937 N.W.2d 622, 627 (Iowa
2020).
                                         10


protective orders a judicial function.” Under his reasoning, enforcement of the “de

facto protective order” denied him fair notice and an opportunity to be heard.

       We first examine the separation-of-powers provision:

       The powers of the government of Iowa shall be divided into three
       separate departments the Legislative, the Executive, and the
       Judicial: and no person charged with the exercise of powers properly
       belonging to one of these departments shall exercise any function
       appertaining to either of the others, except in cases hereinafter
       expressly directed or permitted.

Iowa Const. Art. III, § 1. This provision prohibits any of the three branches from

exercising powers given to the others. Klouda v. Sixth Judicial Dist. Dep’t of Corr.

Servs., 642 N.W.2d 255, 260 (Iowa 2002). According to Happe, as part of the

executive branch, the campus police violated the doctrine by imposing a

no-contact order on him, a power reserved for the judiciary. See Iowa Code §§

664(A)(3), 664(A)(5). On appeal, Happe argues his trial attorney should have

challenged his prosecution as an illegitimate enforcement of that de-facto

nonjudicial no-contact order.

       While creative, Happe’s constitutional claims do not hold up on close

examination. First, the record does not show that the campus police, in securing

Happe’s informal agreement in February 2018 not to contact with R.A., purported

to have imposed a no-contact order. Second, the State did not charge Happe in

September 2018 with violating a no-contact order. The charge was third-degree

harassment. Happe’s exchange with the campus police was not the basis for the

prosecution, but it served as relevant evidence to prove his specific intent and lack

of a legitimate purpose under section 708.7(1)(b).
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       Our supreme court has recognized the separation-of-powers doctrine has

no “rigid boundaries.” Klouda, 642 N.W.2d at 260. But, on a basic level, the

legislature defines crimes and prescribes punishment; the executive has the

enforcement and prosecutorial function, and the judiciary decides guilt and

imposes the penalties. See generally Doe v. State, 688 N.W.2d 265, 271 (Iowa

2004); Klouda, 642 N.W.2d at 621.       Following that structure, the legislature

enacted the harassment statute; the police and prosecutor brought charges; and

the court found Happe guilty.     Trial counsel had no duty to challenge the

prosecution as a violation of the separation of powers or Happe’s right to due

process. See Doolin, 942 N.W.2d at 507 (finding record adequate to decide that

counsel had no duty to raise meritless objection). Happe’s ineffective-assistance-

of-counsel claim fails.

       AFFIRMED.
