               IN THE SUPREME COURT OF IOWA
                              No. 08–0446

                           Filed June 25, 2010


STATE OF IOWA,

      Appellee,

vs.

FREDERICK BRAGGS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Don C.

Nickerson, Judge.



      Defendant claims trial counsel was ineffective for failing to

challenge submission of a jury instruction that included assault as

defined under Iowa Code section 708.1(1) (2005) as a lesser-included

offense to the crime of attempt to commit murder. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller,     Attorney General, Bridget A. Chambers,

Assistant Attorney General, John Sarcone, County Attorney, and James

Ward, Assistant County Attorney, for appellee.
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BAKER, Justice.

      The defendant, Frederick Braggs, appeals from his conviction for

assault and contends his trial counsel was ineffective in failing to object

to the instruction on assault as a lesser-included offense of attempt to

commit murder.      He claims we should overrule Blanford v. State, 340

N.W.2d 796 (Iowa Ct. App. 1983), and State v. Powers, 278 N.W.2d 26

(Iowa 1979), to the extent those decisions hold assault is a lesser-

included offense of attempt to commit murder. We hold assault under

Iowa Code section 708.1(1) (2005) is a lesser-included offense of attempt

to commit murder, and, therefore, Braggs’s counsel was not ineffective

for failing to object to the instruction on this offense.

      I.     Background Facts and Proceedings.

      In May 2007, Frederick Braggs forced his way into the apartment

of Bobby Seirberling without Seirberling’s permission.             He then

proceeded into the apartment and attacked Seirberling’s girlfriend, Ngan

Huynh. During these events, Seirberling hit his head on the intercom

and was momentarily stunned. When he regained his footing, he looked

back to see Braggs with his knee on Huynh’s chest as she lay on the

loveseat in the living room.      Seirberling then ran downstairs to the

manager’s apartment to get help and call 911.               When Seirberling

returned upstairs to the apartment, he found Huynh laying in the

doorway to his apartment.       Huynh testified that after Seirberling left,

Braggs held her down and stabbed her in the chest, neck, hip, and left

arm with a knife while repeatedly saying, “I want to kill you.” Braggs

then fled the apartment.       Eventually, the police and an ambulance

arrived, and Huynh was taken to the hospital. She had four non-life-

threatening injuries. However, the stab wound to her left arm required

extensive surgery to repair a severed nerve.
                                      3

      Braggs was charged by trial information with burglary in the first

degree in violation of Iowa Code sections 713.1 and 713.3, and willful

injury in violation of Iowa Code section 708.4(1).         The State later

amended the trial information to add the charge of attempted murder in

violation of Iowa Code section 707.11.

      A jury trial was held.        At trial, both Seirberling and Huynh

identified Braggs as Huynh’s assailant. Huynh testified further that she

had met Braggs three or four months earlier when she was living in a

homeless shelter.    She knew Braggs only by the name “Fred” and

testified she did not like him and that he bothered her.         Friends of

Braggs also testified that he was ranting and raving about his girlfriend

earlier on the day of the attack. They testified he stated, “I can’t believe

all I done for her . . . and she treat me like this.” One of the friends

testified Braggs showed him a black-handled steak knife just before the

friend dropped Braggs off at Blues on Grand, a bar located in the same

block as Seirberling’s apartment.

      The trial court submitted jury instructions on the charge of

attempted murder that read in part:

            If the State has proved all of the elements, the
      defendant is guilty of Attempt to Commit Murder. If the
      State has failed to prove any one of the elements, the
      defendant is not guilty of Attempt to Commit Murder and
      you will then consider the charge of Assault as explained in
      Instruction No. 39.

Instruction No. 39 read:

           The State must prove all of the following elements of
      Assault as a lesser included offense as charged in Count III:
            1. On or about the 30th day of May, 2007, the
      defendant did an act which was meant to cause pain or
      injury to Ngan Huynh.
             2. The defendant had the apparent ability to do the
      act.
                                     4
             If the State has proved all the elements, the defendant
      is guilty of Assault. If the State has failed to prove any one
      of the elements, the defendant is not guilty.

Braggs’s attorney did not object to any of the jury instructions.

      The jury returned verdicts of guilty to burglary in the first degree,

willful injury causing serious injury, and the lesser-included offense of

simple assault. The defendant appealed. The court of appeals affirmed

his conviction. He filed an application for further review with this court,

which we accepted.

      II.    Scope of Review.

      Generally we preserve ineffective-assistance-of-counsel claims for

postconviction relief; however, we will address these claims on direct

appeal if the record is sufficient. State v. Lane, 726 N.W.2d 371, 392–93

(Iowa 2007). We find the record adequate to address Braggs’s claim.

      To establish an ineffective-assistance-of-counsel claim, a defendant

must demonstrate by a preponderance of the evidence that:           “ ‘(1) his

trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.’ ” Anfinson v. State, 758 N.W.2d 496, 499 (Iowa

2008) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)). The

claim fails if either element is lacking.      Id.   In order to establish

prejudice, the defendant must show “ ‘there is a reasonable probability

that, but for the counsel’s unprofessional errors, the result of the

proceeding would have been different.’ ” State v. Reynolds, 746 N.W.2d
837, 845 (Iowa 2008) (quoting Strickland v. Washington, 466 U.S. 668,

694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).

      III.   Discussion and Analysis.

      In his appeal, Braggs alleges that the trial court erred in

determining assault is a lesser-included offense of attempted murder and

that his attorney provided ineffective assistance of counsel for failing to
                                            5

object to the court’s inclusion of assault as a lesser-included offense of

attempted murder in the jury instructions. 1                 He claims we should

overrule Blanford and Powers to the extent those decisions hold assault

is a lesser-included offense of attempt to commit murder. Counsel has

no duty to make an objection or raise an issue that has no merit. State

v. Musser, 721 N.W.2d 734, 752 (Iowa 2006).                   We therefore examine

Braggs’s claim that assault is not a lesser-included offense of attempted

murder.

       Assault was first declared a lesser-included offense of attempt to

commit murder in 1979.            Powers, 278 N.W.2d at 28 (“Assault is an

included offense of the crime of attempt to commit murder.”).                       This

determination was reiterated in Blanford and in State v. Luckett, 387

N.W.2d 298 (Iowa 1986).            See Blanford, 340 N.W.2d at 797 (stating

assault with intent to cause serious injury is a lesser-included offense of

attempted murder); Luckett, 387 N.W.2d at 299 (stating assault is a

lesser-included offense of attempt to commit murder). These decisions

and stare decisis would be the end of our analysis but for the 1978

rewrite of the Iowa Criminal Code.

       Braggs claims that the cases cited in Powers as authority for its

declaration that assault is a lesser-included offense of attempted murder

were based upon the pre-1978 Iowa Code, which recognized the crime of

assault with intent to murder.           See Iowa Code § 690.6 (1977) (“If any

person assault another with intent to commit murder, he shall be

imprisoned in the penitentiary not exceeding thirty years.”).                       This

       1Before  an offense may be submitted to the jury as a lesser-included offense of
the charged crime, the court must determine (1) whether the offense is a lesser-included
offense of the charged crime, and (2) whether there is a factual basis for submitting the
offense in the pending case. State v. Spates, 779 N.W.2d 770, 774 n. 3 (Iowa 2010).
The challenge here relates solely to the first determination, whether assault is a lesser-
included offense of attempt to commit murder, a purely legal question.
                                          6

assertion is correct.     Both cases cited in Powers rely on the pre-1978

Iowa Code section 690.6. See Powers, 278 N.W.2d at 28 (citing State v.

Barney, 244 N.W.2d 316, 318 (Iowa 1976) (“Defendant was charged with

and convicted of assault with intent to commit murder.”); State v. Alford,

260 Iowa 939, 941–43, 151 N.W.2d 573, 574–75 (1967) (defendant was

accused of assault with intent to murder as defined in section 690.6),

overruled in part on other grounds by State v. Bester, 167 N.W.2d 705,

710 (Iowa 1969)). This Code section was repealed, effective Jan. 1, 1978.

1976 Iowa Acts ch. 1245, ch. 4, §§ 526, 529. After the 1978 rewrite of

the Iowa Criminal Code, the crime of attempt to commit murder replaced

section 690.6. This statute provided:

       A person commits a class “C” felony when, with the intent to
       cause the death of any person and not under circumstances
       which would justify the person's actions, the person does
       any act by which he or she expects to set in motion a force or
       chain of events which will cause or result in the death of
       such other person.

Id. ch. 1245, ch. 1, § 711 (codified at Iowa Code § 707.11 (1979)). This

new statute became effective Jan. 1, 1978. Id. ch. 2145, ch. 4, § 529.

The statute has remained substantively unchanged since 1978.                      See

Iowa Code § 707.11 (2009). 2

       As a result of these statutory revisions, an “assault” is no longer an

express element of attempted murder.             Therefore, we must determine

whether assault is a lesser-included offense under the current statutory

scheme, or whether Powers, Blanford, and Luckett should be overruled.




       2We   find no pertinent substantive difference between the 2005 and 2009
versions of the statutes at issue. Therefore, unless otherwise indicated all references
are to the 2009 Iowa Code.
                                           7

       Iowa’s test for determining whether an offense is a lesser-included

of a greater offense was outlined in State v. Jeffries, 430 N.W.2d 728

(Iowa 1988).

       [U]nder the legal test the lesser offense is necessarily
       included in the greater offense if it is impossible to commit
       the greater offense without also committing the lesser
       offense.   If the lesser offense contains an element not
       required for the greater offense, the lesser cannot be
       included in the greater. This is because it would be possible
       in that situation to commit the greater without also having
       committed the lesser. In using this test, we look to the
       statutory elements rather than to the charge or the evidence.

Jeffries, 430 N.W.2d at 740. The court determined that this type of strict

statutory element approach was embodied in the Iowa Rules of Criminal

Procedure and in the Iowa Code. 3              Id. at 736.   This test is called the

impossibility test. State v. Shearon, 660 N.W.2d 52, 55–56 (Iowa 2003).

       In applying the impossibility test we only look to the statutory

elements of the offenses. Jeffries, 430 N.W.2d at 740. The lesser offense

cannot be included in the greater if it contains an element not required

for the greater offense. Id. The offenses at issue are attempted murder

and assault. The elements of attempt to commit murder are:

       1. The person does any act which the person expects to set
       in motion a force or chain of events which will cause or
       result in the death of another.
       2. The person does so with the intent to cause the death of
       another.




       3Since   this case was decided, the Iowa Rule of Criminal Procedure cited, rule
21(3), has been amended and changed to rule 2.22(3). However, it still retains the
language the court relied upon: “In all cases, the defendant may be found guilty of any
offense the commission of which is necessarily included in that with which the defendant
is charged.” Iowa R. Crim. P. 2.22(3) (emphasis added). The Iowa Code section cited in
Jeffries, section 701.9, remains the same today. Iowa Code § 701.9 (2009).
                                          8

Iowa Code § 707.11. 4          One of the the three alternative means of

committing an assault is:

              1. Any act which is intended to cause pain or injury
       to, or which is intended to result in physical contact which
       will be insulting or offensive to another, coupled with the
       apparent ability to execute the act.

Iowa Code § 708.1(1). 5
       Our review of the offenses reveals that to commit attempted

murder a person must do an act by which the person intends to set in

motion a course of events that will result in the death of another, Iowa

Code section 707.11, and, under subsection (1) to commit assault a

person must do an act which is intended to cause another pain or injury

which will be painful, injurious, or offensive. Iowa Code § 708.1(1). As a

practical matter, one cannot intend to set in motion a person’s death

without also intending to cause them pain or injury. Death is the total

cessation of all vital functions and signs of life. Black’s Law Dictionary

428 (8th ed. 2004). To cause someone’s death, one must injure them.

Id. at 801 (to injure someone is to cause physical damage to a person’s

body). Braggs’s focus on the 1978 rewrite of the Iowa Code is misplaced.

“It is not essential that the elements of the lesser offense be described in

the statutes in the same manner as the elements of the greater offense.”

State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990).               Even though the

attempted murder statute no longer includes assault in its title, it is

impossible to commit attempted murder without also performing an act



       4This Code section was amended in 2009, but the amendment does not change

our analysis of this case. See 2009 Iowa Acts ch. 119, § 52 (codified at Iowa Code §
707.11 (Supp. 2009)).
       5We   note that Iowa Code sections 708.1(2) and (3) may require a separate
analysis which is not before us today because only subsection (1) was instructed on as
a lesser-included offense.
                                      9

which meets the statutory definition of an assault under Iowa Code

section 707.1(1).

      Both statutes require an expectation that the act will result in

some harm. Attempted murder requires that the person expects to do

something which will cause or result in the death of another. Iowa Code

§ 707.11. Assault has a similar element in that the offense requires a

person have “the apparent ability to execute the act.”        Id. § 708.1.

Apparent ability under the assault statute means only that the ability to

complete the act be apparent to the actor, meaning “ ‘that his

expectations of placing another in fear [or of causing them pain or injury]

must be reasonable.’ ”       State v. Jackson, 305 N.W.2d 420, 423 (Iowa

1981) (quoting 4 John L. Yeager & Ronald L. Carlson, Iowa Practice:

Criminal Law and Procedure § 174 (1979)), overruled on other grounds by

State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010); accord Bacon ex rel.

Bacon v. Bacon, 567 N.W.2d 414, 418 (Iowa 1997) (stating what is

important is the actor’s intent, not the victim’s perception).    We find

assault as defined under Iowa Code section 708.1(1) is a lesser-included

offense of attempt to commit murder, as attempted murder cannot be

committed without committing an assault as defined under that

subsection.

      Because assault under Iowa Code section 708.1(1) is a lesser-

included offense of attempted murder, an objection on this ground would

have been without merit. Therefore, we find Braggs’s counsel was not

ineffective for failing to object to the trial court’s determination that

assault is a lesser-included offense of attempted murder.

      IV.     Disposition.

      We affirm Braggs’s conviction and sentence.

      AFFIRMED.
