                   IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1170
                                  Filed July 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH L. BARTLETT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cass County, Kathleen A. Kilnoski

(motion to dismiss), Jeffrey L. Larson (trial), and Gregory W. Steensland

(sentencing), Judges.



      Joseph Bartlett appeals from judgment and sentence entered following a

bench trial. CONVICTIONS AFFIRMED IN PART AND REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS.




      Mark C. Smith, State Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                         2


DANILSON, Chief Judge.

       Joseph Bartlett appeals from judgment and sentence entered following a

bench trial on the minutes of evidence and Exhibit 1, body and dash-cam videos.

I. Background Facts and Proceedings.

       On July 3, 2016, at 1:20 a.m., Deputy Benjamin Bartholomew was informed

law enforcement officers were in pursuit of a vehicle traveling eastbound on

Highway 92 by the Cass County Communications Center.              The vehicle was

traveling at speeds around 85 m.p.h. Deputy Bartholomew was further informed

the vehicle had travelled through Griswold and was continuing eastbound on

Highway 92. Deputy Bartholomew placed his vehicle on the westbound lane of

Highway 92 with lights flashing and placed stop sticks in the eastbound lane one-

half mile west of Highway 71. The driver being pursued attempted to drive around

the sticks, lost control, and exited the road into the ditch on the north side of the

highway. The driver then continued east through a field next to the highway.

       Deputy Bartholomew drove eastbound on the highway stopping on the side

of the road at the intersection of Highway 92 and Highway 71. The driver of the

vehicle exited the field back onto Highway 92, striking the rear driver’s side of

Deputy Bartholomew’s marked patrol car, causing damages to the patrol car in

excess of $1000. The driver continued on, also failing to stop at the intersection’s

stop sign.   The driver drove on to Tucson Road entering into Lyman.               A

Pottawattamie County Deputy preformed a precision immobilization technique

(PIT) maneuver. Deputy Bartholomew’s vehicle was in the westbound lane of the

road to block the driver. The driver attempted to avoid the PIT maneuver and

struck the front of Deputy Bartholomew’s patrol vehicle. This caused further
                                            3


damage to the vehicle. The driver failed to stop at the intersection of Tucson Road

and Highway 71, where he turned southbound on Highway 71 passing Deputy Kyle

Quist, who followed the vehicle for about two miles until the vehicle became

disabled and stopped near Victoria Road on Highway 71. The driver was arrested

at 1:34 a.m. While being placed under arrest, the driver—identified as Bartlett—

stated he had run because he was “high.”                  Bartlett was transported to

Pottawattamie County, where he was charged with crimes in that county.

       Pottawattamie County deputies stated Bartlett had been traveling 90 m.p.h.

on Main Street in Griswold, and eighty miles per hour on Highway 92. Deputy

Quist reported Bartlett had been travelling seventy-five miles per hour on Highway

71. An auto body shop provided a $6640 quote (parts and labor) to repair the

damage to Deputy Bartholomew’s patrol car. The driver-side damage and the

front-end damage each exceeded $1000.

       On August 19, 2016, complaints were filed in Cass County asserting Bartlett

had committed two counts of assault on persons in certain occupations, in violation

of Iowa Code section 708.3A(2) (2016); two counts of criminal mischief in the

second degree, in violation of section 716.4(1); and one count of eluding, in

violation of section 321.279(3).       On August 22,1 a Cass County warrant for

Bartlett’s arrest was filed.

       After serving some time in Pottawattamie County, Bartlett was transferred

to Montgomery County where there was an active warrant for his arrest unrelated

to the charges in this case. On October 24, while Bartlett was in the Montgomery


1
 Bartlett’s motion to dismiss contains a typographical error that the arrest warrant issued
on “October 22, 2016.”
                                          4


County Jail, Cass County faxed a copy of the Cass County arrest warrant to the

Montgomery County Sheriff’s Department.

       On January 10, 2017, the Cass County Sheriff personally served Bartlett

with the Cass County warrant while Bartlett was in the Montgomery County Jail.

The return of service was filed on January 11—the same date Bartlett appeared

before a Cass County magistrate.

       On January 18, 2017, a five-count trial information was filed in the Cass

County District Court. Counts I and II relate to the first time Bartlett’s vehicle hit

Deputy Bartholomew’s patrol car. Count I (assault on persons engaged in certain

occupations) asserts Bartlett,

       on the 3rd day of July, 2016, in Cass County, Iowa, did intend 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 against a peace officer by a
       person who knows that the person against whom the assault is
       committed is a peace officer and who uses or displays a dangerous
       weapon in connection with the assault, to-wit; used a motor vehicle
       to strike the driver’s side of a marked patrol vehicle.

Count II (criminal mischief) alleges Bartlett, using a motor vehicle, did “knowingly

and intentionally damage” the driver’s side door of a marked patrol car causing

damage exceeding $1000. Counts III and V relate to the second time Bartlett’s

vehicle hit Deputy Bartholomew’s patrol car. Count III (criminal mischief) alleges

Bartlett, using a motor vehicle, did “knowingly and intentionally damage” the front

of a marked patrol car.      Count V (assault on persons engaged in certain

occupations) asserted Bartlett

       did intend 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 against a peace
       officer by a person who knows that the person against whom the
                                          5


       assault is committed is a peace officer and who uses or displays a
       dangerous weapon in connection with the assault, to wit; used a
       motor vehicle to strike a marked patrol vehicle.

In Count IV (eluding), the State asserted Bartlett eluded a marked law enforcement

vehicle. Trial was scheduled for March 7.

       On January 19, Bartlett filed a motion to dismiss asserting he was arrested

on July 3, 2016, or no later than October 24. He argued that because no indictment

had been filed within forty-five days of either date, Iowa Rule of Criminal Procedure

2.33(2)(a) was violated.

       The district court denied the motion on January 25, concluding:

              A trial information must be filed within [forty-five] days of a
       defendant’s arrest. [Bartlett] maintained that he was arrested on July
       3, 2016. Alternatively, he urged that he was served with the arrest
       warrant on October 24, 2016, when he was given a copy of the fax.
       The court concludes that [Bartlett] was not served with the arrest
       warrant when he was given a photocopy of the fax. [Bartlett] was in
       the custody of the Montgomery County sheriff on October 24 and
       was not served with the Cass County arrest warrant until January 10,
       2017. The trial information was timely filed within [forty-five] days of
       his arrest.

       Bartlett entered into a plea agreement on February 13, but later filed a

motion in arrest of judgment challenging the adequacy of the guilty-plea

proceeding. The court allowed Bartlett to withdraw the plea. Bartlett thereafter

agreed to a bench trial, and the district court found Bartlett guilty as charged on all

counts.

       On appeal, Bartlett argues the district court erred in denying his motion to

dismiss.   Bartlett also argues the trial court misapplied the law and made

insufficient findings of fact to sustain the convictions. He also contends that if this

court nevertheless determines there is sufficient evidence in the record to sustain
                                              6


the verdicts, trial counsel was ineffective in failing to preserve error on the court’s

lack of sufficient findings of fact.

II. Scope and Standards of Review.

       We review rulings on speedy-indictment challenges for correction of errors

at law. State v. Williams, 895 N.W.2d 856, 860 (Iowa 2017) (citing State v. Penn-

Kennedy, 862 N.W.2d 384, 386 (Iowa 2015)). “We will uphold the district court’s

finding of guilt so long as there is substantial supporting evidence in the record.”

State v. Petithory, 702 N.W.2d 854, 856 (Iowa 2005).

       With respect to ineffective-assistance-of-counsel claims, because they

have their basis in the Sixth Amendment, our review is de novo. State v. Maxwell,

743 N.W.2d 185, 195 (Iowa 2008).

III. Discussion.

       A. Speedy Indictment. Bartlett acknowledges there would be no speedy-

indictment violation under the analysis set out in Williams, 895 N.W.2d at 867.2

However, Bartlett asserts Williams was not decided until five months after the

district court issued its ruling in this case, and under then-existing law the motion

to dismiss should have been granted. We are not persuaded.

       The forty-five-day period to bring an indictment applies only to the public

offense for which the defendant was arrested and any lesser-included offenses.



2
  See Williams, 895 N.W.2d at 867 (holding the speedy indictment rule “is triggered from
the time a person is taken into custody, but only when the arrest is completed by taking
the person before a magistrate for an initial appearance” (emphasis added).
          Bartlett asks that the Williams holding be modified “to take into account inordinate
delays in scheduling an initial appearance.” This issue will not be addressed because it
is first raised on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is
a fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”).
                                         7

State v. Sunclades, 305 N.W.2d 491, 494 (Iowa 1981) (“[T]he time period applies

only to the ‘public offense’ for which the defendant was arrested, rather than to all

offenses arising from the same incident or episode.”), overruled on other grounds

by Williams, 895 N.W.2d at 856; see also Penn-Kennedy, 862 N.W.2d at 390

(same) overruled on other grounds by Williams, 895 N.W.2d at 856. This court

has previously noted:

               Our cases have held that the speedy indictment rule is
       activated when a person is arrested for the commission of a public
       offense and does not extend to different offenses which have not
       resulted in arrest. See State v. Edwards, 571 N.W.2d 497, 499-500
       (Iowa Ct. App. 1997); see also State v. Dennison, 571 N.W.2d 492,
       497 (Iowa 1997) (holding a defendant’s arrest for driving while
       revoked and having an open container did not bar the State from
       filing OWI charge, stemming from the same incident, more than forty-
       five days later). The fact that police have probable cause to arrest
       the defendant for another crime does not change the speedy-
       indictment calculus. Edwards, 571 N.W.2d at 500 (“An arrest for one
       offense based upon probable cause but accompanied by other
       motives does not convert the arrest into a different offense for
       purposes of applying the speedy indictment rule.”).

State v. Miller, 818 N.W.2d 267, 272 (Iowa Ct. App. 2012). The district court found

Bartlett was not arrested on the current charges until January 10, 2017, and the

information was filed eight days later on January 18. We find no error in the denial

of the motion to dismiss.

       B. Sufficiency of the Evidence. Bartlett also asserts the court erred in

determining he acted with the necessary intent to sustain the convictions for

Counts I, II, III, and V.

       Addressing Counts I and V (assault on a police officer with a deadly

weapon—in this case a motor vehicle), the district court wrote:

       “[T]o commit an assault, the offender need only intend to do the act
       that constitutes the assault.” Bacon v. Bacon, 567 N.W.2d 414 [,
                                            8


       417] (Iowa 1997). In this case, the first instance of contact [occurred
       when] Bartlett struck the driver’s side of Deputy Bartholomew’s
       marked patrol vehicle. According to the minutes of testimony Bartlett
       intentionally swerved his vehicle to avoid the stop sticks placed on
       the road by Deputy Bartholomew. This action resulted in the harmful
       touching of Bartlett’s car striking Deputy Bartholomew’s vehicle
       causing damage. Deputy Bartholomew as a member of the Cass
       County Sheriff’s office is a peace officer as defined in Iowa Code
       [section] 801.4(11)(a). He was in a marked patrol car and as such
       Bartlett had knowledge that Deputy Bartholomew was a peace
       officer.
               On the basis of these grounds the court finds Joseph Bartlett
       GUILTY on Count I of Assault on a Person Engaged in Certain
       Occupations.
               ....
               As to [Count V], Mr. Bartlett intentionally attempted to avoid
       the PIT maneuver executed by officers by turning around on the road
       way. He then proceeded to drive directly into the front end of Deputy
       Bartholomew’s vehicle and continued driving. As such, Mr. Bartlett
       intentionally acted when he drove into the front of the vehicle, and
       for the reasons expressed under Count I Deputy Bartholomew is
       within the class of persons contemplated by the statute and Mr.
       Bartlett was aware of that fact.
               Therefore the Court finds Joseph Bartlett GUILTY on Count V
       of Assault on a Person Engaged in Certain Occupations.

       The district court erred in finding that assault as charged in Counts I and V

were general-intent crimes requiring only an intentional act. See State v. Heard,

636 N.W.2d 227, 231 (Iowa 2001) (assault under the first two alternatives of Iowa

Code section 708.1(2) requires proof of specific intent); see also State v. Fountain,

786 N.W.2d 260, 265 (Iowa 2010) (“We held [in Heard] that the definition of assault

contained in the Iowa Code required an action done with the ‘intent to achieve

some additional consequence so as to qualify as a specific-intent crime.’” (citation

omitted)); State v. Bedard, 668 N.W.2d 598, 600-601 (Iowa 2003).

       As for Counts II and III, the trial court found Bartlett guilty of criminal mischief

because “Bartlett was not within his rights to attempt to avoid the stop sticks,” which

“caused him” to strike Deputy Bartholomew’s vehicle (Count II). And the court
                                                9


found Bartlett “was not within his rights to attempt to avoid the officers pursuing his

vehicle” and “his attempt to avoid the PIT maneuver executed by officers, caused”

Bartlett to strike the vehicle (Count III). The district court also erred in finding

criminal mischief as charged in Counts II and III was a general-intent crime

requiring only an intentional act. See State v. Chang, 587 N.W.2d 459, 461 (Iowa

1998) (“We conclude that the district court erred in instructing the jury that the State

need only establish that the defendant intended to do the act that damaged the

property. The instruction should have required the State to establish that the

defendant intended to cause the damage.”); State v. Overton, No. 16-1301, 2017

WL 2665257, at *2 (Iowa Ct. App. June 21, 2017) (“The [criminal mischief] statute

requires the specific intent to damage, deface, alter, or destroy property.”).

          The State concedes the errors noted above, and acknowledges that the trial

court’s findings of fact are not sufficient to support a finding of specific intent on

Counts I, II, III, and V.3 Notwithstanding, the State asserts “Bartlett is not entitled

to relief from his convictions,” having failed to move for a new trial seeking

enlargement of the court’s findings and conclusions. See State v. Miles, 346

N.W.2d 517, 519 (Iowa 1984) (“A defendant in a bench-tried criminal case who



3
    The State’s brief provides:
                 The State also agrees that the district court’s findings of fact on
         Counts I and V would not be sufficient to support a finding that Bartlett
         struck the deputy’s vehicle with the intent to cause pain or injury to the
         deputy, with the intent to result in physical contact that would be insulting
         or offensive to the deputy, or with the intent to place the deputy . . . in fear
         of physical contact that will be injurious or offensive. Likewise, the State
         agrees that the district court’s findings on Counts II and III were not
         sufficient to support a finding that Bartlett drove into Deputy
         [Bartholomew]’s vehicle with the intent to damage, deface, alter, or destroy
         the vehicle, as required to establish his guilt for criminal mischief.
                                           10


has not filed a motion for new trial seeking amendment or enlargement of the

court’s findings and conclusions cannot rely on appeal on the insufficiency of those

findings and conclusions to support the court’s decision so long as the evidence

would support the necessary additional findings and conclusions.”).

         Anticipating the State’s preservation-of-error argument, Bartlett contends

trial counsel was ineffective in failing to challenge the court’s findings.          “To

establish an ineffective-assistance-of-counsel claim, a defendant must typically

show that (1) counsel failed to perform an essential duty and (2) prejudice

resulted.” State v. Keller, 760 N.W.2d 451, 452 (Iowa 2009).

         Bartlett maintains there is insufficient evidence to support the convictions

and, therefore, trial counsel’s failure to challenge the findings constitutes a breach

of an essential duty.

         In some cases an attorney who fails to file a motion for new trial
         seeking amendment or enlargement of findings or conclusions may
         breach an essential duty. Generally, however, because the omission
         does not preclude attack on the sufficiency of the evidence itself or
         reliance on other legal error, the omission will not result in prejudice
         equivalent to denial of a fair trial or a miscarriage of justice.

Miles, 346 N.W.2d at 519. Thus, we must review the record and determine

whether there is sufficient evidence of specific intent to sustain Counts I, II, III, and

V. If there is substantial evidence, Bartlett cannot prove the requisite prejudice,

and his ineffectiveness claim fails. See Fountain, 786 N.W.2d at 266 (noting an

ineffectiveness claim fails if the defendant is unable to prove either element of the

test).

         Iowa Criminal Jury Instruction 200.2 reads:
                                         11


             “Specific intent” means not only being aware of doing an act
      and doing it voluntarily, but in addition, doing it with a specific
      purpose in mind.
             Because determining the defendant’s specific intent requires
      you to decide what [he] [she] was thinking when an act was done, it
      is seldom capable of direct proof. Therefore, you should consider
      the facts and circumstances surrounding the act to determine the
      defendant’s specific intent. You may, but are not required to,
      conclude a person intends the natural results of [his] [her] acts.

Iowa Bar Ass’n, Iowa Crim. Jury Instructions 200.2; see Fountain, 786 N.W.2d at

264; State v. Chatterson, 259 N.W.2d 766, 769-70 (Iowa 1977).

      In State v. Taylor, No. 15-2128, 2017 WL 935066, at *2 (Iowa Ct. App. Mar.

8, 2017), the defendant was involved in a high-speed chase with law enforcement

and deliberately rammed an officer’s car head on.          The defendant in Taylor

challenged the sufficiency of the proof of his assaultive intent. 2017 WL 935066,

at *2. We upheld his conviction of assault on a police officer with a dangerous

weapon, noting the officers’ testimony and the jurors’ opportunity to watch dash-

camera videos of the defendant’s maneuvers, from which they

      could judge for themselves whether his actions showed a specific
      intent to cause the officer pain or injury or place the officer in fear of
      undesirable contact. It was reasonable for the jurors to infer from
      Taylor’s aggressive driving that he intended to injure the officer or
      place the officer in fear of offensive contact.

Id.

      Here, the minutes of evidence include a statement from Deputy

Bartholomew that “[o]n July 3rd, 2016, Joseph Bartlett was involved in a motor

vehicle pursuit where he had already intentionally struck my patrol car while

entering an intersection from a field.” At the time of collision, Deputy Bartholomew

was parked. The videos neither confirm nor disprove that the act was done
                                         12


intentionally, and based upon the stipulated record, we can only conclude the

Bartlett intentionally caused the damage as there is no evidence to the contrary.

        The minutes of evidence include a statement by Deputy Quist, stating in

part,

        Pottawattamie County Deputy Frain then conducted a PIT maneuver
        on the vehicle as it started to head into Lyman. The vehicle spun
        around. Deputy Bartholomew was in the westbound lane to block
        the vehicle from continuing on. The driver then rammed Deputy
        Bartholomew’s vehicle in the front end. I was blocking the eastbound
        lane.

The minutes of evidence also include an explanation by Deputy Bartholomew that

after the PIT maneuver, “Bartlett’s vehicle spun around and he continued back

east, striking my marked patrol car head on at approximately 0132 hours and

causing damage that exceeded $1000 to the front of the vehicle.”

        We have viewed the videos and cannot agree that Bartlett “rammed”

Bartholomew’s patrol car or collided with it “head on.”             Rather, Deputy

Bartholomew was driving his vehicle closer to Bartlett in an obvious attempt to

block Barlett’s ability to escape and Bartlett attempted to steer away from

Bartholomew’s vehicle. Yet, we agree Bartlett intended to take action to continue

to elude the officers including bumping or colliding into patrol vehicles much like a

bumper car ride at a carnival except this ride was unlawful and dangerous.

        We conclude the evidence is sufficient to prove Bartlett intentionally struck

Deputy Bartholomew’s car twice with intent to inflict damage to it to aid in his

escape. See Chang, 587 N.W.2d at 461. Although it is clear the criminal mischief

offenses were incidental to Bartlett’s efforts to flee, the evidence supports the
                                            13


conclusion    that   Bartlett   intentionally    crashed    his   vehicle    into   Deputy

Bartholomew’s vehicle on two occasions to assist his attempted escape.

       We are, however, not able to conclude Bartlett had the specific intent to

commit an assault under these unique facts. We would describe Bartlett’s driving

as evasive and erratic but not “aggressive.” The pursuit was on a two-lane unlit

road. Bartlett’s vehicle struck stop sticks set out by Deputy Bartholomew, at which

point Bartlett’s vehicle went into a cornfield. Officers pursued Bartlett—Deputy

Bartholomew traveled along the paved road and came to a stop. At a crossing,

Bartlett drove out of the cornfield and his vehicle struck the rear driver’s side of

Deputy Bartholomew’s vehicle and continued on. The police car video shows a

very slight jarring of the Deputy Bartholomew’s vehicle. Deputy Bartholomew

reported his car had been hit, and he then followed the other officers, who

continued to pursue Bartlett’s vehicle. A few moments later, Bartlett can be seen

swerving to avoid a different police vehicle in the road. Bartlett’s vehicle then

attempted to avoid Deputy Bartholomew’s patrol car but struck the front of Deputy

Bartholomew’s vehicle in Bartlett’s efforts to escape. Both vehicles were traveling

at slow speeds. There is no question Bartlett would drive anywhere—in a field or

ditch or collide into a patrol car, but the collisions were incidental to Bartlett’s efforts

to flee.   There is insufficient direct or circumstantial evidence to support the

conclusion that Bartlett had the specific intent to commit an assault on a law

enforcement officer. If the evidence had supported the conclusion that Bartlett did

aggressively drive towards, or purposely drive head on, crashing into Deputy
                                              14


Bartholomew’s patrol car we may have reached a different result.4 Consequently,

Bartlett’s trial counsel had a duty to challenge the sufficiency of the trial court’s

findings in regard to Counts I and V and Bartlett was prejudiced by counsel’s failure

to do so.

       We affirm convictions on Counts II and III and reverse the convictions on

Counts I and V. We remand for resentencing on Count II, III, and IV.

       CONVICTIONS AFFIRMED IN PART AND REVERSED IN PART, AND

CASE REMANDED WITH DIRECTIONS.




4
  The videos at best only show a very slight jarring as Bartlett was exiting the field. At that
time, Deputy Bartholomew was parked and clearly could have been struck in an
aggressive fashion that might have reflected a specific intent to cause pain, injury, or
cause contact that would be painful injurious, insulting or offensive. See Iowa Code
§ 708.1(1).
