                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1831
                               Filed April 15, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM WALTER EVANS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Daniel P.

Kitchen, District Associate Judge.



      William Evans appeals his convictions and sentences for simple assault,

second-degree harassment, and false imprisonment. AFFIRMED.



      Eric D. Tindal of Keegan Tindal & Mason, PC, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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DOYLE, Judge.

       The State charged William Evans with assault with intent to commit sexual

abuse, first-degree harassment, and false imprisonment based on acts that

occurred at a Washington County campground in August 2017. The evidence

shows that Evans followed a sixteen-year-old girl into a shower area in one of the

campground buildings, kissed her, and touched her buttocks and breast. A short

time later, Evans locked her inside one of the shower rooms. When the girl

attempted to leave, Evans pushed her against the wall and grabbed her by the

throat to silence her screaming. While doing so, Evans said, “You’re not going to

start that shit.”   A jury found Evans guilty of simple assault, second-degree

harassment, and false imprisonment.

       On direct appeal, Evans challenges the sufficiency of the evidence to

support his conviction for harassment. We review this claim for correction of errors

at law. See State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018). Evans claims

there is insufficient evidence to convict him of harassment because the underlying

act the jury relied on for the conviction could have been the same act forming the

basis for his assault conviction. See Iowa Code § 701.9 (2017) (prohibiting a

person from being convicted of a public offense that “is necessarily included in

another public offense of which the person is convicted”). But to preserve error for

appellate review, “the defendant must make a motion for judgment of acquittal at

trial that identifies the specific grounds raised on appeal.” State v. Truesdell, 679

N.W.2d 611, 615 (Iowa 2004). Because Evans never raised in his motion for

judgment of acquittal the claim he now raises on appeal, error is not preserved.
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       Evans next claims his sentence is illegal because the court failed to merge

the harassment and assault convictions. See Iowa Code § 701.9 (“If the jury

returns a verdict of guilty of more than one offense and such verdict conflicts with

this section, the court shall enter judgment of guilty of the greater of the offenses

only.”). “[A]ny unlawful failure to merge results in an illegal sentence.” State v.

West, 924 N.W.2d 502, 504 (Iowa 2019). Because an illegal sentence is void, it is

not subject to the same error-preservation concerns that thwart Evans’s claim

regarding the sufficiency of the evidence supporting his harassment conviction.

See State v. Gordon, 732 N.W.2d 41, 44 (Iowa 2007) (“[A]n illegal sentence . . . is

not subject to normal error preservation rules and can be challenged at any time.”).

       Evans claims the harassment (a serious misdemeanor) and assault (a

simple misdemeanor) convictions must merge because his statement, “You’re not

going to start that shit,” happened at the same time as the “assaultive behavior”

and therefore “blends into the assault.” The question here is whether assault is a

lesser included offense of harassment. See State v. West, 924 N.W.2d 502, 505

(Iowa 2019); State v. Stewart, 858 N.W.2d 17, 21 (Iowa 2015) (stating that in

determining whether two convictions must merge, “the threshold question is

whether it is legally impossible to commit the greater crime without also committing

the lesser”). We find it is not. “A person commits harassment when the person,

purposefully and without legitimate purpose, has personal contact with another

person, with the intent to threaten, intimidate, or alarm that person.” Iowa Code §

708.7(1)(b). A person commits second-degree harassment “when the person

commits harassment involving a threat to commit bodily injury.” Id. § 708.7(3)(a).

A person commits assault by (1) doing an “act which is intended to cause pain or
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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” or (2)

doing an “act which is intended to place another in fear of immediate physical

contact which will be painful, injurious, insulting, or offensive, coupled with the

apparent ability to execute the act.” Id. § 708.1(2)(a), (b). It is clear the elements

of these crimes differ. The assault offense requires an apparent ability to execute

the act. The harassment offense does not. So it is possible to commit harassment

without also committing an assault. Conversely, it is possible to commit an assault

without committing harassment. The harassment offense requires a threat. The

assault offense does not. Because the impossibility test is not satisfied, merger is

not required here.

       Finally, Evans claims there is insufficient evidence to support his false-

imprisonment conviction.      Recognizing an error-preservation issue may exist

because the claim was not articulated during his motion for judgment of acquittal,

Evans makes an alternative argument under the ineffective-assistance-of-counsel

rubric,1 which we review de novo. See State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). To succeed, Evans must show his counsel failed to perform an essential

duty and prejudice resulted. See State v. Graves, 668 N.W.2d 860, 869 (Iowa

2003). Unless he proves both elements, his ineffective-assistance claim fails. See

Clay, 824 N.W.2d at 495. We ordinarily preserve ineffective-assistance claims for

postconviction-relief proceedings to allow for full development of the record but


1 Because our supreme court decided recent amendments to Iowa Code section
814.7 prohibiting consideration of ineffective-assistance-of counsel claims on
direct appeal do not apply to cases pending on July 1, 2019, see State v. Macke,
933 N.W.2d 226, 235 (Iowa 2019), we may address the claim.
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address them on direct appeal when the record is adequate. See State v. Virgil,

895 N.W.2d 873, 879 (Iowa 2017).

       A person commits an act of false imprisonment by “intentionally confin[ing]

another against the other’s will.”       Iowa Code § 710.7.         The statute defines

confinement as occurring when a “person’s freedom to move about is substantially

restricted by force, threat, or deception.” Id. “The State has the burden to show

the confinement or movement was not merely incidental to the assault.” State v.

Snider, 479 N.W.2d 622, 624 (Iowa Ct. App. 1991).

       Evans argues his trial counsel was ineffective in failing to claim insufficient

evidence demonstrated that the actions giving rise to the false-imprisonment

conviction were distinct from the underlying assault. We disagree. In determining

whether the confinement exceeded that which would normally be incidental to an

assault, we consider whether the confinement (1) substantially increased the risk

of harm to the victim, (2) lessened the risk of detection, or (3) significantly facilitated

the defendant’s escape following the assault. See id. By preventing the girl from

leaving the shower room and stifling her scream, Evans clearly lessened the risk

of detection. Because the act was distinct from the underlying assault, counsel

had no duty to move for judgment of acquittal on this basis. See, e.g., State v.

Rice, 543 N.W.2d 884, 888 (Iowa 1996).

       We affirm Evans’s convictions and sentences.

       AFFIRMED.
