                    IN THE COURT OF APPEALS OF IOWA

                               No. 4-015 / 13-0031
                             Filed February 19, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW R. JANDREAU,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,

Judge.



      Mathew Jandreau appeals his convictions and sentences for burglary in

the first degree, kidnapping in the third degree, assault with intent to commit

sexual abuse, attempted burglary in the second degree, operating a motor

vehicle without the owner’s consent, and criminal mischief.     CONVICTIONS

AFFIRMED, SENTENCES VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

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

General, Darin J. Raymond, County Attorney, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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VOGEL, P.J.

      Mathew Jandreau appeals his convictions and sentences for burglary in

the first degree, in violation of Iowa Code sections 713.1 and 713.3 (2012);

kidnapping in the third degree, in violation of Iowa Code sections 710.1 and

710.4; assault with intent to commit sexual abuse, in violation of Iowa Code

sections 709.1 and 709.11; attempted burglary in the second degree, in violation

of Iowa Code sections 713.1 and 713.6; operating a motor vehicle without the

owner’s consent, in violation of Iowa Code section 714.7; and criminal mischief in

the third degree, in violation of Iowa Code sections 716.1, 716.2, and 716.5(2).

Jandreau asserts he lacked the specific intent necessary to commit these crimes

due to his mental health issues and severe intoxication at the time of the

commission of the crimes, and thus sufficient evidence does not support his

convictions. Jandreau further argues that trial counsel was ineffective for failing

to request an intoxication instruction and for failing to argue issues other than

specific intent in his motion for judgment of acquittal.     He also asserts the

convictions of first-degree burglary and assault with intent to commit sexual

abuse should merge.

      We conclude sufficient evidence exists to support Jandreau’s convictions,

though we agree with Jandreau that the convictions for burglary in the first

degree and assault with intent to commit sexual abuse should merge. We also

preserve Jandreau’s ineffective-assistance claim for possible postconviction relief

proceedings. Therefore, we affirm his convictions, but vacate his sentence for

assault with intent to commit sexual abuse and remand.
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I. Factual and Procedural Background

      The jury could have found the following facts.        On March 2, 2012,

Jandreau went to three different residences. The first was the residence of Emily

Palsma’s parents, where Palsma was resting for the day. When Palsma looked

out the window, she discovered her van was parked in a different spot than she

had left it. Upon inspection, the cruise control lever had been broken off, the

contents of the glove compartment strewn about, and Palsma’s purse that she

had left in the van was missing. The purse was later recovered at the third

residence Jandreau went to that day.

      The second residence he approached was that of LeAnn Waldo. She

observed a man, who she later identified at trial as Jandreau, walk through her

backyard carrying a black handbag with pink stars. Jandreau began kicking and

hitting the back door. Waldo yelled out the window: “What the **** are you

doing?” Panicked, she quickly sent her children upstairs and called 911. When

she came back from making the call, Jandreau was gone.

      The   third   residence   Jandreau   approached    was    that   of   Walter

Kleinhesselink, who was not home at the time. However, A.F., Kleinhesselink’s

eleven-year-old granddaughter, was in the residence. She heard pounding on

the front door, and when the door flew open, Jandreau entered the house. A.F.

inquired whether Jandreau needed help from the police or hospital, and

Jandreau replied “no.” She picked up the telephone and began dialing 911 when

Jandreau grabbed the phone and threw it.       Jandreau then told A.F. he was

“going to look around” the house and shoved her to the ground, thereby causing

A.F. to hit her head on a flower pot. Jandreau repeatedly punched A.F. in the
                                         4


face with a closed fist, pulled off her pajama bottoms and underwear, put his

hand over her mouth to muffle her screams, and put her in a headlock.

      Jandreau then dragged A.F. into the kitchen and tried to open the

dishwasher—which appeared to A.F. as Jandreau’s attempt to put A.F. in the

dishwasher—but she kicked the door closed several times. He then attempted to

push A.F. into a broom closet, and when that failed, forced her into the

basement. Jandreau threw A.F. into a corner and pushed her down on the floor.

A.F. continued her struggle and attempts to escape, prompting Jandreau to grab

her leg and again begin punching her. Upon hearing people in the house, A.F.

began to scream louder, as Jandreau punched her “harder and faster.” Quickly,

the police apprehended Jandreau, who had his pants down around his ankles but

his boxer shorts still on. At trial, Jandreau testified he did not remember any of

these events.

      On March 12, 2012, Jandreau was charged with burglary in the first

degree, kidnapping in the third degree, assault with intent to commit sexual

abuse, attempted burglary in the second degree, operating a motor vehicle

without the owner’s consent, and criminal mischief in the third degree. A jury trial

was held, and Jandreau was convicted on all counts. He was sentenced to serve

twenty-five years on the first-degree burglary count, ten years on the kidnapping

count, and five years on the assault count, all to run consecutively. He was also

sentenced to five years on the attempted burglary count, two years on the

operating without consent count, and two years on the criminal mischief count, to

run concurrently with one another and with the other three counts. Jandreau

appeals.
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II. Sufficiency of the Evidence

      Jandreau asserts he lacked the specific intent to commit any of these

crimes due to his severe intoxication and mental health issues, given he suffers

from schizophrenia, fetal alcohol syndrome, post traumatic stress disorder, and

alcohol addiction.

      We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view the

record in the light most favorable to the non-moving party—here, the State—and

make all legitimate inferences and presumptions that may be reasonably

deduced from the evidence. Id. If substantial evidence supports the verdicts, we

will affirm. Id. Evidence is substantial if it would convince a reasonable trier of

fact the defendant is guilty beyond a reasonable doubt. Id.

      Here, to prove Jandreau committed burglary in the first degree and

attempted burglary in the second degree, the State must show Jandreau

possessed the specific intent to commit a felony, theft, or assault when he broke

into the Kleinhesselink residence and attempted to break into Waldo’s residence.

Iowa Code §§ 713.1, 713.2.        To convict Jandreau of kidnapping in the third

degree, the State was required to prove he had the specific intent to sexually

abuse A.F., secretly confine A.F., or move her from one place to another. Iowa

Code §§ 710.1, 710.4.     To prove Jandreau committed assault with intent to

commit sexual abuse, the State mush show Jandreau had the specific intent to

sexually abuse A.F. when he assaulted her. Iowa Code § 709.11. Finally, to

convict Jandreau of criminal mischief, the State was required to prove Jandreau

had the specific intent to deface, alter, or destroy property. Iowa Code § 716.1.
                                        6


      The defense of diminished responsibility may be presented to negate the

element of specific intent if the defendant suffers from a “mental defect” to the

point where he is incapable of forming the specific intent to commit the crime.

State v. Anfinson, 758 N.W.2d 496, 502 (Iowa 2008).         Voluntary intoxication

“neither excuses the person’s act nor aggravates the person’s guilt, but may be

shown where it is relevant in proving the person’s specific intent.” Iowa Code

§ 701.5. The element of intent “is seldom capable of direct proof . . . and a trier

of fact may infer intent from the normal consequences of one’s actions.” State v.

Evans, 671 N.W.2d 720, 724–25 (Iowa 2003) (internal citations omitted).

      With regard to the specific intent to commit a felony, theft, or assault for

the attempted-burglary-in-the-second-degree charge, the jury was presented with

sufficient evidence to sustain the finding of guilt. Jandreau violently pounded on

Waldo’s door with Palsma’s stolen purse in hand.            After leaving Waldo’s

residence, Jandreau entered the Kleinhesselink residence and brutally assaulted

A.F. These actions are sufficient for the jury to infer Jandreau had the specific

intent to commit a felony, theft, or assault as he threatened entry into Waldo’s

residence.   Therefore, we affirm the conviction for attempted burglary in the

second degree.

      There is also sufficient evidence of specific intent to support the conviction

of assault with intent to commit sexual abuse. In the seclusion of the basement,

police officers found Jandreau with his pants around his ankles and A.F.’s

pajama bottoms and underwear off. Though Jandreau presented evidence he is

homosexual, the fact both A.F. and Jandreau’s pants were off is enough for the

jury to conclude Jandreau had the specific intent to commit sexual abuse. See
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State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (noting that “a sexual

comment made by the defendant to the victim, touching in a sexual way, the

removal or request to remove clothing, or some other act during the commission

of the crime” is enough to infer the defendant had the specific intent to commit

sexual abuse).

      Though Jandreau only briefly argues he did not have the requisite intent to

commit the other crimes of which he was convicted, the jury had ample evidence

to conclude Jandreau possessed this specific intent. He acted with deliberation

in entering Palsma’s vehicle, stealing her purse, breaking the cruise control lever,

and pawing through the glove compartment, as well as in his subsequent actions

of damaging Waldo’s back door and assaulting A.F. This is sufficient for the jury

to infer Jandreau possessed the specific intent to commit burglary in the first

degree, kidnapping, and criminal mischief, and therefore, we affirm Jandreau’s

convictions.

III. Merger

      Jandreau next argues the convictions for burglary in the first degree and

assault with intent to commit sexual abuse should merge. He relies on State v.

Anderson, 565 N.W.2d 340, 344 (Iowa 1997), which held these crimes should

merge. The State responds that the alternative submitted to the jury controls.

Here, the jury was given the three alternatives of felony, theft, or assault on

which they could rely in convicting Jandreau of first-degree burglary, and

because it is unclear on which alternative the jury relied, the crimes should not

merge.
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      We review an illegal sentence for correction of errors at law. State v.

Davis, 544 N.W.2d 453, 455 (Iowa 1996).

      Iowa Code section 701.9 states:

      No person shall be convicted of a public offense which is
      necessarily included in another public offense of which the person
      is convicted. 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.

This section codifies the protection against cumulative punishment guaranteed

by the Fifth Amendment of the United States Constitution. See State v. Daniels,

588 N.W.2d 682, 683 (Iowa 1998).

      To determine whether one offense is a lesser included offense of another,

we look first to the legal elements test for lesser included offenses. State v.

Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). That test requires a comparison

of the elements of both crimes to ascertain whether it is possible to commit the

greater offense without also committing the lesser.     Id. If the lesser offense

contains an element not required for the greater offense, the lesser cannot be

included in the greater. Id. If it is not possible to commit the greater offense

without also committing the lesser, the convictions must be merged unless the

legislature intended to impose multiple punishments. Id.

      We determine the elements of the offense by the statute that defines it.

State v. Wales, 325 N.W.2d 87, 88 (Iowa 1982). When a statute defines an

offense alternatively, the alternative upon which the State relies controls. State

v. Webb, 313 N.W.2d 550, 552 (Iowa 1981). Our supreme court has held, when

the burglary charge is premised on the assault with intent to commit sexual
                                          9


abuse charge, the crimes of burglary in the first degree and assault with intent to

commit sexual abuse should merge. Anderson, 565 N.W.2d at 344.

       Here, the trial information listed count one as:

       Burglary in the First Degree, A Class B Felony, in violation of Iowa
       Code §§ 713.1 and 713.3 and that on or about March 2, 2012, in
       Plymouth County Iowa, the Defendant, MATTHEW ROLAND
       JANDREAU, with the intent to commit a felony, assault, or theft
       broke or entered an occupied structure (the home of Walter
       Kleinhesselink) not open to the public without any right, license, or
       privilege to do so.

The jury instruction for the burglary in the first degree charge read:

               The State must prove all of the following elements of
       Burglary in the First Degree:
               1. On or about the 2nd day of March, 2012, the defendant
       broke or entered the residence of Walter Kleinhesselink at
       [address].
               2. The Kleinhesselink residence was an occupied structure
       as defined in instruction No. 26.
               3. One or more persons were present in the occupied
       structure.
               4. The defendant did not have permission or authority to
       enter the Kleinhesselink residence.
               5. The Kleinhesselink residence was not open to the public.
               6. The defendant did so with the specific intent to commit a
       felony, a theft or an assault.
               7. During the burglary, he intentionally or recklessly inflicted
       bodily injury on [A.F.].

The jury instructions then defined assault and felony as used in the burglary

instruction, though there was no instruction regarding theft.        The instruction

defining felony stated:

       For the purposes of these instructions, the following crimes are
       felonies: Burglary in the First Degree, Attempted Burglary in the
       First Degree, Burglary in the Second Degree, Attempted Burglary in
       the Second Degree, Burglary in the Third Degree, Kidnapping in
       the Third Degree, Assault With the Intent to Commit Sexual Abuse.

The assault with intent to commit sexual abuse instruction read:
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             1. On or about the 2nd day of March, 2012, the defendant
       assaulted [A.F.].
             2. The defendant did so with the specific intent to commit a
       sex act on [A.F.].
             3. The defendant’s assault caused bodily injury to [A.F.].

       The State is correct that the jury instruction in this case regarding the

specific intent element for the burglary charge differs from the instruction given in

Anderson. In Anderson, the instruction stated the defendant entered the house

“with the specific intent to commit the felony of sexual abuse,” id., whereas here,

Jandreau entered the residence “with the specific intent to commit a felony, a

theft or an assault.”

       However, there were no special interrogatories indicating on which

alternative the jury relied—theft, felony, or assault—when convicting Jandreau of

burglary in the first degree.      “Where it is impossible to determine which

alternative the jury used and one alternative requires merger, merger is

required.” State v. Lambert, 612 N.W.2d 810, 816 (Iowa 2000). Consequently,

Anderson, which held the crimes of burglary in the first degree and assault with

intent to commit sexual abuse should merge, still controls our analysis. See

Anderson, 565 N.W.2d at 344 (“Applying the impossibility test to this case, we

conclude the assault charge was a lesser-included offense of the burglary charge

and merged with the burglary conviction.”). Therefore, the crimes of burglary in

the first degree and assault with intent to commit sexual abuse should merge,

and we reverse this portion of the district court’s sentence.

IV. Ineffective Assistance

       Jandreau’s final argument asserts trial counsel was ineffective for failing to

plead the defense of intoxication and failing to request a jury instruction on this
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defense. He further claims counsel was ineffective for failing to argue issues

other than specific intent in the motion for judgment of acquittal, such as the lack

of evidence of a sexual assault or evidence Jandreau intended to commit a

felony, theft, or assault in Waldo’s residence.

       A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). We may either decide the record is adequate and issue a

ruling on the merits, or we may choose to preserve the claim for postconviction

proceedings. Id. We review ineffective-assistance-of-counsel claims de novo.

Id.   To succeed on this claim, the defendant must show, first, that counsel

breached an essential duty and, second, that he was prejudiced by counsel’s

failure. Id.

       Here, there is an inadequate record to address Jandreau’s ineffective-

assistance arguments, considering counsel could explain a trial strategy as a

basis for making these decisions. See State v. Truesdell, 679 N.W.2d 611, 616

(Iowa 2004) (“Ordinarily, ineffective assistance of counsel claims are best

resolved by postconviction proceedings to enable a complete record to be

developed and afford trial counsel an opportunity to respond to the claim.”).

Therefore, these claims are preserved for possible postconviction relief

proceedings, where a more complete record may be established. See Straw,

709 N.W.2d at 133.

       Having considered Jandreau’s arguments on appeal, we affirm his

convictions. However, because the convictions for burglary in the first degree

and assault with intent to commit sexual abuse merge, we vacate the sentence
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for assault. We remand to the district court for entry of an order in accordance

with this opinion.

       CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND

REMANDED.
