                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0453
                                Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTONIO LAMONT GIPSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Clinton County, Joel W. Barrows,

Judge.



       Antonio Lamont Gipson appeals from the judgment and sentence entered

following his conviction of domestic abuse assault. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler Buller, Assistant Attorney

General, Mike Wolf, County Attorney, and Ross Barlow, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., Mullins, J., and Huitink, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                           2


HUITINK, S.J.

       Antonio Lamont Gipson appeals from the judgment and sentence entered

following his conviction of domestic abuse assault (third or subsequent offense),

in violation of Iowa Code sections 708.1, .2A(1), and .2A(4) (2011). He contends

the district court abused its discretion in excluding evidence the victim smoked

marijuana before the crime was committed. He also contends his trial counsel

was ineffective in failing to object to a jury instruction on general intent.

       Gipson’s conviction stems from an altercation with Nicole Fields in the

early morning hours of September 18, 2011. Both Gipson and Fields testified at

trial and gave conflicting accounts of what occurred. Fields testified that while

arguing on a porch, Gipson grabbed her by the face and throat and began

pushing her, scratching her above her lip in the process. She further testified her

neighbor, Angela Findley, pushed Gipson off of her before Gipson grabbed

Fields’s sweatshirt and dragged her down the front steps.1 Conversely, Gipson

denied choking, attempting to choke, or scratching Fields. He testified he only

made contact with Fields after Findley pushed him, which caused him to lose his

balance.   In an attempt to stop his fall, Gipson testified he grabbed Fields’s

shoulder and they both fell down the steps.

       Gipson first contends the court abused its discretion in granting the State’s

motion to exclude evidence that Fields smoked marijuana.                He sought to

introduce the evidence to impeach Fields’s credibility. One of the ways to attack

witness credibility is to show a defect in the witness’s capacity to observe,


1
 Findley corroborated Fields’s testimony, and the responding officer noted Fields had a
scratch above her lip, which he believed was a recent injury.
                                          3

remember, or recount the matters testified about. State v. Ivory, 247 N.W.2d

198, 204 (Iowa 1976). On this basis, our supreme court has held evidence of

drug use may be admissible, stating: “It is our opinion evidence of drug use

which would substantially lessen or temporarily impair the ability to perceive the

facts which the witness purports to have observed is provable to attack the

credibility of the witness under the foregoing method of attack.” Id.; see also 1

Kenneth S. Broun, McCormick on Evidence § 44 (7th Ed. 2013) (“If the witness

was under the influence at the time of the events which he testifies to or at the

time he testifies, this condition is provable to impeach on cross or by extrinsic

evidence.”). The district court granted the State’s motion after determining there

was no indication in the record that Fields’s marijuana use lessened or impaired

her ability to perceive the events that transpired the morning of September 18,

2012.

        We concur there is no evidence here that Fields was impaired at the time

of the assault. Fields smoked a small amount of marijuana before reporting to

work at 4:00 p.m. on September 17, 2012.                 The assault occurred at

approximately 2:30 or 3:00 a.m. on September 18, 2012—more than ten hours

later. During those intervening hours, Fields worked a full shift, came home, and

went to bed. There is no indication Fields thought she was impaired at the time

of the assault, and the responding officer testified at his deposition that he did not

observe Fields to be impaired. Because there is nothing in the record to suggest

Fields’s ability to perceive events was impaired at the time of the assault, the

evidence of her marijuana use was not relevant, and the district court was within

its discretion to exclude it. See Iowa R. Evid. 5.401; Ivory, 247 N.W.2d at 204-05
                                          4


(holding that in order to be relevant and admissible, evidence of witness’s drug

use must have a tendency to establish the witness’s ability to accurately observe

or relate details of the events in question had been substantially lessened or

temporarily impaired by such drug use).

       Gipson also contends his trial counsel was ineffective in failing to object to

submission of the general-intent jury instruction in addition to the specific-intent

jury instruction for assault.   Although a defendant may raise an ineffective-

assistance claim on direct appeal, it is only in rare cases that the trial record

alone will be sufficient to resolve such claims. See State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006). Ordinarily, we preserve ineffective-assistance claims for

possible postconviction proceedings to allow full development of the record.

State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We preserve Gipson’s claim

counsel was ineffective in failing to object to the submission of the general-intent

instruction for a possible postconviction relief proceeding.

       AFFIRMED.
