                    IN THE COURT OF APPEALS OF IOWA

                                       No. 13-0462
                                   Filed April 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT LEE GOMEZ,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Cerro Gordo County, Karen R.

Salic, District Associate Judge.



       A defendant appeals his convictions for assault resulting in bodily injury

and harassment in the second degree. REVERSED AND REMANDED.



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

       Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Carlyle D. Dalen, County Attorney for appellee.



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

        Robert Gomez appeals his convictions for assault resulting in bodily injury

and harassment in the second degree.            He argues his trial counsel was

ineffective for not objecting to several problems with the jury instructions.

Because we agree counsel breached a material duty by not challenging the

instructions for assault, justification, and harassment, and Gomez was prejudiced

by the faulty instructions, we reverse both convictions and remand for a new trial.

I.      Background Facts and Proceedings

        A reasonable jury could have found the following facts. On May 26, 2012,

Robert Gomez and his son, Bobby, attended the band festival parade in Mason

City.   While there, they encountered Avak Haroutunian and Mike Jones.1

Haroutunian was holding his nine-year-old daughter’s hand. When Haroutunian

rebuffed Gomez’s offer to shake hands, Gomez said: “[T]hat’s how it’s going to

be, huh?” Gomez then punched Haroutunian in the mouth. Jones described it

as a “straight sucker punch.” Haroutunian lunged over to protect his daughter. A

small scuffle ensued, during which Jones punched Gomez.

        Gomez denies punching Haroutunian. He claims it was Haroutunian who

threw the first punch and ventured that Haroutunian’s injuries might have

occurred when Gomez “slammed him down” during the scuffle. When the dust

settled, Haroutunian’s lip was swollen, split, and slightly bleeding.

        The next day Gomez and Haroutunian had another run in. This time,

Gomez accosted Haroutunian when he was picking up his thirteen-year-old son


1
 Jones and Haroutunian are second cousins. Gomez is a first cousin to Haroutunian’s
mother and an uncle to Jones.
                                           3


from his ex-wife’s house. Gomez yelled from across the street: “[T]his isn’t over

yet . . . this isn’t over, get out of the car, I’m going to kick your ass.” The shouting

scared Haroutunian’s daughter who was with him in the car. Haroutunian called

the police. Gomez denied this incident took place.

        On June 29, 2012, the Cerro Gordo County Attorney charged Gomez with

one count of assault resulting in bodily injury, in violation of Iowa Code sections

708.1(1) and 708.2(2) (2011), and one count of harassment in the second

degree, in violation of Iowa Code sections 708.7(1) and 708.7(3). Both charges

are serious misdemeanors.

        Gomez stood trial on February 19, 2013.           A total of eight witnesses

testified.   The State called Haroutunian, his ex-wife, Stephanie, Jones, and

Mason City Police Officer Jacob Hubert. The defense called Gomez, his son,

Bobby, Jason King, and Candy Kiss, who was working at the Tobacco Outlet and

saw Gomez on the day of the harassment incident. On February 20, 2013, the

jury returned a verdict of guilty on both counts. The district court sentenced

Gomez to ninety days in jail, $630 in fines plus surcharges, and court costs.

Gomez now appeals.

II.     Error Preservation and Standard of Review

        The failure to timely object to jury instructions waives error on direct

appeal. State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988). But we recognize

claims of ineffective assistance of counsel as an exception to the error-

preservation rule. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). We

review Gomez’s claims of ineffective assistance de novo. See id. at 783.
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III.   Analysis

       Gomez contends his trial counsel did not raise necessary objections to the

jury instructions. To establish his claims of ineffective assistance of counsel,

Gomez must prove by a preponderance of the evidence: (1) trial counsel failed to

perform an essential duty and (2) prejudice resulted from his failure. State v.

Clay, 824 N.W.2d 488, 495 (Iowa 2012) (quoting Strickland v. Washington, 466

U.S. 668, 693 (1984)).

       We normally preserve ineffective assistance claims for postconviction

relief proceedings to allow for a full development of the facts surrounding the

attorney’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). But we will

resolve the claims on direct appeal when the record allows us to do so. State v.

Arne, 579 N.W.2d 326, 329 (Iowa 1998).            We find the record adequate to

address Gomez’s claims.

       A. Assault and Justification Instructions

       Gomez alleges his counsel was ineffective for failing to object to two

omissions in the instructions which affected the jury’s understanding of the

assault charge. First, the court did not instruct the jury that assault required proof

of specific intent. Second, the court did not instruct the jurors how to proceed if

they accepted his justification defense. Because we find counsel’s performance

was deficient in regard to the justification instructions and Gomez was prejudiced

by the error, we reverse his assault conviction on that basis.2



2
  For purposes of a potential retrial, we note pursuant to State v. Fountain, 786 N.W.2d
260, 263 (Iowa 2010), the district court should inform the jurors the specific intent
instruction applies to the intent necessary to commit assault.
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       The district court provided the jury with the following marshalling

instruction for assault resulting in bodily injury:

       1.    On or about the 26th day of May, 2012, [Gomez] did an act
       which was intended to cause pain or injury or result in physical
       contact which was insulting or offensive to Avak Barkev
       Haroutunian.
       2.    [Gomez] had the apparent ability to do the act.
       3.    [Gomez’s] act caused a bodily injury to Avak Barkev
       Haroutunian as defined in Instruction No. 7.
             If the State has proved all of the elements, [Gomez] is guilty
       of Assault Resulting in Bodily Injury. If the State has failed to prove
       element 3, [Gomez] is guilty of Assault. If the State has failed to
       prove either element 1 or element 2, [Gomez] is not guilty.

       As defense counsel pointed out at trial, the marshalling instruction did not

limit the assaultive “act” to the punch alleged by the State’s witnesses. Counsel

asked for justification instructions based on his client’s testimony.            In his

testimony, Gomez denied punching Haroutunian.            But he did acknowledge

physical contact between them.         Gomez admitted grabbing Haroutunian and

ducking under his swing. Gomez speculated Haroutunian may have cut his lip

on the ground when Gomez “slammed him down” as Gomez was trying to get a

hold of him. Given this testimony, the jury could have determined the act of

slamming Haroutunian to the ground was the assault. Over the State’s objection,

the court granted the defendant’s request for instructions on the defense of

justification, reasoning it would be helpful to the jury to “have an actual structure

of the law to analyze the Defendant’s claims.”

       On appeal, Gomez claims his attorney had a duty to ask the court to relate

the justification instructions to the assault charge.       He acknowledges the
                                              6


justification instructions given3 correctly reflected the law, but complains: “The

record is devoid of any information from which the jury might determine what to

do about justification.” He asserts “the court’s instructions were prejudicial, not

because they mislead the jury, but because they did not lead the jury at all.”

         We agree with Gomez’s argument. The marshalling instruction for assault

did not include as an element that Gomez acted “without justification.”               That

omission would not be a problem if the record lacked sufficient evidence to

generate a jury question on justification; our supreme court has held that

justification is an affirmative defense to assault, as defined in section 708.1,

rather than an element of that crime. See State v. Delay, 320 N.W.2d 831, 834

(Iowa 1982). But in this case the district court properly found sufficient evidence

to generate a jury question on justification. Therefore, the district court would

have assisted the jurors by informing them—in the assault marshalling

instruction—that they could not convict unless the State proved Gomez acted

without justification. See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction

800.1 (Assault–Elements) (commenting that pursuant to Delay lack of justification

is not an element “unless the defendant has produced sufficient evidence to raise

the defense. In that event the State must prove lack of justification.”). If a lack-

of-justification element is not included in the assault marshalling instruction, then

the justification instructions must inform the jurors how to proceed if they find the

State did not prove defendant was acting without justification.                   Counsel

performed below the expected standard by not objecting to the incomplete

instructions.
3
    Iowa State Bar Ass’n, Iowa Criminal Jury Instructions 400.1, 400.2, 400.7, and 400.8.
                                          7


       In the absence of an element requiring the State to prove the lack of

justification, the jury could have mistakenly believed it could convict Gomez of

assault if the State satisfied the three elements listed in the marshalling

instruction.    The jury had no guidance on how to apply the free-floating

instructions on justification. Accordingly, Gomez was prejudiced by his attorney’s

failure to object to the lack of connection between the assault and justification

instructions.

       B. Harassment Instruction

       The jury received the following harassment instruction:

              The State must prove all of the following elements of Count
       II-Harassment in second degree:
       1.     On or about the 27th day of May, 2012, [Gomez]:
              a.      Purposely communicated with Avak Barkev
       Haroutunian by personal contact, without a legitimate purpose, in a
       manner likely to cause him annoyance or harm.
       2.     [Gomez] communicated a threat to commit bodily injury,
       3.     [Gomez] did so with the specific intent to intimidate or alarm
       Avak Barkev Haroutunian.
              If the State has proved all of the elements, [Gomez] is guilty
       of Harassment in the Second Degree. If the State has failed to
       prove element 2, [Gomez] is guilty of Harassment in the Third
       Degree. If the State has failed to prove either element 1 or element
       2, the Defendant is not guilty.

       Gomez describes this marshalling instruction as “cobble[d] together” to

reflect the facts of the case, but claims it was legally deficient in several ways.

       First, Gomez argues his counsel should have objected to the “purposely

communicated” reference because the statute does not require communication.

Section 708.7(1)(b) requires only “personal contact” with the victim.             The

subsection further explains “personal contact” may be accomplished without oral

communications, “although it may include these types of contacts.” Because the
                                           8


State accused Gomez of engaging in personal contact with Haroutunian by

yelling at him, we do not find inclusion of the phrase “purposely communicated”

required an objection or resulted in prejudice to Gomez.

       Second, Gomez argues the instruction failed to require the jury to find his

contact with Haroutunian was “purposeful” as that term is used in section 708.7.

The district court is not required to word the instructions in any particular way so

long as they accurately convey the applicable law.           State v. Morrison, 368

N.W.2d 173, 175 (Iowa 1985). Here, the court informed the jury the State was

required to prove Gomez “purposely communicated” with Haroutunian. We see

no basis for his trial attorney to object to that wording.

       Third, Gomez correctly points out the instruction required proof his contact

caused Haroutunian “annoyance” and “harm” when those terms do not appear in

section 708.7(1)(b).     The inclusion of those words increased, rather than

diminished the State’s burden.       The second and third elements appropriately

required proof Gomez communicated a threat to commit bodily harm and did so

with the specific intent to intimidate or alarm Haroutunian. Trial counsel did not

breach a material duty in not objecting to the inclusion of those terms and they

did not prejudice Gomez.

       Finally, Gomez argues the last paragraph of the harassment instruction

needed clarification. That paragraph started off by telling the jury: “If the State

has proved all the elements, the Defendant is guilty of Harassment in the Second

Degree.” The next sentence advised: “If the State has failed to prove element 2,

the Defendant is guilty of Harassment in the Third Degree.” The next sentence
                                           9


instructed the jury to acquit if “the State failed to prove either element 1 or

element 2.” The paragraph did not tell the jury what to do if it found the State

failed to prove the third element—that he acted with the specific intent to

intimidate or alarm.

         The State argues the only way for the jury to have convicted Gomez was

for it to find the State proved all three elements of harassment.            But that

argument begs the question.4 We do not know if the jurors found proof of all

three elements or if they found proof of the first two elements but concluded

based on the last sentence of the instruction (directing an acquittal only when

either element one or two was not proven) that they could still find him guilty.

The instruction did not tell the jury what verdict to reach if it found Gomez had

personal contact with Haroutunian and communicated a threat to commit bodily

injury, but did not believe he did so with the specific intent to intimidate or alarm

Haroutunian.

         Jury instructions must be written to give the jurors “a clear understanding

of what they need to decide.” Lovick v. Wil-Rich, 588 N.W.2d 688, 695 (Iowa

1999).     When an instruction is “conflicting and confusing, error is presumed

prejudicial and reversal is required.” Burkhalter v. Burkhalter, 841 N.W.2d 93, 97

(Iowa 2013) (internal quotation marks omitted).

         In failing to take the proper steps to ensure the marshalling instruction for

harassment provided the jury clear guidance, counsel’s performance did not

satisfy the constitutional requirement for effective assistance. See State v. Goff,

4
  In other words, the argument bases its conclusion on an assumption as much in need
of proof as the conclusion itself. See Bryan A. Garner, Modern American Usage, at 93
(3d ed. 2009).
                                       10


342 N.W.2d 830, 837-38 (Iowa 1983).           We also conclude the deficient

performance created a reasonable probability the jury convicted without finding

proof of all the elements. An instruction which misleads or misdirects the jury in

a significant way requires reversal. See generally State v. Boner, 186 N.W.2d

161, 166–67 (Iowa 1971) (reversing where improper inclusion of the word

“negligent” may have led the jury to return a manslaughter conviction based on a

lack of due care unaccompanied by the necessary wanton and reckless

disregard or indifference to the safety of others).     Accordingly, we reverse

Gomez’s conviction of harassment in the second degree and remand the case

for retrial.

        C. Pro Se Claims

        In his pro se brief, Gomez sets out three paragraphs of information he

deems “valuable” to his case. He discusses the photographs of Haroutunian’s

mouth injury. He discusses his own ailments. And he discusses a conversation

he allegedly had with a “key witness,” whom he does not name but is apparently

referring to Candy Kiss. He does not link the information to any legal argument.

Random mention of an issue, without elaboration or supporting authority, is not

sufficient to raise an issue for review. Schreiber v. State, 666 N.W.2d 127, 128

(Iowa 2003). We cannot consider Gomez’s brief because his statements are not

supported by legal argument. See Baker v. City of Iowa City, 750 N.W.2d 93,

103 (Iowa 2008). The pro se nature of his supplemental brief does not change

our conclusion. In re Estate of DeTar, 572 N.W.2d 178, 180 (Iowa Ct. App.
                                        11


1997) (“Substantial departures from appellate procedures cannot be permitted on

the basis that a non-lawyer is handling [his of] her own appeal.”).

       REVERSED AND REMANDED.
