                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-0940
                                  Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES NORMAN HARRIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell,

Judge.




      James Harris appeals his convictions and sentences for assault with intent

to inflict a serious injury and going armed with intent. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       James Harris appeals his convictions and sentences for assault with intent

to inflict a serious injury and going armed with intent. He raises three claims on

appeal.   First, he challenges the sufficiency of the evidence to support his

conviction for going armed with intent.       He also claims his trial counsel was

ineffective in failing to object to the jury instruction for going armed with intent.

Finally, he claims the court abused its discretion in sentencing him. We affirm.

       I. Background Facts and Proceedings.

       Chance Niles was playing pool with Harris at the Dive Bar in Sioux City

when an argument began between the two. The bartender, John Nguyen, told

the men that the bar was closing and ordered them to leave. The bartender had

Harris leave the bar first.      The bartender had Niles stay in the bar for

approximately five minutes before having him leave. As Niles left the building,

Harris was standing against the wall to the right of the door. Niles felt Harris

strike him in the back of the head with what Niles at first believed to be Harris’s

fist, only later realizing that he was being stabbed with a knife.

       After struggling with Harris, Niles was able to wrestle Harris to the ground,

get on top of him, and punch Harris several times in an attempt to defend himself

and take the knife from Harris. Harris did not let go of the knife. The bartender

came out and managed to kick Harris’s hand until he released the knife.

       Eventually, Harris left the scene with his girlfriend. Nguyen brought Niles

back into the bar and called the police. Niles was taken to the hospital where he

was treated for multiple wounds to the back of the head and neck. The knife was

never located.
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       Harris was charged with going armed with intent and willful injury causing

bodily injury. A jury trial was held, and Harris was called to testify. Harris did not

deny that he fought with Niles but claimed he did not instigate the fight or have a

knife. Harris testified that he was having a cigarette outside when Niles came

outside, backed him up to the wall, and threw him to the ground.              Harris’s

girlfriend also testified that she did not see Harris with a knife; she was unable to

recall how Niles received his wounds.

       The jury found Harris guilty of going armed with intent and assault with

intent to inflict serious injury. The district court sentenced him to five years in

prison on the going-armed-with-intent charge and two years in prison on the

assault-with-intent-to-inflict-serious-injury charge. The sentences were ordered

to run consecutively for a prison term of not more than seven years. Harris

appealed.

       II. Sufficiency of the Evidence.

       Harris first claims there is insufficient evidence to support his conviction for

going armed with intent.       Specifically, Harris argues there was insufficient

evidence that he moved from one place to another while armed with a knife. We

review his claim for correction of errors at law, viewing the evidence in the light

most favorable to the verdict to determine whether a rational trier of fact could

have found him guilty beyond a reasonable doubt. See State v. Truesdell, 679

N.W.2d 611, 615 (Iowa 2004).

       Iowa Code section 708.8 (2013) states: “A person who goes armed with

any dangerous weapon with the intent to use without justification such weapon

against the person of another commits a class ‘D’ felony.” Although section
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708.8 does not define “going armed,” our supreme court has held that “armed”

means “the conscious and deliberate keeping of a dangerous weapon on or

about the person, available for immediate use,” while “going” “necessarily

implicates proof of movement.” State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994).

Therefore, the element of “going armed” is satisfied when the evidence shows a

defendant pursued the victim while carrying a dangerous weapon. See id.

      Harris argues there is insufficient proof of movement because no one saw

him with the knife before Niles was on top of him. However, evidence of any

movement in pursuit of the victim may be sufficient to support a conviction for

going armed with intent. Id. This is true whether the defendant pursues the

victim from the house to the front yard, see id., across a house, see State v.

Slayton, 417 N.W.2d 432, 435 (Iowa 1987) (affirming conviction for going armed

with intent where defendant carried gun into his parents’ bedroom), or even

across a room, cf. State v. Pearson, 804 N.W.2d 260, 265 n.1 (Iowa 2011)

(holding evidence the defendant pursued the victim across a kitchen is sufficient

to overcome a motion for judgment of acquittal).

      There is sufficient evidence Harris was “going armed” to support his

conviction for going armed with intent. Niles denied having a knife, and no one

saw Niles in possession of one. The evidence that Niles sustained stab wounds

supports the finding that Harris possessed a knife during the fight. Nguyen and

Niles testified that Harris had a knife in his possession during the fight and

repeatedly stabbed and attempted to stab Niles. Although Harris denied he was

in possession of a knife and his girlfriend testified she did not see Harris with a

knife, it was for the jury to determine which testimony was credible, and it was
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within the jury’s right to reject the self-serving claims of Harris and his girlfriend.

See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014) (“Our system of justice

vests the jury with the function of evaluating a witness’s credibility.”); State v.

Wedelstedt, 265 N.W.2d 626, 627 (Iowa 1978) (“It is elementary the jury is at

liberty to take and reject from the testimony of various witnesses as it chooses.”).

       A reasonable jury could infer from the evidence that Harris was in

possession of a knife before leaving the bar, satisfying the movement element of

the carrying-with-intent charge. But even assuming Harris was not in possession

of the knife inside the bar, the evidence remains sufficient to show the element of

movement. Niles testified Harris stabbed him several times while he attempted

to fight Harris off before the two men fell to the ground.          Harris continued

attempting to stab Niles while Niles sat atop him, attempting to restrain or disarm

him. When Niles got up, Harris rose to his feet and again attempted to stab

Niles, making lunges at him. Because the evidence is sufficient to prove the

elements of the crime, we affirm Harris’s conviction for going armed with intent.

       III. Ineffective Assistance of Counsel.

       Harris next contends the jury instruction on going armed with intent was

insufficient because it did not include the element of movement. Because his

trial counsel did not object to the instruction, Harris raises this as an ineffective-

assistance-of-counsel claim.

       We review ineffective-assistance claims de novo. See State v. Clay, 824

N.W.2d 488, 494 (Iowa 2012). In order to prove his claim, Harris must prove

both that his trial counsel failed to perform an essential duty and he was
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prejudiced as a result. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

His claim fails if he fails to prove either element. See id.

         The State concedes the marshalling instruction omits the element of

movement and counsel’s failure to object to its omission was “likely” a breach of

an essential duty.     However, the State argues Harris cannot show he was

prejudiced by this failure. We agree. To prove prejudice, Harris must show a

reasonable probability that had his trial counsel acted competently, the result of

the proceeding would have been different. See id. Had trial counsel objected to

the instruction, there is no reasonable probability the outcome would have been

different because, as stated above, there is substantial evidence by which the

jury could find the element of movement was proved beyond a reasonable doubt.

Because Harris cannot show he was prejudiced by any failure of his counsel, his

ineffective-assistance claim fails.

         IV. Sentencing.

         Finally, Harris challenges the sentences imposed. We reverse a sentence

imposed within the statutory maximum only if an abuse of discretion is shown.

State v. Thacker, 862 N.W.2d 402, 405 (Iowa 2015). In exercising its discretion,

the court must weigh “all pertinent matters,” “including the nature of the offense,

the attending circumstances, [and] the defendant’s age, character, and

propensities or chances for reform.” Id. An abuse of discretion is shown where

the court exercises its discretion on grounds or for reasons that are clearly

untenable or unreasonable. State v. Thompson, 856 N.W.2d 915, 918 (Iowa

2014).
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       Harris first argues the court abused its discretion in sentencing him to

consecutive sentences because the court improperly considered his decision to

stand trial rather than plead guilty as a lack of remorse. In sentencing Harris, the

trial court stated its “reasons for selecting this sentence are enumerated in the

record and include the recommendation of the presentence report and the

consecutive nature and the fact that they are different events” before specifically

citing “the nature and seriousness of the offense and the defendant’s total lack of

acceptance of responsibility for this event.” The presentence investigation report

recommended Harris be sentenced to prison, noting Harris “failed to express any

empathy for the victim of this offense” and “denies that he is guilty of any

charges.”

       While it is impermissible for the sentencing court to consider a defendant’s

decision to stand trial rather than plead guilty an indication of a lack of remorse,

see State v. Knight, 701 N.W.2d 83, 87 (Iowa 2005), the record does not support

Harris’s claim that the sentencing court did so here. The court did consider

Harris’s “total lack of acceptance of responsibility” but never stated it construed

Harris’s decision to stand trial as indicative that Harris failed to accept

responsibility. The presentence investigation report, which the sentencing court

relied on, states: “The Defendant maintains that he is innocent of all charges with

the instant offense.” Furthermore, Harris spoke at the sentencing hearing, and

rather than stating his remorse, he indicated his bewilderment over having been

convicted, stating he did not feel his conviction was fair and referring to the

incident as “this supposed altercation” and Niles as “the supposed victim.”
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      Harris also argues the court abused its discretion in imposing consecutive

sentences because the court considered the crimes for which he was convicted

separate events rather than part of the same event. Harris claims that because

“the evidence presented was the same for both crimes,” the court could not

impose consecutive sentences.        However, our supreme court has held

cumulative punishments—including consecutive sentences—may be imposed on

multiple convictions that result from a single act as long as those convictions

represent separate and distinct criminal offenses.    See State v. Perez, 563

N.W.2d 625, 627 (Iowa 1997) (stating that cumulative punishment may be

imposed in a single trial if the legislature authorizes punishment under two

statutes); State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976) (noting that a

defendant convicted of multiple criminal offenses that were committed in the

course of a single transaction may be sentenced to consecutive terms if the

offenses are separate and distinct). Because Harris was found guilty of separate

and distinct criminal offenses, consecutive sentences could be imposed.

      The district court acted within its discretion in sentencing Harris to

consecutive prison terms. Accordingly, we affirm.

      AFFIRMED.
