Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
The opinion of the court was delivered by: Tabor, J.
Joseph Alexander Jr. appeals from his conviction for assault with a dangerous weapon, in violation of Iowa Code section 708.2(3) (2011). AFFIRMED.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
The fighting question in this appeal is whether a wooden cane swung like a baseball bat at the victim's head constituted a dangerous weapon as defined in Iowa Code section 702.7 (2011). The district court instructed the jury that a dangerous weapon is "any sort of instrument or device actually used in such a way as to indicate the user intended to inflict death or serious injury, and when so used is capable of inflicting death." On appeal from his conviction for an aggravated misdemeanor assault, Joseph Alexander Jr. alleges his trial counsel was ineffective for not challenging the sufficiency of the State's proof the cane qualified as a dangerous weapon and for not asking the court to define "serious injury" as used in the dangerous weapon instruction.
Because the State offered proof of the violent manner in which Alexander wielded the cane, and because the jury could infer from the victim's injury that the cane was capable of inflicting death, we find no prejudice resulted from counsel's failure to raise a substantial evidence challenge to the dangerous weapon element of the assault. We likewise find no reasonable probability of a different outcome had counsel asked for an instruction defining "serious injury." Accordingly, we affirm Alexander's conviction for assault with a dangerous weapon, in violation of Iowa Code section 708.2(3).
I. Background Facts and Proceedings
During the afternoon of September 7, 2011, Alexander was socializing
with his friends Tony Thomas and Sharon Hickem at Prospect Park in Des Moines. Around 4:30 or 5:00 p.m., Lawrence Gordon and his friend Cindy Biddle drove together to the same park to relax after work. Gordon and Alexander had been friends, but were on bad terms after Alexander called Gordon a "snitch."
The witnesses provided varying accounts of the encounter between Alexander and Gordon at the park. Gordon testified he, Biddle, and another friend sat in lawn chairs and drank a few beers as Alexander and his companions remained roughly two-hundred feet away. After ten or fifteen minutes, Alexander drove his car toward Gordon's group. Thomas and Hickem followed in their own car. When Hickem waved to Gordon, Gordon waved back. Gordon then walked to Hickem's window and bent down to greet her. At this point, Gordon recalled Alexander getting out of his car "with his fists balled up" and walking toward him "very aggressively." Gordon asked Alexander "what his problem was," and Alexander replied: "You fucking snitch."
Gordon's friend Biddle realized the volatility of the conversation and told Alexander to "leave us alone." When Gordon advised Biddle to return to their truck, she began to walk away, hoping Gordon would follow. She turned in time to see Alexander with a cane in his hand. She testified: "[H]e had it back like you would a baseball bat. He took a couple of steps toward [Gordon] and then swung as hard as he could." Gordon testified he did not see the blow coming: "[T]he minute I turned around, I was struck in the face with a wooden cane." Because Alexander was not holding his cane when he initially confronted Gordon, Gordon presumed Alexander went back to his car to retrieve the cane.
Biddle believed Gordon was dazed by the blow because he tried to enter the driver's side of the truck. Biddle recalled "there was a lot of blood." She drove Gordon to the hospital emergency room. Both Gordon and Biddle denied having physical contact with Alexander before Alexander struck Gordon with the cane.
Hickem, testifying for the defense, told a different version of the events. She said when Gordon and Biddle arrived at the park, they pulled within a few feet of Alexander and his friends. According to Hickem, Gordon and Biddle were "talking a lot of smack" to Alexander and being "mouthy." Hickem recalled Gordon shoving Alexander and Alexander telling Gordon to "get out of my face." Hickem testified Alexander "carries a cane because he is disabled." But she told the jury she did not see Alexander hit Gordon with the cane, though she saw Gordon's head was bleeding.
The left side of Gordon's forehead swelled to the size of a golf ball, and a laceration over his over his left eye required eight stitches on the outside and six on the inside. Officer Darin Miller interviewed Gordon at the hospital. The officer received information the wooden cane broke during the altercation. He traveled to the park to search for the broken piece but was unable to find it.
On September 21, 2011, the State prepared a trial information charging Alexander with assault with a dangerous weapon, an aggravated misdemeanor, in violation of Iowa Code section 708.2(3). Alexander pleaded not guilty, and on December 30, 2011, filed a notice he intended to rely on a justification defense. Trial began on February 27, 2012, and the next day the jury convicted Alexander of assault with a dangerous weapon. On April 12, 2012, the district court sentenced Alexander to one year of imprisonment, suspending all but ten days, and giving credit for two days served. Alexander received one year of probation, fifty hours of community service, a fine of $625, and was ordered to pay restitution. He timely appealed, alleging trial counsel rendered ineffective assistance.*fn1
II. Scope and Standard of Review
We review constitutional claims that counsel rendered ineffective assistance de novo. State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). We independently evaluate the totality of the circumstances relating to counsel's conduct. State v. Lane,743 N.W.2d 178, 181 (Iowa 2007).
Alexander contends his counsel was ineffective for failing to advance a specific challenge in his motion for judgment of acquittal that the State's evidence was insufficient to prove he used a dangerous weapon during the assault. He also alleges counsel performed subpar by not requesting a jury instruction defining "serious injury" as that term is used in the dangerous weapon definition.
The defendant's right to receive effective assistance of counsel is enshrined in the Sixth and Fourteenth Amendments of the United States Constitution, as well as Sections 9 and 10 of Article 1 of the Iowa Constitution. Clark, 814 N.W.2d at 567. To succeed on a claim of ineffective assistance of counsel, a defendant must show that "(1) counsel failed to perform an essential duty; and (2) prejudice resulted." State v. Maxwell, 743 N.W.2d 185, 195 (Iowa ...