Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.
Defendant appeals his convictions for domestic abuse assault causing bodily injury and domestic abuse assault.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, John P. Sarcone, County Attorney, and Mike Salvner, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Stewart Drake appeals from his convictions for domestic abuse assault causing bodily injury and domestic abuse assault. He argues trial counsel rendered ineffective assistance in failing to object to the general intent instruction. We reverse and remand.
I. Background Facts and Proceedings.
In August 2010, Melissa moved from Omaha to live with Drake in Des Moines. In April 2011, after a dispute, she moved into an apartment. In June 2011, Drake and Melissa reconciled, and Melissa moved back into Drake's house. At a June 24 party at the house, both Melissa and Drake were drinking. Melissa became angry and jealous after talking with a neighbor. Around 10:00 p.m., Melissa confronted Drake, they argued, and Melissa was injured.
Melissa went to her apartment, and her former brother-in-law, a state trooper, arrived. He testified Melissa was emotional and the "first thing I noticed was a black eye; her left eye . . . [a]lso dried blood on the side of her neck from her ear, kind of near her chest area." After talking with Melissa, the trooper called the police and, early in the morning of June 25, he drove her to the hospital.
At the hospital, Melissa told two nurses and the treating doctor she needed treatment due to domestic abuse. The doctor noted: "Female was assaulted by her boyfriend. Patient states . . . boyfriend assaulted her, knocked her down, held arm against throat, trying to choke her, and hit her left eye."
Police Officer Leo arrived at the emergency room and spoke with Melissa. Leo testified she was "visibly shaken up, scared, [and] crying." Leo observed an eye injury and dried blood down the side of her face. Because Drake was a police officer, Leo contacted a supervisor and Captain Hoffman came to the hospital. Hoffman talked with an "emotional" Melissa and observed injuries to her eye, dried blood down the side of her face, and blood in her ear.
Leo and Hoffman drove to Drake's residence and woke him. Leo testified they told Drake their reason for being there and Drake did not appear surprised. When questioned, Drake originally stated, "No, there was nothing at all." However, upon continued questioning, Drake changed his story and admitted to a verbal argument but stated "it never got physical." Hoffman could smell alcohol on Drake, and he observed suspected blood spots on the living room carpet. Leo opined Drake was intoxicated. Neither Hoffman nor Leo observed any marks on Drake. Leo asked Drake to show his chest. Drake pulled out his shirt, looked down, and reported, "No, nothing." Drake did not allow Leo to look at his chest.
When Melissa was released from the hospital, the trooper drove her to his house. Later, they drove to Drake's house to meet a police officer and collect Melissa's possessions. On June 27, 2011, Officer Keller met with Melissa and had her write a description of the incident. Melissa wrote:
We were sitting on the couch arguing. He got mad and brought his forearm across my throat. We fell back on the couch. I was struggling to free myself. His body weight was on top of me. He grabbed my throat, and the next thing I remember, I was shaking my head and grabbing his shirt. I scratched his chest to free myself. My left cheek was swollen and bruising, and there was blood running down the left side of my face.
Shortly thereafter, Melissa started preparing to leave the state. On July 6, Melissa told Keller her memory was starting to get better. At trial she testified:
Q. And in the conversation you told [Keller], "I remember his hands around my neck." Do you remember ...