from the Iowa District Court for Poweshiek County, Myron L.
defendant appeals from his conviction for assault while
displaying a dangerous weapon.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
POTTERFIELD, PRESIDING JUDGE.
Phipps appeals from his conviction for assault while
displaying a dangerous weapon. Phipps maintains (1) the trial
court should have granted his motion for judgment of
acquittal because assault while displaying a dangerous weapon
is a specific-intent crime and the State did not provide
substantial evidence regarding his specific intent, (2) trial
counsel provided ineffective assistance by failing to
challenge the jury instruction that assault with a dangerous
weapon is a general-intent crime, and (3) the court abused
its discretion in denying his motion for mistrial after a
witness's testimony exceeded the minutes of evidence.
Background Facts and Proceedings.
2017, Phipps was charged by trial information with assault
while displaying a dangerous weapon, pursuant to Iowa Code
sections 708.1(2)(c) and 708.2(3) (2017). It was alleged
Phipps "did assault L.T. by using or displaying a
dangerous weapon, to-wit: a Daisy pellet gun, toward her in a
the jury trial, L.T., who had been a roommate of Phipps in
March 2017, testified:
Well, I was in the living room, and all of a sudden I heard
[Phipps] yelling. And he started barreling down the hallway
looking for [another roommate's girlfriend], and I told
him that she wasn't there. And he had-I can't
remember exactly what he was saying, but he was talking about
how [the girlfriend]-nobody likes her, and, you know,
he's going to kill her. And-
defense objected and, outside of the presence of the jury,
moved for a mistrial, arguing L.T.'s testimony Phipps
stated he was going to kill the girlfriend was beyond the
minutes of evidence. The State conceded that nobody was aware
L.T. would testify to that effect. The court considered Iowa
Rule of Criminal Procedure 2.5(3) and ruled the testimony was
outside of the provided minutes. However, the court denied
the motion for mistrial, deciding instead to inform the jury
that the testimony in question was stricken from the record
and was not to be considered as part of its deliberation.
L.T.'s testimony continued:
And so I looked around the corner, and he looked at me and
said, "Friend or foe?" And I said, "Yeah,
she's my friend." And then that's when he
pointed the gun at me and then I just, I mean, I didn't
know what do so-I just-and then shortly after that, [another
roommate] had woken up and then [Phipps] had went to his
testified she "was a little scared," "but I
didn't think that he would hurt me. But at that moment in
time, I honestly wasn't completely for sure if he
close of the State's evidence, Phipps moved for a
judgment of acquittal, arguing "the State has failed,
with competent evidence, to be able to prove an intent, the
specific intent required to meet the ...