from the Iowa District Court for Des Moines County, Mark E.
Kruse (trial) and Mary Ann Brown (appeal bond review),
defendant appeals his convictions for assault with intent to
inflict serious injury and going armed with intent.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
convicted Timothy Chew of assault with intent to inflict
serious injury and going armed with intent. On appeal, Chew
argues the jury did not receive proper instructions. He also
contends his $750, 000 cash-only appeal bond is unreasonable.
Because Chew cannot show prejudice resulting from the jury
instructions, we affirm. As for his appeal bond, we conclude
the district court abused its discretion in imposing an
amount so high Chew was functionally denied bail in violation
of legislative directives.
Facts and Prior Proceedings
shoot-out in broad daylight drew Burlington police to a
residential neighborhood on South Central Street the weekday
morning of May, 10, 2017. When Officer Kenneth Zahner arrived
just after 9 a.m., he spotted Chew walking down the street
carrying an assault-style rifle. Officer Zahner drew his
service revolver and ordered Chew to the ground. As the
officer was handcuffing Chew, A.J. Smith charged from his
friend's front porch and kicked Chew in the face.
securing the scene, officers found shell casings indicating
Chew fired thirty-six rounds from his rifle and Smith fired
eight rounds from a small-caliber pistol. Several witnesses
testified they heard the higher-pitch sound of the pistol
shooting first, followed by the deeper sound of the rifle
firing in response.
Swayzer lived on South Central Street and often hosted Smith
for coffee and marijuana cigarettes in the morning. On May 9,
the morning before the shootout, Smith and Swayzer were
following their usual routine on the front porch when Chew
drove by yelling: "Come get it." Smith recalled
Chew shouting: "Come out and play." Chew claimed
Smith "flashed" a gun at him.
next morning, Swayzer saw Chew coming toward his house again.
This time, Swayzer started "hearing gunshots." A
passerby saw a man matching Chew's description crouched
between parked cars, aiming an assault-style rifle at another
man across the street. Chew admitted being in Swayzer's
neighborhood that morning. Chew wore a bullet-proof vest and
carried an assault-style rifle equipped with two thirty-round
clips, bound together with black electrical tape to
facilitate faster reloads. Chew claimed Smith shot at him first,
and when Chew returned fire, Smith ran away.
Smith's version of events, Chew fired first and Smith
shot back with a pistol he commandeered from a friend at the
scene. Smith did not remember how many shots he fired:
"I can't tell you exactly because [Chew] was firing
so many times, it was just like panic firing, trying to get
him up off me." When Smith's gun jammed, he fled. As
Smith ran away, one of Chew's bullets grazed his head and
he fell. Smith returned to his feet and darted between the
houses. He tossed the pistol to avoid being arrested as a
felon in possession of a firearm. Surveillance video from
neighborhood houses showed Smith running and Chew apparently
State charged Chew with going armed with intent and attempted
murder. After a four-day trial, the jury returned guilty
verdicts for going armed and the lesser-included offense of
assault with intent to commit serious injury. The district
court imposed indeterminate sentences of two and five years
for the respective counts, running the terms consecutively.
Chew seeks a new trial.
II. Scope and Standards of Review
issue raised in this appeal calls for a different standard of
review. First, we review the district court's refusal to
give a requested jury instruction for the correction of legal
error. Shams v. Hassan, 905 N.W.2d 158, 162 (Iowa
2017). Second, we review a claim of ineffective assistance of
counsel de novo. State v. Harrison, 914 N.W.2d 178,
188 (Iowa 2018). Third, we review the amount of an appeal
bond for an abuse of discretion. State v. Formaro,
638 N.W.2d 720, 724 (Iowa 2002).
Jury Instruction on Resisting a Forcible
district court cannot refuse to instruct the jury on a
defense theory when the evidence supports the theory and the
instruction is a correct statement of the law. State v.
Ross, 573 N.W.2d 906, 913 (Iowa 1998). If a defendant
presents substantial evidence to support an affirmative
defense, the district court must instruct the jury on that
defense. State v. Broughton, 425 N.W.2d 48, 52 (Iowa
1988). Erroneously denying a jury instruction requires
reversal unless the complaining party suffers no prejudice.
State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015). When
the error does not implicate a constitutional right, we test
for prejudice by assessing whether the rights of the
complaining party have been "injuriously affected"
or the party suffered a miscarriage of justice. State v.
Plain, 898 N.W.2d 801, 817 (Iowa 2017) (quoting
State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010)).
trial, Chew filed a notice of intent to rely on self-defense.
See Iowa Code § 704.3 (2017). The district
court gave the jury a series of eight uniform instructions to
explain the law controlling Chew's justification
addition to those self-defense instructions, Chew asked the
district court to instruct on the justification of resisting
a forcible felony. On the date of the shooting, that defense
provided: "A person who knows that a forcible felony is
being perpetrated is justified in using, against the
perpetrator, reasonable force to prevent the completion of
that felony." Iowa Code § 704.7. To communicate
that defense to the jury, Chew urged the court to submit the
following uniform instruction:
A person is justified in using reasonable force against
someone committing a forcible felony to prevent completion of
the felony if [he] [she] knows a (name of forcible felony) is
If the State has proved any one of the following elements,
the defendant was not justified:
1. The defendant knew (name of forcible felony) was not being
committed by (name of victim).
2. The defendant did not believe the force was necessary to
prevent the (name of forcible felony).
3. The defendant did not have reasonable grounds for the
4. The force used by the defendant was unreasonable.
Iowa Crim. Jury Instruction 400.6.
the self-defense instruction, the uniform instruction on
resisting a forcible felony omits the requirement the
defendant have no other available course of action. State
v. Newsom, No. 13-2078, 2015 WL 1046132, at *4 (Iowa Ct.
App. Mar. 11, 2015) ...