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State v. Kuhse

Court of Appeals of Iowa

June 19, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KEN LORENZE KUHSE, Defendant-Appellant.

          Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.

         A defendant appeals his conviction for domestic abuse assault causing bodily injury.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.

          TABOR, JUDGE.

         A jury convicted Ken Kuhse of domestic abuse assault causing bodily injury after hearing testimony he grabbed his wife and slammed her against the furniture in their basement. Kuhse told police he acted in self defense. On direct appeal, he claims his trial counsel was ineffective for not objecting when the marshaling instruction for assault failed to inform the jury that it could not convict unless the State disproved his justification defense. Because we agree counsel breached a material duty by not challenging the marshaling instruction and Kuhse was prejudiced by the omission, we reverse his conviction and remand for a new trial.

         I. Facts and Prior Proceedings

         Ken Kuhse and his wife, Victoria, were married for nine years and lived in the same house-but without much interaction in recent years. Victoria occupied the upstairs, and Ken inhabited the basement. One night in August 2017, Ken was drinking rum and Coke with friends in the basement when Victoria ventured down to do laundry. Ken called her vile names; she replied in kind. According to Victoria's testimony, Ken grabbed her neck. To loosen his grip, she "swiped at him." Victoria testified he let go but grabbed her a second time, slamming her into the entertainment center, and a third time, slamming her against the coffee table. She then drove herself to a friend's apartment where she spoke with police. She had injuries on her neck and arms. When police took his statement, Ken said Victoria had been "attempting to start a fight with him all day." Ken said Victoria "bumped into him." He complained of injuries to his nose and arm, telling police officers he pushed Victoria to protect himself.

          The State charged Ken with domestic abuse assault causing bodily injury, in violation of Iowa Code section 708.2A(1) and 708.2A(2)(b) (2017). He filed a notice of self defense before trial. The jury found him guilty as charged. He filed a direct appeal from his conviction, alleging his trial attorney failed to object to a faulty marshaling instruction.

         II. Error Preservation and Standard of Review

         Generally, counsel must timely object to a jury instruction to preserve error for appellate review. State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988). But we have recognized claims of ineffective assistance of counsel as an exception to the error-preservation rule. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). We review Kuhse's claim of ineffective assistance de novo. See id. at 783. To establish ineffective assistance of counsel, Kuhse must show: (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 688 (1984).

         III. Analysis

         Kuhse contends his trial counsel should have objected to the assault marshaling instruction because it did not inform the jury the State was required to prove he acted without justification. The ...


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