from the Iowa District Court for Linn County, Russell G.
Keast, District Associate Judge.
defendant appeals his conviction for domestic abuse assault
causing bodily injury.
C. Smith, State Appellate Defender, (until withdrawal) and
Shellie L. Knipfer, Assistant Appellate Defender, for
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
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.
Facts and Prior Proceedings
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.
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.
Error Preservation and Standard of Review
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).
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 ...