IN THE COURT OF APPEALS OF IOWA
No. 12-2167
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIAM J. MOEHN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Michael G.
Dietrich, District Associate Judge.
William Moehn appeals from judgment and sentences imposed upon his
convictions of aggravated domestic abuse and aggravated assault.
CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Justin Stonebrook, Assistant
County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.
William Moehn appeals from judgment and sentences imposed upon his
convictions of aggravated domestic abuse and aggravated assault. He contends
trial counsel was ineffective in failing to request a jury instruction defining specific
intent. He also contends the district court considered an improper factor in
sentencing. We reject the ineffective-assistance-of-counsel claim, but vacate the
sentences and remand for resentencing.
I. Background Facts and Proceedings.
William Moehn and Kelli Moehn had been married for twenty-seven years
when, on April 13, 2012, Kelli went to their storage garage. With the assistance
of Darrin Schwind, the owner of a local garage door company, Kelli changed the
locking code of the garage door. Before Kelli left the area, William arrived and
attempted to open the storage garage. When his code did not work, he chased
Kelli to her van. Kelli was in her vehicle but was not able to lock the door.
William reached in and punched her and shook her. He then grabbed the bag
Kelli was carrying, which she was using as a purse. Schwind told William “to
knock it off and [William] told [Schwind] to shut the fuck up or I’m going to knock
you out also.” Schwind pulled out his cell phone to call 9-1-1 and William ran
back to his own car. Kelli yelled: “Stop, stop, don’t take that. I need that. Stop.”
Schwind moved to stand in front of William’s car to keep him from leaving. Kelli,
too, stood in front of William’s car.
William revved the engine of his car and “lurched toward” the two, braked,
and advanced again. William’s car came in contact with Kelli and came “within
an inch” of Schwind. Schwind jumped out of the way towards the passenger side
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of the vehicle to avoid being struck. Kelli moved to the driver’s side and—
through the still open driver’s side door—attempted to grab her bag. William had
his hand on the door. William “stomped on the gas, floored it, and spun out of
the alley and turned right” down the street. The door hit Kelli, causing her to roll
out into the middle of the street.
As a result of this incident William Moehn was charged with aggravated
domestic abuse (against Kelli), in violation of Iowa Code sections 708.2A(2)(c)
and 236.2 (2011), and with aggravated assault (against Schwind), in violation of
sections 708.1 and 708.2(3).
At trial, William testified in his own defense. He denied punching Kelli
when they struggled over her bag. He testified he “[g]ot the purse and ran to my
car,” and that it was his intent to “go home and see if there was any money in it.”
Q. Well, were you—there was testimony that you were
revving the engine and lurching the car at your wife and at Mr.
Schwind. Is that accurate? A. I moved forward a little bit, but I
didn’t move very much, just get them to move. And they moved.
Q. Were you trying to do anything other than pass by them
and leave the scene? A. No, I wasn’t.
....
Q. Did you—Did you deliberately try to push the door open
and run into her? A. No.
Q. Could you explain exactly what happened then? A. She
was hanging on to my door frame. My window was open. She was
trying to reach in and get the purse that was sitting on my lap. And
I moved it over to the passenger seat so she couldn’t get it. And
then she ran out in front of the car and she—he moved and I went
driving off. And she was still hanging on to my car door.
Q. Did you ask her to let go? A. Yeah. I said I’m leaving,
you better let go. And she didn’t let go of the car.
Q. So if I understand correctly, she hung on to your car door
and fell off of your car door as you were leaving? A. Yes.
Q. You did not open your car door and strike her with your
car door? A. No, I didn’t.
Q. If she had gotten off the car and allowed you to close the
door, would you have left without her getting hurt? A. Yes.
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Q. At any point did you intend to strike Mr. Schwind with the
car? A. No.
Q. Did he present—How much difficulty did he present to
you when—in being in your way? A. Not much. When I started
moving up, he moved out of the way.
Q. Did you intend in anything you did to injure Kelli Moehn?
A. No. I didn’t intend to do nothing to her.
Q. And she got her purse back— A. Yeah.
Q. —later at home? A. Yeah, at home. Yes.
....
Q. Now, what are your thoughts when—when you were in
motion and Kelli fell off the door? A. I was hoping she didn’t get
hurt, heading home to see if there was any money in the bag.
On cross examination, the prosecutor asked, “So your intent was to
threaten them with that car to get them to move?” William responded, “No. But
my intentions was [sic] to leave and they wouldn’t—they were standing in front of
my car, so I’m leaving, move.”
The jury found William Moehn guilty as charged and he now appeals.
II. Ineffective assistance of counsel.
Moehn contends his trial counsel was ineffective for failing to request a
jury instruction defining specific intent.
The right to assistance of counsel under the Sixth Amendment to the
United States Constitution and article I, section 10 of the Iowa Constitution is the
right to “effective” assistance of counsel. State v. Ondayog, 722 N.W.2d 778,
784 (Iowa 2006). We review constitutional claims de novo. Id. at 783.
“To establish a claim of ineffective assistance of counsel, the defendant
must prove by a preponderance of the evidence: (1) that trial counsel failed to
perform an essential duty, and (2) that prejudice resulted from this failure.” State
v. Fountain, 786 N.W.2d 260, 265-66 (Iowa 2010). “To establish prejudice, the
defendant must demonstrate the ‘reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.’”
State v. Lane, 743 N.W.2d 178, 183 (Iowa 2007) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). The ineffectiveness claim fails if the
defendant is unable to prove either element of this test. Fountain, 786 N.W.2d at
266.
The jury received the following instructions.
Instruction No. 12
To commit a crime, a person must intend to do an act which
is against the law. While it is not necessary that a person knows
the act is against the law, it is necessary that the person was aware
he was doing the act and he did it voluntarily, not by mistake or
accident. You may, but are not required to, conclude a person
intends the natural results of his acts.
Instruction No. 13
The State must prove all of the following elements of the
crime of Aggravated Domestic Abuse Assault (Count I):
1. On or about the 13th day of April, 2012, the defendant did
an act which was intended to cause pain or injury to Kelli S. Moehn
or which was intended to result in physical contact which was
insulting or offensive to Kelli S. Moehn or which was intended to
place Kelli S. Moehn in fear of immediate physical contact which
would have been painful, injurious, insulting, or offensive to her.
2. The defendant had the apparent ability to do the act.
3. The defendant used or displayed a dangerous weapon in
connection with the assault.
4. The act occurred between family or household members.
If the State has proved all of these numbered elements, the
defendant is guilty of Aggravated Domestic Abuse Assault If the
State has proved only elements 1, 2, and 3, then the defendant is
guilty of Aggravated Assault. If the State has proved only elements
1, 2, and 4, the defendant is guilty of Simple Domestic Abuse
Assault. If the State has proved only elements 1 and 2, the
defendant is guilty of Simple Assault. If the State has failed to
prove either element 1 or 2, the defendant is not guilty.
Instruction No. 14
The State must prove all of the following elements of the
crime of Aggravated Assault (Count II):
1. On or about the 13th day of April, 2012, the defendant did
an act which was intended to cause pain or injury to Darrin W.
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Schwind or which was intended to result in physical contact which
was insulting or offensive to Darrin W. Schwind or which was
intended to place Darrin W. Schwind in fear of immediate physical
contact which would have been painful, injurious, insulting, or
offensive to him.
2. The defendant had the apparent ability to do the act.
3. The defendant used or displayed a dangerous weapon in
connection with the assault.
If the State has proved all of these numbered elements, the
defendant is guilty of Aggravated Assault. If the State has proved
only elements 1 and 2, then the defendant is guilty of Simple
Assault. If the State has failed to prove either element 1 or 2, the
defendant not guilty.
Instruction No. 15
The definitions of certain terms used in these instructions are
as follows:
ASSAULT
Concerning Instruction Nos. 13 and 14, an “Assault” is
committed when a person has the apparent ability to do an act and
does an act to another person which is meant to cause pain or
injury; result in physical contact which will be insulting or offensive;
or place another person in fear of immediate physical contact which
will be painful, injurious, insulting, or offensive.
....
DANGEROUS WEAPON
A “dangerous weapon” is any device or instrument designed
primarily for use in inflicting death or injury, . . . [or] any sort of
instrument or devise which is actually used in such a way as to
indicate the user intended to inflict death or serious injury, and
when so used is capable of inflicting death.
Jury instructions are read together, not piecemeal. See State v. Bennett,
503 N.W.2d 42, 45 (Iowa Ct. App. 1993).
The jury instructions did not include Iowa Criminal Jury Instruction 200.2,
which provides:
“Specific intent” means not only being aware of doing an act
and doing it voluntarily, but in addition, doing it with a specific
purpose in mind.
Because determining the defendant’s specific intent requires
you to decide what [he] [she] was thinking when an act was done, it
is seldom capable of direct proof. Therefore, you should consider
the facts and circumstances surrounding the act to determine the
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defendant’s specific intent. You may, but are not required to,
conclude a person intends the natural results of [his] [her] acts.
In Fountain, the defendant was charged with domestic abuse assault
causing bodily injury. 786 N.W.2d at 262. On appeal, the defendant contended
his counsel was ineffective in failing to request a specific intent instruction,
arguing that with a specific intent instruction the jury may have found that he did
not intend to make any insulting or offensive physical contact with his then
girlfriend. Id. The supreme court concluded that defense counsel breached an
essential duty in failing to request a specific intent instruction because his
“attorney should have been aware of the case law declaring that assault includes
an element of specific intent.” Id. at 266.
But because opening and closing arguments were not reported,1 the
Fountain court concluded the record was inadequate to determine whether
defense counsel’s strategy was adequate or prejudicial. Id. at 267. The
supreme court observed:
After reviewing the facts of this case and the evidence
presented, we conclude only trial strategy could explain counsel’s
failure to request a specific intent instruction, as specific intent is a
higher burden for the state to prove. It appears to be undisputed
that Fountain and [his girlfriend] had consensual sex twice on the
night in question, and it was not until the third sexual encounter that
an assault was alleged; however, it is unclear whether the
prosecution was alleging that the assault was incidental to the third
sexual encounter or whether the assault was alleged to be a
separate act unrelated to the sexual encounter. If the assault was
alleged to be incidental to the sexual encounter a specific intent
instruction may have aided Fountain’s defense. On the other hand,
if an assault separate from the sex was alleged and the defense
was simply that it did not occur, the distinction between a general
intent instruction and a specific intent instruction may not have
aided Fountain. If the defense strategy is to deny that any
1
We are not similarly hamstrung.
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assaultive contact occurred, the individual elements of assault
become unimportant.
Id. at 266-67 (emphasis added).
Here, as in Fountain, defense counsel failed to request a specific intent
instruction, which is an element of both assault charges. In failing to request a
specific intent instruction, pursuant to Fountain, we must conclude trial counsel
breached an essential duty. See id. at 266.
But we conclude there is no probability the result of the trial would have
been different even if the jury had been instructed that “‘[s]pecific intent’ means
not only being aware of doing an act and doing it voluntarily, but in addition,
doing it with a specific purpose in mind.” In both marshalling instructions, the jury
was instructed the State must prove Moehn did an act “intended to cause pain or
injury.” The jury was also instructed the State must prove that Moehn “used or
displayed a dangerous weapon in connection with the assault.” As the court
instructed, the dangerous weapon was Moehn’s car driven toward Kelli and
Schwind and “actually used in such a way as to indicate the user intended to
inflict death or serious injury.” The jury necessarily found Moehn “intended to
inflict death or serious injury” in the use of his vehicle. A separate instruction on
specific intent would not have changed the outcome of the trial.
In Fountain, where consensual sexual relations had preceded the alleged
assaultive conduct, the defendant successfully argued that with a specific intent
instruction the jury may have found that he did not intend to make any insulting or
offensive physical contact with his then girlfriend. 786 N.W.2d at 262. The case
before us is not analogous.
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In closing arguments, defense counsel noted that the jury instructions
required the State to prove that a dangerous weapon was used in connection
with the assault. He also noted the jury instructions defined a dangerous weapon
as “an instrument or device which is actually used in such a way as to indicate
the user intended to inflict death or serious injury.” Counsel argued William did
not intend to inflict a serious injury on Kelli with his car:
He’s trying to get by two people. He’s going a little, he’s stopping,
he’s going [a] little, he’s stopping. Anybody who has been to an
Iowa football game or a concert or a big event has been in a
situation where you’re trying to inch your car along and get where
you’re going. There are people walking around and you’re doing
the best you can to advance your car, get where you’re going and
not hit anybody.
And that’s exactly what Bill Moehn was doing. And he did it
to—well, with respect to Darrin Schwind, that—didn’t hit him.
Concerning the charge related to Kelli, defense counsel argued “we’re back to
the question, did Bill use the car in such a way as to inflict serious injury on
Kelli?” The jury found he had.
Moehn argues on appeal he was prejudiced because the instructions
given reduced the State’s burden of proof. The State, however, argues that the
instructions given adequately informed the jury that they were required to find the
defendant acted with specific intent in that they were told that he must have done
an act which was intended to cause pain or injury to [each asserted
victim] or which was intend to result in physical contact which was
insulting to [each asserted victim] or which was intend to place
[each asserted victim] in fear of immediate physical contact which
would have been painful, injurious, insulting, or offensive.
The State contends the jury was thus informed the defendant had to have acted
“with a specific purpose in mind,” which is the essence of the specific intent
instruction. Though the wiser course is to include the specific intent instruction,
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because the question presented to the jury was whether Moehn used his vehicle
in a manner intended to inflict serious injury or death, we agree that Moehn has
suffered no prejudice by the omission and his ineffectiveness claim thus fails.
III. Sentencing.
Moehn also argues the sentencing court considered an inappropriate
matter at sentencing.
A claim of an illegal sentence is not subject to traditional error preservation
rules. See State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003).
The imposition of a sentence is generally within the
discretion of the trial court and will be disturbed only upon a
showing of abuse of discretion. An abuse of discretion will be
found only when the discretion is exercised on grounds which are
clearly untenable or to an extent clearly unreasonable. The use of
an impermissible sentencing factor is viewed as an abuse of
discretion and requires resentencing.
State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994) (citations omitted).
A “trial court must carefully avoid any suggestions in its comments at the
sentencing stage that it was taking into account the fact defendant had not
pleaded guilty but had put the prosecution to its proof.” State v. Nichols, 247
N.W.2d 249, 256 (Iowa 1976); accord State v. Knight, 701 N.W.2d 83, 87 (Iowa
2005) (but noting “this prohibition does not preclude a sentencing court from
finding a lack of remorse based on facts other than the defendant’s failure to
plead guilty”).
At Moehn’s sentencing, the district court stated, “The reasons for my
sentence, first of all, you didn’t accept your responsibility for your action. You
went to trial, and I felt you absolutely had no defense. None.” The State
concedes the sentencing court considered an improper factor. We are required
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to vacate the sentence and remand for resentencing. See Nichols, 247 N.W.2d
at 256.
We affirm Moehn’s convictions and remand for resentencing.
CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED
FOR RESENTENCING.