IN THE COURT OF APPEALS OF IOWA
No. 16-2172
Filed December 20, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NICHOLAS ANDREW LENZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mitchell County, Christopher C.
Foy, Judge.
Nicholas Lenz appeals his conviction of first-degree kidnapping.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Nicholas A. Lenz, Fort Madison, pro se.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
Nicholas Lenz appeals his conviction of first-degree kidnapping. His
various arguments on appeal include: (1) the district court improperly disallowed
questioning of the victim about her drug use at or around the time of the crime or,
alternatively, his trial counsel was ineffective for failing to argue such evidence
was admissible under the inexplicably-intertwined doctrine; (2) the court erred in
allowing irrelevant and prejudicial information regarding whether a sheriff’s
deputy thought Lenz could have shot him at the time of his arrest; (3) the statute
defining serious injury, Iowa Code section 702.18 (2016), is unconstitutionally
vague; (4) the evidence was insufficient to support a necessary element of the
crime, that the victim suffered a serious injury or, alternatively, that any serious
injury was not a result of confinement; (5) the court erred in failing to give certain
jury instructions; and (6) the jury’s general verdict makes it unclear whether he
was convicted on a valid or invalid basis thus warranting a new trial. Lenz also
argues his trial counsel was ineffective in failing to raise arguments three and six
at trial.1
1
Lenz also requests this court to conduct an in-camera review of the notes taken by a
special agent of the Iowa Division of Criminal Investigation in relation to witness
depositions in order to ensure the propriety of the district court’s determination that the
notes did not contain exculpatory information and were therefore not discoverable. The
discovery tool Lenz attempts to employ applies only to “statements.” State v. DeZeeuw,
401 N.W.2d 226, 227 (Iowa Ct. App. 1986) (quoting State v. Groscost, 355 N.W.2d 32,
34 (Iowa 1984)). Our supreme court has stated:
In order for statements to be subject to [discovery], which we have
approved, it is necessary that they be written statements made by the
witness and signed, or otherwise adopted or approved by the witness, or
that they be a stenographic, mechanical, electrical, or other recording, or
a transcription thereof, which is a substantially verbatim recital of an oral
statement made by said witness and recorded contemporaneously
without the making of such oral statement. The distinction between a
statement made by a witness and one that is an imprecise summary of
3
I. Background Facts & Proceedings
Lenz was in a romantic relationship with Chris Sonberg in the early
months of 2016; the two were dating at the time but the relationship was “not
good.” On the afternoon of March 5 of that year, Lenz and Sonberg travelled
from Mitchell, Iowa to Waterloo to visit a casino. They spent “two hours or
longer” at the casino. After their departure from the casino, an argument ensued
between the two in the vehicle Lenz was driving back to Mitchell. Lenz began
yelling at Sonberg and eventually struck her with his fists several times in her
face, which caused her to lose consciousness—she was in-and-out of
consciousness for the remainder of their journey. When they arrived at
Sonberg’s home in Mitchell, Lenz put a cigarette out on her right cheek and then
dragged her by her hair from the car into the house while covering her mouth so
she could not scream.
For the next couple of days, they remained in Sonberg’s home, wherein
Chris was “beaten a lot” by Lenz. He hit her numerous times in her head and
what another understood the witness to say has been made on the
federal level as well as in Iowa.
State v. Horn, 828 N.W.2d 717, 721 (Iowa 1979). Upon a review of the documents
requested, we conclude they are not “statements” and therefore affirm the district court’s
conclusion that they were not discoverable materials.
Finally, Lenz argues the district court incorrectly applied Iowa Code section
702.18 in instructing the jury and trial counsel was ineffective in failing to object to the
instruction. To the extent Lenz argues the district court failed to define the terms
“protracted” or “extended” to the jury, he provides us with no authority that such a
specific definitional instruction to the jury is required. We therefore deem the argument
waived. See Iowa R. App. P. 6.903(2)(g)(3). To the extent Lenz argues the district
court’s use of the term “extended” rather than “protracted” in its instruction was improper,
we note we have previously approved the language used by the district court and affirm
its use of the same. See, e.g., State v. Edwards, No. 10-0754, 2011 WL 1878600, at *1
(Iowa Ct. App. May 11, 2011); State v. Billingsly, No. 03-1165, 2004 WL 1259726, at *2
(Iowa Ct. App. June 9, 2004); see also Protract, Webster’s Third New International
Dictionary 1826 (unabridged ed. 2002) (listing the term “extend” as a synonym for the
term “protract”).
4
face and strangled her to a point that she testified she thought she was going to
die. Lenz also threatened Sonberg with the display of a firearm on multiple
occasions, hit her “upside the head” with it, and pressed its muzzle against her
flesh. At one point, when Sonberg tried to escape, Lenz chased her outside,
slammed her to the ground, kicked her in her ribs and head, and dragged her by
her hair back into the residence. Lenz eventually transported Sonberg to an
abandoned camper where he zip tied her ankles to a pipe under the stove and
then left her there for approximately four hours, during which Sonberg was
without food, water, and heat and experienced a loss of feeling in her feet as a
result of the tightness of the zip ties. Lenz subsequently transported Sonberg
back to her home, where he continued to confine her.
In the early morning hours of March 7, Sonberg’s father visited her home
and noticed one of the home’s windows was open. He notified law enforcement
of a possible break-in at the residence, and a Mitchell County Sheriff’s Deputy
responded shortly thereafter. When the deputy entered the residence with
Sonberg’s father, he observed Lenz sleeping on a couch in the living room. The
deputy approached Lenz and handcuffed him. Sonberg was located in the
bedroom of the residence. The deputy observed that she had facial injuries and
Sonberg advised Lenz “beat her up.” The deputy removed Lenz from the home
and secured him in his police vehicle. Lenz managed to escape the vehicle,
however, and fled the scene. Following a foot chase, Lenz stole a car to aid him
in his escape, but he was recaptured by authorities. Sonberg was transported to
a nearby hospital in an ambulance. She was then life-flighted to Mayo Clinic in
Rochester, Minnesota for treatment.
5
On March 8, Lenz was interviewed by police officers.2 At the outset of the
interview, Lenz requested the officers to tell Sonberg he was sorry for what he
did; he repeated his sorrow for his actions a number of times throughout the
interview. He stated Sonberg wanted to go to Waterloo for drugs, and when they
got there, they smoked about $200 worth of crack. On their way back to Mitchell
from Waterloo, Lenz said he became upset with Sonberg and he “couldn’t take it
anymore.” An argument ensued, during which Sonberg rolled down her window
in an attempt to “wave somebody down,” presumably for a ride. Lenz stated he
grabbed her by the ponytail, “threw her down,” and rolled up and locked the
windows. He indicated he subdued her for the remainder of the journey back to
Mitchell. At one point, Lenz said Sonberg “was really starting to piss [Lenz] off,
so” he punched her “like ten times in her back.” Upon their arrival in Mitchell,
Lenz admitted he dragged Sonberg into the house, after which he “beat the fuck
out of her for like two days straight.” Lenz thought the beatings “might have
broke[n] some of her ribs and might have broke[n] her jaw too.” Lenz said he
eventually decided to transport Sonberg to a camper near his grandparents’
home. Lenz stated, in transit, he “just snapped” and “repetitively . . . hit
[Sonberg] on her left side of her jaw” and “also in her ribs too.” While in the
camper, Lenz admitted he zip tied Sonberg’s legs to a pipe so she would not “do
anything stupid.” Lenz and Sonberg left the camper, and Lenz went on a bit of a
crime spree. He subsequently transported Sonberg back to her residence and
remained there with her. Lenz also admitted that he, at one point, taped Sonberg
2
An audio recording of this interview was admitted into evidence and played for the jury.
6
to a chair in her home. Also, when searching Sonberg’s purse, Lenz found a
condom; he removed it from the wrapper and shoved it down Sonberg’s throat.
Sonberg testified, throughout this ordeal, she thought she was going to
die. As a result of the frequent beatings, she suffered severe bruising to her
body lasting one or two weeks and, according to her, a severe concussion. She
spent three days at Mayo, during which she underwent surgery. One of her
doctors testified she suffered fractures to her jaw, maxillary sinus bone, and
hyoid bone and exhibited multiple lacerations inside of her mouth. Fracturing of
the hyoid bone is commonly caused by strangulation while the remainder of the
injuries can be explained by blunt force trauma to the head or face. To correct
her broken jaw, Sonberg underwent an open reduction internal fixation
procedure. This procedure involves the internal fixation of the jawbone with
titanium plates. Doctors also performed a maxillomandibular fixation, which
required the placement of “at least six screws in the jaw.” As a result of her
broken jaw, Sonberg experiences difficulty with speaking and eating, and her jaw
“pops” on occasion. Her jaw line is also misaligned, which has caused chipping
of her back teeth.
Lenz was charged by trial information with a number of crimes in relation
to the foregoing, including first-degree kidnapping and willful injury causing
serious injury. A jury found him guilty on both counts. The district court denied
Lenz’s subsequent motions for a new trial and in arrest of judgment and
sentenced Lenz to life in prison without the possibility of parole on the kidnapping
7
charge.3 Lenz appeals. Additional facts may be set forth below as are relevant
to the issues raised on appeal.
II. Evidentiary Rulings
Lenz challenges the district court’s evidentiary rulings in two respects. He
contends (1) the district court improperly disallowed questioning of the alleged
victim about her drug use at or around the time of the crime and (2) the court
erred in allowing irrelevant and prejudicial information regarding whether a
sheriff’s deputy thought Lenz could have shot him at the time of his arrest. We
review the district court’s evidentiary rulings for an abuse of discretion. State v.
Tipton, 897 N.W.2d 653, 690 (Iowa 2017). “An abuse of discretion occurs when
the trial court exercises its discretion ‘on grounds or for reasons clearly untenable
or to an extent clearly unreasonable.’” Id. (quoting State v. Buenaventura, 660
N.W.2d 38, 50 (Iowa 2003)). Even if we conclude the district court abused its
discretion, “we will only reverse if prejudice is shown.” Id.
Lenz first complains that the district court disallowed “[a]ny evidence that
[Sonberg] attempted to obtain drugs or used drugs near and during the time of
the offense” and that such evidence should have been allowed because it “was
relevant to her credibility.” In sum, Lenz wanted to be able to offer evidence that
Sonberg visited a drug dealer shortly before, or was on drugs at, the time of the
offense and, therefore, her recollection of the facts was not credible. We note,
however, the district court did not prevent the presentation of such evidence.
The court expressly noted before opening statements that any evidence of drug
use on the part of Sonberg occurring between March 5 and 7 would “be relevant
3
The court merged Lenz’s willful-injury conviction with his kidnapping conviction.
8
to her memory and ability to accurately recall what’s happened.” The court
repeated this position during Lenz’s cross-examination of Sonberg, stating, “It
would be the court’s opinion that the only relevance of drug use or alcohol
use . . . by Ms. Sonberg would be as it might affect her ability to comprehend
what was going on or later recollect what happened during the time in question.”
Lenz attempted to introduce evidence that Sonberg visited a drug dealer
at some point in time. However, Lenz was unable to provide any evidence to the
district court in his offer of proof that Sonberg’s alleged visit to a drug dealer
occurred in the relevant timeframe. In fact, the facts submitted to the district
court largely indicated Sonberg’s alleged visit to a drug dealer occurred
sometime prior to March 5. Absent any indication that Sonberg’s alleged visit to
a drug dealer occurred within the relevant timeframe, we conclude the district
court did not abuse its discretion in excluding the evidence.
In any event, the allegation that Sonberg was under the influence of drugs
during her captivity made its way to the jury when the State offered a recording of
Lenz’s initial interview with law enforcement, wherein he stated Sonberg wanted
to go to Waterloo for drugs, and when they got there they smoked about $200
worth of crack together. Furthermore, rendering Sonberg’s testimony incredible
would have done very little for Lenz’s cause, as he admitted to many of the
criminal acts resulting in his conviction on his own accord. See State v. Parker,
747 N.W.2d 196, 210 (Iowa 2008) (“[W]e consider a variety of circumstances in
determining the existence of harmless error, including the existence of
overwhelming evidence of guilt.”). We conclude the district court did not abuse
its discretion in excluding evidence concerning Sonberg’s alleged drug-related
9
activities and, in any event, the exclusion of such evidence was harmless and did
not result in prejudice or a miscarriage of justice. See id. at 209.
Lenz also argues his trial counsel was ineffective in failing to argue the
drug evidence was admissible under the inexplicably-intertwined doctrine.
Obviously, this doctrine’s namesake requires the proffered facts to be
“inexplicably intertwined” with the facts underlying the charged crime. See
generally State v. Nelson, 791 N.W.2d 414, 423–24 (Iowa 2010). Again, there is
nothing to show that Sonberg’s alleged visit to a drug dealer occurred in relation
to her and Lenz’s trip to Waterloo on March 5. Absent such evidence, the
inextricably-intertwined argument would have been meritless. We therefore
conclude trial counsel was not ineffective in failing to pursue the same. See
State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015) (“[W]here a claimant
alleges counsel’s failure to pursue a particular course breached an essential
duty, there is no such duty when the suggested course would have been
meritless.”).
Next, Lenz contends the district court improperly allowed irrelevant and
prejudicial information regarding whether a sheriff’s deputy thought Lenz could
have shot him at the time of his arrest. The arresting deputy testified at trial that,
during a post-arrest search of Sonberg’s residence, he discovered a loaded
firearm in the couch “tucked into the cushions” “right beside where Mr. Lenz was
sleeping.” The State questioned the deputy whether Lenz, at the time of the
arrest, could have reached the weapon. Following an overruled objection on
speculation grounds, the officer answered, “Yes, he could [have].” He later
testified, “I knew at that point that Mr. Lenz could have been able to grab that gun
10
and shoot me with it.” We agree this testimony was irrelevant, see Iowa R. Evid.
5.401, but note “[e]rror in admission of evidence must be prejudicial to an
accused to constitute cause for reversal.” State v. Liggins, 524 N.W.2d 181, 188
(Iowa 1994). Simply stated, we are unable to conclude that the deputy’s very
brief, speculative testimony that Lenz could have reached the firearm and used it
amounted to prejudice. Based on the substantial amount of evidence of Lenz’s
guilt, we cannot say the outcome of the trial would have been any different had
the jury not heard this testimony. Cf. State v. Crone, 545 N.W.2d 267, 274 (Iowa
1996). We therefore decline to grant Lenz’s request for a new trial on this
ground.
III. Constitutionality of Iowa Code section 702.18
Next, Lenz argues Iowa Code section 702.18 is unconstitutionally vague
as applied to him. He specifically contends the use of the term “protracted” in the
statute renders the statute too vague to be enforced in his case. Error was not
preserved on this argument, as Lenz did not raise it before the district court. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”). He also
contends, however, that trial counsel was ineffective in failing to challenge the
constitutionality of the statute. We must therefore consider the argument under
an ineffective-assistance-of-counsel rubric, claims of which are not subject to our
traditional error-preservation rules. State v. Fountain, 786 N.W.2d 260, 262–63
(Iowa 2010).
11
Ineffective-assistance-of-counsel claims are reviewed de novo, as are
challenges to the constitutionality of a statute. Diaz v. State, 896 N.W.2d 723,
727 (Iowa 2017) (ineffective-assistance claims); State v. Opperman, 826 N.W.2d
131, 133 (Iowa Ct. App. 2012) (constitutionality of statutes). To prevail on his
claim of ineffective assistance of counsel, Lenz must prove, by a preponderance
of the evidence, that (1) his counsel was deficient in failing to perform an
essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.
668, 687 (1984); State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017) (quoting
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)). In considering a claim of
ineffective assistance of counsel, it is not necessary for a reviewing court to
determine whether “trial counsel’s performance was deficient before examining
the prejudice component of [the] ineffective-assistance claim.” State v. Tate, 710
N.W.2d 237, 240 (Iowa 2006); accord Strickland, 466 U.S. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).
“Prejudice is established if ‘there is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Harris, 891 N.W.2d at 185–86 (quoting State v. Reynolds, 746
N.W.2d 837, 845 (Iowa 2008)); accord Strickland, 466 U.S. at 694. “In other
words, a party claiming prejudice arising from ineffective assistance of counsel
must establish a probability of a different result sufficient to undermine our
confidence in the outcome of the case.” Harris, 891 N.W.2d at 186. If an
argument to the district court would have been meritless, the claim fails. See
Tompkins, 859 N.W.2d at 637.
12
Section 702.18 defines serious injury to include, among other things, any
bodily injury which “[c]auses protracted loss or impairment of the function of any
bodily member or organ.” As noted, Lenz argues the term “protracted” renders
the statute unconstitutionally vague. A defendant challenging the validity of a
criminal statute “carries the heavy burden to rebut a strong presumption of
constitutionality.” State v. Anderson, 308 N.W.2d 42, 46 (Iowa 1981) (quoting
State v. Sullivan, 298 N.W.2d 267, 270 (Iowa 1980)). If a criminal statute “give[s]
a person of ordinary intelligence fair notice of what is prohibited” and “provide[s]
an explicit standard for those who apply it,” the statute is not unconstitutionally
vague. Id. (quoting State v. Pierce, 287 N.W.2d 570, 573 (Iowa 1980)). “The
specificity required of a statute need not be apparent on its face,” and courts
“may look to prior decisions, the dictionary and common usage” in determining
whether a statute is unconstitutionally vague. Id.
The word “protract” means “to draw out or lengthen in time or space.”
Protract, Webster’s Third New International Dictionary 1826 (unabridged ed.
2002). The word “extend,” which the district court used in its jury instruction
defining serious injury, is a synonym. Id. The common meaning of the term
carries a similar import. See, e.g., State v. Dorrance, 70 A.3d 451, 454 (N.H.
2013). Based on the meaning of the challenged term, we conclude the term
“protracted” as used in the statute sufficiently notifies persons of ordinary
intelligence that inflicting bodily injuries that cause a lengthened or extended loss
or impairment of the function of any bodily member or organ is prohibited.
Likewise, in requiring that the bodily injury be protracted, lengthened, or
extended, rather than immediately ceasing upon infliction, the statute provides
13
the jury with an explicit standard for its application. We conclude the statute is
not unconstitutionally vague as applied to the facts of this case.
Lenz goes on to argue that Sonberg was “medically fixed” within three
days of her injuries—suffering for merely three days cannot amount to a
protracted loss or impairment—and the injury only became serious when she
declined to follow up on her medical treatment. We, however, believe the injuries
suffered by Sonberg and the evidence submitted in this case generated a jury
question as to whether her loss or impairment was protracted. Cf. State v.
Welton, 300 N.W.2d 157, 161 (Iowa 1981); State v. Mott, 635 N.W.2d 301, 303–
04 (Iowa Ct. App. 2001).
Based on the facts of this case, we conclude a challenge to the
constitutionality of Iowa Code section 702.18(1)(b)(3) would have been meritless.
We therefore conclude Lenz’s trial counsel did not render ineffective assistance
in failing to challenge the statute. See Tompkins, 859 N.W.2d at 637.
IV. Sufficiency of the Evidence
Next, Lenz asserts the evidence was insufficient to support a necessary
element of the crime, that the victim suffered a serious injury or, alternatively, that
any serious injury was a result of confinement. The State contests error
preservation on the alternative argument. Because Lenz, in his motions for
judgment of acquittal, challenged the establishment of the fourth element, which
includes both alternatives above, we elect to bypass the State’s error-
preservation argument and proceed to the merits. See, e.g., State v. Taylor, 596
N.W.2d 55, 56 (Iowa 1999) (bypassing an error-preservation issue and
proceeding to the merits of the appeal).
14
“We review challenges to the sufficiency of evidence for correction of
errors at law.” Tipton, 897 N.W.2d at 692. A verdict will stand if supported by
substantial evidence. Id. “Evidence is substantial when a rational trier of fact
would be convinced the defendant is guilty beyond a reasonable doubt.” Id. The
evidence is to be viewed “in the light most favorable to the State, ‘including
legitimate inferences and presumptions that may fairly and reasonably be
deduced from the record evidence.’” Id. (quoting State v. Williams, 695 N.W.2d
23, 27 (Iowa 2005)). We consider all of the evidence, “not just the evidence
supporting guilt.” Id.
The State was required to prove, among other things, that as a
consequence of the kidnapping, Sonberg suffered a serious injury. See Iowa
Code § 710.2; see also id. § 702.18. The serious-injury requirement may be
satisfied with substantial evidence that Lenz subjected Sonberg to a bodily injury
which either (1) created a substantial risk of death, (2) caused serious permanent
disfigurement, or (3) caused protracted loss or impairment of the function of any
bodily member or organ. Id. § 702.18(1)(b). Our supreme court has adopted the
Model Penal Code’s definition of “bodily injury” which is any “physical pain,
illness, or . . . impairment of physical condition.” State v. Gordon, 560 N.W.2d 4,
6 (Iowa 1997) (quoting State v. McKee, 312 N.W.2d 907, 913 (Iowa 1981)).
In his initial interview with law enforcement, Lenz admitted to frequently
beating Sonberg during her three-day confinement. He noted he “beat the fuck
out of her for like two days straight” and thought the beatings “might have
broke[n] some of her ribs and might have broke[n] her jaw too.” Sonberg’s
testimony generally aligned with Lenz’s concessions to law enforcement and
15
added that Lenz strangled her to a point that she thought she was going to die
and threatened her with the display of a firearm on multiple occasions, hit her
“upside the head” with it, and pressed its muzzle against her flesh. As a result of
Lenz’s conduct toward Sonberg while he confined her, Sonberg suffered, among
other things, a broken jaw that required reparative surgery. She also suffered a
fracture to her hyoid bone, which is commonly caused by strangulation.
Based on the evidence presented, the jury could have reasonably
concluded that Lenz’s strangulation of Sonberg and frequent blows to her head
and face during her confinement caused physical pain and created a substantial
risk of death. The jury could have also reasonably concluded Sonberg’s injuries
amounted to protracted losses or impairments of the function of a bodily member
or organ, namely her jaw. Viewing the evidence in the light most favorable to the
State, we conclude the evidence was sufficient to convince a rational trier of fact
that Lenz was guilty of first-degree kidnapping beyond a reasonable doubt. We
conclude the district court did not err in denying Lenz’s motions for judgment of
acquittal.4
V. Jury Instructions
Finally, Lenz argues “the court failed to instruct the jury on issues in the
record.” He specifically contends the jury should have “been instructed on the
defenses of diminished capacity/responsibility, intoxication, proximate cause, and
4
Our conclusions on this issue are also dispositive of Lenz’s final argument, raised as
an ineffective-assistance claim, that the jury’s general verdict makes it unclear whether
he was convicted on a valid or invalid basis. In relation to that argument, he contends
“the [S]tate presented no evidence that any injury sustained ‘create[d] a substantial risk
of death’” and, because it is unclear from the record whether the jury convicted him on
this statutory alternative, he is entitled to a new trial. Because we conclude that
alternative was supported by substantial evidence, we reject the argument.
16
superseding or intervening cause.” He alternatively argues “trial counsel was
ineffective for not ensuring the instructions [were] added.”
“Alleged errors in the submission or refusal to submit jury instructions are
reviewed for correction of errors at law.” Tipton, 897 N.W.2d at 694. “‘Errors in
jury instructions are presumed prejudicial unless’ a lack of prejudice is shown
beyond reasonable doubt.” Id. (quoting State v. Ambrose, 861 N.W.2d 550, 554
(Iowa 2015)). “We review jury instructions as a whole to determine whether the
jury instructions correctly state the law.” Id. Ineffective-assistance-of-counsel
claims are reviewed de novo. Diaz, 896 N.W.2d at 727.
A. Proximate Cause and Superseding or Intervening Cause
After the close of evidence, Lenz requested the court to include “standard
stock instruction[s] 700.3 . . . and 700.6.” The former provides, “The conduct of a
party is a cause of damage when the damage would not have happened except
for the conduct.” Iowa Civ. Jury Instruction 700.3. The latter relates to
superseding or intervening cause and generally informs the jury that, if the
conduct of another occurs after the conduct of the defendant and causes
damage and the prior conduct of the defendant did not create or increase the risk
that the victim would sustain the subsequent damage through the conduct of
another, then the defendant is not liable. See Iowa Civ. Jury Instruction 700.6.
Lenz premised his request for these instructions on his assertion that Sonberg’s
failure to follow her physician’s instructions following her surgery resulted in her
continuing impairment. The district court declined to include the instructions.
A requested instruction must be given if it “correctly states the law, has
application to the case, and is not stated elsewhere in the instructions.” State v.
17
Martinez, 679 N.W.2d 620, 623 (Iowa 2004) (quoting State v. Kellogg, 542
N.W.2d 514, 516 (Iowa 1996)). The first instruction embraces the factual-cause
component of proximate causation: “but for the defendant’s conduct, the harm or
damage would not have occurred.” State v. Marti, 290 N.W.2d 570, 584–85
(Iowa 1980). The concept of but for causation was clearly included in the district
court’s instructions to the jury. As such, we affirm the district court’s refusal to
include a repetitive instruction concerning proximate cause.
The second instruction relates to legal causation. See id. at 585.
Although it is true that “[a] defendant can be relieved of criminal responsibility if
an intervening act breaks the chain of causal connection between the
defendant’s actions and the victim’s” injury, “the intervening act must be the sole
proximate cause of” injury. State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000);
accord Mott, 635 N.W.2d at 303 (noting the intervening act “must be the sole
proximate cause of the ultimate injury” in order for the concept of superseding or
intervening cause to be relevant). Our supreme court has noted, “The
intervention of a force which is a normal consequence of a situation created by
the actor’s negligent conduct is not a superseding cause of harm which such
conduct has been a substantial factor in bringing about.” Garcia, 616 N.W.2d at
597 (quoting State v. Murray, 512 N.W.2d 547, 551 (Iowa 1994)). Simply stated,
Sonberg’s failure to follow her physician’s instructions following surgery was not
the sole proximate of her injuries. Rather, Lenz was responsible for the ultimate
injury. Cf. Mott, 635 N.W.2d at 303. Accordingly, the concept of superseding or
intervening cause was not applicable to the facts of this case and the district
18
court did not err in refusing to include the requested instruction. See Martinez,
679 N.W.2d at 623.
B. Intoxication and Diminished Capacity or Responsibility
Lenz’s did not raise intoxication or diminished capacity or responsibility as
defenses at trial. As such, those defenses are waived. See Iowa Rs. Crim. P.
2.11(3) (“Failure of the defendant to timely raise defenses . . . which must be
made prior to trial under this rule shall constitute waiver thereof . . . .” (emphasis
added)); 2.11(4) (requiring motions under rule 2.11 to be filed no later than forty
days after arraignment); 2.11(11)(b)(1) (noting notice of diminished-responsibility
defense is subject to time deadlines under rule 2.11); 2.11(11)(c) (noting notice
of intoxication defense is subject to time deadlines under rule 2.11); see also
State v. Battle, No. 12-0272, 2013 WL 541640, at *2 (Iowa Ct. App. Feb. 13,
2013) (finding defense waived when not raised in district court).
We are therefore left with Lenz’s argument that “trial counsel was
ineffective for not ensuring the instructions [were] added.” We decline to
entertain this argument because it is contained in a single sentence tacked on to
the end of Lenz’s analysis on this issue. Lenz provides us with no analysis,
argument, or on-point authority concerning how his counsel was deficient in
failing to perform an essential duty and how it resulted in prejudice to him. Under
these circumstances, we would normally consider an argument on appeal
waived. See Iowa R. App. P. 6.903(2)(g)(3); In re C.B., 611 N.W.2d 489, 492
(Iowa 2000) (“A broad, all encompassing argument is insufficient to identify error
in cases of de novo review.”); see also Hyler v. Garner, 548 N.W.2d 864, 876
(Iowa 1996) (“[W]e will not speculate on the arguments [a party] might have
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made and then search for legal authority and comb the record for facts to support
such arguments.”); Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240
(Iowa 1974) (“To reach the merits of this case would require us to assume a
partisan role and undertake the appellant’s research and advocacy. This role is
one we refuse to assume.”). However, when an ineffective-assistance-of-
counsel claim is raised on direct appeal, we are required to either decide the
record is adequate to decide the claim or choose to preserve the claim for
postconviction-relief proceedings. State v. Johnson, 784 N.W.2d 192, 199 (Iowa
2010) (discussing Iowa Code § 814.7(3)). On this record, we choose to preserve
Lenz’s claim that his trial counsel was ineffective in failing to ensure the inclusion
of the jury instructions concerning intoxication and diminished capacity or
responsibility.
VI. Conclusion
We affirm Lenz’s conviction of first-degree kidnapping in its entirety. We
preserve for postconviction-relief proceedings Lenz’s claim that his trial counsel
was ineffective in failing to ensure the inclusion of the jury instructions concerning
intoxication and diminished capacity or responsibility.
AFFIRMED.