State v. Carey, 2004 Iowa App. LEXIS 296 (IA Ct. App. 2004)
Court of Appeals of Iowa
February 27, 2004, Filed
No. 3-826 / 02-1377
2004 Iowa App. LEXIS 296
STATE OF IOWA, Plaintiff-Appellee, vs. DONTRAYIUS EUGENE CAREY, Defendant-Appellant.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
Opinion by: MILLER
Dontrayius E. Carey appeals from his conviction, following jury trial, for assault while participating in a felony.  He contends the trial court erred in denying his motion for judgment of acquittal based on an insufficiency of the evidence and in denying his request for jury instructions on the defense of self-defense. We reverse his conviction for assault while participating in a felony and remand for further proceedings on that charge.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record before us reveals the following facts. On April 2, 2002 Officers McNamee and Krogh of the Tri-County Drug Task Force were driving in the area of East 4th Street in Waterloo in an unmarked car wearing civilian clothing. At that time they encountered a white Pontiac with three black males drive up next to them. The driver made eye contact with McNamee, asked him “what up”, and gestured to them to follow him. The officers believed the occupants of the car wished to sell them drugs so they followed the car until it parked. As they were following the car the officers turned off their police radio and hid it under the seat.
Once stopped, the driver and one of the passengers got out of the car and came over to the officers’ vehicle. One of the men, later identified as Carey, got into the back seat of the officers’ car while the other male stood outside the passenger side of the car. Carey asked them what they needed, and Officer McNamee asked him what he had. Carey responded by showing him what appeared to be four to six rocks of crack cocaine. McNamee thought the rocks looked small so he asked Carey if he could get two for twenty dollars and Carey said he could. Officer Krogh commented that the rocks looked too yellow and asked if they were real. Carey stated that all good crack is yellow and gave two rocks to Krogh. At that point the other male standing outside the officers’ car told the officers he had bigger rocks.
Officer McNamee then got out of the vehicle, supposedly to look at the rocks the other male had. Office McNamee testified at trial that he announced, “We’re police officers. You are both under arrest.” Officer Krogh testified to the same effect. McNamee testified that he stepped around and pulled up his sweatshirt to show his badge because he wore it on his belt when he was undercover, again said they were police officers, and again stated “You are under arrest.” In the meantime Carey was trying to get out of the vehicle while Officer Krogh tried to restrain him and keep him in the car. In the course of this struggle Krogh grabbed Carey by the leg and Carey’s shoe came off. McNamee also testified Carey was pushing and kicking him in an effort to get out of the vehicle and that during this time he kept repeating to Carey that they were police officers, he was under arrest, and he should stop resisting.
Eventually, Carey was able to get out of the car and Officer McNamee tried to pin him against the side of the vehicle. During the struggle Carey managed to crawl on top of the car. McNamee testified that as he attempted to pull him off the car Carey struck him on the top of the head with his fists or elbow and McNamee felt sharp pains in the top of his head. McNamee and Carey ended up rolling off the car onto the ground and Carey landed on McNamee’s hand injuring it. McNamee testified that while they were on the ground Carey kicked him in the hands and legs. McNamee further testified that during this struggle on the ground he continued to tell Carey to stop resisting, they were police, and he was under arrest. 
Officer Krogh was eventually able to assist McNamee in restraining Carey. Both officers testified that when Krogh came around the car to assist McNamee he told Carey they were police officers and he should stop struggling, to put his hands behind his back, and that he was under arrest. They also both testified that Carey began to argue with them at that point claiming he had not seen a badge and did not know they were police. Krogh then showed Carey his badge and told him again to stop resisting.
During this struggle the other male who had remained in the car, later identified as Maurice Johnson, began to drive away. Although Officer Krogh ordered him to stop, Johnson apparently smiled and kept going. Krogh also managed to call for additional assistance during this time. The officers were able to hold Carey until backup arrived. Carey continued to struggle with the officers until the sound of the sirens from the additional units could be heard, at which point he relaxed some and the officers were able to handcuff him.
Officers were subsequently able to stop Johnson and arrest him. A search of the car revealed a small scale and a traffic citation bearing Carey’s name. Contained in the citation was a small quantity of crack cocaine. Lab results ultimately revealed that the rocks Carey sold to the officers were not crack cocaine.
Carey was charged by trial information with delivery of a controlled substance in violation of Iowa Code section 124.401(1)(c) (2001) (Count I), assault while participating in a felony in violation of section 708.3 (Count II), and interference with official acts causing injury in violation of section 719.1 (Count III). Carey filed a notice of reliance on the defenses of self-defense and entrapment. Count I of the trial information was later amended to delivery of a simulated controlled substance.
Carey timely moved for a judgment of acquittal. The trial court overruled the motion. Carey requested that the jury be instructed on the defense of self-defense. The court denied his request, finding there was not substantial evidence in the record to support instruction on self-defense. In denying the requested instruction the court stated that it did not find Johnson’s testimony to be “particularly credible” and if Carey had “remained in the vehicle there wouldn’t have been any force because the officers didn’t initiate force until he attempted to escape.” Accordingly, the trial court concluded it could not find Carey had a reasonable belief that “such force is necessary to defend himself from any imminent use of unlawful force.”
The jury found Carey guilty on Counts I and II and not guilty on Count III. Carey was sentenced to an indeterminate term of incarceration of no more than ten years on Count I and an indeterminate term of no more than five years on Count II. The court ordered the sentences to run consecutively.
Carey appeals from his conviction for assault while participating in a felony contending the trial court erred (1) in denying his motion for judgment of acquittal because there was insufficient evidence on this charge and, (2) in denying his request for jury instructions on his theory of self-defense. He further argues that if we determine his motion for judgment of acquittal was insufficient to preserve error, then his trial counsel’s failure to preserve error on this issue deprived him of effective assistance of counsel and we should address the claim as an ineffective assistance claim.
A. Self-Defense Jury Instruction.
We review a challenge to the district court’s refusal to submit a jury instruction for correction of errors of law. State v. Ceaser, 585 N.W.2d 192, 193 (Iowa 1998). Self-defense is statutorily denominated as a defense of justification. State v. Dunson, 433 N.W.2d 676, 677 (Iowa 1988). Substantial record evidence from any source requires the trial court to submit requested instructions on the defense. Id. “Although the burden to disprove self-defense rests with the State, the defendant bears the burden of demonstrating that the record contains sufficient evidence to support an instruction on this issue.” Ceaser, 585 N.W.2d at 194.
Carey was charged with assault while participating in a felony under Iowa Code section 708.3 which provides in relevant part,
Any person who commits an assault as defined in section 708.1 while participating in a felony . . . is guilty of a class “C” felony if the person thereby causes serious injury to any person; if no serious injury results, the person is guilty of a class “D” felony.
Iowa Code section 708.1 defines assault in part as “any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act” when these acts are done “without justification.” Ceaser, 585 N.W.2d at 194. The “without justification” language of section 708.1 gives rise to the affirmative defense of justification to a charge of assault. Id.; State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982). Justification is an affirmative defense rather than an element of assault. Delay, 320 N.W.2d at 833.
The justification of self-defense upon which Carey relies provides: “A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.” Iowa Code § 704.3. Thus, the critical issue here is whether there is sufficient evidence in the record to generate a jury question as to whether Carey could “reasonably believe” that his assaultive actions were necessary to defend himself from “imminent use of unlawful force.” More specifically, the issue becomes whether there was sufficient evidence for the jury to find that Carey reasonably believed he was being assaulted rather than believing the two men buying a simulated controlled substance from him were police officers making an arrest.
On direct examination Officer McNamee testified that Carey told him while they were struggling on the ground that he did not see McNamee’s badge and did not know he was a police officer. McNamee testified on cross-examination that at the time of the incident in question unless a person knew him they would not have known he was a police officer and prior to him showing his badge Carey did not know he was a police officer. He also testified that when Carey heard the sirens coming Carey stopped struggling.
Officer Krogh also testified that during Carey’s struggle with McNamee he heard a conversation or argument about whether McNamee had shown Carey his badge so Krogh took his badge out and put it by Carey’s face to see. Krogh further testified that after he put his badge in Carey’s face his struggling and resisting started to slow down. On cross-examination Krogh testified that Carey could not have known on the night in question that the car the officers were driving was a police car nor could he have known they were police officers because he and McNamee appeared to be just regular people off the street. He also testified that he did not see McNamee’s badge when McNamee purportedly showed it to Carey, because he was not at the right angle to see it. Krogh again acknowledged on cross-examination that he heard Carey say that McNamee never showed him a badge.
In addition, Officer Pohl testified that he arrived on the scene shortly after he heard on the radio that McNamee and Krogh needed help. Pohl testified that when he got there Carey was not struggling much at that point, he did not have any trouble placing handcuffs on Carey, and Carey was cooperative with him.
Finally, Maurice Johnson testified as a defense witness. He testified that the car Officers McNamee and Krogh were in did not appear to be a police car and they did not appear to be police officers. He further stated that when McNamee first got out of his vehicle he still did not think or know he was a police officer. Johnson testified all he saw was that “the white guy” “just grabbed” Carey outside the car and Carey “was just trying to get loose.” He also stated that at that point he was scared for both his and Carey’s safety and he drove away because he just wanted to get away for his own protection.
Based on all of the evidence set forth above, we conclude there was sufficient evidence in the record to generate a jury question as to whether Carey reasonably believed McNamee and Krogh were not police officers and thus reasonably believed his actions were necessary to defend himself from the imminent use of unlawful force. Furthermore, we believe the facts in both State v. Ceaser and State v. Rains, 574 N.W.2d 904 (Iowa 1998) are distinguishable from the facts in this case and in fact deal with a somewhat different aspect of the justification statute. Here, the crux of the issue is whether Carey could reasonably believe McNamee and Krogh were not police officers and thus were assaulting him rather than making an arrest. However, in both Ceaser and Rains there was no question that the parties involved had the authority to use force against the defendants. Ceaser involved clearly marked store employees and Rains involved a uniformed police officer.
We conclude Carey has demonstrated that the record contains sufficient evidence to support instruction on self-defense and thus the trial erred in refusing Carey’s request for such instructions.
B. Motion for Judgment of Acquittal.
Carey also claims the trial court erred in denying his motion for judgment of acquittal because there was not sufficient evidence to allow a rational fact finder to find beyond a reasonable doubt that he committed assault while participating in a felony. The State contends Carey’s motion for judgment of acquittal was too general to preserve error on the specific claims he raises on appeal. Carey asserts in the alternative that if his motion did not preserve error then his counsel’s failure to preserve this issue denied him his right to effective assistance of counsel.
Carey’s motion for judgment of acquittal with regard to the assault while participating in a felony charge merely argued “the State has not established even a jury question to allow this case to go forward to the jury. And for those reasons we would move for judgment of acquittal.” On appeal Carey is arguing he lacked the necessary intent to assault McNamee because he was only acting in self-defense. Error is not preserved when a motion for judgment of acquittal does not point out the specific deficiencies in the evidence. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
Carey’s motion for judgment of acquittal contained no mention of or argument concerning his intent or that he was acting in self-defense. Therefore, we agree with the State and find the motion did not preserve for our consideration the specific argument he now makes. See State v. Maghee, 573 N.W.2d 1, 9 (Iowa 1997); Crone, 545 N.W.2d at 270. Accordingly, his claim that there was insufficient evidence on the assault charge can only be addressed through an ineffective assistance of counsel claim.
Although we normally preserve claims of ineffective assistance of counsel raised on direct appeal for a possible postconviction proceeding, such claims may be resolved on direct appeal when the record is adequate to decide the issue. State v. Query, 594 N.W.2d 438, 444 (Iowa Ct. App. 1999). Carey urges that the record is adequate, and we agree.
Carey argues that he did not commit an assault while participating in a felony (the felony of a delivery of a simulated controlled substance of which he was convicted). More specifically, he asserts no assault took place during the course of that felony as he did not know the two men were law enforcement officers, he feared for his safety, he inadvertently struck McNamee as he attempted to climb over the top of the vehicle, and his actions were justified because taken in self-defense and without an awareness that Officers NcNamee and Krogh were officers attempting to arrest him.
A jury’s verdict is binding if supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that a defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999). In determining whether substantial evidence supports the charge we consider all the evidence in the record, not just the evidence supporting the verdict. State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995).
The trial court defined an assault as doing an act which is meant to result in physical contact which will be insulting or offensive or place another person in fear of immediate physical contact which would be painful, injurious, insulting or offensive to another person, when coupled with the apparent ability to do the act.
The essence of Carey’s arguments is that his acts were in self-defense, an attempt to get away from persons whom he did not know were law enforcement officers and whom he believed were assaulting him.
The record contains evidence which, if found credible by the fact finder, shows that Officer McNamee identified himself and Officer Krogh as police officers, Officer McNamee showed his badge to Carey, and that Carey thereafter struck Officer McNamee and continued to struggle with the officers and oppose their attempts to arrest him despite their repeated identification of themselves as police officers, which they did even after Officer Krogh showed him his badge. It also contains evidence from which the fact finder could reasonably find that Carey’s acts of striking Officer McNamee were done with the specific intent that is part of the definition of assault as given by the trial court. We conclude such evidence, even when viewed together with opposing evidence appearing in the record, could convince a rational fact finder beyond a reasonable doubt that Carey committed an assault on Officer McNamee. Because substantial evidence supports the jury’s findings that Carey assaulted Officer McNamee while participating in a felony, a motion for judgment of acquittal on that charge was meritless. Counsel is not ineffective for failing to make a proper motion when such a motion is meritless. See Ceaser, 585 N.W.2d at 195 (“Trial counsel is not incompetent in failing to pursue a meritless issue.”). We conclude Carey’s claim of ineffective assistance of counsel is without merit.
We conclude the record contains sufficient evidence to support instruction on the defense of self-defense and the trial court erred in denying Carey’s request that the jury be instructed on that defense. Carey’s conviction for assault while participating in a felony must be reversed and the case remanded for further proceedings on that charge. We further conclude Carey’s motion for judgment of acquittal was too general to preserve error on the specific claims he raises on appeal and thus must be addressed as an ineffective assistance claim. We conclude the record contains substantial evidence from which a reasonable fact finder could find the State proved beyond a reasonable doubt that Carey committed an assault while participating in a felony. We therefore conclude Carey’s claim of ineffective assistance of counsel is without merit and reject it.
We reverse Carey’s conviction for assault while participating in a felony and remand for further proceedings on that charge.
REVERSED AND REMANDED.
1. Carey was also convicted and sentenced for delivery of a simulated controlled substance. His appeal does not challenge that conviction or sentence.
2. As a result of Carey’s struggle with Officer McNamee, McNamee sustained a cut above his right eye and an injury to his hand.