Opinion
No. 4-481 / 03-0963.
August 26, 2004.
Appeal from the Iowa District Court for Johnson County, Stephen C. Gerard II, District Associate Judge.
Justin Washpun appeals his conviction for attempting to entice away a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, J. Patrick White, County Attorney, and M. Victoria Dominguez, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
I. Background Facts Proceedings
On January 18, 2002, Jessica, who was then ten years old, was walking from her friend's house to her grandmother's house in Coralville, Iowa, a distance of about five or six blocks. She noticed a rusty gray Chevy drive by her about five or six times. Jessica became concerned and cut through a school yard. The vehicle turned around and continued to follow Jessica.
About one block from her grandmother's home the vehicle stopped, and the occupant asked Jessica where she lived and where she was going. The occupant inquired whether Jessica wanted a ride, then asked, "Will you get in the car and be my girlfriend?" Jessica said "No," and ran to her grandmother's house.
The incident was reported to police officers, who soon found a matching vehicle in the neighborhood. Jessica identified Justin Washpun as the person who spoke to her. Washpun admitted to officers he had spoken to a young girl by a school. He stated he did not know she was ten years old and that he "didn't go for that kind of thing."
Washpun was charged with attempting to entice away a child. Iowa Code section 710.10(2) (2001) provides, "A person commits an aggravated misdemeanor when, without authority and with the intent to commit an illegal act upon the child, the person attempts to entice away a child." On Washpun's motion, the State specified assault and/or sexual abuse as the illegal acts which Washpun intended to commit. A jury found Washpun guilty, and he was sentenced to a term of imprisonment not to exceed two years. He appeals, claiming he received ineffective assistance of counsel during his criminal trial.
II. Standard of Review
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
III. Ineffective Assistance
The jury was instructed on the elements of attempting to entice away a child. On appeal, Washpun contends he received ineffective assistance because his trial counsel did not request jury instructions which set forth the elements of assault and sexual abuse. He claims that without these instructions the jury was left to speculate as to what the elements of these illegal acts might be, and whether the State proved he had the intent to commit one or both of those acts.
We review a district court's ruling on jury instructions for errors at law. Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). When a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court should give the requested instruction. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Erroneous jury instructions do not warrant reversal, however, unless the defendant has been prejudiced by them. See State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003).
A situation similar to that in the present case arises when a defendant has been charged with burglary, which requires proof that a person entered an occupied structure "having the intent to commit a felony, assault, or theft therein. . . ." Iowa Code § 713.1. Our supreme court has stated that if the State relies on the felony alternative, the State must specify which felony it alleges the defendant intended to commit. State v. Mesch, 574 N.W.2d 10, 14 (Iowa 1997). The jury must then be instructed on the elements of that felony. Id. at 15.
The State points out that a jury does not need to be instructed on terms which are readily understandable by persons of ordinary intelligence. State v. Oetken, 613 N.W.2d 679, 685 (Iowa 2000). "Only technical terms or legal terms of art must be explained." Id. (citing Kellogg, 542 N.W.2d at 516). We are not convinced that the legal terms "assault" or "sexual abuse" are readily understood by laypersons. These terms have been specifically defined by the legislature in sections 708.1 and 709.1, respectively.
IV. Prejudice
The State also claims Washpun was not prejudiced by the failure to give instructions defining assault and sexual abuse. In Mesch, the supreme court concluded that it was reversible error to fail to instruct the jury on the felony which the State alleged the defendant intended to commit as part of a burglary charge. 574 N.W.2d at 14. In Oetken, however, the court found the defendant was not prejudiced by the failure to instruct the jury on theft, although the State alleged defendant entered a building with the intent to commit theft, because "the evidence overwhelmingly indicated Oetken intended to commit theft. . . ." 613 N.W.2d at 686.
We determine Washpun was not prejudiced by the lack of instructions on assault and sexual abuse. Section 710.10(3) provides:
A person's intent to commit an illegal act upon the child may be inferred when the individual is not known to the child and the individual does not have the permission of the child's parent, guardian, or custodian to contact the child.
Washpun was not known to Jessica and did not have permission to contact her. Furthermore, the evidence shows Washpun drove by Jessica five or six times as she walked to her grandmother's house, and continued to follow her even after she attempted to detour through a school yard. Washpun attempted to get Jessica into his car by asking if she wanted a ride, then inquired "Will you get in the car and be my girlfriend?" From this evidence the jury could infer Washpun's intent to commit assault and/or sexual abuse. There is no reasonable probability that the additional instructions would have resulted in an acquittal.
We determine Washpun has failed to show that he received ineffective assistance of counsel. We affirm Washpun's conviction.