IN THE COURT OF APPEALS OF IOWA
No. 18-0765 Filed June 19, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
KEN LORENZE KUHSE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Russell G. Keast,
District Associate Judge.
A defendant appeals his conviction for domestic abuse assault causing
bodily injury. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L.
Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. 2
TABOR, Judge.
A jury 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.
I. Facts and Prior Proceedings
Ken 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. 3
The 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.
II. Error Preservation and Standard of Review
Generally, 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).
III. Analysis
Kuhse 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 marshaling instruction required the State
to prove four elements:
1. On or about the 20th day of August, 2017, the defendant either did an act which was meant to cause pain or injury, result in physical contact which was insulting or offensive, or place Victoria Pfeiffer-Kuhse in fear of immediate physical contact which would have been painful, injurious, insulting or offensive to Victoria Pfeiffer- Kuhse.
2. The defendant had the apparent ability to do the act. 4
3. The defendant’s act caused a bodily injury to Victoria Pfeiffer-Kuhse as defined in Instruction No. 11.
4. Victoria Pfeiffer-Kuhse and Ken Kuhse were married at the time of the incident.
The instruction told the jurors if all the numbered elements were met, the defendant
was guilty of domestic abuse assault causing bodily injury and they should sign
“Form of Verdict No. 1”—which is what the jurors did. The marshaling instruction
did not mention Kuhse’s justification defense or cross reference later instructions
about the State’s burden to disprove his defense.1
Kuhse argues his attorney breached a material duty by not asking the
district court to connect the justification defense to the assault elements. He
alleges he suffered prejudice because the jury could have mistakenly concluded
the State only had to prove the four elements listed in the marshaling instruction.
In asking for a new trial, Kuhse relies on our unpublished decision in State v.
Gomez, No. 13-0462, 2014 WL 1714451 (Iowa Ct. App. Apr. 30, 2014).
In Gomez, we found trial counsel was ineffective for not objecting to an
identical omission from an assault marshaling instruction. 2014 WL 1714451, at
*4–5. There, we reasoned the omission would not have been a problem if the
record lacked sufficient evidence to generate a jury question on justification:
[O]ur supreme court has held that justification is an affirmative defense to assault, as defined in section 708.1, rather than an element of that crime. See State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982). But in this case the district court properly found sufficient evidence to generate a jury question on justification. Therefore, the district court would have assisted the jurors by informing them—in the assault marshaling instruction—that they
1 The court also instructed the jury on two lesser-included offenses: assault causing bodily injury (without the domestic element) and domestic abuse assault (without bodily injury). 5
could not convict unless the State proved Gomez acted without justification. See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 800.1 (Assault–Elements) (commenting that pursuant to Delay, lack of justification is not an element ‘unless the defendant has produced sufficient evidence to raise the defense. In that event the State must prove lack of justification’).
Gomez, 2014 WL 1714451, at *3.
In this appeal, the State contends Gomez should be “re-examined or, at
least, it does not apply here.”2 The State points to Jury Instruction No. 3, which
states whenever the court instructs the jury the State “must prove something, it
must be by evidence beyond a reasonable doubt,” and Jury Instruction No. 4,
which defines reasonable doubt. But those instructions do not mention Kuhse’s
justification defense. It is not until Instruction No. 12 that the jury learns Kuhse is
claiming he acted with justification and the State must prove he was “not acting
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IN THE COURT OF APPEALS OF IOWA
No. 18-0765 Filed June 19, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
KEN LORENZE KUHSE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Russell G. Keast,
District Associate Judge.
A defendant appeals his conviction for domestic abuse assault causing
bodily injury. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L.
Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. 2
TABOR, Judge.
A jury 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.
I. Facts and Prior Proceedings
Ken 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. 3
The 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.
II. Error Preservation and Standard of Review
Generally, 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).
III. Analysis
Kuhse 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 marshaling instruction required the State
to prove four elements:
1. On or about the 20th day of August, 2017, the defendant either did an act which was meant to cause pain or injury, result in physical contact which was insulting or offensive, or place Victoria Pfeiffer-Kuhse in fear of immediate physical contact which would have been painful, injurious, insulting or offensive to Victoria Pfeiffer- Kuhse.
2. The defendant had the apparent ability to do the act. 4
3. The defendant’s act caused a bodily injury to Victoria Pfeiffer-Kuhse as defined in Instruction No. 11.
4. Victoria Pfeiffer-Kuhse and Ken Kuhse were married at the time of the incident.
The instruction told the jurors if all the numbered elements were met, the defendant
was guilty of domestic abuse assault causing bodily injury and they should sign
“Form of Verdict No. 1”—which is what the jurors did. The marshaling instruction
did not mention Kuhse’s justification defense or cross reference later instructions
about the State’s burden to disprove his defense.1
Kuhse argues his attorney breached a material duty by not asking the
district court to connect the justification defense to the assault elements. He
alleges he suffered prejudice because the jury could have mistakenly concluded
the State only had to prove the four elements listed in the marshaling instruction.
In asking for a new trial, Kuhse relies on our unpublished decision in State v.
Gomez, No. 13-0462, 2014 WL 1714451 (Iowa Ct. App. Apr. 30, 2014).
In Gomez, we found trial counsel was ineffective for not objecting to an
identical omission from an assault marshaling instruction. 2014 WL 1714451, at
*4–5. There, we reasoned the omission would not have been a problem if the
record lacked sufficient evidence to generate a jury question on justification:
[O]ur supreme court has held that justification is an affirmative defense to assault, as defined in section 708.1, rather than an element of that crime. See State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982). But in this case the district court properly found sufficient evidence to generate a jury question on justification. Therefore, the district court would have assisted the jurors by informing them—in the assault marshaling instruction—that they
1 The court also instructed the jury on two lesser-included offenses: assault causing bodily injury (without the domestic element) and domestic abuse assault (without bodily injury). 5
could not convict unless the State proved Gomez acted without justification. See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 800.1 (Assault–Elements) (commenting that pursuant to Delay, lack of justification is not an element ‘unless the defendant has produced sufficient evidence to raise the defense. In that event the State must prove lack of justification’).
Gomez, 2014 WL 1714451, at *3.
In this appeal, the State contends Gomez should be “re-examined or, at
least, it does not apply here.”2 The State points to Jury Instruction No. 3, which
states whenever the court instructs the jury the State “must prove something, it
must be by evidence beyond a reasonable doubt,” and Jury Instruction No. 4,
which defines reasonable doubt. But those instructions do not mention Kuhse’s
justification defense. It is not until Instruction No. 12 that the jury learns Kuhse is
claiming he acted with justification and the State must prove he was “not acting
with justification.” The State also argues Gomez does not account for the principle
that all jury instructions must be considered together.
We are not persuaded by the State’s critique of the reasoning in Gomez.
We expressed concern in Gomez that the jury “had no guidance on how to apply
the free-floating instructions on justification.” Id. That concern returns in Kuhse’s
case. The jurors may well have believed their work was done once they found the
State satisfied the elements in the marshaling instruction; nothing prodded them
to keep going. The comment to the uniform instructions directs that when a
defendant has produced sufficient evidence to raise the justification defense, “the
State’s duty to negate the defense should be added as an element of the offense.”
2 It appears from the appellate docket available on Iowa Courts Online that the State did not seek further review from our decision in State v. Gomez. 6
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 800.1 (Assault–Elements)
(2018). Our Gomez decision also stands as persuasive authority on that point. 3
2014 WL 1714451, at *3.
Trial counsel performed below the expected standard by not objecting to
the incomplete marshaling instruction. See State v. Virgil, 895 N.W.2d 873, 882
(Iowa 2017) (noting absence of a claim defense counsel had a strategic reason to
refrain from requesting proper instruction). “[T]his is not a case in which
postconviction proceedings are necessary to develop the circumstances further
regarding the failure of defense counsel to object to the instructions.” State v. Goff,
342 N.W.2d 830, 838 (Iowa 1983) (finding failure to take proper steps regarding
jury instructions was “so egregious” that counsel’s performance did not satisfy the
constitutional right to effective assistance of counsel).
On the prejudice prong, the State argues it is “unlikely the jury would have
misunderstood the import of the self-defense instructions.” The State emphasizes
defense counsel “provided the tie” between the marshaling instruction and the
3 In State v. Hines, No. 09-0241, 2010 WL 446954, at *3 n.1 (Iowa Ct. App. Feb. 10, 2010), our court provided similar guidance: [I]t would have been appropriate and perhaps preferable to explicitly refer to the submissible justification defense within the marshaling instruction. . . . It is not an uncommon practice to include the submissible justification defense as an element of proof within the marshaling instruction. See, e.g., State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006) (including ‘[t]he defendant was not justified’ in the first-degree murder marshaling instruction); State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993) (including ‘[t]hat the defendant did not act with justification [self-defense]’ in the second-degree murder marshaling instruction). This is the practice with other defenses. The comment to Iowa Criminal Jury Instruction 200.9 (insanity defense) states: ‘Caveat: If the insanity defense is submitted, then the marshaling instruction should be modified accordingly.’ Comments to Iowa Criminal Jury Instructions 200.35 (compulsion) and 200.39 (ignorance or mistake of fact) contain similar caveats. 7
justification defense in her closing argument. We cannot find defense counsel’s
closing argument was an adequate substitute for a complete marshaling
instruction. See Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 553,
580 (Iowa 2017) (finding no authority for holding “fatal omission in the marshaling
instruction could be cured by counsel during summation”).
The district court determined Kuhse produced sufficient evidence to raise a
justification defense. At trial, the State did not object to submitting justification
instructions to the jury. Once the district court properly submitted the justification
defense, the State assumed the burden of negating that defense before the jury
could find him guilty. State v. Begey, 672 N.W.2d 747, 752 (Iowa 2003) (reiterating
State must show lack of justification by proof beyond a reasonable doubt). But
that burden was not reflected in the assault marshaling instruction. Because the
marshaling instruction did not cross reference the justification instructions, reading
the instructions as a whole did not “cure the flaw in the marshaling instruction.”
See Haskenhoff, 897 N.W.2d at 580.
Counsel’s failure to request a proper instruction may be prejudicial even if
substantial evidence supports the conviction. See Virgil, 895 N.W.2d at 882–83
(addressing instruction defining cohabitation in domestic abuse case). The
evidence was in dispute as to how the fight started in the Kuhse household. Both
participants had injuries from the other’s use of force. And we are not in a position
to resolve that credibility dispute on appeal. See State v. Lawler, 571 N.W.2d 486,
490 (Iowa 1997) (“To adopt the State’s position would in substance discount or
give no credibility to defendant’s evidence and version of what happened and why
it happened, thus precluding the jury’s consideration of the crux of defendant’s 8
defense in this case. In essence, a refusal to give a requested jury instruction
would be the equivalent of directing a verdict or granting a motion for summary
judgment for the State on this issue.”). A reasonable probability exists that the
outcome of the trial would have been different if the jury had been properly
instructed on the State’s burden to disprove the justification defense in the
marshaling instruction. We reverse and remand for a new trial.
REVERSED AND REMANDED.