IN THE COURT OF APPEALS OF IOWA
No. 23-1313 Filed December 18, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
NESSIAH TRE'VERNE CLARK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
A defendant appeals his convictions and sentences arising from a shooting.
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN
PART, AND REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Badding, P.J., Langholz, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2024). 2
GAMBLE, Senior Judge.
Nessiah Clark appeals his convictions and sentences for assault while using
or displaying a dangerous weapon, felon in possession of a firearm, assault while
participating in a felony, intimidation with a dangerous weapon, and use of a
dangerous weapon in commission of a crime. We vacate the assault-with-a-
dangerous-weapon sentence and the mandatory minimum imposed on the
intimidation-with-a-dangerous-weapon-without-intent sentence, and we remand
for resentencing. We otherwise affirm Clark’s convictions and sentences.
I. Background Facts and Proceedings.
The questions in this appeal arise from differing viewpoints of events
surrounding Clark shooting Delmont Thomas at a gas station on August 24, 2022.
The fact that Clark shot at Thomas is not contested, only whether it was justified.
We will therefore consider the story told by each participant to the jury, with
additional facts as provided by the additional witnesses.
First, we recount what can be seen on the gas station’s surveillance videos.
Thomas parked a white sedan at the gas pumps; three other vehicles were parked
on the opposite side of the gas pumps at this time. Several people were inside the
store. Two SUVs were parked in front of the store when Thomas pulled in. He
approached the front passenger side of a light-colored SUV that was parked
between his car and the store’s door; he had nothing in his hands. The SUV’s
back windows were tinted. Clark can be seen exiting the rear passenger side of
the SUV and pointing a gun at Thomas, firing several times. Thomas fled across
the parking lot, around the corner of the store, and behind a fence to the side. As
he moved across the parking lot, Thomas pulled something out of his pocket with 3
his right hand, which appears to be a gun. Clark ran to the door of the store, alerted
the driver of the SUV, and the SUV then left.
Thomas. Early in the evening, Thomas stopped to fill up his white sedan
with gas after giving a ride to a friend. He scrolled on his phone a little bit, then got
out of the car, taking his phone off the charger and placing it in his pocket. He was
wearing baggy black sweatpants, two white t-shirts, and white tennis shoes; his
keys were on a lanyard which was “probably” attached to his pocket. Thomas
circled around the front of his car to go inside the store, but he saw a woman he
recognized from mutual social media friends in the passenger seat of an SUV in
the parking lot in front of the store. They smiled at each other, and she asked,
“what’s up?” Thomas approached the SUV to talk with her. The driver’s seat was
empty, but he could see there was someone wearing a white shirt in the back seat.
Then, “at that point, [he] was shot.” Thinking the shot came from behind
him, Thomas turned and ran, trying to go around the corner of the building. His
sweatpants started to fall, and he reached for his phone to call his mom. One of
his shoes fell off during his flight. When he reached the back parking lot, he hid
behind a fence and checked where he had been hit. Thomas found wounds on
his rib cage and a graze on his arm, took off one of his shirts and held it against
his rib injury. Several men—including one of Thomas’s friends—approached and
tried to help Thomas as he returned to his car. The SUV had left by then. Thomas
found his keys on the ground in the parking lot, took his car to his uncle’s home,
and went to the hospital with his friend. 4
Thomas indicated that while he recognized Clark from school, he did not
really know him. Thomas testified he did not have a gun that day, had never owned
a gun, and his only experience with firearms was shooting a gun at a firing range.
Clark. Clark and three friends were at the gas station that evening to pick
up some tobacco products. The driver of their SUV went into the store, while the
other three waited in the vehicle. Clark noticed the white sedan driving past and
knew it belonged to Thomas’s “baby mother.” Clark said he and Thomas had been
friends a few years before, and that Thomas’s grandmother and his own mother
were neighbors. According to Clark, after Thomas’s cousin died around 2018,
Thomas started to distance himself from Clark because “he didn’t like the
associates that [Clark] hung around.”
Clark admitted he carried a gun even though he was not supposed to,
“[b]ecause if [he] didn’t have a gun, [he] probably wouldn’t be here” and he needed
it to protect himself. He said when Thomas was greeting the woman in the front
passenger seat, he “told her to make sure he doesn’t approach the car . . . we’re
not cool at all in any type of way.” Clark said he saw Thomas move a gun from his
waistband to his right pocket as he approached the car, and Thomas asked the
passenger “Who’s in here? You must be hiding the [opposition].” Thomas looked
in the car, locked eyes with Clark, and Clark saw Thomas reach into the pocket
with the gun. “[A]nd in a matter of those seconds, [Clark] was opening the door to
get [Thomas] away from [him] as [Thomas] was reaching for that, and the incident
took place.” When asked what prompted him to shoot, Clark said, “I was scared.
I thought he was going to try to kill me when he reached for that gun.” Then, “as
[Thomas] was running away from the incident, he was also pointing that, trying to 5
get a shot off at [Clark]. That’s why [he] continued to fire, to make sure [Thomas]
stayed away from [him] and didn’t get any type of shot out to endanger anyone in
[the] car.”
Clark indicated his motive was to get Thomas away from him, not to kill
Thomas. As soon as Thomas was gone, Clark “left the scene.” He admitted
Thomas would have no reason to know he would have been in the SUV, as his
window was up and tinted and he had not been in that vehicle with Thomas around
before. Clark and Thomas had no direct personal conflict, but Clark had seen
things posted on social media by Thomas relating to a gang and disrespecting
Clark’s deceased relations.
Clark fired the gun until he was out of bullets, firing as Thomas “was pointing
that firearm at [him], running.” While he acknowledged the people at the gas
pumps and in the store, he denied firing in a direction with members of the public.
And, although Clark was firing a gun with people in and around the station without
much experience, “it’s less dangerous than getting shot.” He explained, “I
wasn’t . . . thinking about shooting [Thomas]. I was thinking about keeping [him]
away from me so I don’t get shot.”
Other witnesses. A neighborhood resident testified to hearing several “pop”
sounds he initially thought were fireworks. He looked at the gas station, “saw
everybody on the ground, pretty much, that was in the gas station,” saw people
scattering, and realized it was not fireworks. The resident saw Thomas run around
the back of the building and an SUV soon left the lot. He thought Thomas “had
something in his hand with him,” but “wasn’t sure if it was a weapon of some sort
or something else.” 6
An officer who reviewed the surveillance footage wrote in his report that
Thomas appeared “to be holding his waistband with his left hand . . . with his right
hand you see him take a black, handheld item of some sort and place it into his
right pant pocket” as he approached the SUV. And later, “While fleeing, [Thomas]
pulls out a black item out of his right pocket and points in towards [Clark]. The
footage of this moment confirms [Thomas] had a handgun.”
A crime scene technician indicated she found eleven bullet casings; a police
sergeant said they were found near where the SUV had been parked and nowhere
else in the lot. According to a police sergeant, it appeared “one round went through
the cage [housing propane tanks]” but luckily did not rupture any of them. The
technician also described the damage, including three bullet holes in the propane
tank cage and one in the wall of the gas station store. The sergeant noted some
changes in Thomas’s story during the investigation when asked about
observations from the surveillance videos and who brought him to the hospital.
Upon the sergeant’s questioning about the item resembling a gun, Thomas denied
having one.
An investigating detective also reviewed the surveillance video. He
described Thomas approaching the vehicle as “jovial”—“His facial expressions
were that he recognized somebody in the car, and he was simply going up to say
hello.” The detective walked through the surveillance video described above. He
also noted the black object in Thomas’s right hand as he fled and opined it looked
like a firearm. The detective interviewed Clark, asking him what happened that
day. Clark said he was protecting himself, but beyond that simply responded “that
he had no comment on it.” 7
At trial, Clark was charged with attempted murder, felon in possession of a
firearm, assault while participating in a felony, intimidation with a dangerous
weapon, and use of a dangerous weapon in the commission of a crime; the State
also requested a sentencing enhancement for use of a dangerous weapon while
participating in a forcible felony. The jury found him guilty of assault (as a lesser-
included offense of attempted murder), felon in possession of a firearm, assault
while participating in a felony, a lesser-included intimidation with a dangerous
weapon, and use of a dangerous weapon in commission of a crime, and found
Clark was using a dangerous weapon in the two assault and the intimidation
convictions. Clark appeals.
II. Standard of Review.
A motion for judgment of acquittal is a challenge to the sufficiency of the
evidence, which we review for correction of errors at law. State v. Serrato, 787
N.W.2d 462, 465 (Iowa 2010). The verdict “must be supported by substantial
evidence,” which we view “in the light most favorable to the State.” Id. (citation
omitted). Claims a verdict is not supported by substantial evidence are reviewed
for correction of errors at law. State v. Mathis, 971 N.W.2d 514, 516 (Iowa 2022).
This is also our standard of review for challenges to jury instructions and alleged
failures to merge convictions. State v. Ambrose, 861 N.W.2d 550, 554
(Iowa 2015); State v. Johnson, 950 N.W.2d 21, 23 (Iowa 2020). And we review
challenges to mandatory minimums under sentencing-enhancement statutes for
correction of legal error. State v. Wood, No. 20-0327, 2021 WL 3895909, at *3
(Iowa Ct. App. Sept. 1, 2021). 8
III. Analysis.
A. Justification—judgment of acquittal. Clark’s first argument is the
State failed to disprove his justification defense so the court should have granted
his motions for judgment of acquittal (which he called directed verdict at trial).
Clark asserts he “had a reasonable belief that Thomas was going to shoot him and
possibly the other occupants of his vehicle, and his actions in response were
reasonable given his history and his inability to retreat.”
“Justification is a statutory defense that permits a defendant to use
reasonable force to defend himself or herself.” State v. Lorenzo Baltazar, 935
N.W.2d 862, 869 (Iowa 2019). The person exerting the “reasonable force” must
“reasonably believe[ ] that such force is necessary to defend oneself or another
from any actual or imminent use of unlawful force.” Iowa Code § 704.3 (2022).
“Reasonable force: is defined as:
that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one’s life or safety or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat.
Id. § 704.1(1). In the past, “Iowa caselaw recognized an implied duty to follow an
alternative course of action” such as retreating as far as reasonable and safe.
Lorenzo Baltazar, 935 N.W.2d at 870. Despite intervening statutory changes, the
duty to retreat remains if the person is engaged in an illegal activity—such as
illegally possessing a handgun—or is not lawfully present. Id. at 870–71. The
person asserting the defense “bears the initial burden of producing sufficient
evidence to support the instruction,” after which “the burden shifts to the State to 9
prove lack of justification beyond a reasonable doubt.” State v. Kuhse, 937
N.W.2d 622, 628 (Iowa 2020).
Because his motions for judgment of acquittal were made before the
instructions were given to the jury, Clark urges the district court’s consideration
was under the correct legal standard, and our review should do likewise. The State
argues we should consider Clark’s justification argument using the instructions
given to the jury as the law of the case. These are two different questions: (1) was
there sufficient evidence to submit the question of justification to the jury or was
justification established as a matter of law for the court to grant judgment of
acquittal, and (2) was the evidence sufficient for the jury to find Clark was not
justified in his actions.
“Evidence is sufficient to withstand a motion for judgment of acquittal when,
viewing the evidence in the light most favorable to the State and drawing all
reasonable inferences in the State’s favor, ‘there is substantial evidence in the
record to support a finding of the challenged element.’” State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005) (citation omitted). “It is not the province of the court, in
determining the motion, to resolve conflicts in the evidence, to pass upon the
credibility of witnesses, to determine the plausibility of explanations, or to weigh
the evidence; such matters are for the jury.” Id. (citation omitted). The court and
jury were presented with conflicting stories from Thomas and Clark regarding the
circumstances leading up to Clark shooting Thomas. The court found substantial
evidence existed as to each element, and the question of justification was
fundamentally a question of fact for the jury to consider all the evidence and decide.
We agree. The district court did not err in submitting the issue to the jury. 10
Clark urges he “had a reasonable belief that Thomas was going to shoot
him and possibly the other occupants of his vehicle, and his actions in response
were reasonable given his history and his inability to retreat.” The jury was
instructed it could find Clark’s use of force not justified if (1) he lacked a reasonable
belief the use of force was necessary to prevent injury; (2) he used unreasonable
force; or (3) he was participating in attempted murder, assault while participating
in a felony, or intimidation with a dangerous weapon. While Clark would have us
ignore the instructions and consider this under what he asserts is the correct
version of the law, we review the verdict as submitted to the jury. See State v.
Crawford, 974 N.W.2d 510, 521 (Iowa 2022) (“If a party fails to alert the district
court of the erroneous instructions, he cannot complain that the evidence was
insufficient to support a legal proposition contrary to the one instructed to the jury.
When that happens, we apply the law as set out in the instructions rather than the
applicable law.”).
Here, given Thomas’s empty hands as he approached the woman in the
passenger seat and the speed of Clark’s reaction, the jury could have reasonably
concluded Clark lacked a reasonable belief the use of force was necessary. The
jury could also have concluded shooting eleven times at a fleeing man was not a
reasonable use of force. And with the verdicts entered, the jury did find Clark was
participating in assault while participating in a felony and intimidation with a
dangerous weapon as he fired the weapon. Under the law-of-the-case doctrine
and the verdicts entered by the jury, the State disproved Clark’s justification
defense. 11
B. Instruction. Clark’s second argument addresses what he asserts was
an incorrect instruction to the jury as to justification. Clark did not object to the
marshaling or justification instructions at trial. He urges error preservation rules
requiring a timely trial objection should not apply and the court should exert its
power to address the issue. But we are bound by the error preservation rule as
stated by our supreme court: “We have repeatedly held that timely objection to jury
instructions in criminal prosecutions is necessary in order to preserve any error
thereon for appellate review.” State v. Davis, 951 N.W.2d 8, 16 (Iowa 2020)
(citation omitted); see also State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014)
(“We are not at liberty to overrule controlling supreme court precedent.”). Because
Clark did not object to the instructions, he did not preserve error, and we do not
address his claim. Thus, “the instruction, right or wrong, becomes the law of the
case.” State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988).
C. Sufficiency of the evidence—intimidation with a dangerous
weapon. Next, Clark challenges the sufficiency of the evidence on his conviction
for intimidation with a dangerous weapon. Here, he asserts “he did not shoot into
an assembly of people” and did not place anyone besides Thomas in fear. Clark
“acknowledges at least one of the bullets he fired hit the outside of the store,” but
argues this is not sufficient because the occupants of the building were not in fear
of injury. He specifically notes Thomas was not inside the building.
The instruction to the jury on intimidation with a dangerous weapon with
intent required the State prove the following elements:
1. On or about the 24th day of August, 2022, the defendant discharged a firearm/handgun at or into a building, vehicle or within an assembly of people. 12
2. The firearm/handgun was a dangerous weapon, as explained in Instruction No. 17. 3. [Thomas] actually experienced fear of serious injury and his fear was reasonable under the existing circumstances. 4. The defendant discharged the firearm/handgun with the specific intent to injure or cause fear or anger in [Thomas].
The jury found the State proved the first three elements, but not the fourth, resulting
in a conviction for the class “D” felony instead of a class “C” felony. See Iowa Code
§ 708.6. The evidence presented clearly shows that Clark fired at least one bullet
into the wall of the store (as well as three bullets into a cage of propane tanks
attached to the front of the store). Nor is there any contesting the second element.
Thomas’s testimony established he experienced fear of serious injury, and the jury
could conclude that fear was reasonable under the circumstances. We find the
evidence presented at trial is sufficient to support Clark’s conviction of intimidation
with a dangerous weapon.
Under the law of the case provided in the instructions, only Thomas needed
to experience fear of injury. And with this instruction, the State did not have to
prove anyone other than Thomas experienced a reasonable fear of serious injury.
D. Merger. Clark further urges his convictions and sentences for
intimidation with a dangerous weapon, the assault enhancement for use of a
dangerous weapon, and use of a dangerous weapon in the commission of a crime
should all merge under the intimidation charge. The State concedes the assault
cannot be enhanced by use of a dangerous weapon but argues the offenses do
not merge. And the State argues intimidation with a dangerous weapon and use
of a dangerous weapon in the commission of a crime have different elements and
so cannot merge. 13
The merger statute provides, “No person shall be convicted of a public
offense which is necessarily included in another public offense of which the person
is convicted.” Iowa Code § 701.9. To determine if offenses merge, first we look
to the elements to determine if the greater offense can be committed without also
committing the lesser offense. State v. Brown, 996 N.W.2d 691, 697 (Iowa 2023).
The elements of the offenses must show complete overlap to merge. State v.
Bloom, 983 N.W.2d 44, 51 (Iowa 2022). But even if the offenses do not merge
under the elements test, we also must examine if the legislature intended multiple
punishments for the offenses. Id.; Brown, 996 N.W.2d at 699. “[I]f one offense is
not an included offense within the other, there is a presumption that multiple
punishments can be assessed.” Brown, 996 N.W.2d at 699 (cleaned up).
Assault. The jury instruction for assault listed two elements:
1. On or about the 24th day of August, 2022, [Clark] did an act which was intended to cause pain or injury or result in physical contact which was insulting or offensive, or place [Thomas] in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to him. 2. [Clark] had the apparent ability to do the act.
And the jury found in a special interrogatory that Clark was in immediate
possession and control, displayed, or was armed with a dangerous weapon during
the offense.
We agree with the State that assault with a dangerous weapon under
section 708.1 and intimidation with a dangerous weapon without intent under
section 708.6(2) have different elements and would not merge under an elements
test. “Assault is a specific-intent crime.” State v. Krogmann, 998 N.W.2d 141, 158
(Iowa 2023). This is because a defendant must intend to cause pain, injury, 14
insulting or offensive contact, fear of offensive or injurious contact, or intentionally
point or display a firearm toward another. See Iowa Code § 708.1(2); State v.
Fountain, 786 N.W.2d 260, 265 (Iowa 2010). Class “D” felony intimidation with a
dangerous weapon under section 708.6(2) is a general-intent crime. State v.
Vavrik, 336 N.W.2d 193, 194 (Iowa 1983) (distinguishing between the intent
version of the predecessor statute and the “threatening” version, concluding
assault is “not a lesser included offense of the ‘threatens to shoot’ alternative”); cf.
State v. Johnson, 534 N.W.2d 118, 126–27 (Iowa Ct. App. 1995) (concluding
language of the class “D” felony version of the predecessor statute “implies a
general criminal intent”). This alternative of intimidation with a dangerous weapon
lacks the element of “the intent to injure or provoke fear or anger in another” that
distinguishes the crime of intimidation with a dangerous weapon with intent under
section 708.6(1). Without the intent element, section 708.6(2) focuses on the
effect the act has on another that “thereby places the occupants or people in
reasonable apprehension of serious injury.” This is the hallmark of a general-intent
crime. “General-intent crimes focus ‘not on the defendant’s mental state but on
the result defendant’s purposeful acts cause in a reasonable person.’” In re D.S.,
856 N.W.2d 348, 352 (Iowa 2014) (citation omitted). Because assault requires a
higher level of intent than intimidation with a dangerous weapon without intent, the
convictions do not merge.
But even if the convictions do not merge under the elements test, we look
at whether the legislature intended multiple punishments. Bloom, 983 N.W.2d
at 51. Section 708.2(3) provides, “A person who commits an assault . . . and uses
or displays a dangerous weapon in connection with the assault, is guilty of an 15
aggravated misdemeanor. This subsection does not apply if section 708.6
or 708.8 applies.” Section 708.2(3) does not differentiate between the subsections
of section 708.6. Our supreme court has found this express statutory language
indicates the dangerous-weapon assault and going armed with intent (a violation
of section 708.8) are “sufficiently similar to merit freedom from duplicate
punishment.” State v. Ray, 516 N.W.2d 863, 867 (Iowa 1994). Similarly, we have
merged domestic abuse assault by use or display of a dangerous weapon and
intimidation with a dangerous weapon with intent “when the same facts give rise
to both convictions.” See State v. Johnson, No. 11-1622, 2012 WL 3860746,
at *1–2 (Iowa Ct. App. Sept. 6, 2012) (noting the defendant asserted “the final
sentence of section 708.2A(2)(c) demonstrates the legislature’s intent that a
singular punishment be enforced for these two offenses” and the State conceded
merger of the offenses). The State concedes the punishment for assault with a
dangerous weapon cannot be applied, but in place of merger it requests we
“reduce the defendant’s assault conviction to a simple misdemeanor assault.” In
the State’s view, because that sentence ran concurrent to his intimidation
conviction, the sentence would already be discharged.
We think the legislature’s statutory directive is sufficiently clear to require
merger of Clark’s aggravated misdemeanor sentence for assault with a dangerous
weapon with his class “D” felony sentence for intimidation with a dangerous
weapon; not for us to amend the offense of conviction. We find these sentences
should be merged, vacate the sentence imposed for assault with a dangerous
weapon, and remand for resentencing. 16
Use of a dangerous weapon. The elements of use of a dangerous weapon
in the commission of a crime are:
1. On or about the 24th day of August, 2022, the defendant was armed with a handgun. 2. The handgun was a dangerous weapon as defined in Instruction No. 17. 3. The defendant used the dangerous weapon in the commission of a crime.
Here, Clark argues, “It would be impossible for a defendant to discharge a
dangerous weapon at/in/into an occupied structure or within an assembly of people
without being armed with and using the dangerous weapon.” Which is true, but it
neglects the last element “in the commission of a crime.” He does not explain how
the “commission of a crime” required in the use of a dangerous weapon offense is
wholly encompassed in the intimidation conviction. And we note the intimidation
charge he was convicted of only includes actual causation of fear, not the intent to
cause fear (necessary to constitute assault). Meanwhile, the requirement for the
commission of a crime is nowhere in the elements for intimidation, and therefore
use of a dangerous weapon in the commission of a crime cannot merge into
intimidation with a dangerous weapon under the elements test. Cf. State v. Orr,
No. 22-1743, 2024 WL 111857, at *4–5 (Iowa Ct. App. Jan. 10, 2024) (finding the
offenses going armed with intent and intimidation with a dangerous weapon do not
merge). Nor is there a statutory directive indicating an intent to avoid multiple
punishments, so we do not merge the sentences.
E. Mandatory minimum. Finally, Clark argues the forcible felony use of a
dangerous weapon mandatory minimum enhancement of Iowa Code section 902.7
does not apply to intimidation with a dangerous weapon without intent because it 17
is not a felonious assault, so it is an illegal sentence.1 Clark urges the version of
intimidation he was convicted of does not include the intent element, so does not
constitute an assault.
“A ‘forcible felony’ is any felonious . . . assault.” Iowa Code § 702.11(1).
“[A] crime is a form of ‘felonious assault’ if it is a felony and it necessarily includes
an assault.” Vavrik, 336 N.W.2d at 194 (citation omitted) (determining “involuntary
manslaughter does not constitute a ‘felonious assault’ (or forcible felony) because
it is possible to commit involuntary manslaughter without committing an assault”).
Earlier, we considered whether assault with a dangerous weapon merged
with Clark’s conviction for intimidation with a dangerous weapon without intent and
concluded the offenses did not merge based on the elements, only merging the
sentences based on the legislature’s statutory directive. And the legislature
established two versions of intimidation with a dangerous weapon—one performed
“with the intent to injure or provoke fear or anger in another” and places “people in
reasonable apprehension” of injury, Iowa Code § 708.6(1), and another where the
same act is performed and the reasonable apprehension occurs without intent
needing to be proved, Iowa Code § 708.6(2). Cf. Vavrik, 336 N.W.2d at 194
(examining the predecessor statute); Johnson, 534 N.W.2d at 126–27.
The jury here found the State did not prove beyond a reasonable doubt that
Clark’s discharge of the weapon was done “with the specific intent to injure or
1 Clark does not challenge the mandatory minimum enhancement as applied to his
assault while participating in a felony conviction. And our supreme court has specifically found assault while participating in a felony constitutes a felonious assault and is therefore a forcible felony. State v. Iowa Dist. Ct., 308 N.W.2d 27, 29 (Iowa 1981). 18
cause fear or anger,” thereby rejecting the felonious assault version of the offense.
Since intimidation with a dangerous weapon without intent is a general intent crime
that lacks the specific intent required of a felonious assault, we conclude the
minimum sentence of section 902.7 does not apply and the district court erred in
imposing it.
IV. Disposition.
We affirm the district court’s submission of the justification question to the
jury and find substantial evidence supports the jury’s finding under the law of the
case. Clark’s jury-instruction issue is not preserved, and we do not address it.
Substantial evidence supports Clark’s conviction for intimidation with a dangerous
weapon without intent. Clark’s conviction for assault with a dangerous weapon
does not merge with his intimidation conviction, but the sentence does. His
conviction and sentence for use of a dangerous weapon do not merge with
intimidation. And we find intimidation with a dangerous weapon without a proof of
intent does not constitute a felonious assault for sentencing purposes. We affirm
Clark’s convictions. And we remand to the district court for resentencing, merging
the sentence for assault with a dangerous weapon into the intimidation sentence
and removing the mandatory minimum from the intimidation with a dangerous
weapon sentence.
CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,
VACATED IN PART, AND REMANDED FOR RESENTENCING.