State v. Lenz

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
19

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.