State of Iowa v. Jack Deaton

IN THE COURT OF APPEALS OF IOWA

No. 18-2010
Filed September 2, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JACK DEATON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Thomas Reidel,

Judge.

The defendant appeals from his convictions for assault by using or

displaying a dangerous weapon and assault causing bodily injury. AFFIRMED.

Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Bower, C.J., Greer, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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POTTERFIELD, Senior Judge.

Jack Deaton appeals from his convictions for assault by using or displaying

a dangerous weapon and assault causing bodily injury. He argues there is

insufficient evidence to support his conviction for assault with a dangerous

weapon. He also raises several claims of ineffective assistance, including that

counsel failed to move for a new trial on both counts based on the weight of the

evidence being contrary to the verdicts and failed to object to several portions of

testimony.1

I. Background Facts and Proceedings.

On June 25, 2017, around 8:40 p.m., Scott Fugate’s son informed Fugate

that a neighbor, Deaton, was in their shared alleyway and using a shovel to chip

away at another neighbor’s foundation. Fugate and his son, who was fourteen at

the time, went to the alley and confronted Deaton. By the end of their interaction,

Deaton had pepper sprayed Fugate in the face. Fugate’s family called 911, and

local police and medical personnel arrived soon thereafter. Deaton did not deny

spraying Fugate in the face, but he insisted his actions were justified, claiming

Fugate had been the aggressor and acted in a threatening manner, which put

Deaton in fear for his safety. Deaton was arrested and charged with assault by

using or displaying a dangerous weapon (shovel) and assault causing bodily injury.

1 Judgment was entered against Deaton on November 16, 2018, so the amended
Iowa Code section 814.7 (Supp. 2019) does not preclude him from raising these
claims of ineffective assistance on direct appeal. See State v. Damme, 944
N.W.2d 98, 103 n.1 (Iowa 2020) (noting “the 2019 amendments to Iowa Code
sections 814.6 and 814.7 do not apply retroactively to direct appeals from a
judgment and sentence entered before the statute’s effective date of July 1, 2019”
and “reiterat[ing] that date of the judgment being appealed controls the applicability
of the” amended code sections).
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Following a jury trial in July 2018, Deaton was found guilty as charged on

both counts. He was later sentenced to a term of incarceration of 360 days with

all but sixty days suspended for each conviction. The court ordered Deaton to

serve the two sentences concurrently. Deaton appeals.

II. Discussion.

A. Sufficiency of the Evidence.

In order for the jury to properly convict Deaton of assault by using or

displaying a dangerous weapon, the State had the burden to prove:

1. On or about the 25th of June, 2017, the defendant did an
act that was
a. intended to cause pain or injury to, or
b. intended to result in physical contact, or
c. intended to place Scott Fugate in fear of an immediate
physical contact that would have been painful, injurious, insulting or
offensive to Scott Fugate.
2. The defendant had the apparent ability to do the act.
3. While so doing, the defendant used or displayed a
dangerous weapon in connection with the assault.
4. The State must prove the defendant was not acting with
justification.

The jury was further instructed that:

A “dangerous weapon” is . . . any sort of instrument or device actually
used in such a way as to indicate the user intended to inflict death or
serious injury, and when so used is capable of inflicting death.
A shovel is a dangerous weapon when used in such a manner
as to indicate the defendant intends to inflict death or serious injury
upon another.

Deaton maintains there is insufficient evidence to support his conviction.

Specifically, he argues there was insufficient evidence for the jury to find the shovel

was a dangerous weapon because Deaton did not “actually use [the shovel] in
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such a way as to indicate” he “intended to inflict death or serious injury.”2 Deaton

focuses on the fact there was no evidence he swung the shovel at Fugate or

Fugate’s son. He otherwise relies on evidence presented in his defense at trial—

rather than the evidence given by the State’s witnesses—to claim there was no

evidence he “objectively manifest[ed] to the victim his or her intent to inflict serious

harm upon the victim.” State v. Ortiz, 789 N.W.2d 761, 767 (Iowa 2010). But in

reviewing the sufficiency of the evidence, we view the evidence in the light most

favorable to the verdict. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

Fugate testified that as he and his son walked toward where Deaton was

standing in the alley, Fugate told Deaton he could not be on the neighbor’s

property. In response, Deaton “got erratic” and “told [Fugate] to mind [his]

business, get out of there.” Then Deaton “picked [the shovel] up like a bat.”

Deaton did not swing the shovel at Fugate, but he continued to hold it aloft. Fugate

asked Deaton if he was going to hit him with the shovel, and Deaton, still holding

the shovel up, told Fugate to “be on [his] way.” Deaton then took a step toward

Fugate’s son, which led Fugate to step between the two and tell his son they were

leaving. As Fugate and his son started to walk away, Fugate noticed something

in Deaton’s hand and turned to look at him. It was then that Deaton sprayed him

2 There are alternative means for finding an item is a dangerous weapon. An item
is a “dangerous weapon” if it is (1) one of the per se dangerous weapons listed in
Iowa Code section 702.7; (2) “any instrument or device designed primarily for use
in inflicting death or injury . . . and is capable of inflicting death . . . when used in
the manner for which it was designed”; or 3) an “instrument or device of any
sort . . . which is actually used in such a manner as to indicate that the defendant
intends to inflict death or serious injury upon the other, and which, when so used,
is capable of inflicting death upon a human being[.]” Iowa Code § 702.7.
Deaton and the State agree that only the third alternative is at issue in this
case.
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in the face with pepper spray. Fugate’s son testified similarly at trial, stating that

while his father and Deaton were talking, Deaton was holding the shovel “above

his head, like holding it like a bat almost.” He noticed Deaton “walked closer to

[their] driveway,” where he and his father were standing, while holding the shovel

up.

These actions are enough to find Deaton objectively manifested his intent

to inflict serious harm with the shovel. While he had the shovel with him before the

confrontation began, Deaton picked it up and held it “like a bat”—establishing an

intent to use the shovel as a weapon against Fugate or his son as opposed to

using the shovel as the tool was meant to be used. See id. (“Our past cases

suggest that a defendant objectively indicates intent to inflict harm when the

defendant engages in a personal confrontation with another while possessing an

instrument capable of causing bodily harm.”). We think this is analogous to State

v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000), in which our supreme court held

that a three-foot metal pipe was used as a dangerous weapon when the defendant

stood over his victim “poised to strike.” That Deaton neither swung the shovel at

nor hit Fugate or his son with the shovel does not defeat the finding of a dangerous

weapon. Substantial evidence supports this conviction.

B. Ineffective Assistance of Trial Counsel.

Deaton claims trial counsel provided ineffective assistance in four ways:

(1) failing to move for new trial based on the weight of the evidence being contrary

to the guilty verdicts3; (2) not objecting to various witnesses’ testimony about how

3 Deaton first contends we should consider whether the district court abused its
discretion in denying his motion for new trial based on the weight of the evidence
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the police pretended to arrest Fugate so Deaton would come out of his home, as

that evidence was “irrelevant,” “substantially outweighed by the danger of unfair

prejudice, confusing issues, and misleading the jury”; (3) not objecting to Fugate’s

testimony that Deaton held the shovel “[l]ike a weapon, not like a tool”; and (4) not

objecting to and joining others in referring to Fugate as “the victim” during trial.

These claims have not been sufficiently developed to enable our review of

them on direct appeal, so we preserve all of Deaton’s claims of ineffective

assistance. See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (“If the

development of the ineffective-assistance claim in the appellate brief was

insufficient to allow its consideration, the court of appeals should not consider the

claim, but it should not outright reject it.”). Moreover, in order to fairly consider

Deaton’s claims of ineffective assistance, we believe the record should be more

fully developed, including allowing trial counsel an opportunity to respond. See

being contrary to the verdicts. But, in spite of his contention otherwise, Deaton
never asked the district court to decide whether the weight of the evidence was
contrary to the verdicts, so the district court never ruled on that issue. Deaton
moved for a new trial, but that motion was based on the claim he received
ineffective assistance—not that the verdict was contrary to the weight of the
evidence. See State v. Kramer, No. 16-2048, 2018 WL 346454, at *6 (Iowa Ct.
App. Jan. 10, 2018) (concluding defendant’s weight-of-the-evidence claim was not
preserved, even though he filed two motions for new trial because neither
“specifically challenged the weight of the evidence”). And the district court ruled
accordingly, concluding it “c[ould] not find that [trial counsel was] ineffective.” The
issue of whether the district court abused its discretion is denying Deaton’s motion
for new trial based on the weight of the evidence is not an issue preserved for our
review. 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.”). So we
consider Deaton’s weight-of-the-evidence claims within the framework of
ineffective assistance of counsel, as he raised in the alternative. See State v.
Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel
claims are an exception to the traditional error-preservation rules.”).
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State v. Clay, 824 N.W.2d 488, 502 (Iowa 2012) (requiring the defendant “to bring

all his ineffective-assistance-of-counsel claims in a postconviction relief action,

because he raises multiple claims, some of which require further development of

the record.”); State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011) (“We

acknowledge that ineffective-assistance-of-counsel claims are normally

considered in postconviction relief proceedings. A primary reason for doing so is

to ensure development of an adequate record to allow the attorney charged to

respond to the defendant’s claims.” (citation omitted)); see also State v. Plain, 898

N.W.2d 801, 820 (Iowa 2017) (concluding “the prosecutor erred during closing

argument in persistently using the term ‘victim’ to refer to the complaining witness”

but concluding the defendant was not prejudiced by the error); State v. Walker,

No. 06-0259, 2007 WL 1828321, at *3 (Iowa Ct. App. June 27, 2007) (“We do not

. . . sanction using ‘victim’ in a jury instruction as we recognize the use of the word

can mislead or prejudice a defendant.”).

III. Conclusion.

Sufficient evidence supports Deaton’s conviction for assault by using or

displaying a dangerous weapon. The rest of Deaton’s claims, brought under the

framework of ineffective assistance, are preserved for a postconviction-relief

action. We affirm Deaton’s convictions.

AFFIRMED.