IN THE SUPREME COURT OF IOWA

No. 08–1231

Filed November 12, 2010

STATE OF IOWA,

Appellee,

vs.

ROBERT L. HANES,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, 

Jon Fister, Judge.

Appellant seeks review of conviction for willful injury causing 

serious bodily injury after jury trial. DISTRICT COURT JUDGMENT 

REVERSED; CASE REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, 

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Elisabeth Reynoldson, 

Assistant Attorney General, Thomas J. Ferguson, County Attorney, and 

Kim Griffith, Assistant County Attorney, for appellee.
2

STREIT, Justice.

Robert Hanes was convicted by a jury of willful injury causing 

serious injury. At trial, the jury was instructed that potential penalties 

would include fines; community service; supervised or unsupervised 

probation; placement in a residential, correctional, or violator facility; or 

confinement in a county jail or prison. The jury instruction was 

improper and prejudiced Hanes. We reverse and remand.

I. Background Facts and Prior Proceedings.

Robert Hanes was convicted after a jury trial of willful injury 

causing serious injury in violation of Iowa Code section 708.4(1) (2005). 

The verdict is based on an incident between Hanes and Nathanial Taylor 

on the morning of April 28, 2007. According to Taylor, he was walking to 

a cigar store to redeem bottles and cans. Taylor claims one week earlier 

Hanes had given him $2.25 to purchase gizzards for Hanes, and Taylor 

did not purchase the gizzards or return the money. Hanes asked about 

the money and was angry and yelling. Taylor offered Hanes his cans, but 

Hanes pulled out a knife and said “I’m going to kill you” and “stabbed 

[Taylor] in the face.” Taylor then grabbed Hanes’s hand holding the 

knife, hit Hanes in the head, and kicked Hanes until Hanes said “stop.” 

Hanes picked up a bottle of whiskey and walked into the park.

Hanes claimed he did not know Taylor and encountered him while 

walking home. Hanes testified Taylor struck him with the bag of cans 

and bottles, and Hanes struck back. Hanes testified he was defending 

himself, and he had previous boxing experience.

Hanes filed a direct appeal and alleged a number of trial errors. 

First, Hanes complains a jury instruction improperly and incorrectly 

referenced potential penalties. Second, Hanes argues the district court 

improperly excluded hearsay testimony that should have been admitted 
3

under the exception for statements made for purposes of medical 

diagnosis. The State argues this issue was not preserved.

Third, Hanes raises a number of issues through the mechanism of 

ineffective assistance of counsel because trial counsel did not object to 

certain matters. Hanes complains his trial counsel was ineffective for 

failing to object to the instruction regarding serious injury and for failing 

to object to the instruction regarding specific intent. Hanes raises ten 

additional issues pro se, including an argument that he was prejudiced 

by the prosecuting attorney’s statement that the defense could have 

called additional witnesses if they had any information helpful to the 

defense. The court of appeals affirmed the conviction. Hanes sought 

further review.

II. Scope of Review.

This court reviews challenges to jury instructions for correction of 

errors at law. Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 748 (Iowa 2006). 

Our review is to determine whether the challenged instruction accurately 

states the law and is supported by substantial evidence. State v. Predka, 

555 N.W.2d 202, 204 (Iowa 1996). Error in a particular instruction does 

not require reversal unless the error was prejudicial to the complaining 

party. State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010). When an 

ineffective-assistance-of-counsel claim is raised on direct appeal, we may 

choose to reach the issue if the record is adequate to decide the claim, or 

we may choose to preserve the claim for postconviction proceedings. 

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

III. Merits.

A. Jury Instruction Regarding Punishment. The district court 

gave a jury instruction regarding penalty—instruction number one—

which stated:
4

The duty of the jury is to determine if the defendant is 

guilty or not guilty.

In the event of a guilty verdict, you have nothing to do 

with punishment.

Criminal offenses may be punished by fines or 

community service; by supervised or unsupervised 

probation; by placement in a residential, correctional or 

violator facility; or by confinement in a county jail or prison; 

depending on the circumstances of the case. Accordingly, 

you may neither speculate on what any punishment in this 

case might be nor let it influence your verdict.

The district court explained the penalty instruction as follows:

And it’s the stock instruction except that the second - - or 

the last paragraph is one that I’ve added and have been 

using because of questions that have come up from people 

during jury selection, whether they’re concerned about 

punishment in one case or another. Frequently it comes up 

with drug crimes where people are concerned about issues 

and disparity in sentencing and so forth. But I think it’s just 

emphasizing to the jury that they shouldn’t speculate on any 

possible punishments.

Defense counsel objected to the instruction, arguing the instruction 

invites speculation on the part of the jury. Defense counsel also noted 

that community service, probation, or placement in a residential facility 

are not sentencing options for a forcible felony. The district court 

responded:

Well that’s why I put in the language depending on the 

circumstances of the case because that is absolutely right 

what you said in forcible felonies, there isn’t community 

service and that’s one of those cases. And so I am going to 

leave it in. I don’t think it’s a misstatement of the law. And I

disagree with you that it causes speculation. It would be 

fruitless to speculate in cases like that. So the objection is 

overruled.

It is well-settled that juries should not be instructed regarding the 

statutory penalty for the charged offenses. See State v. Purcell, 195 Iowa 

272, 274, 191 N.W. 849, 850 (1923) (“The trial court should in all 

criminal cases refrain from instructing the jury with regard to the 
5

punishment provided by statute for the crime with which a defendant is 

charged.”); State v. O’Meara, 190 Iowa 613, 625–26, 177 N.W. 563, 569

(1920) (“With the penalty to be imposed, the jury had no concern, and 

might not take the punishment to be inflicted into account, in passing on 

the issue as to the guilt or innocence of the accused.”); State v. Hatter, 

381 N.W.2d 370, 375 (Iowa Ct. App. 1985). As the court of appeals has 

explained, “a trial has one purpose—to seek the truth,” and “[p]enalties 

have nothing to do with the factual determination that a defendant did or 

did not commit a crime.” Hatter, 381 N.W.2d at 375. It is the 

legislature, and not the jury, that determines the appropriate penalty for 

the crime. Id. “[K]nowledge of the penalty would only serve to confuse 

and distract the jury from its unique and important judicial function.” 

Id.

The State argues the penalty instruction is consistent with the rule 

prohibiting jury instruction on punishment because it “merely instructed 

the jury that penalties for crimes in general range from fines to 

imprisonment.” We do not find this logic persuasive. The issue of 

punishment is not for the jury to consider or speculate about and 

knowledge about punishment can serve to confuse or distract the jury. 

Id. A generalized explanation of potential penalties wades into a topic 

about which the “ ‘jury had no concern.’ ” Purcell, 195 Iowa at 274, 191 

N.W.2d at 850 (quoting O’Meara, 190 Iowa at 625–26, 177 N.W. at 569). 

Therefore, we hold the penalty instruction was improper.

The State argues even if the jury instruction was improper, 

reversal is not warranted under harmless-error analysis because Hanes 

was not prejudiced. We will not reverse unless an error in giving a 

particular instruction was prejudicial to the complaining party. Spates, 

779 N.W.2d at 775. Prior case law regarding the showing required to 
6

establish prejudice has been, at times, contradictory. Compare State v. 

Piper, 663 N.W.2d 894, 914 (Iowa 2003) (“Any error with respect to the 

court’s instruction of the jury will not support reversal unless the 

defendant shows prejudice.”), with State v. Davis, 228 N.W.2d 67, 73 

(Iowa 1975) (“Error in instructing the jury is presumed prejudicial unless 

the contrary appears beyond a reasonable doubt from a review of the 

whole case.”).

The requirement that a jury instruction error result in prejudice 

before a conviction will be reversed mirrors the harmless-error analysis 

this court undertakes for any alleged error in a criminal trial. See State 

v. Jordan, 779 N.W.2d 751, 756 (Iowa 2010). This court has established 

standards for conducting harmless-error analysis based on whether the 

alleged error is of a constitutional magnitude. When an error is of a 

constitutional dimension, the State must show beyond a reasonable 

doubt the error did not result in prejudice. State v. Traywick, 468 

N.W.2d 452, 455 (Iowa 1991). Courts have applied this standard to 

errors of a constitutional dimension in jury instructions.1 See Rose v. 

Clark, 478 U.S. 570, 583, 106 S. Ct. 3101, 3109, 92 L. Ed. 2d 460, 474

(1986) (holding the question for constitutional errors is whether “ ‘on the 

whole record . . . the error . . . [is] harmless beyond a reasonable doubt’ ”

(quoting United States v. Hasting, 461 U.S. 499, 510, 103 S. Ct. 1974, 

1981, 76 L. Ed. 2d 96, 107 (1983) (alteration in original))); see also State 

v. Schuler, 774 N.W.2d 294, 299–300 (Iowa 2009) (applying the standard 

that “prejudice is presumed but may be overcome upon a showing 

 1Davis, as noted above, held that jury instruction error is presumed prejudicial 

unless “the contrary appears beyond a reasonable doubt from a review of the whole 

case.” 228 N.W.2d at 73. This is the proper standard for constitutional errors. To the 

extent Davis suggests this is the standard for all jury instruction errors, regardless of 

whether they are of a constitutional dimension, it is overruled.
7

beyond a reasonable doubt that the error was harmless” to reverse and 

noting but not deciding whether a jury instruction error regarding the 

elements of an offense requires per se reversal).

Similarly, the proper harmless-error analysis for errors in jury 

instructions that are not of a constitutional dimension, such as the 

penalty instruction here, is the same analysis applied to 

nonconstitutional trial errors. This court has held nonconstitutional 

harmless-error analysis begins with the question: “ ‘ “Does it sufficiently 

appear that the rights of the complaining party have been injuriously 

affected by the error or that he has suffered a miscarriage of justice?” ’ ” 

State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009) (quoting State v. 

Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)); accord State v. Marin, 788 

N.W.2d 833, 836 (Iowa 2010) (holding instructional error not of a 

constitutional magnitude requires reversal when it sufficiently appears

“ ‘the rights of the complaining party have been injuriously affected or 

that the party has suffered a miscarriage of justice’ ” (quoting State v. 

Gansz, 376 N.W.2d 887, 891 (Iowa 1985))). Under this analysis we 

presume prejudice and reverse unless the record affirmatively establishes 

there was no prejudice. Jordan, 779 N.W.2d at 756; Paredes, 775 

N.W.2d at 571; accord Marin, 788 N.W.2d at 836. Our holding to the 

contrary in Piper, 663 N.W.2d at 914, is overruled.

We have previously found this test of prejudice was met when 

improperly admitted information was such that “ ‘the information 

unquestionably ha[d] a powerful and prejudicial impact’ ” on the jury. 

Sullivan, 679 N.W.2d at 30 (quoting United States v. Johnson, 27 F.3d 

1186, 1193 (6th Cir. 1994)) (holding admission of prior bad acts was 

prejudicial). Our analysis of prejudice is also influenced by an evaluation 

of whether a jury instruction could reasonably have misled or 
8

misdirected the jury. See State v. Boner, 186 N.W.2d 161, 166–67 (Iowa 

1971) (finding prejudice because the improper inclusion of the word 

“negligent” may have led the jury to return a manslaughter conviction

based on a lack of due care unaccompanied by the necessary wanton 

and reckless disregard or indifference to the safety of others); cf. 

Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 

2000) (holding in a civil case the trial court commits prejudicial error 

when an instruction “materially misstates the law, confuses or misleads 

the jury, or is unduly emphasized”). We apply the principles outlined 

here to the defendant’s challenge to the penalty instruction.2

The State argues the penalty instruction was not prejudicial 

because the instruction also emphasized the jury has “nothing to do with 

punishment” and “may neither speculate on what any punishment in 

this case might be nor let it influence [the jury’s] verdict.” Hanes argues 

he was prejudiced despite this admonition because the jury instruction 

improperly suggested probation, a fine, community service, or 

commitment to a residential facility were potential sentences, and the 

jury could have been misled by this information.

The State charged Hanes with willful injury causing serious injury 

pursuant to Iowa Code section 708.4(1). Under Iowa Code section 

702.11, the charged crime is considered a forcible felony. Iowa Code 

section 907.3 prohibits use of deferred judgment and probation as 

sentencing options for a forcible felony such as willful injury causing 

 2The prejudice standard discussed above is appropriate where, as here, defense 

counsel objected to the instructional error at trial. When reviewing a claim of ineffective 

assistance of counsel because defense counsel failed to object, the defendant has the

burden to show that “ ‘there is a reasonable probability that, but for the counsel’s 

unprofessional errors, the result of the proceeding would have been different.’ ” State v. 

Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (quoting Strickland v. Washington, 466 U.S. 

668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).
9

serious injury. Although the jury was also presented with lesserincluded offenses, if they chose to convict for the charged offense, which 

they did, probation, a fine, community service, or commitment to a 

residential facility were not potential sentences.

The State points to Purcell, which held although it was error to 

instruct a jury on sentence, such error did not require reversal. Purcell, 

195 Iowa at 275, 191 N.W. at 850. Purcell also stated, “It is obvious that, 

if the court instructed the jury with regard to the penalty provided for the 

crime charged, the penalty should be correctly given.” Id. at 275–76, 191 

N.W. at 850. Here, however, the instruction was not accurate. While 

generally, criminal conviction may lead to probation, fines, or community 

service, in this particular case, conviction of the crime charged could not.

The State argues Hanes was not prejudiced because the jury was 

instructed that the jury has “nothing to do with punishment” and “may 

neither speculate on what any punishment in this case might be nor let 

it influence [the jury’s] verdict.” We presume juries follow the court’s 

instructions. See State v. Owens, 635 N.W.2d 478, 483 (Iowa 2001). 

Limiting instructions will at times help minimize potential prejudice. Id. 

We have previously found harmless error when the trial court struck

erroneously admitted evidence from the record and immediately 

admonished the jury to disregard the evidence. State v. Johnson, 183 

N.W.2d 194, 198 (Iowa 1971). Here, however, the jury admonition was 

not in response to testimony improperly volunteered by a witness but 

instead part of the same jury instruction containing inappropriate and 

erroneous information.

Although generally we presume juries follow instructions, here, 

this is not enough to overcome the presumption of prejudice that arises 

from the nonconstitutional jury instruction error because the penalty 
10

instruction was contradictory. It directed the jury not to speculate, but 

also—incorrectly—suggested the defendant could receive a sentence 

other than prison time, including a fine or probation. One could argue 

the jury was not specifically instructed to consider the possible penalties. 

To the contrary, however, the inclusion of such information in the jury 

instructions caused the jury members to consider it. Jury members may 

have had differing beliefs regarding what sentences were available when 

they began serving on this jury, but after the district court’s instruction, 

they all would have had an erroneous belief that the defendant could 

receive only a fine, probation, or community service.

An erroneous jury instruction cannot necessarily be overcome by 

part of the same instruction which correctly states the law. See State v. 

Leins, 234 N.W.2d 645, 648–49 (Iowa 1975) (reversing conviction when 

jury instruction gave both improper subjective entrapment test and 

proper objective entrapment test because the court was “unable to 

discern which rule the jury applied and must therefore reverse for a new 

trial”); cf. Deboom v. Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009) 

(holding plaintiff in discrimination case was prejudiced because one jury 

instruction incorrectly stated the standard for proving sex discrimination

and another jury instruction correctly stated the standard). Based on 

the language of the penalty instruction, the jury may have incorrectly 

believed the district court always has discretion to sentence a defendant 

to any of the listed options. So, although the jury may not have 

speculated as to which of the listed options would ultimately be used in 

this case, the jury may have been prompted by this information to 

minimize the importance and gravity of their verdict, thinking the 

defendant might not be imprisoned.
11

Inclusion of the penalty instruction prejudiced Hanes. We reverse 

the verdict and remand for a new trial.

B. Additional Issues. Although we reverse on the issue of the 

penalty instruction, we take this opportunity to address those additional 

issues which may arise on retrial. See Schuler, 774 N.W.2d at 300.

1. Statement for purposes of medical diagnosis. Hanes argues the 

district court erred by failing to allow a nurse practitioner who treated 

Hanes’s injuries to testify regarding Hanes’s statements. Hanes asked 

the nurse practitioner to testify regarding his physical complaint when he 

arrived at the hospital for treatment. The State objected on grounds of 

hearsay, and the district court sustained the objection, excluding the 

evidence.

Q. Okay. And when Mr. Hanes presented himself, your 

hospital - - to your hospital, what was his complaints? A. 

Mr. Hanes’ complaint is that he had been hit - -

[Prosecutor] Objection, Your Honor, to the hearsay.

[Defense] Purposes of medical treatment, Your Honor.

The Court: It’s still - - If it’s - - it’s subject to that exception, 

but it’s not admissible because it would be exculpatory.

Whether testimony is exculpatory or inculpatory is not a factor for 

courts to consider in determining the admissibility of statements made 

for purposes of medical diagnosis. Iowa Rule of Evidence 5.803(4) 

provides an exception from the hearsay rule when statements are

made for purposes of medical diagnosis or treatment and 

describing medical history, or past or present symptoms, 

pain, or sensations, or the inception or general character of 

the cause or external source thereof insofar as reasonably 

pertinent to diagnosis or treatment.

Statements made for such purposes are admissible, regardless of 

whether they are exculpatory or inculpatory, if they fit within the twopart test this court has adopted. The two-part test requires the 
12

proponent of the statement to show: (1) the declarant’s motive in making 

the statement is consistent with the purposes of promoting treatment,

and (2) the content of the statement must be such as is reasonably relied 

on by a physician in treatment or diagnosis. State v. Hildreth, 582 

N.W.2d 167, 169–70 (Iowa 1998). We have previously considered 

whether a hearsay statement is exculpatory, but such consideration was 

done in the context of admissions by a party-opponent, which are not 

considered hearsay, Iowa R. Evid. 5.801(d)(2), and statements against 

interest, an exception to the hearsay rule, Iowa R. Evid. 5.804(b)(3). See 

State v. Veal, 564 N.W.2d 797, 808 (Iowa 1997) (holding “admissions by a 

party-opponent . . . are admissible only when offered against the party 

who made the statements” and “statements admitting to a lesser offense 

are [not] against interest when offered to defend against a more serious 

criminal charge”), overruled in part on other grounds by State v. Hallum, 

585 N.W.2d 249, 253–54 (Iowa 1998).

Although Hanes’s defense attorney asked the nurse practitioner 

about “a dialogue initiated for purposes of diagnosis or treatment,” 

Hildreth, 582 N.W.2d at 170, and it appears the nurse practitioner’s 

answer would likely fall within the exception to the hearsay rule, because 

there was no offer of proof, we do not know exactly what the nurse 

practitioner would have answered. We need not address whether error 

was preserved, whether the excluded testimony would meet the two-part 

test, and whether Hanes was prejudiced because we reverse on other 

grounds.

2. Jury instruction regarding serious injury. Hanes objects on 

appeal to a jury instruction—number eighteen—which defined “serious 

injury.” Defense counsel did not object at trial. Hanes was charged with 
13

willful injury causing serious injury under Iowa Code section 708.4(1). 

The serious injury instruction stated:

A “serious injury” is a bodily injury which, if left 

untreated, creates a substantial risk of death or which 

causes serious permanent disfigurement, including scarring, 

or extended loss or impairment of the function of any bodily 

part or organ.

Hanes argues this jury instruction was improper in two ways. 

First, Hanes argues the words “if left untreated” improperly modified all 

three options: risk of death, serious permanent disfigurement, and loss 

or impairment of a bodily part or organ. Second, Hanes argues the 

inclusion of the phrase “including scarring” was also error. Hanes 

complains that under the facts of the case, inclusion of these two 

phrases allowed the jury to find serious injury by speculating as to 

whether and how the scarring, not the injury, would have been worse if 

left untreated. Hanes claims this is emphasized because the victim was 

treated by a plastic surgeon, and the jury might have believed the 

scarring would have been much worse without such treatment.

Serious injury is a defined term in the Iowa Code. According to 

Iowa Code section 702.18:

1. “Serious injury” means any of the following:

. . . .

b. Bodily injury which does any of the following:

(1) Creates a substantial risk of death.

(2) Causes serious permanent disfigurement.

(3) Causes protracted loss or impairment of the 

function of any bodily member or organ.

The language of section 702.18 does not include the phrases “if left 

untreated” or “including scarring.” The serious injury instruction given 

at trial is identical to the Iowa State Bar Association’s Criminal Jury 
14

Instruction for serious injury—number 200.22—except that the language 

“if left untreated” and “including scarring” were additions by the district 

court.

We agree with Hanes that the instruction improperly suggested 

scarring will always be considered serious permanent disfigurement. 

Serious permanent disfigurement is not defined and is a question for the 

jury to decide. Scarring may in some circumstances rise to the level of 

serious permanent disfigurement. See State v. Phams, 342 N.W.2d 792, 

796 (Iowa 1983) (“We have recognized that the statutory definition of 

serious injury includes those ‘injuries which leave the victim 

“permanently scarred or twisted . . ., [in contrast to] a black eye, a bloody 

nose, and even a simple broken arm or leg.” ’ ” (quoting State v. Epps, 

313 N.W.2d 553, 557 (Iowa 1981) (alteration in original))). These cases 

do not hold, however, that scarring is per se serious permanent 

disfigurement. A more proper jury instruction would not reference 

scarring, but leave it to the jury to determine whether a scar constitutes 

a serious permanent disfigurement.

We also agree that to the extent the phrase “if left untreated” is 

added to the statutory language, it would more properly be placed after 

the phrase “creates a substantial risk of death.” The jury instruction as 

written is not entirely clear and could suggest to a jury that an injury 

which did not cause either serious permanent disfigurement or 

protracted loss or impairment of the function of a bodily member or 

organ, but could have without treatment, is always considered a serious 

injury. The statutory language defining serious injury does not allow 

such a result. Iowa Code section 702.18(1)(b)(1) defines serious injury to 

include a bodily injury which “[c]reates a substantial risk of death.” 

(Emphasis added.) Addition of the words “if left untreated” to “creates a 
15

substantial risk of death” is not error because the risk is that the injury

would, if left untreated, result in death. In comparison, the risk that a 

bodily injury would have caused serious permanent disfigurement or 

protracted loss or impairment of the function of any bodily member 

organ if left untreated is not included in section 702.18. Iowa Code 

section 702.18(1)(b)(2) defines serious injury to include a bodily injury 

which “[c]auses serious permanent disfigurement.” (Emphasis added.) 

This language requires that the serious permanent disfigurement 

actually occur. Similarly, section 702.18(1)(b)(3) defines serious injury to 

include a bodily injury which “[c]auses protracted loss or impairment of 

the function of any bodily member or organ.” (Emphasis added.) This 

language requires that the protracted loss or impairment actually occur.

Although the serious-injury instruction was not consistent with 

the statutory definition, we need not address whether defense counsel’s 

failure to object to the serious-injury instruction was deficient and 

prejudicial because we reverse on other grounds. Any instruction on 

“serious injury” given upon retrial should track the statutory definition of 

this term.

3. Jury instruction regarding specific intent. Hanes claims the jury 

instruction on specific intent—number twenty-one—erroneously failed to

require the jury to find the proper mental state existed at the time of the 

offense. Defense counsel did not object to the specific-intent instruction

at trial. The specific intent instruction provided:

“Specific intent” means not only being aware of doing 

an act and doing it voluntarily, but in addition, doing it with 

a specific purpose in mind.

Because determining the defendant’s specific intent 

requires you to decide what the defendant was thinking 

when an act was done, it is seldom capable of direct proof. 

Therefore, you should consider the facts and circumstances 

surrounding the act to determine the defendant’s specific 
16

intent. You may, but are not required to conclude a person 

intends the natural results of his or her acts.

Specific intent does not have to exist for any particular 

length of time. It is sufficient if it exists at any time before the 

act.

(Emphasis added.) The first two paragraphs of this instruction are 

identical to the Iowa State Bar Association’s Criminal Jury Instruction

for specific intent—instruction number 200.2 The last paragraph was 

added to the uniform instruction by the district court. It states:

“Specific intent does not have to exist for any particular length of time. It 

is sufficient if it exists at any time before the act.”

Hanes complains the last sentence of the specific-intent 

instruction allowed the jury to find specific intent if at any time prior to 

the incident resulting in the victim’s injuries, the defendant had specific 

intent. Hanes argues the jury could have improperly found Hanes had 

specific intent to harm Taylor during the alleged incident when Hanes 

paid Taylor $2.25 for gizzards and Taylor simply kept the money.

The State argues other portions of the jury instructions require a 

finding of specific intent at the time of the charged crime. The State 

points to the first paragraph of the specific-intent instruction which 

states specific intent requires “being aware of doing an act and doing it 

voluntarily, but in addition, doing it with a specific purpose in mind.” The 

State also points to the marshalling instruction—number fifteen—which 

stated in part:

In order to convict the defendant of Willful Injury 

Causing Serious Injury, the State must prove each of the 

following elements:

1. On or about the 28th day of April, 2007, the 

defendant assaulted Nathan Taylor.

2. The defendant specifically intended to cause a 

serious injury to Nathan Taylor.
17

The State argues when the jury instructions were read as a whole, these 

additional portions of the instructions made it clear to the jury they were 

required to find specific intent at the time of Taylor’s injury.

A crime requires proof of specific intent when the statute’s 

description of the proscribed act refers to the defendant’s “intent to do 

some further act or achieve some additional consequence.” Eggman v. 

Scurr, 311 N.W.2d 77, 79 (Iowa 1981) (quoting P. Johnson, Criminal Law, 

329 (1975)). The specific intent is linked to the proscribed act and 

therefore must be present at the time of the proscribed act. We agree 

with Hanes that the last sentence of the specific-intent instruction

improperly suggested the defendant need not have specific intent at the 

time of the alleged act.

However, because we reverse on other grounds, we need not 

address whether defense counsel’s failure to object was deficient and 

caused Hanes prejudice. It is sufficient for purposes of this appeal to 

state the court should not instruct the jury upon retrial that the 

defendant’s specific intent may exist at any time.

4. Prosecution closing argument. Hanes argues the State’s closing 

argument was improper in his pro se supplemental brief. Hanes argues 

the State improperly suggested the defense should have called additional 

witnesses. The State misconstrues Hanes’s objection to the prosecuting 

attorney’s rebuttal. The State suggests Hanes’s complaint is with his 

own lawyer’s failure to call these two additional witnesses. Instead, 

Hanes’s complaint is the prejudicial nature of the prosecuting attorney’s 

statement in rebuttal shifting the burden to call witnesses to the defense.

The prosecution’s opening statement referenced two witnesses, 

Paul McGonigle and Willie Brown, and explained their anticipated 

testimony. The State then failed to call these witnesses. Hanes’s defense 
18

attorney highlighted this inconsistency in his closing argument, stating 

“The state has the burden to prove its case. Where are these people if 

they’re so important?” In response, the State argued in rebuttal:

Now, the - - the defense brought up Paul McGonigle. 

And I mentioned Paul McGonigle in my opening. I also 

mentioned Willie Brown. You didn’t see them; did you? No, 

we didn’t call them. You know who else didn’t call them? 

The defense didn’t call them. The defense called witnesses. 

The defense can call any witness they so desire. If there was 

anything helpful for the defendant, the defense could have 

called Paul McGonigle or Willie Brown.

. . . .

. . . If there was anything the defense really wanted 

from either one of these individuals that they felt was 

beneficial or helpful to the defendant, they could have called 

them.

Hanes’s defense attorney did not object.

The State bears the burden of proof in criminal cases. It is 

improper for the State to shift the burden to the defense by suggesting 

the defense could have called additional witnesses. “ ‘It is generally 

improper for a prosecutor to comment on a defendant’s failure to call a 

witness. Such comment can be viewed as impermissibly shifting the 

burden of proof to the defense.’ ” Byford v. State, 994 P.2d 700, 709 

(Nev. 2000) (quoting Rippo v. State, 946 P.2d 1017, 1026 (Nev. 1997)

(citation omitted)); cf. State v. Poppe, 499 N.W.2d 315, 318 (Iowa Ct. App. 

1993) (“[T]he prosecutor’s suggestions about defendant counting on the 

witnesses not coming in to testify comes extremely close to suggesting 

the State does not bear the burden of proving defendant’s guilt.”).

It was appropriate for defense counsel to call attention to the 

State’s failure to call these witnesses after the State had outlined the 

witnesses’ expected testimony in the opening statement. It was not 

proper for the State to attempt to shift the burden to the defense to call 

the witnesses or to suggest the jury could infer from the defense’s failure 
19

to call the witnesses that they would not have said anything helpful to 

the defense. This situation is not one where the prosecutor generally 

referenced an absence of evidence supporting the defense’s theory of the 

case. See United States v. Emmert, 9 F.3d 699, 702–03 (8th Cir. 1993); 

State v. Swartz, 601 N.W.2d 348, 353 (Iowa 1999).

Some courts have held an attempt by the State to shift the burden 

of proof may be cured by an instruction regarding the State’s burden of 

proof. Cook v. State, 872 S.W.2d 72, 73–74 (Ark. 1994). Because we 

reverse on other grounds, we need not address whether defense counsel 

was deficient and caused prejudice by failing to object to the prosecutor’s 

statements. We trust the prosecutor will refrain from similar statements 

upon retrial.

IV. Conclusion.

The penalty jury instruction incorrectly suggested penalties of a 

fine, probation, or community service were available when they were not 

statutorily permissible. This instruction prejudiced the defendant 

because it misled the jury with respect to the possible consequences of 

its verdict and de-emphasized the gravity of the jury’s decision. The 

conviction is reversed and the case is remanded to the district court.

DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

All justices concur except Cady, J., who dissents.
20

CADY, Justice (dissenting).

I respectfully dissent. I would conclude the instructional error by 

the district court in this case does not require a reversal of the conviction 

and the grant of a new trial. I reach this conclusion because the error 

that occurred at trial was insignificant and did not result in any 

prejudice.

It has long been recognized in Iowa and across the nation that trial 

error does not require a new trial when the error does not result in 

prejudice. Hammond v. Sioux City & P.R. Co., 49 Iowa 450, 453 (1878); 

see also 5 C.J.S. Appeal and Error § 965, at 327 (2007) [hereinafter 

Appeal and Error] (citing the general rule). Error inevitably operates 

within a trial because a trial operates within the hands of humans. A 

harmless-error standard of review for claims of trial error means the time 

and expense of endless retrials can be avoided without jeopardizing the 

requirement for a fair trial. See Appeal and Error § 965, at 327.

The difficulty in applying the harmless-error review lies in 

assessing the impact of the error on the verdict. In assessing whether a 

defendant has been injuriously affected by instructional error, the 

instruction itself must first be carefully considered. In this case, the 

district court properly instructed the jury that it must “determine if the 

defendant is guilty or not guilty” and that they “have nothing to do with 

punishment” in the event the verdict is guilty. See State v. Piper, 663 

N.W.2d 894, 915 (Iowa 2003) (holding an instruction telling the jury it 

had nothing to do with punishment was properly given). The error 

occurred, however, when the district court further instructed the jury on 

the general types of punishment imposed for criminal offenses, including 

fines, various forms of probation, and imprisonment. This additional 

information was not only extraneous, it informed the jury of sentencing 
21

options that would not actually be available to the sentencing court in 

the event the jury returned a verdict of guilty on the crime of willful 

injury. The crime of willful injury is a forcible felony. Iowa Code 

§ 702.11(1) (2005) (including willful injury causing serious injury in list 

of offenses constituting forcible felonies). Probation is not an available 

sentencing option for a forcible felony. Id. § 907.3 (excluding deferred 

judgment, deferred or suspended sentence, and probation from available 

sentencing options for forcible-felony convictions).

The majority finds prejudice because it was possible the jury used 

the extraneous information in reaching its verdict.3 The majority 

concluded the jury “may have” used the error to shirk its instructed duty 

to return a verdict of guilty only if convinced beyond a reasonable doubt 

and based only on the evidence presented at trial. It found the jury 

could have ignored these instructions and used the extraneous 

information to return a verdict of guilty under a belief that the district 

court would not later impose a sentence of imprisonment. Not only does 

this analysis use unsupported assumptions to create a false syllogism, it 

ultimately creates an irrefutable prejudice standard based on the 

existence of error itself. At its core, the majority holds that prejudice 

exists as long as it is conceivable that the jury could have considered 

extraneous, erroneous information. This holding is contrary to the very 

 3Importantly, harmless error is a standard of judicial review that requires judges 

to decide if error affected the verdict. See O’Neal v. McAninch, 513 U.S. 432, 436, 115 

S. Ct. 992, 995, 130 L. Ed. 2d 947, 952 (1995) (stating the inquiry made by judges 

regarding harmless error is whether “the error substantially influenced the jury’s 

decision”). It does not direct judges to simply be convinced that a party has shown 

prejudice or has not shown prejudice. Id. at 437, 115 S. Ct. 995, 130 L. Ed. 2d at 952 

(citing Roger J. Traynor, The Riddle of Harmless Error 25–26 (1970) [hereinafter 

Traynor]). Regardless of the assistance provided by counsel on the issue, “ ‘it is still the 

responsibility of the . . . court, once it concludes there was error, to determine whether 

the error affected the judgment.’ ” Id. (quoting Traynor at 26). 
22

purpose of the harmless-error doctrine as well as our test for assessing 

the impact of error. See State v. Massey, 275 N.W.2d 436, 439 (Iowa 

1979) (stating the prejudice test applicable to trial errors not implicating 

a constitutional right is premised upon a determination of “whether it 

sufficiently appears that the rights of the complaining party have been 

injuriously affected or that the party has suffered a miscarriage of 

justice”). It is a step back to the nineteenth century Exchequer Rule 

where retrials of cases “seemed to” come to an end only when “the parties 

expired.” 7 Wayne R. LaFave, et al., Criminal Procedure § 27.6(a), at 100 

(3d ed. 2007).

We presume juries follow courts’ instructions. State v. Morrison, 

368 N.W.2d 173, 176 (Iowa 1985). Without such a presumption, our 

jury system would have little meaning or purpose. In truth, this case 

tests this conviction, and the outcome reveals the presumption is 

illusory. 

Importantly, the district court did not instruct the jury to consider

the various types of punishment in reaching its verdict; it only informed

the jury of the types of punishment. Thus, this is not a case in which 

the jury was instructed to do or consider something that was incorrect so 

that we would presume the jury followed the incorrect directive in 

reaching its verdict. This is also not a case in which the court gave two 

conflicting directives so that it would be impossible to know if the correct 

directive was followed. See State v. Leins, 234 N.W.2d 645, 648–49 (Iowa 

1975) (reversing conviction when jury instruction included both improper 

test and proper test for entrapment in same instruction and court could 

not determine which rule the jury applied). More importantly, this was 

not an error that gave the jury such damaging information that it could 

not reasonably be expected to actually disregard it. See State v. Paden, 
23

199 Iowa 383, 386, 202 N.W. 105, 107 (1925) (holding certain evidence 

proffered and subsequently stricken at trial caused incurable prejudice 

because “[t]he evidence was toxic in character, and in our judgment it is 

beyond the realm of human possibility that the mind of the jury was not 

poisoned by the facts admitted”).

Instead, the instruction only provided extraneous information to 

the jury, information that is generally known by jurors independent of 

the instruction by the district court. See State v. Sullivan, 679 N.W.2d 

19, 30 (Iowa 2004) (stating prejudice is met only when the improper 

information unquestionably has a powerful impact on the jury). We have 

previously acknowledged that jurors not only “know that if they find a 

defendant guilty, he will be punished,” but “[t]hey also know that the 

more serious the offense . . . , the more severe the punishment.” Piper, 

663 N.W.2d at 915. To be practical, as judges should, most jurors 

understand, right or wrong, that criminal defendants face either 

probation or incarceration if convicted. Thus, the district court gave the 

jury information consistent with common, preconceived notions. By 

analogy, we generally find erroneously admitted evidence to be harmless 

when the evidence is merely cumulative of other evidence properly 

admitted. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).

Moreover, we examine jury instructions for reversible legal error by 

considering the instructions as a whole, and “if some part was given 

improperly, the error is cured if the other instructions properly advise the 

jury as to the legal principles involved.” Thavenet v. Davis, 589 N.W.2d 

233, 237 (Iowa 1999). In this case, instead of instructing the jury to 

consider the extraneous, incorrect information, the district court 

immediately followed the extraneous information with a declaration to 

the jury that it “may neither speculate on what any punishment in this 
24

case might be nor let it influence your verdict.” Unlike the predicate 

informational material provided to the jury on punishment, this portion 

of the instruction was a specific directive or instruction for the jury to 

follow, and along with the other instructions given, it properly advised 

the jury of the legal principles applicable to the case. Consequently, the 

jury was given extraneous information and immediately told to disregard 

it. 

The question is, therefore, simple. Do we or do we not believe 

jurors follow instructions? The jurors in this case were unequivocally 

told to disregard punishment. While it was odd and inconsistent for the 

district court to pass extraneous information along to the jury and then 

tell the jury to not consider it, it is just as inconsistent to presume the 

jury went ahead and considered the information. By analogy, we 

generally find the erroneous admission of evidence to be harmless when 

the trial court strikes the evidence from the record and immediately 

admonishes the jury to disregard the evidence. State v. Johnson, 183 

N.W.2d 194, 198 (Iowa 1971). Until now, we have believed jurors follow 

instructions. 

I believe jurors serve the justice system with a deep and abiding 

allegiance to their duties and responsibilities as instructed by the court. 

This belief supports our presumption that jurors follow instructions. 

Moreover, there is nothing about the extraneous information in this case, 

or any other circumstance of the case, to support a conclusion that a 

jury would be unable to disregard punishment after being informed of 

the various types of punishment available in criminal sentencing. The 

error in this case was harmless. Under the standard applied by the 

majority, the lack of prejudice becomes irrelevant because error will 

always result in a new trial.