IN THE SUPREME COURT OF IOWA

No. 15–0940

Filed February 24, 2017

Amended May 16, 2017

STATE OF IOWA,

Appellee,

vs.

JAMES NORMAN HARRIS,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Woodbury County, Gary E. 

Wenell, Judge.

A defendant claims his trial counsel was ineffective for failing to 

challenge the sufficiency of the evidence of an element of the goingarmed-with-intent offense and for failing to object to a jury instruction 

omitting that element. DECISION OF COURT OF APPEALS VACATED; 

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant 

Attorney General, Patrick Jennings, County Attorney, and Terry C. 

Ganzel, Assistant County Attorney, for appellee.
2

HECHT, Justice.

A late-night game of pool at a bar in Sioux City led to an argument 

between the defendant and another man. The argument led to a physical 

altercation outside the bar, and the other man sustained stab wounds. 

For his actions in the fight, the defendant was convicted of going armed 

with intent and willful injury causing bodily injury. On appeal, the 

defendant contends his defense counsel provided ineffective assistance of 

counsel in failing to challenge the sufficiency of the evidence supporting 

submission of the going-armed-with-intent charge to the jury and failing 

to object to the jury instruction on going armed with intent on the 

ground it omitted the “going” element of that charge. We conclude 

defense counsel was not ineffective in failing to challenge the sufficiency 

of the evidence because the State produced substantial evidence of the 

“going” element. We further conclude, however, that the jury instruction 

omitted an element of the charged offense and defense counsel was 

ineffective in failing to object to it. 

I. Factual and Procedural Background.

The following facts are supported by substantial evidence in the 

record. James Harris, his girlfriend, and Chance Niles were at the Dive 

Bar in Sioux City around midnight on the evening of September 26, 

2013. All three had consumed a significant amount of alcohol during the 

evening. Harris and Niles wagered as they began a series of five latenight games of pool. Harris accused Niles of cheating and the two men 

yelled and hurled obscenities at each other. The bartender eventually

told the two men it was time to close the bar and they must leave. 

Harris exited the bar ahead of Niles. When Niles came out of the 

bar approximately five minutes later, he encountered Harris waiting 

outside the bar. The conflict resumed and Harris and Niles pushed each 
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other. Niles turned—intending to walk away from the fight—and Harris 

struck him multiple times about the head and neck with a knife. As the 

fight between the two men continued on the ground, Niles gained an 

advantage and was on top of Harris. While the two men wrestled on the 

ground, Harris’s girlfriend joined the fray by kicking Niles. The bartender 

heard the commotion and went outside. He saw Niles on top of Harris 

who was holding a knife in his hand. Niles eventually let Harris get up 

and leave the scene with his girlfriend. Niles then went to the hospital 

where medical personnel treated at least seven wounds on the back of 

his head, his neck, and his arm.

Harris was subsequently charged with going armed with intent in 

violation of Iowa Code section 708.8 (2013), a class “D” felony, and willful 

injury causing bodily injury in violation of Iowa Code section 708.4(2), 

also a class “D” felony. In his motion for judgment of acquittal at the 

close of the State’s case-in-chief during the jury trial, defense counsel 

challenged the sufficiency of the evidence supporting the going-armedwith-intent charge, contending specifically that “the evidence lacks in 

showing any intent on Mr. Harris’ part that he [intended] to use a 

dangerous weapon in this matter.”1 Counsel renewed his motion for 

judgment of acquittal at the close of the evidence, contending in relevant 

part “there was no going armed with intent because there was no knife 

on [Harris].” Counsel’s motion did not specifically challenge the 

sufficiency of the evidence supporting a finding that Harris moved any 

distance while armed with a dangerous weapon and with the required 

specific intent.

1Defense counsel also challenged the sufficiency of the evidence supporting the 

willful injury claim, but the merits of that challenge are not before us in this appeal.

 
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Instruction No. 17—the marshalling instruction on the goingarmed-with-intent charge—read as follows:

In order to find the Defendant James Harris guilty of 

Going Armed with Intent as charged in Count I of the Trial 

Information, the State must prove all of the following 

elements:

1. On or about the 26th day of September, 2013, here 

in Woodbury County, Iowa, the defendant was armed with a 

knife.

2. The knife was a dangerous weapon as defined in 

Instruction No. 19.

3. The defendant was armed with the specific intent to 

use the knife against another.

If you find the State has proved all of the elements, the 

defendant is guilty of Going Armed with Intent. If the State 

has failed to prove any one of the elements, the defendant is 

not guilty of Going Armed with Intent. 

Notably, this instruction did not include the element of going or moving 

with specific intent to use it against Niles. Defense counsel did not 

object to the omission. 

Harris was convicted of going armed with intent and assault with 

intent to inflict a serious injury—a lesser-included offense of willful 

injury and an aggravated misdemeanor. The court sentenced Harris to 

indeterminate terms of incarceration for five years on the charge of going 

armed with intent and two years on the charge of assault with intent to 

inflict serious injury, and ordered the terms to be served consecutively. 

Harris appealed, claiming his defense counsel provided ineffective 

assistance in failing to challenge the sufficiency of the evidence 

supporting a finding that he moved (the “going” element of the offense) 

while armed with a dangerous weapon and with the intent to use it 

without justification against the person of another. See Iowa Code 

§ 708.8. Harris also claimed counsel was ineffective for failing to object 
5

to the omission of the “going” element in Instruction No. 17.2 We 

transferred the appeal to the Iowa Court of Appeals. On April 6, 2016, 

the court of appeals decided in relevant part that (1) the evidence that 

Harris “moved” while armed and with the requisite intent sufficiently 

supported his conviction for going armed with intent and (2) Harris failed 

to show he was prejudiced by his trial counsel’s failure to object to the 

absence of the “going” element in Instruction No. 17. We granted 

Harris’s application for further review.

II. Scope of Review.

Because defense counsel did not challenge the sufficiency of the 

evidence supporting the submission of the going-armed-with-intent 

charge to the jury and did not object to the omission of the “going” 

element in Instruction No. 17, error was not preserved for our review on 

either of these issues. State v. Horness, 600 N.W.2d 294, 297 (Iowa 

1999). Consequently, our review of the merits of the issues turns on 

whether Harris has established his counsel rendered ineffective 

assistance. Id. 

We review ineffective-assistance-of-counsel claims de novo. Id. 

Harris bears the burden of proving by a preponderance of the evidence 

that “(1) his trial counsel failed to perform an essential duty, and (2) this 

failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 

2006); accord Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 

2052, 2064–65, 80 L. Ed. 2d 674, 693–94 (1984). Prejudice is 

established if “there is a reasonable probability that, but for the counsel’s

2Harris also contends on appeal that the sentencing court abused its discretion 

in failing to state reasons for imposing a consecutive sentence. Because we conclude 

the conviction on the going-armed-with-intent charge must be reversed, we need not 

address the sentencing issue. 

 
6

unprofessional errors, the result of the proceeding would have been 

different.” State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008) (quoting 

Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006)); accord Strickland, 

466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 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. See id.; see also Anfinson v. 

State, 758 N.W.2d 496, 499 (Iowa 2008).

III. Analysis.

The defendant alleges he received ineffective assistance of counsel 

because his trial counsel failed to object to the sufficiency of the evidence 

concerning the “going” element of the going-armed-with-intent offense 

and to the omission of that element in the marshalling instruction for 

that offense. Although ineffective-assistance claims are generally 

addressed in postconviction-relief proceedings, “we will consider [them] 

on direct appeal where the record is adequate.” Horness, 600 N.W.2d at 

297. We conclude the record is adequate to address both claims of 

ineffectiveness in this case.

In assessing the effectiveness of the assistance provided by Harris’s 

trial counsel, we presume he acted competently. See id. at 298. The 

presumption of competency in this context is overcome in this case if we 

find Harris has proved his counsel’s performance “fell below the normal 

range of competency.” Id. Trial counsel is not ineffective in failing to 

urge an issue that has no merit. State v. McPhillips, 580 N.W.2d 748, 

754 (Iowa 1998).

A. Sufficiency of the Evidence of “Going.” Iowa Code section 

708.8 provides that “[a] person who goes armed with any dangerous 

weapon with the intent to use without justification such weapon against 
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the person of another commits a class “D” felony.” Iowa Code § 708.8. 

The phrase “going armed” is not defined in the statute. We have 

previously held, however, that “armed” in this context means “the 

conscious and deliberate keeping of a [dangerous weapon] on or about 

the person, available for immediate use.” State v. Ray, 516 N.W.2d 863, 

865 (Iowa 1994) (alteration in original) (quoting State v. Alexander, 322 

N.W.2d 71, 72 (Iowa 1982)). We have also explained that the “going” 

element of going armed with intent “necessarily implicates proof of 

movement.” Id.; see also State v. Pearson, 804 N.W.2d 260, 265 n.1 

(Iowa 2011). 

In making determinations on the sufficiency of the evidence, 

“we . . . view the evidence in the light most favorable to the state, 

regardless of whether it is contradicted, and every reasonable inference 

that may be deduced therefrom must be considered to supplement that 

evidence.” State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979). “We will 

uphold a trial court’s denial of a motion for judgment of acquittal if the 

record contains substantial evidence supporting the defendant’s 

conviction.” State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010). 

“Evidence is substantial if it would convince a rational trier of fact the 

defendant is guilty beyond a reasonable doubt.” State v. Jorgensen, 758 

N.W.2d 830, 834 (Iowa 2008). Evidence relevant to an issue of fact can 

be either direct or circumstantial, or both. State v. Stamper, 195 N.W.2d 

110, 111 (Iowa 1972). 

We turn now to the record in deciding whether a motion for 

judgment of acquittal by trial counsel challenging the sufficiency of the 

State’s proof of movement by Harris would have been meritorious had it 

been made. A reasonable fact finder could find beyond a reasonable 

doubt that Harris possessed and used a knife when he stabbed Niles 
8

several times outside the bar. The bartender testified that he saw a knife 

in Harris’s hand during the fight, and the medical evidence reveals 

Niles’s wounds were consistent with a knife attack. 

Although there is no direct evidence Harris possessed the knife as 

he argued with Niles before exiting the building, a reasonable fact finder 

could find based on circumstantial evidence that he did. The knife 

attack occurred in close temporal proximity to an intense verbal conflict 

between Harris and Niles inside the bar. After the heated verbal conflict 

inside, Harris walked outside and leaned against an outside wall of the 

building. He remained there smoking a cigarette for approximately five 

minutes until Niles came outside and the physical altercation 

commenced. We find no direct evidence tending to prove Harris gained 

possession of the knife after walking outside or while waiting for his 

girlfriend and Niles to come out of the bar. A reasonable fact finder could 

find from the circumstantial evidence that Harris must have carried the 

knife as he left the bar because it is unlikely that he gained possession of 

it while leaning against the wall and waiting outside. Accordingly, we 

affirm the conclusion reached by the court of appeals on this issue. A 

reasonable fact finder could find Harris carried the knife as he moved 

from inside the bar to the outdoors where he attacked Niles.3 We have 

3The State contends on appeal we should find the evidence of Harris’s movement 

with the knife during the attack on Niles sufficient to support the conviction on the 

going-armed-with-intent charge. In particular, the State suggests direct and 

circumstantial evidence of the numerous stab wounds and disparate locations of blood 

spatters together with other direct evidence of Harris’s acts during the assault suffice as 

substantial evidence that Harris moved while using the knife as a weapon. As we find 

other circumstantial evidence that Harris possessed the knife as he walked from inside 

the bar to the location outside where the attack occurred constitutes substantial 

evidence of the movement element, we need not decide whether any movement by 

Harris while committing the other crime of which he was convicted could or would 

support the going-armed-with-intent conviction. 

 
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found movement of similar distances sufficient to satisfy the “going” 

element. See Pearson, 804 N.W.2d at 265 n.1 (finding movement across 

kitchen sufficient); State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994) 

(finding movement from house to front yard sufficient). A motion for 

judgment of acquittal based on the failure of proof of the “going” element 

of the offense would have lacked merit and thus defense counsel did not 

breach a duty in failing to assert it. 

B. Instructional Error. In State v. Hopkins, we concluded the 

defendant’s trial counsel failed to perform an essential duty when he 

failed to object to an erroneous jury instruction. 576 N.W.2d 374, 380

(Iowa 1998). As we later explained, however, defense counsel’s failure to 

object to a defective instruction is not necessarily a breach of duty. See 

State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2008). In Ondayog, we left 

room for the possibility that a defense counsel’s failure to object to an 

erroneous lesser-included-offense instruction might have been motivated 

by a strategic choice and therefore might not have constituted a breach 

of duty. Id. (noting trial counsel’s failure to object could have been part 

of a strategic decision to give the jury the option to convict on a lesser 

crime rather than three “higher offenses”). In this case, we comprehend 

no possible strategic reason for failing to object to the omission of the 

“going” element in Instruction No. 17. The defect in Instruction No. 17—

the omission of the movement element—was obvious given our recent 

decision in Pearson.4 Accordingly, we conclude defense counsel 

breached a duty in failing to object to the flawed instruction. 

4Indeed, the State’s brief concedes the failure to object to the omission of the 

“going” element “was likely a breach of an essential duty.” The State offers no possible 

strategic reason for defense counsel’s failure to object.

 
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The question remains whether Harris’s conviction on the goingarmed-with-intent charge must be reversed as a consequence of defense 

counsel’s breach of duty. Harris contends on appeal that our decision in 

Pearson requires reversal. In Pearson, the defendant—a juvenile 

offender—was charged with first-degree robbery, willful injury, and going 

armed with intent. Pearson, 804 N.W.2d at 262. Pearson objected to the 

marshalling instruction on the going-armed-with-intent charge on the 

ground it omitted movement as an element of the offense. State v. 

Pearson, No. 09–1798, 2010 WL 5050575, at *2 (Iowa Ct. App. Dec. 8,

2010), aff'd, 804 N.W.2d 260. The court overruled this objection. Id. 

Pearson appealed from his conviction on first-degree robbery and 

going armed with intent. We transferred the appeal to the court of 

appeals, which ruled in relevant part that Pearson was entitled to a new 

trial because of the instructional error on the going-armed-with-intent 

charge. Id. at *3. We granted further review in the case but exercised 

our discretion to decide only the issue of whether the district court had 

erred in ruling on Pearson’s motion to suppress a statement he made 

before trial to a social worker. Pearson, 804 N.W.2d at 265. In a 

footnote to our decision on further review, we nonetheless expressed our 

agreement with the court of appeals determination that the erroneous 

omission of an element of the offense from the marshalling instruction 

required a new trial. Id. at 265 n.1. Notably, we did not reveal in the 

footnote whether we agreed with the legal standard applied by the court 

of appeals in deciding Pearson suffered prejudice as a consequence of the 

instructional error.5 

5We recently noted a split of authority on the question of whether a harmless 

error analysis should be applied when error is preserved on a jury instruction 

erroneously omitting an element of a charged offense. State v. Schuler, 774 N.W.2d 

 
11

We conclude Pearson is not controlling here. In that case, the 

defendant preserved the instructional error for our review by objecting to 

the instruction. Harris must address the instructional error from a 

different vantage point, however, because his trial counsel did not object 

to Instruction No. 17. Thus, we must apply the familiar prejudice 

framework prescribed for ineffective-assistance-of-counsel claims. See

Reynolds, 746 N.W.2d at 845 (stating claimant must demonstrate there 

is “a reasonable probability that, but for the counsel’s unprofessional 

errors, the result of the proceeding would have been different” (quoting 

Bowman, 710 N.W.2d at 203)).

In assessing the probability of a different result if the elements of 

going armed with intent had been correctly stated in the marshalling 

instruction for that offense, we consider whether our confidence in the 

outcome of Harris’s trial is undermined by omission of the element of 

movement in Instruction No. 17. See id. Although we concluded above

that substantial evidence supported a finding of movement sufficient to 

uphold Harris’s conviction on the going-armed-with-intent charge, that 

conclusion does not control our determination of whether prejudice 

flowed from the flawed marshalling instruction. Upon review of the 

record, we conclude our confidence in the jury verdict is undermined 

because the evidence of Harris’s movement was not great and the flawed 

jury instruction did not require the jury to make a finding on that 

294, 299 (Iowa 2009) (noting some jurisdictions apply the harmless error analysis 

applied by the United States Supreme Court in Neder v. United States, 527 U.S. 1, 10, 

119 S. Ct. 1827, 1834, 144 L. Ed. 2d 35, 48 (1999), while other jurisdictions do not). In 

Schuler, we also noted some dissonance in our treatment of the prejudice issue in cases 

presenting instructional errors preserved for our review. Id. at 299–300 (contrasting 

State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983) (applying harmless error analysis),

with State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (reversing a conviction based 

upon a flawed instruction without harmless error analysis)). 

___________________________
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element of the crime. Thus, Harris suffered prejudice as a consequence 

of defense counsel’s failure to object to the omission of the movement 

element from the marshalling instruction. He is thereby entitled to a 

jury trial with a proper marshalling instruction on the factual element of 

movement. 

IV. Conclusion.

We conclude defense counsel did not breach a duty in failing to 

challenge the sufficiency of the evidence of Harris’s movement in the 

motion for judgment of acquittal. Defense counsel breached a duty, 

however, in failing to object to the absence of the movement element in 

the marshalling instruction for the going-armed-with-intent offense. 

Because our confidence in Harris’s conviction of that offense is 

undermined under the circumstances presented here, we reverse that 

conviction and remand. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.