IN THE COURT OF APPEALS OF IOWA

No. 22-0378

Filed March 8, 2023

JOSHUA FRANK McCOY,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

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Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

Joshua McCoy appeals the denial of his application for postconviction relief. 

AFFIRMED. 

Austin Jungblut of Parrish Kruidenier Dunn Gentry Brown Bergmann & 

Messamer L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney 

General, for appellee State.

Considered by Greer, P.J., Ahlers, J., and Carr, S.J.*

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

(2023).
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CARR, Senior Judge.

Joshua McCoy appeals the denial of his application for postconviction relief 

(PCR) after being convicted of murder in the first degree and robbery in the first 

degree. His conviction stems from an incident with Christopher Byers. Byers was 

shot and killed in his living room while selling marijuana to McCoy and Marquice 

Morris. When Byers pulled out the bag of marijuana, McCoy and Morris pulled out 

guns. After the guns came out, one of the men shot at the floor and the other shot 

Byers in the chest. A criminalist testified that it was most likely McCoy’s 9mm gun 

that shot Byers. An informant testified McCoy and Morris intended to rob Byers. 

They brought the guns to scare him into handing over money and drugs. 

McCoy filed a PCR application claiming his trial counsel was ineffective by 

failing to request a jury instruction for willful injury as a lesser-included offense.

We review a claim of ineffective assistance of counsel de novo. See Lamasters v. 

State, 821 N.W.2d 856, 862 (Iowa 2012); see also Frye v. State, No. 19-0433, 

2020 WL 6480880, at *1 (Iowa Ct. App. Nov. 4, 2020). To succeed on an 

ineffective-assistance claim, McCoy must show counsel breached a duty and 

prejudice resulted. See Lamasters, 821 N.W.2d at 862. We may affirm if either 

element is lacking. See id. A breach of duty occurs if counsel’s performance falls 

below the standard of a reasonably competent attorney. See id. Prejudice occurs 

if the outcome of the proceeding would have differed if counsel had performed 

effectively. See id. 

“When one or more lesser included offenses are submitted to the jury and 

a conviction of the greater offense is returned, there is no prejudice in the failure 

to submit additional included offenses.” State v. Carberry, 501 N.W.2d 473, 476 
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(Iowa 1993). At McCoy’s trial the jury was given instructions on the following lesser 

included offenses: murder in the second degree, attempt to commit murder, 

voluntary manslaughter, involuntary manslaughter by public offense, involuntary 

manslaughter by act, assault with intent to inflict serious injury, assault causing 

bodily injury. The jury found McCoy guilty of murder in the first degree despite 

having seven lesser included offenses to consider. 

Even if a defendant is convicted of a greater offense the court can find

prejudice for an omission of a lesser included instruction “when the omitted lesser 

included offense embraces the defendant’s primary theory of defense.” Id. 

However, “[i]t only relates to situations in which the differences between the 

offenses that were submitted and the included offense that was not submitted are 

such that it may not be reasonably concluded that the rejection of the former is 

also a rejection of the latter.” Id. (citing State v. Donelson, 302 N.W.2d 125, 135

(Iowa 1981)). At trial, the main defense was that McCoy and his confederate were 

the victims, not the perpetrators, of the robbery. McCoy now argues that at trial 

his attorneys were potentially presenting a defense that the shooting of Byers was 

accidental and a willful injury jury instruction would have allowed the jury to find in 

favor of McCoy. This was at best a secondary line of attack. As one of his counsel 

explained, “We had to get him from underneath the robbery because, you know, it 

was just a run-of-the mill robbery, and it was an accident. That doesn’t get you 

anywhere. You still end up with first-degree murder.” 
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The elements of willful injury are illustrated by Iowa Uniform Criminal Jury 

instruction 800.11: 

The State must prove all of the following elements of Willful Injury:

1. On or about the [date of the crime], the defendant (set forth acts 

of assault).

2. The defendant specifically intended to cause a serious injury to 

(victim).

3. (Victim) sustained a serious injury. 

Id.

The second element the state must prove is that the defendant specifically 

intended to cause serious injury. Id. McCoy’s claim that the shooting was an 

accident is inconsistent with this instruction and is better embraced by the 

involuntary-manslaughter-by-act and involuntary-manslaughter-by-public-offense 

instructions. Both of these fit the possibility that the death of Byers was 

unintentionally caused. The instructions on involuntary manslaughter were given 

to the jury at trial.

At trial the jury convicted McCoy of murder in the first degree, a greater 

offense than willful injury. The lesser included offenses, specifically involuntary 

manslaughter, encompass McCoy’s possible claim of an accidental shooting. 

Failing to submit a jury instruction for willful injury did not prejudice McCoy. 

We affirm the denial of McCoy’s PCR application. 

AFFIRMED.