STATE OF IOWA, Plaintiff - Appellee, vs. DETARUS RAYSHOD JEFFERSON , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-867 / 07-1839
Filed December 17, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DETARUS RAYSHOD JEFFERSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
Detarus Jefferson appeals following conviction and sentence for
intimidation with a dangerous weapon and carrying a weapon. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MAHAN, J.
Detarus Jefferson appeals following conviction and sentence for
intimidation with a dangerous weapon, in violation of Iowa Code section 708.6
(2007), and carrying a weapon, in violation of section 714.4. He asserts his trial
counsel was ineffective in failing to object to the marshaling instruction for
intimidation with a dangerous weapon. We affirm.
To establish a claim of ineffective assistance of counsel, a defendant must
prove (1) counsel failed to perform an essential duty and (2) prejudice resulted.
State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008). A defendant‟s failure to
prove either element by a preponderance of the evidence is fatal to a claim of
ineffective assistance.
State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
Ineffective-assistance-of-counsel claims are constitutional in nature, and as such,
our review is de novo. Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008).
Jefferson asserts his trial counsel was ineffective in failing to object to the
marshaling instruction for intimidation with a dangerous weapon. Specifically,
Jefferson claims his counsel erred in failing to ensure the instructions correctly
defined “within an assembly of people.”
To convict Jefferson of intimidation with a dangerous weapon, the State
was required to prove the following elements:
1. On or about the 14th day of May, 2007, the Defendant
threatened to shoot or discharge a handgun:
a. At or into a building which was occupied by Michael
Holmes, Tremaine Toles or Jequarius Owens or
b. [W]ithin an assembly of people.
2. The handgun was a dangerous weapon, as explained in
Instruction No. 21.
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3. The Defendant made the threat under circumstances raising
a reasonable expectation that the threat would be carried
out.
4. The Defendant threatened to shoot or discharge the
handgun with the specific intent to injure or cause fear or
anger in Michael Holmes, Tremaine Toles or Jequarius
Owens or the assembly of people.
Jury Instruction No. 20.
The phrase “within an assembly of people” was defined in Jury Instruction
No. 22 as “into or through two or more persons at the same place.”
Jefferson argues that Iowa Code section 708.6 (intimidation with a
dangerous weapon) requires the offender be inside and a part of the assembly of
people.
Because the instruction given did not so require, Jefferson argues
counsel was ineffective in failing to object. We find this argument to be without
merit.
Our supreme court has previously defined “within an assembly of people”
as follows:
Because the legislature did not define “within an assembly of
people,” we believe it intended the phrase to have its common and
ordinary meaning. State v. Hennenfent, 490 N.W.2d 299, 300 (Iowa
1992). In interpreting undefined statutory language, we—as did the
jury—give this phrase its common and ordinary meaning. According
to Black‟s Law Dictionary, “within” means “into” or “through.” Black‟s
Law Dictionary 1602 (6th ed. 1990). “Assembly” is defined as “[t]he
concourse or meeting together of a considerable number of persons
at the same place.” Id. at 115. Black‟s goes on to say that a
“considerable” number of persons “does not necessarily mean a very
great or any particular number of persons; the term „considerable‟
being merely relative.” Id. at 306.
We believe a reasonable, common, and ordinary definition of
“within an assembly of people” under the Black‟s interpretation is
“into or through two or more persons at the same place.”
State v. Bush, 518 N.W.2d 778, 780 (Iowa 1994) (emphasis added). While the
facts presented in Bush were such that the shooter was within a ring of people
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when he fired the shot, id., Bush did not hold that section 708.6 requires the
shooter to be inside and a part of the assembly of people as defendant argues.
The act prohibited “thereby places the . . . people in reasonable
apprehension of serious injury. . . .” Iowa Code § 708.6; see Bush, 518 N.W.2d
at 780 (noting that “the jury could also reasonably find that Bobby fired the shot
through this ring of people, thereby subjecting them to the obvious risk of severe
injury or even death”) (emphasis added). The statutory focus is where the shot is
directed, not on the location of the shooter. The harm to be avoided is the aiming
and firing of a dangerous weapon “into or through two or more persons at the
same place.” Bush, 518 N.W.2d at 780.
As the State notes, Jefferson‟s interpretation of section 708.6 would cover
the actions of the defendant in Bush, but would not apply to a sniper firing from a
rooftop into a cluster of people. Such an interpretation would lead to illogical
results, and this court will not so construe the statute. Criminal statutes must be
construed reasonably. State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995).
Here, Jefferson, while riding in a vehicle, waved a handgun at the group of
people on Michael Holmes‟s front porch. The jury could easily find that Jefferson
threatened to discharge his gun “within an assembly of people.”
The jury instructions given appropriately defined “within an assembly of
people.”
Counsel was not required to object, and Jefferson‟s ineffectiveness
claim thus fails. We affirm.
AFFIRMED.
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