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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.

2 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 defendants 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.

3 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 Blacks Law Dictionary, "within" means "into" or "through." Blacks 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. Blacks 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 Blacks 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

4 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

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