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IN THE COURT OF APPEALS OF IOWA No. 0-080 / 09-0308 Filed December 8, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. IAN MATTHEW THOMPSON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge.

Ian Thompson appeals his conviction for assault causing serious injury. REVERSED AND REMANDED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Mansfield, JJ. Tabor, J., takes no part.

2 MANSFIELD, J. In the late night hours of Friday, January 25, 2008, Ian Thompson punched Justin Nisser causing fractures to Nissers jaw. As a result, Thompson was charged with assault causing serious injury in violation of Iowa Code section 708.2(4) (2007). The case proceeded to a jury trial where Thompson claimed he acted in self-defense. The jury returned a guilty verdict on the offense charged. Thompson appeals, contending: (1) the trial court erred in giving the jury its "punishment" instruction; (2) the trial court erred in admitting evidence of Thompsons prior bad acts, including prior misdemeanor convictions for disorderly conduct and assault; and (3) his counsel was ineffective for failing to object to a jury instruction on alternative courses of action for self-defense. The "punishment" instruction informed the jury as follows: 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. Thompson objected to this instruction during the instruction conference. Among other things, he pointed out that it was "inaccurate." If Thompson were

convicted, he faced incarceration, not any of the other sentences listed in the instruction. Thompson had been charged with assault causing a serious injury, a forcible felony. See Iowa Code

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