Summary
finding defendant was not prejudiced where sufficient evidence supported one theory but where jury was given instruction containing alternative not supported by the evidence
Summary of this case from State v. ThorndikeOpinion
No. 1-931 / 00-1400.
Filed April 24, 2002.
Appeal from the Iowa District Court for Black Hawk County, K.D. BRINER, Judge.
Defendant appeals from judgment and sentence following his conviction for second-degree robbery as an habitual offender. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kristin Mueller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee-State.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Defendant appeals from judgment and sentence following his conviction for second-degree robbery as an habitual offender. He contends he received ineffective assistance of counsel, the verdict was contrary to the weight of the evidence, the trial court erroneously admitted evidence, and the district court erred in applying Iowa Code section 902.12(5) (1999) to his sentence. We affirm.
I. Background Facts and Proceedings . Suzanne Minikus was working alone on the night shift at the Osco Drug Store in Waterloo when Erik Hardin asked for her assistance in locating medicine. Hardin eventually left the store without purchasing the medicine.
Hardin returned to Osco at 4:45 a.m., winked and smiled at Minikus, and made a gun motion while telling her he took her advice. Hardin then went to the back of the store. When Hardin returned to the front of the store, Minikus heard clinking noises and noticed Hardin was dragging his right leg behind him. He held up his hand to indicate to Minikus that he did not need her assistance. Minikus then asked Hardin if he was okay. She noticed a "bulge" in his right pant leg. As he was exiting the store, Hardin told Minikus to get in the office and shut the door. He stated that he had a gun and placed his hand toward the small of his back. Minikus then went into the office, shut the door and wrote down Hardin's license plate number and description of his vehicle as he was driving away. She called her manager to tell her what happened and then dialed 911. She was able to describe Hardin, the robbery, and Hardin's vehicle to the dispatcher.
Officer Galbraith arrived at the store shortly after the 911 call was placed. He suspected the defendant had stolen liquor and discovered two large bottles of Tanqueray gin were missing from the shelf. Security tags were also discovered on the floor near the shelf. Meanwhile, another officer pulled over Hardin's vehicle based on the information received from Minikus. Two bottles of Tanqueray gin were discovered in the vehicle with defendant. Minikus then identified Hardin at the scene and again identified him at trial.
Hardin was charged with second-degree robbery, in violation of Iowa Code section 711.3 (1999). An amended trial information was filed, charging him with second-degree robbery as an habitual offender, in violation of Iowa Code sections 711.1, 711.3, 902.8, and 902.9. Hardin was found guilty of second-degree robbery following a March 2000 jury trial. In May 2000, a jury found Hardin to be a habitual offender. The district court sentenced Hardin to an indeterminate fifteen-year term of incarceration and a $1000 fine for his conviction for second-degree robbery as an habitual offender. He was also ordered to serve one hundred percent of his sentence pursuant to Iowa Code section 902.12, less any reduction permitted under section 903A.2(1)(b).
Defendant appeals. He claims he received ineffective assistance of counsel when his attorney failed to object to the jury instructions and the district court erred by applying Iowa Code section 902.12 to his sentence. In a pro se brief, defendant also claims counsel was ineffective in failing to be properly prepared and in failing to object to the admission of the 911 tape and security tags in to evidence. He claims these errors were cumulatively prejudicial. He also claims the verdict was contrary to the weight of the evidence, as well as raising a direct challenge to the admission of the security tags.
II. Ineffective Assistance of Counsel . We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). To succeed with such a claim, a defendant must prove two elements. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. Id.
A. Jury Instructions . Defendant first contends trial counsel was ineffective in failing to object to the jury instructions that defined robbery under alternatives that were not supported by the evidence.
The jury received the following instruction regarding second-degree robbery:
1. On or about September 8, 1999, the defendant had the specific intent to commit a theft.
2. In carrying out his intention or to assist him in escaping from the scene, with or without stolen property, the defendant either:
a. committed an assault as defined in Instruction No. 13 on Suzanne Minikus; or
b. threatened Suzanne Minikus with immediate serious injury or purposely put her in fear of immediate serious injury.
Instruction 13 defining assault was given as follows:
1. On or about September 8, 1999, the defendant did an act which was intended to cause pain or injury to Suzanne Minikus or to cause physical contact which was insulting or offensive to her or to place her in fear of immediate physical contact which would have been painful, injurious, insulting or offensive to her.
2. The defendant had the apparent authority to do so.
It is undisputed that defendant never touched Minikus, and the State concedes the first two alternatives under the definition of assault did not apply. Defendant argues that because a general verdict form was used, it is impossible to tell which ground the jury decided on and his conviction must be reversed.
Upon review, we find defendant has failed to prove he was prejudiced by counsel's failure to object to the jury instructions. There is ample evidence in the record to support a conviction for second-degree robbery under the alternative provided in Instruction 12(2)(b), that defendant threatened Suzanne Minikus with immediate serious injury or purposely put her in fear of immediate serious injury. Additionally, the jury convicted defendant of second-degree robbery while acquitting him of assault. As a result, it does not appear the jury relied on either of the first two alternatives in the jury instruction 13 regarding assault. It is also noteworthy that counsel did object to the instruction in a post trial motion and the objection was overruled.
B. Admissibility of Evidence . Defendant next contends his trial counsel was ineffective in failing to be prepared to address the issue of the admissibility of the 911 tape and that the tape was not properly authenticated. We find counsel did not breach an essential duty. Tapes of recorded conversations are admissible if they are accurate and trustworthy. State v. Weatherly, 519 N.W.2d 824, 826 (Iowa Ct.App. 1994). Minikus verified it was her voice on the 911 tape. She testified the recorded conversation reflected the conversation she had with the 911 dispatcher, and she did not know of anything peculiar about the recording. Because the test for admissibility of the tape was met, counsel had no duty to object to its admission.
Defendant also argues counsel was ineffective in failing to object to the admission of the security tags. Security tags were stuck on each bottle of liquor. Three such tags were found near the shelves from which the Tanqueray gin was stolen. Only one of them could have been removed from the stolen bottles. The defendant claims they were inadmissible as evidence of prior bad acts under Iowa Rule of Evidence 404(b) and they were not relevant. We find two of the tags were not relevant as evidence that bottles of Tanqueray gin were stolen. The third one may have related to one of the stolen bottles. Assuming counsel failed to perform an essential duty by not objecting to the tags, we turn to the prejudice prong. We find defendant was not prejudiced. The evidence of guilt is overwhelming as discussed in section IV of this opinion. The admission of the tags did not affect the outcome of the trial. We also reject defendant's argument that the tags were admissible as prior bad acts evidence. They were not evidence of prior bad acts, but were offered as evidence of the offense charged. See State v. Lockheart, 410 N.W.2d 688, 696 (Iowa Ct.App. 1987).
C. Cumulative Error . Finally, defendant argues the cumulative effects of counsel's errors denied him effective assistance. Because we find defendant failed to establish prejudice resulted from any of the alleged failures of his trial counsel, we reject this argument. See State v. Hardy, 492 N.W.2d 230, 235 (Iowa Ct.App. 1992).
We decline to preserve defendant's ineffective assistance of counsel claims for postconviction relief.
III. Sentencing . We review challenges to a court's application of a sentencing statute for errors at law. State v. DeCamp, 622 N.W.2d 290, 292 (Iowa 2001). Likewise, we review questions of statutory interpretation for correction of errors at law. Id.
Defendant contends the district court erred in applying Iowa Code section 902.12 to his sentence. Section 902.12 provides a person serving a conviction for robbery in the first or second degree in violation of sections 711.2 or 711.3 shall serve one hundred percent of the maximum term of their sentence and shall not be released on parole or work release except as otherwise provided in section 903A.2. Defendant argues that section 902.12 cannot apply to him because he was sentenced as an habitual offender pursuant to Iowa Code section 902.8, a forcible felony that is not specifically listed as being eligible for sentencing under section 902.12.
When a person is charged with an habitual offense, they are not being charged with a separate offense. State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). Rather, the habitual offender statute only provides for enhanced punishment of the current offense. Id. Here, the underlying offense is second-degree robbery, which is specifically listed in section 902.12. Therefore, we find the district did not err in sentencing Hardin pursuant to Iowa Code section 902.12.
IV. Weight of the Evidence . Defendant claims the verdict was contrary to the weight of the evidence because it does not establish that he intended to commit a theft or that a theft occurred.
Rulings on motions for new trial are reviewed for errors at law. Iowa R. App. P. 6.4. The district court's ruling on a motion for new trial will only be reversed for an abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). A motion for a new trial asserting the verdict was contrary to evidence should be granted only if the jury's verdict was contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). A verdict is contrary to the weight of the evidence where "a greater amount of credible evidence supports one side of an issue or cause than the other." Id. at 658 (citation omitted).
Formerly Iowa Rule App. P. 4
In an exhaustive ruling denying defendant's motion for new trial, the district court found defendant's conviction to be supported by the weight of the credible evidence. We agree. Minikus observed the defendant exiting the store, apparently concealing the bottles in his right pant leg. A clanking noise was heard with each step the defendant took. Upon arriving at the store, the police discovered two bottles of Tanqueray gin missing from a shelf. Dust outlined the area where the bottles would have been. When defendant was stopped based on the description of his vehicle provided by Minikus, the two bottles of Tanqueray gin were in his possession. Because the weight of the evidence supports defendant's conviction, we find no error in denying his motion for new trial.
V. Admissibility of the Evidence . Defendant also argues on direct appeal that the district court erred in admitting the security tags into evidence. We find he has failed to preserve error on this issue. See State v. Farnum, 554 N.W.2d 716, 719 (Iowa Ct.App. 1996).
VI. Conclusion . We find counsel did not provide ineffective assistance and we therefore decline to preserve defendant's claims for postconviction relief. We find the district court did not err in applying Iowa Code section 902.12 to defendant's sentence. We also find sufficient evidence exists to convict defendant of second-degree robbery. Defendant has not preserved his claim regarding the admissibility of the security tags for direct appeal. As a result, we affirm.
AFFIRMED.
VOGEL, P.J., concurs; MILLER, J., specially concurs.
I concur in the result and reasoning of all of the majority opinion except division II-A, as to which I concur in the result only.
The instruction defining assault improperly included two ways of committing an assault that were unsupported by substantial evidence. I nevertheless concur in the result in Division II-A because evidence of Hardin's guilt was not merely ample but was overwhelming under the remaining alternatives submitted to the jury. Hardin has therefore not established the prejudice component of an ineffective assistance claim because there is not a reasonable probability that the outcome would have been different but for counsel's failure to object to the improper instruction.