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noting lack of consent was sufficient to satisfy this element
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No. 4-482 / 03-0999.
September 29, 2004.
Appeal from the Iowa District Court for Wright County, William C. Ostlund, Judge.
Gregory Schoo appeals his conviction for burglary in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor And Laura Roan, Assistant Attorneys General, Eric Simonson, County Attorney, and Gina Vosburg, (Former) County Attorney, for appellee.
Heard by Huitink, P.J., Mahan, Miller, and Vaitheswaran, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Gregory Schoo appeals his conviction for burglary in the first degree in violation of Iowa Code sections 713.1 and 713.3(1)(c) (2001). He claims the evidence was insufficient to support his conviction and he received ineffective assistance of counsel. We affirm.
I. Background Facts Proceedings.
In the early morning hours of August 31, 2002, Jesse Adams invited a group of people to attend an after hours party at a residence located in Eagle Grove, Iowa, after the bar they had previously been socializing at closed. Approximately twenty minutes after the party started, Schoo arrived at the residence. Upon entering the residence, Schoo walked into the living room and hit his ex-wife, Jamie. Immediately after the assault, Schoo fled from the residence.
Schoo was charged by trial information with first-degree burglary. A jury trial commenced on May 6, 2003. At trial, the theory of the defense was that Jesse consented, either expressly or impliedly, to Schoo's presence at the party. The testimony given at trial was largely contradictory. Both of the bartenders who were working that night testified that Jesse made a general announcement to everyone remaining in the bar that he was having a party. Contrarily, Jesse denied making a general announcement and maintained he only invited the group of five friends with whom he was socializing. One of the bartenders testified Schoo came in at closing time to purchase a pack of cigarettes and could have heard Jesse make the announcement. None of the other witnesses remembered seeing Schoo at the bar that night.
The jury was only instructed on the charges of first-degree burglary, assault causing bodily injury, and simple assault because Schoo's defense counsel requested certain lesser-included offenses be removed. The jury found Schoo guilty of first-degree burglary. He was subsequently sentenced to serve an indeterminate twenty-five year term. Schoo appeals.
II. Sufficiency of the Evidence.
Schoo contends the State did not present sufficient evidence to support his conviction. He first claims there is insufficient evidence to show he did not have permission or authority to enter the apartment. He points out he behaved like an invited guest, and no one objected to his presence at the party.
We review challenges to the sufficiency of evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). A verdict of guilty is binding on appeal unless no substantial evidence exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id. In deciding whether there is substantial evidence, we view the record in a light most favorable to the State. Id.
Under Iowa law, the "no right, license, or privilege to enter" element of burglary is satisfied when the perpetrator enters a home without consent of the occupant. State v. Franklin, 368 N.W.2d 716, 718-19 (Iowa 1985). Here, the testimony concerning whether Schoo was invited to the after hours party was conflicting. The jury must determine the credibility of witnesses and the weight to be given their testimony. See State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). The jury was free to believe Jesse's testimony that he did not make a general invitation to everyone left remaining in the bar and that he had not given Schoo permission to enter the residence. Likewise, the jury was free to disbelieve or attach less weight to the bartenders' contrary testimony. Further, even assuming the jury believed Schoo had permission to attend the party, Jesse's permission to enter was not for the purposes followed by Schoo. In this case, there was evidence Schoo walked into the party and immediately assaulted his ex-wife. This case is distinguishable from State v. King, 344 N.W.2d 562, 563 (Iowa Ct.App. 1983), where an initially cordial conversation turned into a dispute that led to an assault. Here, Schoo's felonious intent could be inferred from his entry into the party and the short amount of time that elapsed before he committed the assault and his immediate retreat from the premises after the assault was completed. This permits the reasonable inference that Schoo did not enter for the permissible purpose of attending the party. See 13 Am. Jur. 2d Burglary § 17, at 193 (2000) (defining "constructive breaking"). Viewing the evidence in the light most favorable to the verdict, we conclude that a rational juror could have found beyond a reasonable doubt that Schoo either had no right, license, or privilege to enter or that he exceeded the scope of his right to enter on the morning of the incident.
Schoo also claims the element of the residence "not being open to the public" was not proved by substantial evidence. We find this claim to be without merit. Even if Jesse made a general invitation to all of the patrons in the bar, it does not logically follow that he opened the residence up to the public in general.
III. Ineffective Assistance.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied the defendant a fair trial. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Schoo contends counsel was ineffective for failing to argue in his motion for judgment of acquittal that he did not have the requisite intent when he entered the residence. We find the record to be adequate to address this claim. The element of intent in burglary is seldom susceptible to proof by direct evidence. State v. McFarland, 598 N.W.2d 318, 320 (Iowa Ct.App. 1999). Usually proof of intent will depend upon circumstantial evidence and inferences drawn from such evidence. Id. Intent to commit an assault may be inferred from the circumstances of the defendant's entry into the premises and his acts preceding and following entry. Id. at 320-21. As we have already indicated in this opinion, there was sufficient evidence presented by the State to generate a jury question on defendant's guilt. Because there is no reasonable probability that the motion would have been granted, counsel did not breach an essential duty for failing to raise this issue. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (determining counsel is not ineffective for failing to raise a meritless issue).
Schoo further claims counsel was ineffective for failing to 1) file a motion for a new trial; 2) request jury instructions on lesser-included offenses; 3) investigate and call other witnesses present at the bar that evening; 4) call Schoo as a witness; and 5) inquire regarding posttrial statements made by Jesse. We determine the remainder of Schoo's claims of ineffective assistance of counsel should be preserved for possible postconviction proceedings.