State v. Gordon

Full title: STATE OF IOWA, Plaintiff-Appellee, v. JIMMY E. GORDON, Defendant-Appellant

Court: Court of Appeals of Iowa

Date published: Jun 19, 2002

No. 2-196 / 01-0922 (Iowa Ct. App. Jun. 19, 2002)

Opinion

No. 2-196 / 01-0922.

Filed June 19, 2002.

Appeal from the Iowa District Court for Polk County, GEORGE W. BERGESON, Judge.

Defendant appeals his convictions for five counts of second-degree kidnapping and one count of first-degree burglary. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Mark Sandon, Assistant County Attorney, for appellee-State.

Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.

EISENHAUER, J.

Jimmy Gordon appeals his convictions for five counts of second-degree kidnapping and one count of first-degree burglary. He contends his trial counsel rendered ineffective assistance by failing to challenge the jury instruction defining kidnapping. We review his claim de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).

To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) he was prejudiced by this failure. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). We can affirm on appeal if either element is lacking. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).

Gordon argues his counsel should have objected to the jury instruction defining kidnapping because it did not include the requirement that the confinement or removal have significance apart from the underlying offense. See State v. Misner, 410 N.W.2d 216, 222 (Iowa 1987) (citing State v. Rich, 305 N.W.2d 739, 745 (Iowa 1987)). However, such an instruction was not necessary because the underlying crime was kidnapping. See Misner, 410 N.W.2d at 222-23. Under these circumstances, any unlawful or forcible removal and detention was sufficient to support a conviction of kidnapping. Id. Because the district court did not need to instruct the jury regarding the underlying offense, we find counsel did not breach an essential duty by failing to object to the jury instruction.

AFFIRMED.