Opinion
No. 2-1001 / 02-0522
Filed February 12, 2003
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Don Moore appeals his judgment and sentence resulting from his conviction for burglary in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
I. Background Facts and Proceedings.
Moore and codefendant Crystal Jones were charged with burglary in the first degree following an altercation in Angela Halferty's Des Moines apartment. The record indicates that Moore formerly lived with Halferty and made an unexpected return visit to Halferty's apartment on September 16, 2001. After a brief conversation, Halferty asked Moore to leave. When he failed to leave, Halferty said she was going to call the police. Moore told Halferty there was no time to call the police. Following this exchange, Crystal Jones and another woman entered Halferty's apartment. In the resulting melee, Moore shoved Halferty away from the phone and pulled it from the wall. Jones and the other woman pushed Halferty into the apartment's bathroom where they proceeded to beat her. While Jones and the other women were beating Halferty, Moore vandalized Halferty's apartment. Moore told Halferty she deserved to be beaten because she called Jones a whore. After Moore, Jones, and the other woman left, Halferty went to a neighbor's apartment and summoned emergency aide. Moore and Jones were subsequently arrested and charged as earlier indicated. The identity of the other woman was not ascertained.
At trial, the State's burglary charge against Moore was submitted without objection on three distinct theories of guilt. The jury was instructed that they could convict Moore for individually committing the burglary as a principal, as an aider and abettor, or under a theory of joint criminal conduct. The jury found Moore guilty of the lesser offense of burglary in the second degree. Judgment and sentence were entered in accordance with the jury's verdict resulting in this appeal.
On appeal Moore claims he was denied effective assistance of trial counsel. He cites counsel's failure to challenge the trial court's joint criminal conduct instruction because the evidence was not sufficient to support submission of that theory to the jury.
II. Scope of Review.
We review ineffective assistance of counsel claims de novo. State v. Simpson, 349 N.W.2d 783, 785 (Iowa Ct.App. 1984).
III. The Merits.
To establish a claim of ineffective assistance of counsel, Moore has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). To establish the requisite prejudice, Moore must show that there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceedings below would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). 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).
To establish a defendant's guilt based on a theory of joint criminal conduct, the State must prove:
1. Defendant acted in concert with another.
2. Defendant knowingly participated in a public offense.
3. A "different crime" was committed by another participant in furtherance of defendant's offense.
4. The commission of the different crime was reasonably foreseeable.
State v. Hohle, 510 N.W.2d 847, 848 (Iowa 1994). Moore contends the State failed to present sufficient evidence that Jones or the other woman committed a different crime and therefore the State's theory of joint criminal conduct should not have been submitted to the jury.
Even if we assume without deciding the State's joint criminal conduct theory should not have been submitted, Moore cannot prove he was prejudiced by its submission. In State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998), the court held:
the giving of a joint criminal conduct instruction in instances in which the alleged multiple participants are either principals or aiders and abettors in the same crime does not require reversal if there is no opportunity for the defendant to have been found guilty based on anything other than his own conduct as a principal or an aider and abettor of the crime with which he is charged.
Here, Moore was charged with burglary in the first degree. Burglary is defined as:
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.
Iowa Code § 713.1. Burglary in the first degree requires the State to additionally prove that a defendant intentionally and recklessly inflicted bodily injury on any person. Burglary in the second degree, however, does not require proof of bodily injury. Iowa Code § 713.5(2).
On this record, we conclude there was no opportunity for Moore to have been convicted based on anything other than his own conduct as a principal or an aider and abettor of the crime of burglary. Moore's ineffective assistance of counsel claim accordingly fails because he cannot establish the requisite prejudice.
The judgment of the district court is therefore affirmed.