Opinion
No. 4-217 / 03-1171.
June 9, 2004.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Steven Six appeals from the judgment and sentence entered upon his conviction for second-degree burglary as a habitual offender. AFFIRMED; SENTENCE VACATED IN PART.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Steven Six appeals from the judgment and sentence entered upon his conviction for second-degree burglary as a habitual offender. He maintains trial counsel was ineffective in failing to request a jury instruction on the elements of theft and in failing to move for a new trial, and claims the court erred in imposing a fine. We affirm the conviction, but vacate the sentence in part.
I. Background Facts and Proceedings.
On February 12, 2003, an employee of August Home Publishing, Brian Peterson, noticed a vehicle parked near a storage building that was not open to the public. The vehicle was running and its door was ajar. Upon approaching the building, Peterson heard noises coming from it and entered the building to investigate. After turning the lights on and asking if anyone was in the room, the defendant, Steven Six, appeared from behind some boxes stacked on pallets. Upon questioning, he informed Peterson that he had been let in by a construction worker and that he was looking for shelves. He also told Peterson someone had informed him the shelves were free for the taking. Peterson then told Six to leave, and he complied. It appeared that many boxes in the building had been rummaged through and a chest of drawers had been opened.
Because Peterson wrote down the vehicle's license plate, police officers learned that Six was the registered owner and proceeded to his house to question him. Six admitted he had been in the building, and that he was looking for some shelves that a coworker had told him were free for the taking. He also admitted that he had opened some of the boxes. The officer described the boxes and drawers as being too small to contain shelving.
Based on this incident, the State charged Six with second-degree burglary. Following a trial, in which Six admitted to two prior convictions, the jury found him guilty of second-degree burglary as a habitual offender in violation of Iowa Code sections 713.1, 713.5, and 902.8 (2001). The court sentenced him to an indeterminate term of imprisonment not to exceed fifteen years, with a mandatory three years based on the habitual offender status, and imposed a $1000 fine.
Six filed a timely appeal. He claims trial counsel was ineffective in failing to request a jury instruction on the elements of theft and in failing to move for a new trial challenging the weight of the evidence. He further contends the court erred in imposing the $1000 fine.
II. Scope of Review.
Our review of ineffective assistance of counsel claims is de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998).
III. Ineffective Assistance Principles.
A presumption exists that counsel is competent and that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674, 693-94 (1984). Defendant must overcome this presumption and has the burden to establish ineffective assistance. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). To meet this burden, defendant must prove (1) defense attorney failed in an essential duty and (2) prejudice resulted. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997).
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). 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). Here, we find the record adequate to address Six's jury instruction and new trial claims.
IV. Failure to Request Instruction on Elements of Theft.
A person commits burglary when that person "having the intent to commit a felony, assault, or theft therein . . . enters an occupied structure, such occupied structure not being open to the public. . . ." Iowa Code § 713.1. The State here proceeded on a theory that Six intended to commit a theft while in the building. Accordingly, in pertinent part, the district court instructed the jury that in order to prove Six committed the offense, the State had to show that on February 2, 2003, Six entered the August Home Publishing building "with the specific intent to commit a theft." However, defense counsel did not request and the district court did not give an instruction detailing the elements of theft.
On appeal, Six maintains counsel was ineffective in failing to request such an instruction. He asserts jurors could not be expected to know the elements of theft, a crime that was not defined by the court. In State v. Mesch, our supreme court addressed whether in a burglary prosecution the jury should be instructed on the particular felony the State alleges a defendant intended to or did commit. State v. Mesch, 574 N.W.2d 10, 14 (Iowa 1997). The court concluded that "[u]nless the State limits its prosecution and requested jury instructions to theft or an assault . . ., the State must specify which felony it believes [a burglar] intended to commit" and "must instruct on the elements constituting such felony." Id. at 15.
Our supreme court revisited this issue in State v. Oetken, 613 N.W.2d 679 (Iowa 2000). In that case, the State claimed the defendant intended to commit theft when he burglarized two residences. After Oetken was convicted of second-degree burglary and adjudicated a habitual offender, he claimed on appeal that the district court erred in failing to instruct the jury on the elements of theft, the crime underlying his burglary charge. Id. at 685. The supreme court observed that generally a court is required to instruct the jury as to the pertinent issues, the law, and the definition of the crime. Id. (citing State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996); Henderson v. Scurr, 313 N.W.2d 522, 525 (Iowa 1981)). It further noted, however, that particular terms need not be defined if readily understood by persons of ordinary intelligence. Id. Only technical terms or legal terms of art must be explained. Id. (citing Kellogg, 542 N.W.2d at 516).
The court affirmed Oetken's conviction without resolving the question of whether "theft" is readily understood by persons of ordinary intelligence and therefore need not be defined by the jury instructions in a burglary case. Id. The court concluded that even if such an instruction had been given detailing the elements of theft, Oetken suffered no prejudice because the evidence overwhelmingly indicated he intended to commit theft. See Oetken, 613 N.W.2d at 686. The court therefore did not reach the question of whether "theft" is a term readily understood by persons of ordinary intelligence or whether it is a legal term of art warranting definitional instructions. Id. at 685.
A. Duty.
Our analysis starts with addressing whether, in light of the above-mentioned supreme court pronouncements, defense counsel had a duty to object to the district court's failure to include a definition of "theft" in the jury instructions in this case. As noted above, despite the opportunity to do so, our supreme court has not previously held that such instructions must be given.
Counsel will generally not be found ineffective for failing to raise or preserve a legal claim which was not established at the time. State v. Hepperle, 530 N.W.2d 735, 740 (Iowa 1995) (citing State v. Ogilvie, 310 N.W.2d 192, 197 (Iowa 1981)); Vande Kop v. McGill, 528 N.W.2d 609, 613 (Iowa 1995) (stating attorney need not foresee future changes in the law in order to avoid malpractice liability). When an allegation of ineffectiveness includes a question of first impression, the issue for us on appeal is whether a normally competent attorney could have concluded that the question was not worth raising. See State v. Miller, 622 N.W.2d 782, 785 (Iowa 2000). Clairvoyance is not expected of counsel and thus an attorney need not foresee future changes in the law. Snethen v. State, 308 N.W.2d 11, 16 (Iowa 1981) ("Counsel need not be a crystal gazer; it is not necessary to know what the laws will become in the future to provide effective assistance of counsel."). However, the fact that our supreme court has not ruled on an issue of law in a prior case does not conclusively absolve counsel from claims of ineffectiveness for failure to raise that issue. State v. Westeen, 591 N.W.2d 203, 210-11 (Iowa 1999).
We conclude trial counsel did not have a duty, based on the prior decisions of our supreme court, to contend that "theft" must be defined in the court's jury instructions in this case. Counsel need not have raised this claim in that it was not, and still is not, established in the law of this State. A "normally competent" attorney would not necessarily have concluded this issue was worth raising. Miller, 622 N.W.2d at 785. Thus, counsel did not breach a duty owed to Six in this case.
B. Prejudice.
Furthermore, we conclude Six has not established he was prejudiced by counsel's failure to request the jury instruction. As noted above, prejudice is shown where "it is reasonably probable that the result of the proceeding would have been different." State v. Henderson, 537 N.W.2d 763, 775 (Iowa 1995). A reasonable probability is one sufficient to undermine confidence in the outcome. Id.; State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999).
In analyzing claims of ineffective assistance of counsel on grounds of failure to object to jury instructions, our supreme court has recognized that counsel's decision whether to object must be assessed in light of the theory of defense employed in the case. State v. Blackford, 335 N.W.2d 173, 178 (Iowa 1983). Six did not deny that he intended to take property from the building, but instead asserted he had permission to take it. Given Six's theory of defense, we cannot say an instruction defining theft would have made any difference in the outcome of this case. Thus, "practical considerations make it unlikely that the inclusion of a particular element in the marshaling instruction would have produced any difference in the verdict of the jury." State v. Propps, 376 N.W.2d 619, 623 (Iowa 1985).
V. Motion for New Trial.
Six next asserts he was denied effective assistance when trial counsel failed to file a motion for new trial challenging the weight of the evidence. In particular, he contends "the weight of the evidence preponderated heavily against a guilty verdict, particularly with respect to the issue of intent to permanently deprive another of property." He stresses the "substantial evidence indicating [he] believed the buildings had been abandoned."
On a motion for new trial, the court may weigh the evidence and consider the credibility of witnesses. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1997). "Contrary to the law of evidence," as stated in Iowa Rule of Criminal Procedure 2.24(2)( b)(6), means "contrary to the weight of the evidence." Id. at 659. We conclude Six was not prejudiced by counsel's failure to move for a new trial. Even if counsel had made such a motion, the court would not have found the verdict contrary to the weight of the evidence and would not have granted a new trial. Reasonable jurors could have found incredible Six's claim that the shelves were free for the taking and that the items in the building were abandoned. First, the evidence clearly does not support that the property in the building was abandoned. The building contained items stored on pallets, and was located next to another building where construction was taking place. Moreover, the boxes in which it appeared Six had been rummaging around were not the types or sizes of containers that would hold shelves, as claimed by Six. In light of these facts, and when considered with our supreme court's admonition that motions for new trial should be granted sparingly and only in exceptional circumstances, we conclude Six cannot establish that, had such a motion been made, it would have been successful.
VI. Fine.
We next consider Six's claim the district court erred when it imposed a $1000 fine for the habitual offender sentence. We conclude the district court had no statutory authority to impose the $1000 fine, see Iowa Code §§ 713.5, 902.9(3), and therefore vacate that portion of the sentence.