Summary
affirming the defendant's conviction of second-degree robbery and false reports for robbing a bank while using a device that appeared to be a bomb and a demand note referencing the alleged bomb
Summary of this case from State v. AbbottOpinion
No. 3-021 / 02-0400.
Filed March 12, 2003.
Appeal from the Iowa District Court for Black Hawk County, K. D. BRINER, Judge.
Defendant appeals from his conviction following a jury trial of second-degree robbery, in violation of Iowa Code sections 711.1 and 711.3, and false reports, in violation of Iowa Code section 712.7 (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Defendant-appellant David Wayne Stover appeals from his conviction following a jury trial of second-degree robbery, in violation of Iowa Code sections 711.1 and 711.3, and false reports, in violation of Iowa Code section 712.7 (2001). Defendant contends (1) the evidence is not sufficient to convict him of the robbery charge, and (2) his trial counsel was ineffective in several instances. We affirm.
A bank was robbed in Waterloo on April 21, 2000, and about $5,400 in various denomination bills was taken. The bills were rubber banded in certain increments and strapped together in larger increments. The robber had given the teller, the only witness to the robbery, a demand note generated by a computer. He then put a white item, what could have appeared to be a bomb with wires sticking out of a type of clay or plaster, on the teller's computer. The teller was the only witness to the robbery and she was not able to identify the robber.
The note generated said:
"Keep your hands where I can see them and don't move your feet. There is a plastic explosive bomb in my bag. Your alarm system is being watched from outside. If it is set off I would be told by my partner. I also have a gun in my pocket. Fill the bags with money. No die packs or I will come back for just you and your family. You have 4 minutes. The bomb is on remote and can only be set off by me.
Defendant did not become a suspect until June of the next year when his wife contacted the police because he had not returned home. As a result of a subsequent investigation his wife related she was gone to Kansas City with their children the weekend of the robbery but returned home to find defendant had hidden notes telling her where in their home she could find money. Following the instructions in the notes she found about $2,500 in bills that were rubber banded together. Defendant told his wife and her father at the time he won the money in the lottery. After defendant was identified as a robbery suspect he contended he had been saving the money. In the course of the investigation it was determined defendant had not been employed since the middle of April and he had not won the lottery. His wife consented to a search of the house where a specific Harley Davidson shirt identified as being worn by the robber was found, as were pants similar to those the robber wore. Defendant's wife said the robber depicted in the videotape had her husband's build. She also said her husband had white tennis shoes and mirrored sunglasses both of which the teller said the robber wore. There was evidence the parties had financial problems prior to the robbery and they generally carried a balance of less than $100 in their checking account, but their bank balance increased after the robbery. Following the robbery there were deposits in excess of $4,000. There was evidence defendant told a friend near the time of the robbery that he had been a police officer and he knew about what police looked for in investigating a case. Defendant also paid a $30 restaurant bill for the friend and his family the evening after the robbery occurred. Defendant had not been honest with his wife about his employment situation.
Defendant's fingerprints were not found on the demand note. Rubber gloves were found in searching defendant's truck, but the teller did not believe the robber wore gloves. Defendant's computer and printer were seized, but the demand note was not found on his hard drive nor was the note identified as coming from his printer.
A four-pack of Play-Doh was found in his garage with the white missing, but an empty container for the white was found. The FBI examined the alleged bomb and determined it was not constructed from Play-Doh. The State contends the defendant practiced making a bomb from the white Play Doh.
We first address defendant's claim that the finding of robbery is not supported by the evidence. In reviewing challenges to the sufficiency of evidence, we view the evidence in the light most favorable to the State. State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998); State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). We consider all the evidence, not just evidence supporting the verdict, and will uphold a jury's verdict if it is supported by substantial evidence. Id. at 339-40. Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994).
Although direct and circumstantial evidence are equally probative, the inferences to be drawn from the proof in a criminal case must "raise a fair inference of guilt as to each essential element of the crime." State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001); State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992). Evidence is not substantial if it raises only suspicion, speculation or conjecture. Id.
The State argues defendant had the opportunity to rob the bank. It points out he was home alone and that he told his wife he had to work and could not go with her, when in fact he was not working at the time. The State next argues that defendant had a motive as the family was having financial problems, and his financial situation improved just after the time of the robbery. The State argues the money given defendant's wife was wrapped in the manner of the money obtained from the bank, that defendant had similar clothing, that he lied about how he obtained the additional money.
There is substantial evidence to prove defendant guilty beyond a reasonable doubt. In arriving at this conclusion we consider the following evidence: (1) the defendant's wife identified the robber in the videotape as having a build similar to defendant's; (2) defendant had the opportunity to commit the robbery; (3) he hid some $2,500 in cash for his wife when she returned home shortly after the robbery; (4) the money was banded with rubber bands as was the money obtained in the robbery; (5) defendant told both his wife and his father-in-law he won the money in the lottery when he did not; (6) the robber wore a shirt with "Sturgis 95" on the front and a shirt of the same color and with the same lettering was found when defendant's house was searched (7) despite generally having a low bank balance he deposited over $4,000 shortly after the robbery; (8) when confronted about not winning the lottery the defendant said he had been saving the money; (9) defendant had been on medical leave before the robbery. We also consider the fact that the jury saw views of the videotape of the robbery, which did not show the identity of the robber, but did show the robber's build.
Defendant next contends his trial attorney was ineffective in not filing a motion for new trial and in not requesting several instructions. We review claims of ineffective assistance of counsel de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002); State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001). Ordinarily we prefer to leave ineffective assistance of counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 785 (Iowa 2001) (citing State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997)). We will review such claims on direct appeal if the record is clear and trial counsel's actions cannot be explained by plausible strategic or tactical considerations. Id.
To prevail on a claim of ineffective assistance of counsel, defendant must demonstrate both ineffective assistance and prejudice. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Both elements must be proven by a preponderance of the evidence. Id. If a claim lacks one of the elements of an ineffective assistance of counsel claim, it is not necessary for us to address the other element. Id.
A defendant can request a new trial on the basis that the verdict of conviction is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Defendant contends that the motion was not made and had it been made it would have been successful as the verdict is not supported by the weight of the evidence. The State does not advance that the motion was made. Rather the State argues the verdict is not contrary to the weight of the evidence and we may reject the claim because defendant made the decision not to file a motion for a new trial as he wished to be sentenced immediately.
Defendant's trial attorney said he told defendant he could file a motion in arrest of judgment and there was a possibility of a motion for new trial. He further said he told defendant he had not planned to file those motions but the defendant had the right to do so, and that he had to waive that right to have an early sentencing, which he did. Defendant told the district court he decided with his attorney not to file a motion in arrest of judgment or for a new trial and that he understood in making that decision he had given up his right to appeal on any issues that he thought had legal merit. The record is not sufficient for us to address this claim. We preserve this claim for a possible postconviction proceeding.
Defendant next contends his trial counsel was ineffective in failing to request a specific intent instruction. The State contends the jury was instructed on specific intent as a part of two instructions. The jury was adequately instructed on this issue. Even if a separate specific intent instruction should have been given, defendant cannot show prejudice because this was not an issue of the defense he asserted — that he was not the bank robber. An error in instructing the jury does not require reversal unless it is prejudicial. State v. Gibb, 303 N.W.2d 673, 686 (Iowa 1981).
Defendant next asserts the district court should have instructed on both the assault alternative of robbery and on the lesser-included offense of assault. Even if the instruction should have been given, defendant cannot show prejudice because this was not an issue of his defense. See id. We affirm.