Opinion
No. 3-400 / 02-1470
Filed August 13, 2003
Appeal from the Iowa District Court forBlack HawkCounty, Stephen C. Clarke, Judge.
Jarelle Vaughn appeals his conviction and sentence for robbery in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas Ferguson, County Attorney, and Sue Swan, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Just after midnight on March 5, 2002, Shelly Herring left a bar and walked to her car in the parking lot. From inside the car, while talking on her cell phone, Herring felt the car shake and heard the sound of air escaping. She stepped out of her car and saw Jarelle Vaughn standing at the rear of her car. Her tire was flat. Herring asked him why he had slashed her tire and Vaughn apologized. Herring then told Vaughn she was going to call the police. Vaughn told her that he could not let her call the police, grabbed her cell phone out of her hand, and fled. Herring stumbled a few steps, but then ran after Vaughn.
Herring entered an alley and saw Vaughn walking towards her. She told him she did not care about the tire anymore, but she wanted her cell phone back. Vaughn held out his arms and allowed Herring to search his pockets. After several tries, Herring recovered her phone. Vaughn again told her he could not let her call the police, and the two struggled. Herring testified that Vaughn threw her to the ground and choked her. Vaughn contends he merely tripped her and did not choke her. Herring managed to escape and returned to the nightclub for help. At Herring's direction, a crowd of people gathered in the alley at Herring's direction and surrounded Vaughn until law enforcement arrived.
Vaughn was charged with second-degree robbery and fifth-degree criminal mischief. After a jury trial, Vaughn was found guilty of both charges. Vaughn appeals, alleging the second-degree robbery verdict is not supported by sufficient evidence and his trial counsel was ineffective.
Vaughn first argues the district court erred when it denied his motion for judgment of acquittal because there was insufficient evidence that he intended to deprive Herring of her cell phone. We view the evidence in the light most favorable to the State and will consider all the evidence presented at trial, not just that evidence supporting the verdict. State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct.App. 2001). The verdict must be supported by substantial evidence that could convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt. Id.
To prove Vaughn committed second-degree robbery, the State was required to prove that (1) Vaughn had the specific intent to commit a theft against Herring and (2) in carrying out his intention or to help him escape from the scene, with or without the stolen property, Vaughn committed an assault on Herring. To prove Vaughn intended to commit a theft, the State needed to prove that Vaughn took possession of Herring's phone with the intent to permanently withhold, or to withhold for so long, or under such circumstances, that its benefit or value is lost. Vaughn contends that because Herring found him in the alley walking towards her and because he allowed her to remove the phone from his pocket, he did not have the specific intent to deprive Herring of her phone.
Direct evidence is rarely available to establish that the defendant acted with the specific intent to deprive the victim of her property. Instead, a fact finder must rely on the facts and circumstances surrounding the act, as well as any reasonable inferences that may be drawn from those facts and circumstances. State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999).
We conclude the facts and circumstances surrounding Vaughn's taking of Herring's cell phone show that Vaughn intended to permanently withhold, or withhold for so long, or under such circumstances, that its benefit or value is lost. When Herring threatened to call the police, Vaughn told her he could not let her call the police, grabbed her phone, and ran. Herring found Vaughn in an alley and asked for her phone. He allowed her to rummage his pockets until she found it, then physically assaulted her, again telling her he could not let her call the police. We determine these surrounding circumstances constitute sufficient evidence as could convince a reasonable trier of fact that Vaughn had the specific intent to commit a theft against Herring.
Vaughn also contends his trial counsel was ineffective for failing to argue in his motion for acquittal that there was insufficient evidence that Vaughn committed an assault to further the theft. We review ineffective assistance of counsel claims de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). We prefer to resolve ineffective assistance of counsel claim in post conviction proceedings, but will address them on direct appeal if the record is sufficient. State v. Johnson, 445 N.W.2d 337, 339 (Iowa 1989). We conclude the record is sufficient to allow us to resolve Vaughn's claim.
To succeed on a claim of ineffective assistance of counsel, Vaughn must show that his trial counsel failed to perform an essential duty and that he was prejudiced by this failure. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). To establish the prejudice prong, Vaughn must show that but for his counsel's unprofessional errors, the result of the proceeding would have been different. State v. Thornton, 498 N.W.2d 670,675 (Iowa 1993). Thus, Vaughn must show that his motion for acquittal would have been granted had his counsel argued that there was insufficient evidence to establish Vaughn committed an assault to further the theft.
After our de novo review of the record we conclude Vaughn's counsel breached no duty by failing to argue there was no assault. The evidence at trial established that when Vaughn snatched Herring's cell phone, Herring stumbled back several steps. Later, after Herring retrieved her cell phone from Vaughn's pocket a struggle ensued. At the least, Vaughn tripped Herring causing her to fall to the ground: at most, Vaughn knocked her to the ground, straddled her, and choked her. We conclude a motion for acquittal specifically arguing insufficient evidence to support a finding that Vaughn committed an assault in furtherance of a theft would have been nonmeritorious, thus counsel had not duty to raise the issue. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).