Opinion
No. 3-609 / 02-1314
Filed October 15, 2003
Appeal from the Iowa District Court forPlymouth County, Duane E. Hoffmeyer, Judge.
Defendant appeals from his convictions and sentences for criminal trespass, interference with official acts, operating while intoxicated second offense, and criminal mischief in the second degree as a habitual offender. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, and Darin Raymond, County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Zimmer, J.J.
Matthew White appeals from his convictions and sentences for criminal trespass in violation of Iowa Code section 716.7 (2001), interference with official acts causing bodily injury in violation of section 719.1, operating while intoxicated second offense in violation of section 321J.2, and criminal mischief in the second degree as a habitual offender in violation of sections 716.4 and 902.8. We reverse White's convictions for criminal trespass and interference with official acts, and vacate the fine imposed upon his criminal mischief conviction. We affirm the remainder of his convictions and sentences, and preserve for possible postconviction proceedings the claim that counsel was ineffective for failing to raise an intoxication or diminished capacity defense.
I. Background Facts and Proceedings. Around 7:00 p.m. on the evening of March 1, 2002, Matthew White was sitting in his vehicle in a parking lot in Sioux City. White injected approximately two grams of methamphetamine. He became sexually aroused, removed his clothing, and masturbated in his car. White then drove around Sioux City. He became paranoid and believed he was being followed by police. White drove into the country and eventually pulled into a driveway of a rural home. He did not know the homeowners, Mark and Judy Linquist.
White drove into the backyard of the Linquist home and parked his vehicle. In the process he damaged part of the Linquists' sprinkler system. White, who was still naked, poured motor oil onto himself, and masturbated again. He then walked to the front of the home and entered through the front door. Mark and Judy Lindquist were not home, but their teenage daughter Courtney and several of her friends were in the home's walk-out basement. Courtney heard a noise from the upper level, but was not concerned. The teenagers remained primarily in the basement until Mark and Judy returned home, approximately two hours later.
White remained in the upper level of the home, wandering from room to room. He used several containers of lotion, shampoo and soap belonging to the Linquists. The residue of these lubricants and motor oil was found in the upstairs bathrooms, upstairs bedrooms, and the living room/dining room area.
When the Linquists returned home Mark noticed White's vehicle parked behind their house. About thirty minutes later, he discovered White in one of the upstairs bathrooms, clad only in a towel. White initially complied with Mark's order to lie down on the floor, and allowed his hands to be tied. White soon became agitated, however, and began acting aggressively. Mark and Greg Wilson, Courtney's boyfriend, attempted to subdue White. During the struggle several of the Linquists' possessions were damaged. White sustained a head laceration, and abrasions and contusions to his back, knees, scalp and hands.
White fled the home at about the same time the first police officer, Warren Palmer, arrived on the scene. Officer Palmer found White in his vehicle. White was removed from his vehicle, restrained, and taken to the hospital where he was treated for his injuries, as well as acute psychosis due to methamphetamine abuse.
After hospital personnel treated White, Deputy Paul Betsworth interviewed him, first at the hospital, and then again at the jail. Deputy Betsworth described White as coherent on both occasions. White provided a statement of his activities that evening, first orally, and then in writing.
The State charged White with burglary in the second degree as a habitual offender, interference with official acts causing bodily injury, operating while intoxicated second offense, assault causing bodily injury, and criminal mischief in the second degree as a habitual offender. The jury returned verdicts finding White guilty of criminal trespass as a lesser included offense of burglary, interference with official acts causing bodily injury, operating while intoxicated, and criminal mischief in the second degree. The jury returned a not guilty verdict on the assault count. White was sentenced for his offenses on August 5, 2002. He was sentenced as an habitual offender on the felony criminal mischief conviction.
White was also charged with possession of methamphetamine, but that count was dismissed, upon the State's motion, prior to trial.
White appeals. He contends his trial counsel was ineffective in several respects, and claims the trial court imposed an illegal fine on the criminal mischief count.
II. Scope of Review . We conduct a de novo review of ineffective assistance of counsel claims. State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000). A sentence imposed by the district court is reviewed for the correction of errors at law. State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003).
III. Interference with Official Acts . White was convicted of interference with official acts causing bodily injury, an aggravated misdemeanor. See Iowa Code § 719.1(1). White contends he was prejudiced by his trial counsel's failure to make a specific motion for judgment of acquittal on this offense. The State concedes the trial record contains no evidence Officer Palmer suffered any bodily injury when he was struck by White, and acknowledges trial counsel was therefore ineffective in failing to move for a judgment of acquittal on that basis. We agree. Absent any evidence of bodily injury, the trial court would have sustained such a motion. We reverse White's conviction for interference with official acts. IV. Criminal Trespass . White also claims his trial counsel provided ineffective assistance by failing to object to the submission of the "wrongful use" alternative of criminal trespass as a lesser included offense of burglary. The jury was instructed as to the elements of burglary in the second degree under the "entering" alternative, as well as the lesser included offense of criminal trespass. See Iowa Code §§ 713.1, .5(2) (burglary); § 716.7(2) (trespass). The State concedes the jury instruction outlining the elements of criminal trespass included an alternative, wrongful use that is not a lesser included offense of the entering alternative of burglary. See § 716.7(2)(d) (defining wrongful use alternative of trespass); State v. Waller, 450 N.W.2d 864, 867 (Iowa 1990) (holding wrongful use alternative is not a lesser included offense under the entering alternative of burglary). Because the jury returned a general verdict of guilt on the criminal trespass charge, it is impossible to ascertain whether White was convicted under one of the properly instructed alternatives, or the wrongful use alternative. We therefore reverse White's conviction for criminal trespass, and remand for a new trial on that offense. V. Criminal Mischief . A. Fine. At sentencing, the trial court imposed an indeterminate maximum term of fifteen years for the offense of criminal mischief in the second degree as a habitual offender and imposed but suspended a fine of $750.00. The State concedes the district court was without authority to impose a fine on the habitual offender enhanced sentence. See Iowa Code § 716.4 (no separate penalty provision for criminal mischief second); § 902.9(3) (no fine imposed for habitual offender status); State v. Halterman, 630 N.W.2d 611, 614 (Iowa Ct.App. 2001). We therefore vacate the $750.00 fine.
The jury was not instructed on the lesser charge of interference with official acts, a simple misdemeanor. See Iowa Code § 719.1(1).
Because the jury acquitted White of the greater offense of burglary, retrial on that offense is barred by the double jeopardy clause. See State v. Douglas, 485 N.W.2d 619, 623 (Iowa 1992).
B. Ineffective Assistance of Counsel. White makes several claims of ineffective assistance of counsel regarding his conviction for criminal mischief. To establish ineffective assistance of counsel a defendant must prove his attorney's performance fell below "an objective standard of reasonableness" and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Typically, ineffective assistance of counsel claims are preserved for possible postconviction review, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). However, where the record is sufficient to reach the merits of the defendant's contentions, we will address ineffective assistance claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000).
1. Amount of Damages. To sustain a charge of criminal mischief in the second degree, the State had the burden to prove White specifically intended to damage, destroy, alter or deface property, valued over $1000 but not more than $10,000. Iowa Code §§ 716.1, .4. The Linquists claimed a total of $2330.71 for the cleaning, repair, or replacement of damaged or destroyed property. White argues counsel was ineffective for not filing a motion for judgment of acquittal on the criminal mischief charge as (1) there was no proof of specific intent to damage the backyard sprinkler and the items damaged during his struggle with Mark Linquist and Greg Wilson, (2) the lotions, shampoos and soaps were taken, rather than damaged, and (3) the cleaning bill presented by the Linquists included areas for which there is no proof of White's presence, items for which there was no visible damage, and items the Linquists were forced to replace because they had been destroyed by the cleaning process. White contends that, when these unproven and impermissible items are removed from consideration, the State failed to establish he specifically intended to damage property in excess of $1000.
We agree with White that the State failed to prove he had a specific intent to damage either the sprinkler system or the items dented, scratched and broken during his struggle with Mark and Greg. However, these articles represent less than $300 of the $2330.71 in total damages. Although we are not convinced White's use of the soaps, lotions and shampoo failed to constitute "destruction of property" that needed to be "replac[ed]," see Iowa Code §§ 716.1, .4, those items were also of limited value.
White's primary contention concerns the cost to clean the upstairs level of the Linquists' home and its contents. White disputes the inclusion of both the cleaning and replacement costs of some bed linens and pillows that were apparently ruined during the cleaning process. In establishing the degree of the offense, we agree that the State should not be able to rely on the cost of cleaning items that, as a result of the cleaning process, needed to be replaced. See id. § 716.4 (defining degree of crime by the cost "of replacing, repairing, or restoring the property") (emphasis added). The same is true regarding the steps leading to the lower level of the home, as there was no evidence White had been on the stairs. However, even if the $2330.71 in damages is further reduced by the actual and/or reasonable costs for the aforementioned items, the State still presented evidence from which a jury could conclude, beyond a reasonable doubt, that White intentionally damaged property which cost more than $1000 to repair or replace.
We find no merit in White's contention that the cleaning bill was excessive because there was no direct proof he had been in certain portions of the upstairs level. Moved, discarded and displaced items, the extensive presence of oil and other lubricant residue throughout the upper level, staining to living room pillows, and White's voluntary statement, were all evidence from which a jury could conclude that White was present in the upstairs areas the Linquists had professional cleaned.
Nor do we agree the State failed to tie the cost of cleaning the living room furniture and most of the upstairs carpet to damage caused by White, because it failed to provide evidence those items were visibly stained. White, an admitted intravenous drug user, had masturbated during the evening. Judy Linquist testified that the police recommended cleaning the entire upper level, "because of not knowing what kind of toxic fluids there were," and had cautioned them not to handle anything White might have touched because of the "potential hazard for HIV or hepatitis exposure." Under the circumstances, a reasonable jury could have concluded the cleaning was necessary to restore the Linquists' property to its original condition.
To establish his claim of ineffective assistance of counsel, White must prove not only that a reasonably competent counsel would have moved for a judgment of acquittal, but that he was prejudiced by the failure to do so. See Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L. Ed.2d at 693. In other words, White must show a reasonable probability that a motion for a judgment of acquittal would have resulted in setting aside the guilty verdict for criminal mischief. However, a guilty verdict is set aside only if, viewing all the evidence in the light most favorable to the State, a rational trier of fact could not be convinced of the defendant's guilt beyond a reasonable doubt. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Even excluding those items for which the State did not meet its burden of proof, there was substantial evidence in the record that the cost of repairing and replacing items intentionally damaged by White exceeded $1000. White has therefore failed to establish the necessary prejudice.
2. Intoxication/Diminished Capacity Defense. Criminal mischief requires proof of specific intent. Iowa Code § 716.1. However, the intent element may be negated by proof of voluntary intoxication. See Steinkuehler v. State, 507 N.W.2d 716, 722 (Iowa Ct.App. 1993). White therefore argues that trial counsel was ineffective for failing to file a notice of, and to call an expert in support of, an intoxication or diminished capacity defense. We have reviewed the record, and determine that this claim should be preserved for possible postconviction proceedings to allow for a development of the facts and circumstances surrounding the disputed issue, and to provide counsel an opportunity to more fully explain his conduct. See State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001).