Opinion
No. 4-219 / 03-1243
April 14, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert and Don C. Nickerson, Judges.
Defendant Kory Alan Moorman appeals from his conviction of theft in the second degree in violation of Iowa Code sections 714.1 and 714.2 (2001) and driving while barred in violation of section 321.571. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, 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 Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Defendant Kory Alan Moorman appeals from his conviction of theft in the second degree in violation of Iowa Code sections 714.1 and 714.2 (2001) and driving while barred in violation of section 321.571. The defendant contends his trial counsel was ineffective in not moving for a judgment of acquittal. Defendant contends the motion should have been granted because the State failed to prove he knew or should have known the vehicle was stolen or that he intended to permanently deprive the owner of it.
The charges stem from the theft of a 1999 Chrysler Sebring belonging to Gloria Bowker. Just after midnight, James Cook, Gloria's son, borrowed the car to go to a convenience store. At the store, Cook left the car running with the keys in the ignition while he shopped. Exiting the store he found the car was gone. He called his parents and reported the car as stolen. Later that morning, sheriff's deputies on patrol saw a Chrysler Sebring approach them and, on checking the car's license number, they discovered it was stolen. The deputies turned their vehicle around and followed the car. They saw the defendant stop the car at a convenience store, get out of the car, and enter the store. One deputy approached the defendant in the store and asked him to step outside. When the defendant asked why, the deputy said the car the defendant had been driving was stolen. The defendant denied having driven the car.
The State charged the defendant with second-degree theft and driving while barred. At trial, at the close of the State's evidence, defense counsel moved for a judgment of acquittal based on a questionable identification that the defendant was driving the car. The district court denied the motion, noting the deputies' ability to observe the defendant was for the jury to weigh. The jury found the defendant guilty of both charges.
We address defendant's claim his trial counsel was ineffective in not raising the "sufficiency of the evidence to establish that defendant had taken the vehicle with the intent to permanently deprive the owner of the property or that defendant knew or should have known that the vehicle had been stolen."
The State contends intent to permanently deprive is an element of theft by taking under Iowa Code section 714.1(1), but the defendant was charged with theft by possession or control over stolen property under section 714.1(4). That offense requires that a defendant:
Exercises control over stolen property, knowing such property to have been stolen, or having reasonable cause to believe that such property has been stolen, unless the person's purpose is to promptly restore it to the owner or to deliver it to an appropriate public officer.
Iowa Code § 714.1(4). The State contends knowledge property is stolen may be inferred from the unexplained possession of recently stolen property. See State v. Stephen, 537 N.W.2d 792, 794 (Iowa Ct.App. 1995).
We review claims counsel rendered ineffective assistance de novo. State v. Query, 594 N.W.2d 438, 444 (Iowa Ct.App. 1999). 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 an ineffectiveness claim on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). The record is sufficient in this case to address the defendant's claims. To establish a claim of ineffective assistance of counsel, the defendant has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. Id. Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). A presumption exists counsel is competent and counsel's conduct falls within a wide range of reasonable professional assistance. Burgess v. State, 585 N.W.2d 846, 847 (Iowa Ct.App. 1998). We will not second guess reasonable trial strategy. Id. The second prong of the test is satisfied if a reasonable probability exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
The State charged the defendant with theft by possessing or exercising control over stolen property. The court instructed the jury on that charge and set forth the following elements the State had to prove:
1. An automobile belonging to Gloria Bowker was stolen.
2. On or about the 10th day of February, 2003, the defendant knowingly took possession or control over the automobile stolen from Gloria Bowker.
3. At the time, the defendant knew the automobile had been stolen.
4. The defendant did not intend to promptly return the automobile to its owner or to deliver it to an appropriate public officer.Intent to permanently deprive. Defense counsel does not have a duty to challenge the evidence supporting an element of a crime not charged. The defendant's challenge to counsel's representation on this issue fails the first prong of the test for ineffective assistance. See Greene, 592 N.W.2d at 29.
Knowledge. The court instructed the jury the State had to prove the defendant knew the automobile had been stolen. A jury may infer a defendant's knowledge property is stolen from evidence of a defendant's unexplained possession of recently stolen property. State v. Everett, 157 N.W.2d 144, 146 (Iowa 1968); Stephen, 537 N.W.2d at 794. We conclude the defendant cannot establish the prejudice prong of his claim counsel was ineffective. Given the evidence presented by the State, the jury reasonably could find the defendant knew the automobile was stolen. We find no reasonable probability of a different outcome had defense counsel raised the challenge the defendant now claims counsel should have raised. See State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).