State of Iowa v. Richard James Burt ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0546
Filed April 4, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICHARD JAMES BURT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wright County, Paul B. Ahlers,
District Associate Judge.
Defendant appeals his convictions for first-degree harassment, assault
causing bodily injury, and trespass causing injury. AFFIRMED.
Chad R. Frese, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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BOWER, Judge.
Richard James Burt appeals his convictions for first-degree harassment, in
violation of Iowa Code sections 708.7(1)(b) and 708.7(2) (2015), assault causing
bodily injury, in violation of Iowa Code sections 708.1(2) and 708.2(2), and
trespass causing injury, in violation of Iowa Code sections 716.7(2)(a)(2) and
716.8(2). We find the evidence is sufficient to uphold his convictions and trial
counsel was not ineffective. We affirm the district court.
I. Background Facts and Proceedings
Terry McLaughlin is Burt’s sister and the executor of their mother’s estate.
The mother divided her assets between Burt and Terry but placed Burt’s portion in
trust, administered by Terry. Property located at 2236 Thompson Avenue was part
of the mother’s estate; the estate property is immediately across the street from
Burt’s property. Terry and Burt do not get along and have a history of disputes.
In December 2015, Terry asked Burt to remove all of his possessions from
the estate property. In April 2016, Burt was served with a notice of no trespass.
Terry traveled to the estate property to inspect it, but Burt was already there. Terry
returned on June 3 to find “the doorknobs were removed off the doors” and the
windows boarded up. While Terry and her husband, Scott, discussed how to enter
the property to inspect it, Burt drove “very, very fast” up the driveway, drove his car
onto the lawn, jumped out of the car, and began to yell at the McLaughlins.
Terry took pictures with her telephone. Burt continued to yell, kicked Terry
to the ground, and said he would kill them and burn down Scott’s parent’s home if
they ever came back to the property. Terry was shaken and believed Burt’s
threats. They left the property and called law enforcement.
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Officers arrived and photographed Terry’s leg. Her pants had a boot print
similar to Burt’s boots, and she also had a large bruise. Sheriff’s deputies went to
the estate property to investigate. The lawn showed tire marks consistent with
Terry’s statement. The deputies went to Burt’s home to question him. Burt said
he had arrived at the property and had been hit in the head with a circular saw.
Photographs taken by Terry show Scott holding a circular saw while confronting
Burt. Burt also told the deputies Scott had kicked him while he was on the ground.
Burt had not resisted because Terry was taking pictures, and Burt assumed the
McLaughlins were trying to set him up. The deputies examined Burt and found no
injuries on his head or face, and they found no evidence Burt had been kicked
while on the ground.
A jury found Burt guilty of all four counts. He was sentenced to four
concurrent terms of imprisonment of 365 days. All but sixty days of the sentence
were suspended and Burt was given credit for time served. Burt was also placed
on probation for a period of two years. The district court imposed fines totaling
$1880 along with surcharges. Burt now appeals.
II. Standard of Review
Claims of insufficient evidence are reviewed for correction of errors at law.
State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v. Sanford, 814
N.W.2d 611, 615 (Iowa 2012)). We consider the entirety of the record in the light
most favorable to the State, and the verdict will be upheld if it is supported by
substantial evidence. See id. “Evidence that could convince a trier of fact the
defendant is guilty of the crime charged beyond a reasonable doubt is substantial
evidence.” State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996)
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Claims of ineffective assistance of counsel are reviewed de novo. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective
assistance of counsel, the [defendant] must demonstrate both ineffective
assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it can be
decided on that ground alone without deciding whether the attorney performed
deficiently.” Id. Both elements must be proved by a preponderance of the
evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).
III. Sufficiency of the Evidence
Burt first claims the evidence was insufficient to convict him of first-degree
harassment. A person commits harassment when they “purposefully and without
legitimate purpose, [have] personal contact with another person, with the intent to
threaten, intimidate, or alarm that person.” Iowa Code § 708.7(1)(b). A person
must have the specific intent not merely to have personal contact but to threaten,
intimidate, or alarm. In re D.S., 856 N.W.2d 348, 353 (Iowa 2014). Harassment
in the first degree further requires “a threat to commit a forcible felony[.]” Iowa
Code § 708.7(2)(a). A forcible felony “is any felonious . . . murder [or] arson in the
first degree[.]” Id. § 702.11.
a. Legitimate Purpose
Burt claims he had a legitimate purpose for having contact with his sister
and, therefore, the evidence was insufficient to convict him of harassment. Burt
believed he had an interest in the estate property as he had lived there for several
years, it was the family farm that had belonged to his mother, and he was a
beneficiary of the property through a trust created in his mother’s will. Burt
acknowledges the no-trespass notice he received, though he also claims he
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believed Terry had no authority to issue the notice, but contends he had a
legitimate purpose to communicate with his sister although she “may not have liked
what Burt had to say or the manner in which he said it[.]”
Burt’s casual dismissal of exactly what he said and how he said it is an
attempt to evade the heart of the question. “Because there must be a specific
intent to threaten, intimidate, or alarm, the only legitimate purpose that will avoid
the criminal status conferred by the statute would be a legitimate purpose to
threaten, intimidate, or alarm.” State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).
Burt’s only claim of legitimate purpose was in communicating with his sister and
her husband. He makes no claim to a legitimate purpose for threatening to kill his
sister or burn down her in-law’s home. We find Burt had no legitimate purpose.
b. Conditional Threats
Burt next claims his threats could not constitute harassment as they were
conditioned on the McLaughlins returning to the property. “It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and decided
by the district court before we will decide them on appeal.” Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). We find Burt did not raise this issue before the
district court. Therefore, we find Burt did not preserve error, and we decline to
address the question.
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c. Jury Instructions
Burt finally claims the district court erred by refusing to include a jury
instruction relating to the defense of justification to the charges of harassment and
trespass. If there is substantial evidence of a defense to an offense, “the district
court has a duty to give a requested instruction on the defense.” State v. Dunson,
433 N.W.2d 676, 677 (Iowa 1988). We find Burt made no objection to the proposed
jury instructions related to harassment and so did not preserve the issue for review.
See Meier, 641 N.W.2d at 537.
The district court found there was not substantial evidence to support Burt’s
defense of justification as to the trespass charge. Burt’s objection was overruled.
Burt had left personal property at the estate property and he claims “[the district
court] seemed to be misguided in its analysis that Burt could not be justified in
some fashion in protecting his personal property that was clearly still at the
location.” Burt was asked to remove his property in December 2015. He did not.
Burt was served notice of no trespass in April 2016. Again, he failed to remove his
personal property from the estate property. Burt’s arguments made little mention
of attempting to retrieve his property. Burt entered the estate property,
immediately began yelling at the McLaughlins, assaulted them, and threatened
them. At no time did he indicate he was attempting to retrieve property or that he
had any other legitimate purpose.
Additionally, retrieving personal property intentionally left on another
person’s property is not a legitimate purpose or defense to trespassing. A person
does not commit trespassing when they enter
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upon the property of another for the sole purpose of retrieving
personal property which has accidentally or inadvertently been
thrown, fallen, strayed, or blown onto the property of another,
provided that the person retrieving the property takes the most direct
and accessible route to and from the property to be retrieved, quits
the property as quickly as is possible, and does not unduly interfere
with the lawful use of the property.
Iowa Code § 716.7(2)(b)(1). Burt did not come onto the estate property for the
sole purpose of retrieving his property, actually, his property was left intentionally,
and no evidence was presented to indicate he attempted to take a direct route to
retrieve his property. We find there was not substantial evidence to support the
inclusion of the justification jury instruction.
IV. Ineffective Assistance
Finally, Burt claims trial counsel was ineffective for failing to object to
hearsay testimony, allowing impermissible character evidence and evidence of
irrelevant acts to be admitted, and failing to request an instruction for the defense
of justification. Burt is required to prove both a breach of an essential duty by trial
counsel and prejudice resulting from the breach. Jones, 479 N.W.2d at 272.
Burt’s first claim of ineffective assistance asserts trial counsel should have
objected to testimony regarding the division of property resulting from his mother’s
will. The State offered into evidence a letter of appointment naming Terry
executor, an order admitting the will to probate, and a court officer’s oath. The
State further elicited testimony from Terry regarding the provisions of the will. The
will itself and the probate inventory were not offered. Burt claims this amounted to
hearsay. Hearsay is a statement not made while testifying at the current
proceeding that is offered into evidence to prove the truth of the matter asserted.
Iowa R. Evid. 5.801(c). We find this evidence was not offered to prove the truth of
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the matter asserted. It did not seek to prove specific events had occurred. It was
offered to illustrate the effects of those events on the possessory interests of Terry
and Burt. Counsel cannot be found to be ineffective for failing to make a meritless
objection. See State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008).
Burt next claims trial counsel was ineffective for failing to enter the will into
evidence. Burt claims “the jury was left with the impression that Terry McLaughlin
was the one and only arbiter of who could have access to this property.” Evidence
and testimony at trial showed Terry was the sole executor of the estate.
Additionally, it was undisputed Burt’s share of the estate was to be held in trust
and he had no possessory interest in the property. The will, had it been admitted,
would have only served to further prove Terry’s status as both sole executor and
trustee of Burt’s portion of the estate. Therefore, we find Burt is unable to prove
prejudice.
Burt also claims evidence regarding the extent of his relationship with his
sister was admitted into evidence and was “irrelevant, immaterial, and certainly
less probative than prejudicial.” Burt does not state how he was prejudiced by the
admission of this evidence nor does he cite any authority. We find the issue has
been waived. Iowa R. Civ. P. 6.903(2)(g)(3) (“Failure to cite authority in support of
an issue may be deemed waiver of that issue.”)
Burt finally claims trial counsel was ineffective for failing to request a jury
instruction regarding the justification defense on the charge of first-degree
harassment. Burt again claims he “may have been justified in his comments to
Terry.” In order to prove justification, Burt would be required to make a showing
of a “legitimate purpose to threaten, intimidate, or alarm.” Evans, 672 N.W.2d at
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331. During the trial, Burt made no argument claiming he had a legitimate purpose
to threaten to murder Terry. We find no prejudice resulted from counsel’s failure
to object to the jury instructions.
AFFIRMED.