State v. Banes , 910 N.W.2d 634 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0209
Filed February 7, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARCUS BANES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee County, John G. Linn, Judge.
Defendant challenges his conviction and sentence for burglary, theft and
ongoing criminal conduct. CONVICTION AND SENTENCE VACATED AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.
Marcus Banes was charged with burglary, theft, criminal mischief, and
ongoing criminal conduct arising out of a series of burglaries and thefts committed
in Lee County in December of 2015. Following a jury trial, Banes was convicted
of three counts of burglary in the third degree, in violation of Iowa Code sections
713.1 and 713.6A(1) (2015), one count of theft in the first degree, in violation of
Iowa Code sections 714.1(1) and 714.2(1), two counts of theft in the second
degree, in violation of Iowa Code sections 714.1(1) and 714.2(2), criminal mischief
in the second degree, in violation of Iowa Code sections 716.1 and 716.4, and
ongoing criminal conduct, in violation of Iowa Code sections 706A.1(5), 706.2(4),
and 706A.4. In this appeal, Banes challenges the sufficiency of the evidence
supporting some but not all of his convictions. He also contends the district court
erred in allowing certain hearsay testimony or his trial counsel provided
constitutionally deficient representation in failing to object to the hearsay testimony.
I.
We first address Banes’s challenges to the sufficiency of the evidence. This
court reviews challenges to the sufficiency of the evidence for the correction of
legal error. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Under this
standard, we will affirm when the verdict is supported by substantial evidence. See
State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). Evidence is substantial when the
quantum and quality of evidence is sufficient to “convince a rational fact finder that
the defendant is guilty beyond a reasonable doubt.” Id. at 76. In conducting
substantial-evidence review, this court considers the evidence in the light most
favorable to the State, including all reasonable inferences that may be fairly drawn
3
from the evidence. See id. (citing State v. Heard, 636 N.W.2d 227, 229 (Iowa
2001)).
A.
Banes challenges the sufficiency of the evidence supporting two of the
convictions for burglary in the third degree, his conviction for theft in the first
degree, and his conviction for theft in the second degree. The challenged burglary
convictions arise out of the unlawful entry into Benson Auto Shop and D&D
Trailer and Sales. The challenged conviction for theft in the first degree arises out
of the theft of tools and firearms from Benson Auto Shop. The challenged
conviction for theft in the second degree arises out of the theft of cash, clothes,
and purses from D & D Trailer and Sales. Banes does not challenge his
convictions for burglary, theft, and criminal mischief arising out of the unlawful entry
into the Lake Cooper Events Center.
The primary witness for the State was Banes’s accomplice Devin Vawter.
Vawter reached a favorable plea agreement with the State in which he received
charging and sentencing concessions to resolve the charges in this case and other
cases in exchange for his testimony at Banes’s trial. According to Vawter, in the
early morning of December 25, Vawter and Banes were driving around in Banes’s
Jeep “trying to find stuff to steal.” They drove to D & D and decided to break in.
They used bolt cutters to cut the padlock off a sliding door, entered the building,
and stole cash, clothes, coats, and women’s purses. After the D & D burglary,
Banes drove to Benson Auto Shop. Vawter testified he climbed through a sliding
window, entered the building, and opened the door for Banes. Vawter testified
they stole whatever they could fit in Banes’s Jeep. Vawter testified they took a
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welder, plasma cutter, drills, tools, and some guns, among other things. Vawter
and Banes made arrangements with Kendall Elder to sell the stolen goods to a
third person. Banes drove himself and Vawter to an empty parking lot, and the
sale was transacted. Vawter also testified he and Banes broke into the Lake
Cooper Events Center. They walked up to the back door of the facility, broke the
window, reached in through the broken window, unlocked the door, and entered
the facility. Vawter testified there was a second door that they kicked in to gain
entry into the building. Vawter and Banes took two flat screen televisions and
some alcohol from the facility.
Vawter’s testimony was corroborated by other evidence. See Iowa R. Crim.
P. 2.21(3) (“A conviction cannot be had upon the testimony of an accomplice or a
solicited person, unless corroborated by other evidence which shall tend to
connect the defendant with the commission of the offense; and the corroboration
is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.”). “Corroborative evidence need not be strong as long as
it can fairly be said that it tends to connect the accused with the commission of the
crime and supports the credibility of the accomplice.” State v. Barnes, 791 N.W.2d
817, 824 (Iowa 2010).
Pete Benson and Amy Benson, the owners of Benson Auto, had heard from
their son, Logan, that Banes may have been involved in the burglaries and that
Banes was driving a gold Jeep Cherokee. Amy testified she knew of Banes,
although it had been some time since she had seen him. In the first week of
January, Pete and Amy were in Keokuk when Amy observed Banes and the gold
Jeep Cherokee in the parking lot of an auto parts store. She testified she made
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eye contact with Banes. Amy testified she and Pete followed Banes as he drove
away from the store. She testified Banes “floored it” and she and Pete followed at
a high rate of speed until they ultimately lost him. Amy testified she called 911
during the chase and advised the operator of their location during the chase.
Police located the Jeep Cherokee within ten minutes of the car chase. It was
abandoned near Banes’s grandfather’s residence. The Jeep contained items from
Benson Auto and D & D. The vehicle was not registered to Banes; it had been
reported stolen. Vawter testified he picked up Banes from Banes’s grandfather’s
property after Banes abandoned the Jeep.
Forensic evidence supported Vawter’s testimony. Vawter’s fingerprints
were found at the Benson Auto garage. The police found another set of prints at
the garage, but they were not able to develop them. A tire impression was taken
from outside Benson Auto. The impression was consistent with the tires on the
Jeep Cherokee that Banes abandoned near his grandfather’s residence. Vawter’s
footprint and Banes’s palm print were found at the scene of the Lake Cooper
burglary.
The recipients of the stolen property corroborated Vawter’s testimony. The
purchaser of the welder and plasma cutter testified Kendall Elder arranged the
purchase. The purchaser testified Elder introduced the seller as “Marcus.” The
purchaser stated Banes was present at the time of the sale, and the purchaser
identified Banes in court. The police retrieved the items from the purchaser. The
serial numbers on the tools linked the tools to Benson Auto. Banes’s girlfriend had
several of the stolen purses from D & D.
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When this evidence is viewed in the light most favorable to the jury’s verdict,
there is substantial evidence in support of the convictions. Vawter testified to
Banes’s role in the burglaries and thefts. Banes’s palm print was found at the Lake
Cooper facility, and Banes admitted to the crimes related to the Lake Cooper
facility. Banes made arrangements to sell the property stolen from Benson Auto.
The purchaser identified Banes as being present at the scene at the time of the
sale. The Bensons identified Banes as the driver of a gold Jeep Cherokee, which
was found abandoned minutes later and which contained stolen property. Banes
gave stolen property to his girlfriend. The value of the stolen property was not in
dispute, and the value exceeded the statutory threshold to support convictions. On
this evidence, the jury reasonably could have found Banes guilty of burglary and
theft. See State v. Reuther, No. 11-1334, 2012 WL 4097274, at *2 (Iowa Ct. App.
Sept. 19, 2012) (stating “an inference of guilt based upon possession of recently
stolen property may be sufficient to support a conviction if the evidence of record
regarding the surrounding circumstances warrants a finding of guilt beyond a
reasonable doubt”); State v. Hall, 371 N.W.2d 187, 190 (Iowa Ct. App. 1985)
(“Finally, the jury could properly consider the relatively short period of time between
the burglary and the sale of the property to the antique dealer as bearing upon the
defendant’s complicity in the burglary. Coupled with the evidence of a forced entry
into the house, which would be a reasonable finding by a rational juror, it is
apparent that the evidence of the circumstances surrounding defendant’s
possession of the recently stolen property, though circumstantial, is sufficient to
permit the jury to infer that the defendant broke into the Peterson residence.”).
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Nonetheless, Banes contends there was insufficient evidence of his
participation in the challenged burglaries and thefts. He contends his version of
events was more credible. Banes contends Vawter was not credible because
Vawter received charging and sentencing concessions for his testimony. Banes
contends the Jeep Cherokee was Vawter’s. Banes contends Amy Benson
misidentified him. He contends the third party who purchased the tools was not
credible. Banes testified he did not steal the purses in his girlfriend’s possession
but instead received them as gifts from Vawter. Banes testified at trial and told his
version of events to the jury, and the jury rejected Banes’s version of events.
“Inherent in our standard of review of jury verdicts in criminal cases is the
recognition that the jury [is] free to reject certain evidence and credit other
evidence.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). We will not disturb
the jury’s verdict regarding the challenged burglary and theft convictions.
B.
Banes also challenges the sufficiency of the evidence supporting his
conviction for ongoing criminal conduct, in violation of Iowa Code sections
706A.1(5), 706A.2(4), and 706A.4. Where, as here, the jury was instructed without
objection, the jury instruction becomes law of the case for the purposes of
reviewing the sufficiency of the evidence. See State v. Canal, 773 N.W.2d 528,
530 (Iowa 2009) (“[Defendant] did not object to the instructions given to the jury at
trial. Therefore, the jury instructions become the law of the case for purposes of
our review of the record for sufficiency of the evidence.”). The jury was instructed
as follows:
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Under Count IX of the Trial Information, the State must prove all of
the following numbered elements of the crime of Ongoing Criminal
Conduct:
1. On or about December 1 through December 30, 2015, in Lee
County, Iowa, the defendant committed indictable offense, as
defined in instruction No. 18G.
2. The indictable offenses were committed on a continuing basis
3. The indictable offenses were committed for financial gain.
Although these jury instructions are the law of the case for the purposes of
this appeal, we independently note the instructions are a correct statement of Iowa
law. Iowa Code section 706A.2(4) makes in “unlawful for a person to commit
specified unlawful activity.” The Code defines “specified unlawful activity” as “any
act, including any preparatory or completed offense, committed for financial gain
on a continuing basis, that is punishable as an indictable offense under the laws
of the state in which it occurred and under the laws of this state.” Iowa Code §
706A.1(5).1
At issue here is whether these offenses were committed on a “continuing
basis.” Given the similarity between the underlying purposes of RICO and Iowa
Code chapter 706A, our supreme court has concluded the definition of “pattern of
racketeering activity” by the United States Supreme Court is a reasonable one for
“continuing basis” in section 706A.1(5). State v. Reed, 618 N.W.2d 327, 335 (Iowa
2000). The Reed court adopted the following definition:
1 Iowa’s ongoing-criminal-conduct statute is modeled after the federal Racketeer
Influenced and Corrupt Organizations Act, commonly known as RICO, and the Ongoing
Criminal Conduct Model Act. Iowa’s statute has rightly been criticized as a significant
expansion of criminal liability beyond that contemplated under RICO and the model act
due to Iowa’s broad definition of “specified unlawful activity.” See Westco Agronomy Co.,
LLC v. Wollesen, ___ N.W.2d ___, ___, 2017 WL 6545853, at *12 n.3 (Iowa 2017); Anna
T. Stoeffler, Note, Iowa’s State RICO Statute: Wreaking Havoc on Iowa’s Criminal Justice
System, 102 Iowa L. Rev. 825, 841 (2017).
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‘Continuity’ is both a closed- and open-ended concept, referring
either to a closed period of repeated conduct, or to past conduct that
by its nature projects into the future with a threat of repetition. It is,
in either case, centrally a temporal concept—and particularly so in
the RICO context, where what must be continuous, RICO’s predicate
acts or offenses, and the relationship these predicates must bear one
to another, are distinct requirements. A party alleging a RICO
violation may demonstrate continuity over a closed period by proving
a series of related predicates extending over a substantial period of
time. Predicate acts extending over a few weeks or months and
threatening no future criminal conduct do not satisfy this
requirement: Congress was concerned in RICO with long-term
criminal conduct. Often a RICO action will be brought before
continuity can be established in this way. In such cases, liability
depends on whether the threat of continuity is demonstrated.
Whether the predicates proved establish a threat of continued
racketeering activity depends on the specific facts of each case.
Id. at 334–35. “[A] continuing basis may be found, even where predicate acts
occur over a short period of time, if there is a demonstrated relationship between
the predicate acts and a threat of continuing criminal activity.” State v. Agee, No.
02-0967, 2003 WL 22087479, at *2 (Iowa Ct. App. Sept. 10, 2003). “[T]he
relationship element of a pattern can be shown if the predicate acts ‘have the same
or similar purposes, results, participants, victims, or methods of commission or
otherwise are interrelated by distinguishing characteristics and are not isolated
events.’” Reed, 618 N.W.2d at 334 (citation omitted).
The most analogous case to this case is State v. Harrington, No. 08-2030,
2010 WL 2925696, at *3 (Iowa Ct. App. July 28, 2010). In that case, the defendant
burglarized three homes in the early morning hours of a single day and stole a
vehicle. See Harrington, 2010 WL 2925696, at *1. The evidence also showed the
defendant was unemployed and living with various relatives. See id. at *3. The
State contended the very nature of the burglaries proved there was a threat of
repetition. See id. The State also contended the fact the defendant was not
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employed showed the burglaries would have continued had the defendant not
been arrested. See id. This court concluded these facts “without more” would not
“fairly and reasonably support a legitimate inference there was a threat of
continued unlawful activity.” See id.
The facts of Harrington are materially indistinguishable. As in Harrington,
there was not a series of related predicates over “a substantial period of time.”
Instead, we have several commercial burglaries committed over a period of a few
days. See Reed, 618 N.W.2d at 335 (“Predicate acts extending over a few weeks
or months and threatening no future criminal conduct do not satisfy this
requirement.”); cf. State v. Olsen, 618 N.W.2d 346, 347 (Iowa 2000) (finding
sufficient evidence of ongoing criminal conduct for theft by deception over nineteen
months of one elderly couple); State v. Friedley, No. 01-1580, 2003 WL 1523343,
at *5 (Iowa Ct. App. Mar. 26, 2003) (finding “there was evidence of theft over a
period of several months, from December 1997 until February 1998, and that [the
defendant] aided and abetted in this crime” is sufficient to convict for ongoing
criminal conduct). As in Harrington, there is no evidence of a continued threat of
future criminal conduct. Both Vawter and Banes testified at trial, and neither
testified regarding any plan for future conduct. As in Harrington, we think the fact
that the defendant was unemployed is insufficient evidence, in and of itself, to
support the continuing-basis element.
Banes’s conviction for ongoing criminal conduct is not supported by
substantial evidence even when the evidence is viewed in the light most favorable
to the jury’s verdict. The conviction and sentence for ongoing criminal conduct
must be vacated.
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II.
Banes raises an evidentiary challenge. He argues the trial court erred by
overruling a hearsay objection and/or that counsel was ineffective for failing to
object and continue to object to hearsay. The challenged statements came from
the three members of the Benson family—Logan, Amy, and Pete. All three were
asked about rumors they had heard about the involvement of Banes in the burglary
of their shop. Logan was asked “what was the name that was coming up,” to which
he replied “Marcus Banes.” The prosecutor then asked who the source of the
information was, at which point defense counsel objected “this is going into
hearsay.” The district court overruled the objection. Logan clarified the names of
those who had told him and where the rumor originated. Pete Benson was asked
without objection “did Logan tell you that he was hearing some street information
about who might be involved” and “what was the name that kept coming up.” He
replied, “Marcus Banes.” Amy Benson was asked similar questions establishing
her knowledge of Banes and the rumors before discussing the car chase. Banes
challenges the statements identifying Banes as the person involved in the
burglaries.
We agree with the State that Banes’s counsel failed to preserve error on the
issue. Banes’s counsel objected only to Logan’s testimony identifying the source
of Logan’s information. No objection was made to out of court statements
identifying Banes as the person involved in the burglaries. We will thus review the
claims as claims of ineffective assistance of counsel. Ineffective assistance of
counsel claims are reviewed de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa
2010).
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To succeed on an ineffective assistance claim a defendant must show “(1)
counsel failed to perform an essential duty; and (2) prejudice resulted.” State v.
Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “[W]e measure counsel’s
performance against the standard of a reasonably competent practitioner.” Id.Poor strategy or mistakes in judgment normally do not rise to the level of ineffective
assistance. Ledezma v. State, 626 N.W.2d 132, 143 (Iowa 2001). Prejudice exists
if “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” State v. Leckington, 713
N.W.2d 208, 218 (Iowa 2006). Despite Banes’s claims to the contrary, prejudice
is not presumed under the framework of ineffective assistance even when
inadmissible hearsay is admitted. See State v. Reynolds, 746 N.W.2d 837, 845
(Iowa 2008) (“If Reynolds’s trial counsel had raised the meritorious hearsay
objection to Best’s testimony, there would have been insufficient evidence in the
record for the court to find Reynolds guilty of the six forgery charges and the related
theft charge. Accordingly, we conclude Reynolds has established a reasonable
probability that the result of the trial would have been different but for his trial
counsel’s breach of duty.”); State v. Fillmer, No. 01-0508, 2002 WL 1331892, at *1
(Iowa Ct. App. June 19, 2002) (finding no prejudice on hearsay claim). “[B]oth
elements do not always need to be addressed. If the claims lack prejudice, it can
be decided on that ground alone without deciding whether the attorney performed
deficiently.” Ledezma, 626 N.W.2d at 142.
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Iowa R. Evid. 5.801(c). “[W]hen an out-of-court statement is offered,
13
not to show the truth of the matter asserted but to explain responsive conduct, it is
not regarded as hearsay.” See State v. Elliot, 806 N.W.2d 660, 667 (Iowa 2011).
“For a statement to be admissible as showing responsive conduct, however, it
must not only tend to explain the responsive conduct but the conduct itself must
be relevant to some aspect of the State’s case.” State v. Mitchell, 450 N.W.2d
828, 832 (Iowa 1990).
The challenged testimony is not hearsay. The statements were not offered
for the truth of the matter asserted. Instead, the statements were made to show
responsive conduct. Specifically, the testimony was offered to explain the
Bensons’ decision to follow Banes in a high-speed car chase. The car chase was
relevant to the State’s case in two respects. Amy identified Banes as the driver of
the Jeep Cherokee. In addition, the Bensons’ chase led to the immediate
discovery of the vehicle. The vehicle contained property stolen from Benson Auto
and from D & D. As discussed above, the accused’s possession of burgled goods
supports an inference that the accused was involved in the burglary. “We will not
find counsel incompetent for failing to pursue a meritless issue.” State v. Brothern,
832 N.W.2d 187, 192 (Iowa 2013).
Banes also has not established prejudice. Vawter testified extensively
about the crimes and Banes’s involvement in the same. Vawter’s testimony was
corroborated by forensic evidence. In addition, there was independent testimony
tying Banes to the Jeep Cherokee minutes before the Jeep was found full of stolen
goods. Another witness testified Banes sold him stolen goods. Banes gave his
girlfriend two stolen purses for Christmas. In light of the overwhelming evidence
of Banes’s guilt, there is not a reasonable probability the result of the proceeding
14
would be different absent the challenged testimony. See Leckington, 713 N.W.2d
at 218.
For the foregoing reasons, we reject Banes’s evidentiary challenges and
claims of ineffective assistance of counsel.
III.
We affirm Banes’s convictions for burglary, theft, and criminal mischief. We
vacate Banes’s conviction and sentence for ongoing criminal conduct and remand
this matter for entry of dismissal with prejudice of the charge.
CONVICTION AND SENTENCE VACATED AND REMANDED.