State of Iowa v. Troy Lane Braden

IN THE COURT OF APPEALS OF IOWA
No. 13-2014
Filed January 28, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TROY LANE BRADEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Dan F. Morrison,
Judge.
A defendant appeals from the jury verdict, judgment, and sentence for
burglary in the third degree as an habitual offender. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, and Charles Stream, County Attorney, for appellee.
Considered by Bower, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.
Troy Lane Braden appeals from the jury verdict, judgment, and sentence
for burglary in the third degree as an habitual offender.
I. Background Facts and Proceedings.
Ronald Reed owns a farm in Mahaska County. Several buildings,
including a house, are located on the farm. Reed lives elsewhere, and the
buildings are used to store some of Reed’s personal property. Perry
Middlesworth rents a pasture across the road from Reed’s building site.
Middlesworth testified that on June 12, 2013, he was checking the cows in the
pasture when he noted a vehicle sitting on the side of the road in front of Reed’s
buildings. He observed an individual, later identified as Troy Lane Braden,
coming out of the grader ditch carrying a basket full of unidentified objects.
When questioned, Braden said that no one had been at this building for three to
five years and he was “picking.”
Middlesworth telephoned Reed and informed him of what he had
observed. Braden began placing items from the trunk of his car back into the
ditch and indicated to Middlesworth that he was leaving. There was a woman in
the car who was instructing Braden on what to do. The woman seemed to be
scared and tried to hide her face. Middlesworth told them not to leave, but they
drove off. Middlesworth gave chase, but by that time, Reed had arrived and cut-
off Braden’s escape route.
Reed demanded to see what was in Braden’s trunk. Braden opened the
trunk, and Reed observed tools he owned and also observed items in the ditch
that were his. Reed further testified that the items had been located in his
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buildings, and no one had been given permission to remove them. Reed called
911, and Deputy Randy Poe came to the scene, but by that time, Braden had
left. Poe observed a path of trampled grass leading from Reed’s buildings to the
ditch, where the items were found.
Braden was charged with burglary in the third degree, and after the jury
verdict was entered, he acknowledged he had been previously convicted of two
prior felonies and was accordingly sentenced as an habitual offender. At trial an
aiding and abetting instruction had been given over Braden’s objection. On
appeal Braden asserts it was an error to give an aiding and abetting instruction,
and further that his counsel was ineffective for reasons hereinafter set out.
II. Submission of Instruction on Aiding and Abetting.
A. Standard and Scope of Review.
Jury instructions are reviewed for errors of law. State v. Hanes, 790
N.W.2d 545, 548 (Iowa 2010). The objective of the appellate review is to
determine whether the instruction accurately states the law and is supported by
substantial evidence. Id.
B. Error Preservation.
Error preservation is generally considered present when the issue to be
reviewed has been raised and ruled on by the trial court. Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). Submission of the instruction on aiding and
abetting was raised by Braden and ruled on by the trial court. Error has been
preserved.
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C. Discussion.
The aiding and abetting instruction would not have been appropriate if
Braden was the only one who could have possibly been convicted of committing
the crime. See State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973). Knowledge
and proximity to the scene is not enough to give an aiding and abetting
instruction. State v. Vesey, 241 N.W.2d 888, 891 (Iowa 1976). However, such
factors supported by circumstantial evidence may be enough. State v. Lewis,
514 N.W.2d 63, 66 (Iowa 1994). A woman was in the automobile where Reed’s
property had been placed. When Middlesworth began questioning Braden, the
woman shouted instructions to him, which he seemed to be following.
Middlesworth also testified that the woman looked scared and tried to cover her
face. There was substantial evidence that she was not there by accident and
was more than a mere bystander. The evidence is not as strong against the
woman as it is against Braden, but she could have also been convicted of
burglary.
III. Ineffective Assistance of Counsel.
A. Scope of Review.
Ineffective-assistance-of-counsel claims raise constitutional issues and
are therefore reviewed de novo. Castro v. State, 795 N.W.2d 789, 792 (Iowa
2011). To prevail on a claim of ineffective assistance of counsel, a party must
establish both ineffective assistance and prejudice. Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). Counsel is not obligated to advance a meritless
claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). Ineffective-
assistance-of-counsel claims are reserved for postconviction relief when they
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may involve improvident trial strategy or miscalculated tactics and more record is
required. State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983). If additional record is
not required, the claim can be decided on direct appeal. Id. In this matter we
find the record sufficient to resolve each claim of ineffective assistance of
counsel raised by Braden.
B. Preservation of Error.
Ineffective assistance of counsel claims are an exception to the general
rules of error preservation. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). A
claim of ineffective assistance of counsel need not be raised before the trial
court. Id.
C. Discussion.
1. Braden contends there was insufficient evidence that he entered
the premises with the intent to commit a theft. He further claims counsel is
ineffective for failing to properly raise the issue. Braden is in essence attacking
the sufficiency of the evidence as to his entry and his intent. A verdict is upheld if
supported by substantial evidence. State v. Quinn, 691 N.W.2d 403, 407 (Iowa
2005). Substantial evidence exists if it would convince a rational fact finder that
the defendant is guilty beyond a reasonable doubt. Id. In determining that
substantial evidence does or does not exist, the evidence is viewed in the most
favorable light to the State. Id. Circumstantial evidence and direct evidence are
equally probative. Iowa R. App. P. 6.904(3)(p).
Items that had been in Reed’s building previously were in the trunk of
Braden’s car and the adjacent ditch. Braden was moving items back and forth
from his trunk to the ditch. Braden admitted he was “picking,” that is interpreted
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to mean he had picked up and took possession of the items in question. There
was a fresh path from Braden’s car to Reed’s buildings. Significant
circumstantial evidence existed that Braden or the woman in the car had
removed and taken possession of items that had been located in Reed’s
buildings. However counsel framed the motion for acquittal, it would have been
overruled. The claim of a lack of evidence to support entry or specific intent is
without merit, and therefore, counsel was not ineffective for failing to raise the
issue.
2. Braden asserts counsel is ineffective for failing to object to the
court’s inadequate instruction that failed to relate the specific intent required
when an aiding and abetting instruction is used. The instruction which Braden
contends should have been added to the aiding and abetting instruction is
included under the comment section of Iowa Uniform Jury Instruction 200.8. It
states,
Note: Add the following paragraph if the offense involves specific
intent: “The crime charged requires a specific intent. Therefore,
before you can find the defendant ‘aided and abetted’ the
commission of the crime, the State must prove the defendant either
has such specific intent or ‘aided and abetted’ with the knowledge
of the others who directly committed the crime had such specific
intent. If the defendant did not have the specific intent, or
knowledge the others had such specific intent, (he)(she) is not
guilty.”
No objection was made; therefore, Braden’s relief, if any, must be afforded
under the ineffective-assistance-of-counsel rubric. Accordingly, counsel’s error
alone does not provide Braden relief. He must also establish prejudice. See
Ledezma, 626 N.W.2d at 143. Prejudice requires a determination that there is a
reasonable probability that absent counsel’s error the result of the proceeding
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would have been different. Lamasters v. State, 821 N.W.2d 856, 866 (Iowa
2012). The strength of the State’s case is an important factor in determining
whether prejudice has resulted. State v. Carey, 709 N.W.2d 547, 559 (Iowa
2006).
Braden’s participation in the crime has already been pointed out. Aiding
and abetting occurs when a person actively participates or encourages the act in
some manner. State v. Hustead, 538 N.W.2d 867, 869 (Iowa Ct. App. 1995).
Even if the woman was the one who entered Reed’s building with the intent to
commit a theft, Braden’s participation before the event by driving to the location
and his observed activities at the site negate any prejudice from the failure to
object to the omission of the language cited from the instruction given.
3. Braden contends that his counsel was ineffective for failing to
object to the court’s lack of a colloquy confirming his previous two felony
convictions that created the enhancement. Once again, this must be determined
under the ineffective-assistance-of-counsel rubric. The court has a duty to
ensure that a defendant knowingly and voluntarily stipulates to prior felonies
when making an enhancement record pursuant to Iowa Rule of Criminal
Procedure 2.19(9). State v. Kukowski, 704 N.W.2d 687, 692 (Iowa 2005). Even
if the trial court could have done more to ensure Braden had knowingly and
voluntarily stipulated to the prior conviction, a defendant is not prejudiced when
the minutes of testimony reveal that the State is prepared to offer appropriate
testimony proving the prior convictions. See State v. McBride, 625 N.W.2d 372,
375 (Iowa Ct. App. 2001). Braden contends that it is not enough that the State is
prepared to prove his conviction, but the State must also be prepared to prove he
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had counsel when the convictions were entered. Braden cites no authority for
that assertion.
AFFIRMED.