Summary
In State v. Fagan, No. 02-575 (Iowa Ct. App. Aug. 14, 2002), we stated that "[b]ecause defendant was incarcerated in the State of Illinois, not Iowa, at the time of the filing of his trial information, he was subject to the Interstate Agreement of Detainers Act, under Iowa Code section 821.1 (Article III)."
Summary of this case from State v. FaganOpinion
No. 2-575 / 01-1363.
Filed August 14, 2002.
Appeal from the Iowa District Court for Iowa County, THOMAS M. HORAN, Judge.
Defendant appeals his conviction and sentence, following a jury trial, for first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Lewis Mcmeen, County Attorney, and Tim Mcmeen, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and VOGEL and MAHAN, JJ.
Defendant-appellant Justen Alan Fagan appeals his conviction and sentence, following a jury trial, for first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (1999). Defendant claims on appeal that the district court erred in failing to grant his motion for judgment of acquittal based upon an insufficiency of the evidence, and that he was rendered ineffective assistance of counsel. We affirm.
On August 20, 2000, defendant, who was driving a black Chevrolet Camaro, was speeding down Interstate 80 at speeds up to 130 miles per hour and passing on both the outside and inside shoulders in an attempt to elude police. Defendant turned off of I-80 near the Marengo exit and turned south on M Avenue. Although authorities were pursuing him, they were approximately a mile behind. After a five-mile chase, State Trooper Steve VanOtterloo crested a hill and saw the black Camaro in the ditch and another car in the middle of the road. According to testimony, the Camaro had gone into the ditch, and the other car with three passengers had stopped to offer assistance. Two of the three passengers got out of the car. Defendant then rushed over to the driver who was still in the car, opened the driver's door, pointed a gun at the driver's side, put his hand on her arm, and said, "You get out of your car." Defendant next called to his companion Jill Farrell, who had been in the passenger seat of the Camaro, to join him.
As this was happening, authorities approached, sirens blaring. Defendant fled and was not apprehended that night. Two occupants of the Camaro fled, but they were quickly apprehended.
On appeal defendant argues there was insufficient evidence to support a verdict finding him guilty of first-degree robbery. The jury was instructed that it must find the following elements to convict defendant of first-degree robbery: 1) defendant had specific intent to commit a theft; 2) defendant committed an assault upon another in furtherance of the intended theft; 3) defendant was armed with a dangerous weapon. See Iowa Code § 711.1 and 711.2. Defendant argues the evidence was insufficient to prove either he intended to commit a theft or he committed an assault.
The State argues defendant preserved his challenge to the sufficiency of the evidence only with respect to the element of intention to commit a theft. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). As the State points out, defendant did not argue in his motion for judgment of acquittal that there was insufficient evidence to prove he committed an assault. Although there was mention of the question of intentto commit an assault, the motion concentrated upon the sufficiency of the evidence to prove intent to commit a theft. During opening argument, defense counsel told the jury defendant had terrorized a woman.
We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of legal error. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001); State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). We will uphold a verdict if substantial record evidence supports it. Mitchell, 568 N.W.2d at 502. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id. We consider all of the evidence in the record — not just the evidence that supports the verdict. Id.
Whether or not both issues were preserved for our review, we conclude there was sufficient evidence for the jury to find beyond a reasonable doubt defendant intended to commit a theft and that he committed an assault while carrying out that intent. Police were chasing defendant at a high rate of speed. His car went into the ditch and could not be driven out. Upon seeing another car, defendant approached the driver, pointed a gun at her side, told her to get out, and put his hand on her arm. The threatening nature in which defendant approached the victim and demanded she surrender her car demonstrates assault beyond a reasonable doubt. See State v. Heard, 636 N.W.2d 227, 232 (Iowa 2001) (holding assault element of robbery satisfied by defendant's entering convenience store with a bag over his head and socks on his arms, demanding money from the cash drawer, and telling the clerk to lie on the floor). We further conclude, given the fact defendant's car was no longer mobile, his continuing effort to elude police, and the threatening manner in which he sought to take the car, there was sufficient evidence of defendant's intention to commit a theft and permanently deprive the victim of her car. See State v. Boley, 456 N.W.2d 674, 679 (Iowa 1990) (finding sufficient evidence of first-degree robbery, although no money was taken, from evidence of defendant's loitering outside a convenience store, his need for funds, and the fact that another customer arrived unexpectedly, likely foiling his plans). The evidence is sufficient to support defendant's first-degree robbery conviction. We affirm on this issue.
Defendant's second argument on appeal is that he was rendered ineffective assistance of counsel. Defendant argues his counsel was ineffective for not requesting a jury instruction that no inference of guilt should be made from defendant's failure to testify. He also claims his counsel was ineffective for failing to include a jury instruction defining theft.
In that defendant's claims of ineffective assistance of counsel implicate his constitutional rights, we review de novo. See State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). In order to establish a claim of ineffective assistance of counsel, the defendant must show 1) counsel failed to perform an essential duty, and 2) prejudice resulted. Id.
Defendant fails to specify how the choice to exclude the jury instruction that no inference of guilt should be made from defendant's failure to testify was either ineffective assistance or prejudicial to his case. The choice to exclude such an instruction may be a matter of trial strategy. See Calderon v. State, 950 S.W.2d 121, 132 (Tex.Ct.App. 1997). For such an instruction to be given, the defendant must request it. State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970). Further, given the overwhelming evidence of defendant's guilt, he has failed to show that had the instruction been requested the result of his trial would have been different. We affirm on this issue.
Defendant also argues his attorney was ineffective in not requesting an instruction defining theft as the intent to permanently deprive another of property. As we noted earlier, there was sufficient evidence in this case demonstrating defendant intended to permanently deprive the victim of her car. We find no prejudice.
Defendant's last claim of ineffective assistance is that his attorney failed to move to dismiss the case on speedy trial grounds under Iowa Rule of Criminal Procedure 2.33(2). Because defendant was incarcerated in the State of Illinois, not Iowa, at the time of the filing of his trial information, he was subject to the Interstate Agreement of Detainers Act, under Iowa Code section 821.1 (Article III). See Howard v. State, 755 N.E.2d 242, 245 (Ind.Ct.App. 2001). This Act extends the deadline for a speedy trial to 180 days from the time the defendant provides the prosecuting officer a written notice of his place of imprisonment and a request for disposition of the trial information, together with a certificate from the his custodian detailing the term of his commitment in his current state, among other things. See Iowa Code § 821.1 (Article III). Although defendant filed a demand for a speedy trial from Illinois on March 7, 2001, this demand was not accompanied by a certificate as provided for in section 821.1. Defendant was in the custody of the State of Illinois until his initial appearance before the Iowa County district court on April 20, 2001. Defendant was arraigned and pled not guilty on April 23, 2001. His trial commenced July 9, 2001, well within the 180-day deadline. Defendant's speedy trial rights were not violated. We find no ineffective assistance on this issue.
AFFIRMED.