Opinion
No. 2-267 / 01-0806.
Filed August 14, 2002.
Appeal from the Iowa District Court for Webster County, JOEL E. SWANSON, Judge.
William Lusher appeals his judgment and sentence for second-degree burglary, three counts of assault while participating in a felony, and three counts of assault. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Ron Robertsen, County Attorney, and Timothy N. Schott, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
William Lusher's deceased father was landlord of a building rented by a carpet store owner. He agreed to partially forgo rent in exchange for some carpet. After his father died, Lusher attempted to enforce the agreement. Failing in his efforts, he went to the carpet store to confront owner Cynde Turner. While there and waiting for Turner, he made derogatory comments about the store to a potential customer. Turner repeatedly asked him to leave. Lusher ultimately walked out the front door, retrieved a toy gun from the trunk of his car, and reentered the store from a warehouse entrance. He waved the gun in the presence of Turner and two other individuals and demanded his carpet within three weeks.
The State charged Lusher with first-degree burglary and several other offenses. At trial, Lusher asked for a jury instruction on the defense of diminished responsibility, based on his testimony concerning mental illness, diabetes, and other ailments. The district court declined to give this instruction. A jury found him guilty of second-degree burglary, three counts of assault while participating in a felony, and three counts of simple misdemeanor assault. See Iowa Code §§ 713.1, 713.5, 708.3, 708.1 (1999).
On appeal, Lusher contends (1) there was insufficient evidence to support the burglary and felony assault counts, (2) the district court erred in refusing to instruct the jury on the diminished responsibility defense, and (3) trial counsel was ineffective in failing to request a different jury instruction on the issue of his "permission or authority" to enter the building. We affirm.
I. Sufficiency of the Evidence
The jury was instructed that the State would have to prove the following to establish second-degree burglary:
1. On or about the 17th day of October, 2000, the Defendant entered Cynde's Carpet.
2. Cynde's Carpet was an occupied structure as defined in Instruction No. 16.
3. The Defendant did not have permission or authority to enter into Cynde's Carpet.
4. The Defendant did so with the specific intent to commit an assault.
5. Persons were present in or upon the occupied structure.
Lusher contends there is insufficient evidence to establish the third element, the absence of "permission or authority" to enter the premises. Our review of this issue is on error. State v. Ramirez, 616 N.W.2d 587, 591 (Iowa 2000). We will uphold a finding of guilt if it is supported by substantial evidence. Id.
The court instructed the jury that "permission or authority" meant the following:
A person has permission or authority to enter or remain in an occupied structure which is open to the public. However, a person does not have permission or authority to enter or remain in an occupied structure open to the public if the person defies a lawful order to leave the occupied structure.
The record contains substantial evidence that Lusher defied a lawful order to leave the carpet store when he reentered through the warehouse. Although Lusher and his father had been in the store and the warehouse on prior occasions, Turner repeatedly told him on this occasion that he was unwelcome. Her instructions to leave terminated any prior or existing right Lusher had to be in the store or in the warehouse area of the store. See State v. Walker, 600 N.W.2d 606, 610 (Iowa 1999) (jury can find that a defendant's privilege to be on the premises has been withdrawn where actions reasonably indicate consent has been revoked).
II. Diminished Responsibility Instruction
Lusher next contends he was entitled to an instruction on his diminished responsibility defense. Our review is on error. State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998).
A defendant may offer a defense of diminished responsibility to a crime that requires proof of specific intent. State v. Jacobs, 607 N.W.2d 679, 684 (Iowa 2000). However, where the record does not contain substantial evidence of the defense, the district court is not obligated to instruct on it. State v. Sharkey, 311 N.W.2d 68, 72 (Iowa 1981); State v. Griffin, 389 N.W.2d 858, 861 (Iowa Ct.App. 1986).
Substantial evidence of the defense is lacking here. The State was required to show that Lusher reentered the carpet store with the specific intent to commit an assault. The jury was instructed that assault meant Lusher:
(a) Committed an act which was intended to place [the person] in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to [the person]
or
(b) Intentionally pointed a firearm at [the person].
Lusher stated that he bought the gun on the advice of a neighbor, as a means of getting the carpet. He further stated that, after leaving the carpet store initially, he retrieved the gun from his trunk before reentering the back. His testimony concerning his past and present illnesses did nothing to negate these admissions. Although Lusher testified he had been diagnosed with clinical depression and paranoia and could not afford medication for these conditions, neither he nor anyone else explained how this diagnosis affected his behavior on the date of the incident. As for his diabetic condition, Lusher testified that low blood sugar could affect his "ability to make good choices," but he did not state he had suffered a diabetic reaction on the date of this incident or explain why his two daily insulin injections did not adequately control the condition. Cf. Griffin, 389 N.W.2d at 861. (finding expert testimony on diabetes insubstantial in the absence of evidence the defendant suffered a diabetic reaction during the incident). Accordingly, we agree with the district court that Lusher did not present substantial evidence to support a diminished responsibility instruction.
III. Ineffective Assistance of Counsel
Finally, Lusher claims his counsel was ineffective in failing to seek a different jury instruction on the "permission or authority" element of the burglary charge. Our review of this issue is de novo. State v Westeen, 591 N.W.2d 203, 207 (Iowa 1999). Lusher must show his attorney breached an essential duty and prejudice resulted. Id.
The district court instructed the jury on only the second of the four possible "permission or authority" alternatives contained in Iowa Uniform Jury Instruction 1300.14:
1300.14 Burglary — Permission or Authority — Definition
A person has permission or authority to enter or remain in an occupied structure which is open to the public. However, a person does not have permission or authority to enter or remain in an occupied structure open to the public if:
1. The person defies a lawful order not to enter.
2. The person defies a lawful order to leave the occupied structure.
3. The person, without permission or authority, enters or remains in a part of the occupied structure not open to the public.
4. The person enters or remains in the occupied structure without permission or authority after it is closed to the public.
Lusher contends the court should instead have instructed the jury on the first and third alternatives. We find no merit to this contention. Lusher's first entry into the carpet store was not at issue in this case. Therefore, the first alternative did not apply. Following his initial lawful entry, Lusher received several instructions to leave the store. When he reentered from the back, he defied these instructions, placing his actions squarely within the second alternative cited above. As for the third alternative, Lusher did not "remain over" because he initially left after being told to do so. See Walker, 600 N.W.2d at 610 n. 2. Defense counsel did not breach an essential duty by failing to seek alternatives that were unsupported by the evidence. Accordingly, Lusher's ineffective assistance of counsel claim must fail.
AFFIRMED.
ZIMMER, J., concurs; SACKETT, C.J., dissents.
I disagree with the majority that there is substantial evidence to support a burglary charge. Defendant walked through an open door in a warehouse in daylight hours. He had entered the warehouse many times before.