Opinion
No. 4-206 / 03-0964
April 28, 2004.
Appeal from the Iowa District Court for Linn County, L. Vern Robinson and Thomas L. Koehler, Judges.
Willie Nelson Miller, Jr. appeals from his conviction for robbery in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, and Harold Denton, County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
I. Background Facts and Proceedings
Willie Nelson Miller, Jr. was charged with robbing Michelle Polley and Sandy Thompson after they identified him as the man who entered a Cedar Rapids convenience store where they worked and demanded Thompson give him the money out of the cash register. Although the man was wearing a ski mask, they were able to identify Miller because his gold tooth and mustache were visible through a hole in the ski mask. Other evidence implicating Miller included a DNA sample taken from a ski mask found outside of the store, as well as discarded clothing matching that worn by the man during the robbery. A security video indicated the man shoved Polley to gain access to the cash register. There was no evidence the man used or implied that he had a weapon.
Miller was charged with one count of robbery in the second degree. The trial information charging Miller states:
THAT THE SAID WILLIE NELSON MILLER, JR. ON OR ABOUT THE 7th DAY OF OCTOBER, 2002, IN THE COUNTY OF LINN AND STATE OF IOWA, DID UNLAWFULLY AND WILLFULLY:
commit robbery in the second degree against Sandra Thompson and Michelle Polley, employees of the Hawkeye Convenience Store at 803 First Avenue SW, Cedar Rapids, Iowa,
IN VIOLATION OF SECTION(S) 711.1 711.3, IOWA CRIMINAL CODE.
Miller pled not guilty, and the matter proceeded to a jury trial. At the conclusion of the evidence, the court, without objection, instructed the jury as follows:
INSTRUCTION NO. 13
The State must prove all of the following elements of Robbery in the Second Degree:
1. On or about the 7th day of October, 2002, the Defendant had the specific intent to commit a theft.
2. In carrying out his intention, with or without the stolen property, the Defendant assaulted one or both of the store employees as Assault is defined in Instruction No. ____ [sic].
If the State has proved both of the elements, the Defendant is guilty of Second Degree Robbery. If the State has only proved element 2 but not element 1, the Defendant is guilty of the lesser crime of Assault. If the State has not proved element 2, the Defendant is not guilty.
INSTRUCTION NO. 14
A person commits an assault when he does any of the following:
1. by doing an act which is intended to place another in fear of immediate physical contact which would be painful, injurious, insulting, or offensive; or
2. by doing an act which is intended to cause pain or injury to another; or
3. by doing an act which was intended to result in physical contact with another which would be insulting or offensive.
The jury returned a guilty verdict. Miller's posttrial motions were denied. The trial court entered a judgment and sentence in accord with the jury's guilty verdict resulting in this appeal.
On appeal Miller claims he was denied affective assistance of trial counsel. He cites counsel's failure to object to the foregoing instructions or otherwise challenge the State's failure to prove Miller assaulted both Polley and Thompson as alleged in the trial information.
II. Standard of Review
Generally, we review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. However, when the sufficiency of evidence claim is couched under an ineffective assistance of counsel claim, our review is de novo. See State v. Begey, 672 N.W.2d 747, 748 (Iowa 2003).
III. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, Miller has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Miller faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
An ineffective assistance of counsel claim fails if a defendant fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We find the record adequate to address this issue on direct appeal.
Even if we accept Miller's argument that the trial information charged him conjunctively and the State was thereby obligated to prove he assaulted both Thompson and Polley, his ineffective assistance of counsel claim still fails. There is no serious dispute that the evidence indicating Polley was shoved during the robbery is sufficient to establish the required assault on her. As noted earlier, the man later identified as Miller entered the convenience store wearing a ski mask and ordered Thompson to give him money from the cash register. These overt actions meet the definition of assault under Iowa Code section 708.1(2) (2001). See State v. Heard, 636 N.W.2d 227, 231-32 (Iowa 2001) (finding assault from defendant's actions of entering a store with a paper bag over his head and socks over his hands and demanding money from the store employee). We accordingly conclude Miller's counsel breached no essential duty by failing to object to the foregoing instructions or otherwise challenge the sufficiency of the evidence supporting the State's robbery charge against Miller. See State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (determining counsel is not ineffective for failing to raise a meritless issue).
We have considered the remaining issues Miller raises on appeal and find they are either without merit or controlled by the foregoing.