State v. Barnes

• Decision Date: 23 December 2010
• Docket Number: No. 08-0519.,08-0519.
• Citation: 791 N.W.2d 817
• Parties: STATE of Iowa, Appellee, v. Wayne Samuel BARNES, Appellant.
• Court: Iowa Supreme Court

791 N.W.2d 817 STATE of Iowa, Appellee, v. Wayne Samuel BARNES, Appellant. No. 08-0519. Supreme Court of Iowa. Dec. 23, 2010.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Cynthia L. Voorde, County Attorney, for appellant.

Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellee.

TERNUS, Chief Justice.

The State seeks further review of a court of appeals' decision reversing the defendant's conviction for burglary in the third degree and theft in the second degree, both as a habitual offender, on the ground trial counsel was ineffective in failing to request a corroboration instruction. Because we agree the defendant failed to establish that, had the instruction been given, a reasonable probability existed the outcome would have been different, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

From the evidence presented at trial, a jury could find the following facts. In March 2006, the defendant, Wayne Samuel Barnes, bought six to eight pigs with the intent to raise them and sell them. His sister, Annette Bellcock, and her husband, James Bellcock, allowed the defendant to keep the pigs at an acreage they owned in rural Calhoun County. In return, the defendant agreed to give the Bellcocks one pig when the pigs were ready for market. No one lived at the Bellcocks' acreage, but there were several outbuildings on the property and the Bellcocks kept horses there.

The defendant cared for the pigs until sometime in May when he abandoned them and moved to Kansas. The defendant did not contact the Bellcocks, and they did not know where he had gone. James assumed care of the pigs for about a month and then, tired of the effort and expense of raising the pigs, sold them in June 2006.

In March 2007, the defendant moved back to Iowa from Kansas with his girlfriend, Brandi Rex. The couple moved in with seventeen-year-old Brian Sayer and his mother.

On April 6, 2007, the Bellcocks discovered the riding lawn mower they kept on the acreage had been stolen. The lawn mower had been stored in a machine shed on the property. The key for the lawn mower was locked up at the Bellcocks' residence. Prior to these events, the sliding door on the shed had been blown off by the wind, so James had moved a large farm tractor in front of the door so nothing could be driven out of the building. It appeared the mower had been removed through an opening in a wall of the shed where someone had taken off a piece of the wall. The machine shed was approximately one hundred feet from the building where the defendant had been raising pigs. The lawn mower had been purchased in late March or April of 2006, about the same time Barnes started housing pigs at the acreage. James last recalled seeing the mower on April 3, 2007. A tire and rim for a pickup truck parked outside the shed were also missing.

Approximately two months later, on June 6, 2007, a deputy county sheriff received information that led him to a pawnshop in Ames, Iowa. Records obtainedfrom the pawnshop revealed that, on April 4, 2007, Rex pawned a riding lawn mower fitting the description of the one taken from the acreage. At the same time, Rex pawned a video game system and some games. Rex's signature and fingerprint were contained on the paperwork completed for these transactions.

A former employee of the pawnshop recalled that two people brought the lawn mower into the pawnshop, a male and a female. The female identified herself as Brandi Rex and was the person who signed the paperwork. The former employee estimated the woman was in her late twenties or early thirties and the male was ten to fifteen years older than the woman, though he could not identify the defendant when he saw the defendant at his deposition. At trial, Rex testified she was twenty-eight. The defendant was thirty-nine.

The riding lawn mower was subsequently sold to Eric Dalaba on June 5, 2007, and was retrieved by the deputy sheriff on June 7. James Bellcock positively identified the lawn mower as the one taken from his machine shed.

At trial, several witnesses presented testimony tending to connect Barnes to the lawn mower's disappearance. Douglas Geibe testified that he had known the defendant for about a year and a half and that, in the spring or summer of 2007, Barnes was at Geibe's residence when a discussion about a lawn mower ensued. According to Geibe, they were sitting around talking when Geibe mentioned he needed a new lawn mower. Barnes, Geibe testified, told him he had access to a lawn mower that he was going to be picking up the next day and asked if Geibe was interested in it. Barnes told Geibe he was getting the lawn mower from his sister in payment for a debt she owed him on some hogs she had sold. Although Geibe indicated he was interested in the lawn mower and asked Barnes to bring it over, he testified Barnes never did, and he had no further discussions with the defendant about any lawn mowers.

Rex also testified at the defendant's trial. According to Rex, between March and August 2007, she was living in Lake City, Iowa, and dating the defendant. During this period, she claimed the defendant talked about his sister and said "[n]ot very good things." In particular, he told Rex that his sister had sold some hogs that cost him $1600, and he acted "real mad" about it. He also made comments about wanting to burn down his sister's house. He made those statements, according to Rex, before the lawn mower was stolen. Rex stated Barnes told her about the lawn mower the Bellcocks had at their farm.

Rex further testified that, on April 4, 2007, she was with the defendant and Sayer when they retrieved a riding lawn mower from a farm near Lake City where the defendant had left it the previous night. The lawn mower was in a truck covered with a blue tarp. Defendant initially told Rex he had obtained the lawn mower in trade for some tattoo work he had done. They took the lawn mower to the Ames pawnshop where Rex signed the necessary paperwork, asserting she was the owner of the lawn mower, because she was the only one with a valid identification card. She testified Barnes was standing by her while she took care of the sale. She also pawned Sayer's game system because he was underage and could not pawn it himself.

After the lawn mower was pawned, Rex testified Barnes informed her the lawn mower was stolen. She recalled the defendant told her he had knocked a couple of boards out of the back wall of the shed to remove the lawn mower because the doorway of the shed was blocked by a tractor. Based upon her involvement in pawning the lawn mower, Rex was charged withtheft and burglary. As part of a plea agreement, Rex testified she pleaded guilty to tampering with records and received a suspended sentence in exchange for agreeing to testify at the defendant's trial.

Sayer also testified at the defendant's trial. According to Sayer, the night before he accompanied the defendant and Rex to the pawnshop, he and Barnes and a number of other people were at Sayer's house drinking beer. During the evening, Barnes approached him and asked him to help him steal a lawn mower. Sayer refused. After finding someone else to help him, Barnes left the gathering in his truck. When he returned about an hour and a half later, he told Sayer his truck was parked at one Dilly's farm about four miles north of Lake City and that they had gotten the lawn mower. Later that evening, Barnes asked Sayer if he wanted to help him pawn the lawn mower, and Sayer agreed.

The next morning Sayer took Barnes and Rex out to the Dilly farm where the truck with the lawn mower had been left. The lawn mower was in back, covered with a blue tarp. On the way to the pawnshop, they stopped at a hardware store to obtain a key, as Barnes told Sayer he didn't have a key to the lawn mower. Sayer testified he walked around the pawnshop while Rex pawned the lawn mower and that Barnes stood by Rex while she completed the paperwork.

On January 17, 2008, the jury found the defendant guilty of burglary in the third degree and theft in the second degree. They also found the defendant had two prior felony convictions. The court denied the defendant's motion for new trial. Barnes received an indeterminate fifteen-year sentence on each count. The sentences were ordered to be served consecutively.

II. Issues on Appeal.

Barnes raises three issues on appeal. First, Barnes asserts trial counsel was ineffective for eliciting and for failing to object to evidence of other bad acts and for failing to request the jury receive an instruction on the requirement of corroboration of accomplice testimony. Second, the defendant claims the trial court applied the wrong standard to his motion for new trial and erred in failing to grant the motion. Third, Barnes asserts the court erred in imposing consecutive sentences without giving any reason for doing so.

We transferred the case to the court of appeals. Initially, the court of appeals issued an order remanding the defendant's case to the district court for reconsideration of the defendant's motion for new trial. The district court found that defendant's conviction was not contrary to the weight of the evidence.¹ On the merits, the court of appeals reversed and remanded the case for a new trial on the ground trial counsel was ineffective for failing to request a corroboration instruction. The State filed an application for further review, which we granted.

III. Ineffective-Assistance-of-Counsel Claims.

To prevail on an in effective-assistance-of-counsel 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). Normally ineffective-assistance-of-counsel claims are brought in postconviction relief actions. "We will address such claims on direct appeal only...