State v. Oetken, 99-364.

CourtUnited States State Supreme Court of Iowa
Citation613 N.W.2d 679
Docket NumberNo. 99-364.,99-364.
PartiesSTATE of Iowa, Appellee, v. Ryan OETKEN, Appellant.
Decision Date06 July 2000

613 N.W.2d 679

STATE of Iowa, Appellee,
Ryan OETKEN, Appellant

No. 99-364.

Supreme Court of Iowa.

July 6, 2000.

613 N.W.2d 682
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., Des Moines, for appellant

Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Scott Schroeder, Assistant County Attorney, for appellee.

Considered en banc.

SNELL, Justice.

Defendant was convicted of second-degree burglary and adjudicated an habitual offender. He now appeals, challenging the sufficiency of the evidence, the propriety of the jury instructions, the jurisdiction of the trial court, and the effectiveness of counsel. We find no reversible error. The decision of the district court is affirmed.

I. Background Facts and Proceedings

On September 25, 1998, defendant, Ryan Oetken, was indicted on two counts of burglary in the second degree in violation of Iowa Code sections 713.1 and 713.5(1) (1997). Defendant was also alleged to be an habitual offender in accordance with Iowa Code section 902.8. Prior to trial the State filed a substitute, supplemental information, which omitted any reference to defendant's criminal history or his status as an habitual offender. The first proceeding commenced in December of 1998 and, due to unusual and unforeseeable circumstances, ended in a mistrial.

Evidence adduced at the second trial indicates defendant and his accomplice, Robby Inghram, systematically engaged in a scheme to burglarize homes near rural Danville. Their chosen method of accomplishing this endeavor was to drive through sparsely populated areas in search of a home that appeared to be unoccupied during regular work hours. On the morning of March 16, 1997, the men happened

613 N.W.2d 683
upon the residence of Joann Beckman. They parked, knocked to ascertain the premises were vacant, and broke in through a back door. They then proceeded to burglarize the home stealing several televisions, a VCR, one rifle, cased, and one shotgun, uncased

Having completed the theft, the men decided to store the goods in Inghram's basement. Robby's sister, Natalie, was present at the time and witnessed defendant carrying a large gun. Having been discovered, Robby admitted he and Oetken had stolen the items and told Natalie not to "freak out." Shortly thereafter Inghram left for work.

At approximately 7:30 the next morning, Oetken and Inghram set out once again. On this occasion they victimized the home of Gerald Morrison. Employing the same methods used the previous day, the two men parked their car, knocked on the back door, broke in, and stole a TV, a VCR, a stereo, two telephones, and one cased, Winchester, 12-gauge shotgun. As before, Robby's sister, Natalie, witnessed the pair hide their plunder in the Inghram basement.

That same morning Oetken and Inghram visited the home of Patricia McConnell, a neighbor of Gerald Morrison. Again, they parked their car and knocked on a back door. On this occasion, however, a resident responded to the summons. The men made an ill attempt to explain their presence and exited in haste.

Soon thereafter, the pair feared the authorities were closing in. In an effort to conceal their deeds, Oetken and Inghram disposed of the stolen property by throwing the items in the Mississippi River. The men's paranoia was apparently justified, as the police had in fact suspected them of the crimes. Authorities subsequently searched the area where defendant disposed of the property and recovered, among other things, the shotgun stolen from Gerald Morrison. Inghram confessed when faced with this and other seemingly overwhelming evidence.

Oetken pled not guilty and was convicted on all counts. Defendant was then sentenced to a term of imprisonment not to exceed fifteen years. On appeal he now contends the following: (1) there was insufficient evidence to prove he possessed a dangerous weapon in the manner required to elevate his crime to second-degree burglary; (2) the jury was not instructed as to the elements of the offense; and (3) the trial court erred in enhancing his sentence as an habitual offender.

Defendant notes error may not have been preserved with respect to his first two claims. We agree. Oetken therefore requests we address those issues in terms of ineffective assistance of counsel. To that end defendant also contends counsel was inadequate in that he did not conduct a thorough investigation prior to trial, file a motion to sever the offenses, object to hearsay, or demand voir dire, opening statements, and closing arguments be reported for the record.

II. Scope of Review

Claims of ineffective assistance of counsel are derived from the Sixth Amendment to the United States Constitution, and are afforded a de novo review. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). Such claims are generally preserved for postconviction proceedings unless, as here, a satisfactory record exists upon which to base a conclusion. Id.

To sustain his petition, defendant must prove, by a preponderance of the evidence, that trial counsel failed in an essential duty and prejudice resulted therefrom. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). There is a strong presumption that counsel's performance meets professional standards. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). To rebut this presumption defendant must present an affirmative factual basis establishing inadequate representation. Id. Improvident trial strategy or miscalculated

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tactics do not necessarily constitute ineffective assistance of counsel. Id.

Moreover, the resultant prejudice must give rise to a reasonable probability the outcome of the proceeding would have been different had counsel not erred. Pace, 602 N.W.2d at 774. We need not consider whether counsel did in fact abrogate a duty if no prejudice is evident. Id.

III. Analysis

A. Sufficiency of the Evidence

Defendant's primary contention on appeal is that the State did not have sufficient evidence to prove he possessed a dangerous weapon for the purpose of promoting the commission of the crime. To that end, Oetken argues the incidental acquisition of a weapon during the perpetration of a burglary, in and of itself, cannot serve to elevate the offense.

Defendant's position is not supported by precedent. In State v. Franklin, 368 N.W.2d 716 (Iowa 1985), defendant, Franklin, and several accomplices, entered the home of Catherine and Douglas Darby. Douglas was severely beaten after which the men ransacked the premises in hopes of finding drugs, weapons and money. None of the men were armed when they initially entered the apartment, but during the search a machete was discovered, which Franklin subsequently used to threaten the Darbys. Franklin claimed that because he did not enter the household armed, his conviction for first-degree burglary could not stand. We disagreed, holding matters that occur after entry, such as physical injury, or possession of a weapon at any point while participating in the burglary, are of moment in elevating the crime. Franklin, 368 N.W.2d at 720.

In State v. Olsen, 482 N.W.2d 452 (Iowa App.1992), defendant, Olsen, burglarized a home, found a gun, loaded it, fired a shot through the wall of the house, and fled the scene. While making his escape, Olsen was chased by the police. In an effort to dispose of incriminating evidence he jettisoned the gun through the window of the car. Olsen was later convicted of burglary in the first degree. Even though the weapon was not used to further the commission of the crime, the court of appeals followed our language in Franklin holding defendant's possession of a weapon at any time permitted elevation of the offense.

Oetken endeavors to distinguish Franklin and Olsen, observing the defendants therein actually used and or brandished weapons, whereas the firearms he allegedly stole constituted nothing more than loot from a burglary. Here, defendant notes two of the three firearms were removed from the homes in cases, the guns were neither used nor brandished in any manner, and any crime he may have committed is analogous to the burglary of an armament factory where a thief runs away with a sack of rifles. Oetken argues the legislature never intended the mere theft of a weapon, be it from a department store or a private gun collection, to be sufficient to elevate an offense for possession under the burglary statute. Such a policy, he avers, would lead to absurd results.

Iowa Code sections 713.1 and 713.5 provide:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.
A person commits burglary in the second degree in either of the following circumstances:

1. While perpetrating a burglary in or upon an occupied structure in which no persons are present, the person has possession of an explosive or incendiary

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device or material, or a dangerous weapon, or a bodily injury results to any person

The language of the statute is relatively straightforward, it simply requires an offender have "possession" of a dangerous weapon. Possession can be actual, constructive, joint, or sole. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997).

A person who has direct physical control of something on or around [his][her] person is in actual possession of it.
A person who is not in actual possession of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it.
If one person alone has possession of something, possession is sole.
If two or more persons share

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