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IN THE COURT OF APPEALS OF IOWA No. 6-899 / 05-1745 Filed December 28, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. JAMES LOSEY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.

James Douglas Losey appeals his conviction for second-degree robbery. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Fred H. McCaw, County Attorney, and Ralph R. Potter, Assistant County Attorney, for appellee.

Considered by Huitink, P.J., Vogel, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 HUITINK, P.J. James Douglas Losey appeals his conviction for second-degree robbery. We affirm. I. Background Facts and Proceedings. Losey was charged with the foregoing offense after he was implicated in the robbery of the Dubuque Bank and Trust on July 12, 2004. Losey pleaded not guilty, and a public defender was appointed to represent him. Losey's jury trial was set for September 18, 2005. At a September 15, 2005 final pretrial conference, Losey personally addressed the court concerning his dissatisfaction with the public defender and requested a new court-appointed attorney. The court denied Losey's request, and the matter proceeded to trial as scheduled. At the close of the State's evidence, Losey's counsel moved for a directed verdict, citing the insufficiency of the State's evidence to prove the intent to commit a theft or assault element of robbery. Losey's motion was denied, and the court submitted the robbery charge to the jury. The jury returned a guilty verdict. Losey's posttrial motions were denied, and a judgment of conviction was entered in accordance with the jury's verdict. Losey was sentenced to serve a term not to exceed ten years. On appeal, the appellate defender raises the following issues on Losey's behalf: I. II. There is insufficient evidence to support defendant's conviction for second-degree robbery. The district court erred and denied defendant the right to counsel by failing to thoroughly inquire into defendant's allegations of a conflict with his attorney.

3 III. Defendant's trial attorney rendered ineffective assistance of counsel.

Losey raises the following issues in his pro se brief: I. Appellant was denied his fundamental right of due process under the Sixth and Fourteenth Amendments of the U.S. Constitution when only months prior to trial he had been diagnosed "chronically mentally ill with schizophrenia and bipolar one mood disorder . . . meets the criteria for dementia . . . symptoms of hallucinations and delusions . . . formal thought disturbance . . . his contact with reality tenuous . . ." [and where] "results indicate deficient range in memory functions in all domains assessed including immediate and delayed (intermediate) recall" and where appellant was coerced by jail officials to take psychotropic medications and where defense counsel obtained both psychiatric evaluation and list of medications yet failed to apprise the court prior to trial. Appellant was denied his constitutional rights under the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution when, after the trial had been pending a year, trial counsel had still failed to depose several witnesses and where the trial court consequently limited the number of depositions to be taken in the four remaining days prior to trial. Appellant was denied his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution when defense counsel had failed to file a timely motion to suppress illegally obtained evidence during a warrantless search and seizure.

II.

III.

II. Sufficiency of the Evidence. We review a sufficiency of the evidence challenge for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We uphold a verdict if substantial evidence supports it. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). A jury's finding of guilt is binding upon us unless there is not substantial evidence in the record to support the finding. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001). Substantial evidence is evidence that could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v.

4 Robinson, 288 N.W.2d 337, 339 (Iowa 1980). "`Evidence in not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.'" Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 418 (Iowa 2005) (quoting Fischer v. City of Sioux City, 695 N.W.2d 31, 33-34 (Iowa 2005)). We view the evidence in the light most favorable to the State, but consider all the evidence, not just the evidence supporting the verdict. Thomas, 561

N.W.2d at 39. "Direct and circumstantial evidence is equally probative." State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). The evidence must raise a fair inference of guilt as to each essential element of the crime and must do more than raise suspicion, speculation, or conjecture. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2000). "[W]hen two reasonable inferences can be drawn from a piece of evidence, we believe such evidence only gives rise to a suspicion, and, without additional evidence, is insufficient to support guilt." State v. Truesdell, 679 N.W.2d 611, 618-19 (Iowa 2004). Losey claims there is insufficient evidence in the record to support his robbery conviction. More specifically, he claims "the record does not establish that he did an act with the specific intent to place the victim in fear of immediate contact that would be painful, injurious, insulting, or offensive." section 711.1 defines robbery as follows: A person commits a robbery when, having the intent to commit theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stolen property: 1. Commits an assault upon another. Iowa Code

5 2. Threatens another with or purposely puts another in fear of immediate serious injury. 3. Threatens to commit immediately any forcible felony. It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen. Iowa Code section 708.1 provides that a person commits an assault when, without justification, the person does any of the following: 1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act. 2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. 3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another. Assault requires an overt act. State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981). An overt act can be defined as "an open manifest act from which

criminality may be implied." State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001). It is also "[a]n outward act done in pursuance and manifestation of an intent or design." Id. We consider the totality of the facts including both verbal and See id. at 232. Regardless of whether the assault is

nonverbal actions.

submitted as a specific or general intent crime, "the State must prove by evidence beyond a reasonable doubt that the defendant intended his act to cause pain or injury to the victim or to result in physical contact that would be insulting or offensive to the victim." State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004). The intent required by statute "may be inferred from the circumstances of the transaction and the actions of the defendant." State v. Keeton, 710 N.W.2d 531, 534 (Iowa 2006) (citing 21 Am. Jur. 2d Criminal Law

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