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IN THE COURT OF APPEALS OF IOWA No. 1-804 / 10-1438 Filed December 21, 2011

STATE OF IOWA, Plaintiff-Appellee, vs. LOUIS HENDERSON BRANCH, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

Louis Henderson Branch appeals his convictions for theft in the first degree and burglary in the third degree. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, Olu Salami, Assistant County Attorney, and Tyler Buller, Student Legal Intern, for appellee.

Considered by Danilson, P.J., and Tabor and Mullins, JJ.

2 DANILSON, P.J. Louis Henderson Branch appeals his convictions for theft in the first degree and burglary in the third degree, in violation of Iowa Code sections 714.2(1) and 713.6A (2009). Branch contends the record does not contain

substantial evidence to support his convictions. He alternatively argues his trial counsel was ineffective should we find error was not preserved on his sufficiency of the evidence claim. Branch further alleges the jury instructions incorrectly stated the elements of theft and he received ineffective assistance counsel because trial counsel failed to object to the instructions. Upon our review, we find error was not preserved on the sufficiency-of-the-evidence claim now raised on appeal. We further find trial counsel's failure to preserve error at trial supports Branch's claim for ineffective assistance of counsel because t he State failed to establish sufficient evidence to support the theft conviction under section 714.2(1). We conclude Branch's theft conviction under section 714.2(1) must be reversed. We remand for dismissal of that charge and for entry of an amended judgment of conviction with respect to the lesser-included offense under section 714.7, operating without owner's consent. We affirm the judgment and sentence of the district court for Branch's remaining convictions. I. Background Facts and Proceedings. Shortly before midnight on March 16, 2009, an intoxicated Branch was walking along Locust Street in downtown Des Moines. He wandered to

American Dream Machines, a car dealership specializing in classic cars, located at 1500 Locust. The dealership was closed, and Branch stood outside looking at the cars in the showroom through the dealership windows. He picked up a

3 concrete rock and threw it at the windows. After several attempts, Branch

managed to break a window and enter the dealership. Branch was able to start the ignition of a 1957 Chevrolet Bel Air1 that was on display. He drove the vehicle out of the building through a closed glass garage door, sounding an alarm. He turned west onto Locust and drove the wrong way down the one-way street. Surveillance videos from American Dream Machines depicted Branch breaking into the dealership and driving away with the vehicle. Meredith

Corporation security guard Roger Murray saw the vehicle break through the dealership's glass garage door and travel the wrong direction on Locust. Ryan Wallace, a driver who saw the vehicle coming toward him on Locust, noted part of the glass garage door was still stuck to the front of the vehicle as it headed into oncoming traffic. Robin Swank, an off-duty Des Moines police officer, heard about the theft from dispatch while he was traveling on Grand Avenue. Officer Swank observed the vehicle pulling into a parking spot at 3215 Grand, approximately one mile from American Dream Machines. He pulled in behind the vehicle, drew his

weapon, and identified himself as a police officer. Branch complied with Officer Swank's order to remain in the vehicle. Officer Swank held him at gunpoint until uniformed officers arrived.

The vehicle was being sold for $32,900. Doug Klein, the owner of American Dream Machines, testified at trial the vehicle sustained approximately $10,000 in damage from the events of the evening, and the replacement value of the dealership's damaged garage door was approximately $4000.

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4 Officer Mandy Bernlohr, an operating while intoxicated specialist certified to administer field sobriety tests, was dispatched to the scene to administer field sobriety tests to Branch based upon officer suspicions he was intoxicated. When Officer Bernlohr arrived, she noticed Branch emanated the smell of alcohol; had red, bloodshot and watery eyes; and had slightly slurred speech. Because

Branch was already handcuffed, Officer Bernlohr was only able to perform the horizontal gaze nystagmus test, which Branch failed. Branch was taken into custody. He refused to provide a breath sample. He was belligerent, used profanities, and repeatedly threatened to "blow off one officer's head." He was able to dial a memory button in his cell phone to call his sister. Branch's statements on the booking video indicate he was aware he was at a jail. On April 22, 2009, the State filed a trial information charging Branch with burglary in the third degree (Count I), theft in the first degree (Count II), criminal mischief in the second degree (Count III), and operating while intoxicated, third offense (Count IV). A jury trial was held over three days in June 2010. At trial, Branch raised the defense of intoxication and testified on his own behalf. For the most part, he did not dispute the facts presented by the State. He admitted he was the person on the surveillance videos from American Dream Machines. He claimed he was so intoxicated he had blacked out and could not remember anything. He stated he only remembered going for a walk in the evening and then waking up in the Polk County Jail detox. He stated he did not intend to commit the crimes. Branch's sister, Luvenia Butler, also testified about his

longstanding drinking problem and stated he was intoxicated on that evening.

5 The jury found Branch guilty on all counts.2 The district court sentenced Branch to terms of imprisonment that totaled a maximum of twenty years. Branch now appeals his theft and burglary convictions. His remaining

convictions for operating while intoxicated and criminal mischief are not at issue on appeal. II. Sufficiency of the Evidence. Branch argues the record does not contain substantial evidence to support his convictions for theft in the first degree and burglary in the third degree. Specifically, he contends there was no evidence from which a reasonable jury could find or infer he had the intent to permanently deprive the owner of the vehicle for purposes of his theft conviction. He further alleges that because the evidence does not establish he had the intent to commit a theft, the evidence is also insufficient to support his conviction for burglary. A. Scope of Review. Our review of claims of insufficient evidence to support a conviction is for correction of errors at law. Iowa R. App. P. 6.907; State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). A jury's findings of guilt are binding on appeal if supported by substantial evidence. State v. Enderle, 745 N.W.2d 438, 443 (Iowa 2007). Substantial evidence exists to support a verdict when the record reveals evidence that could convince a rational trier of fact a defendant is guilty beyond a reasonable doubt. Brubaker, 805 N.W.2d at 171. In making this determination, we consider all of the evidence in the record in the light most favorable to the verdict and make all reasonable inferences that may

Following the verdicts, Branch stipulated to prior OWI convictions for purposes of enhancing the OWI charge to a third offense.

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6 fairly be drawn from the evidence. Id. "However, it is the State's `burden to prove every fact necessary to constitute the crime with which the defendant is charged, and the evidence presented must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture.'" Id. (quoting State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004)). B. Preservation of Error. The State contends Branch did not preserve error on the issue of insufficiency of evidence to support a conviction on the theft and burglary counts under the theory he lacked the intent to deprive the owner of the vehicle. To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). An exception to this rule is

recognized, however, "when the record indicates that the grounds for a motion were obvious and understood by the trial court and counsel. " State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). In this case, Branch's trial counsel moved for judgment of acquittal at the close of the State's case, stating as follows: [TRIAL COUNSEL] At this point I would ask for a directed verdict. That the State has not met its burden of proof and ask the Court to rule on that. I believe that, yeah, they have not met their burden of proof, so I would ask for a directed verdict at this time. The motion was overruled by the court as follows: [COURT] I must view the motion of directed verdict taking the evidence in a light most favorable to the State. Doing that, there is no doubt that this Court believes that there has been sufficient evidence generated to generate fact questions for the jury to decide as to all four counts. Therefore, your motion for directed verdict is denied and overruled.

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Trial counsel renewed its motion at the close of all the evidence, which the court again overruled. Based on trial counsel's motion and the court's ruling, we find Branch's motion for judgment of acquittal did not preserve the specific argument he is now making for the first time on appeal, nor does the record indicate the grounds for the motion were obvious and understood by the trial court and counsel. See Williams, 695 N.W.2d at 27; Crone, 545 N.W.2d at 270. Branch was charged with four different counts--theft, burglary, operating while intoxicated, and criminal mischief. The record reveals the motion made by Branch's trial counsel did not mention the "intent" element of the theft or burglary counts. Indeed, the motion did not specify arguments related to those charges. See Brubaker, 805 N.W.2d at 170 ("The motion for directed verdict of acquittal by Brubaker 's trial counsel lacked any specific grounds, and thus, the error was not preserved. "). Branch must establish his trial counsel rendered ineffective assistance in failing to preserve error on the claim to reach the merits of this issue on appeal. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010) ("Ineffective-assistance-ofcounsel claims are an exception to the traditional error-preservation rules."). III. Counsel's Failure to Raise Sufficiency of Evidence Claim. Branch argues his trial counsel was ineffective in failing to raise the sufficiency-of-the-evidence claim now asserted on appeal. He alleges the record does not show he had the intent to permanently deprive the owner of the property, in this case a motor vehicle. Branch contends trial counsel therefore breached an essential duty by failing to move for judgment of acquittal "on this

8 specific ground," and prejudice resulted. He argues that but for counsel's error, the court would have granted the motion "in light of the foregoing pronouncements" in State v. Schminkey, 597 N.W.2d 785, 789-92 (Iowa 1999), and the facts of this case. A. Scope of Review. Our review of ineffective assistance of counsel claims is de novo. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). To establish a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. Fountain, 786 N.W.2d at 265-66. The claim fails if either element is lacking. Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008). The applicant must Brubaker, 805

overcome a strong presumption of counsel's competence.

N.W.2d at 171; see also Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388, 1404, 179 L. Ed. 2d 557, 560-61 (2011). B. Preservation for Postconviction Relief Proceeding. "The failure of trial counsel to preserve error at trial can support an ineffective assistance of counsel claim." State v. Truesdell, 679 N.W.2d 611, 615-16 (Iowa 2004). Ordinarily, ineffective assistance of counsel claims are best resolved by postconviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim. Bearse, 748 N.W.2d at 214. In some instances, however, the appellate record can be adequate to address the claim on direct appeal. Berryhill v. State, 603 N.W.2d 243, 246 (Iowa 1999). When the record is adequate, the appellate court should decide the claim on direct appeal. See State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999). "Preserving ineffective

9 assistance of counsel claims that can be resolved on direct appeal wastes time and resources." Truesdell, 679 N.W.2d at 616. As our supreme court has instructed, "[a] claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal." Id. If the record fails to reveal substantial evidence to support the convictions, then counsel was ineffective for failing to properly raise the issue and prejudice resulted. Id. However, if the record reveals substantial evidence, then counsel's failure to raise the claim of error could not be prejudicial. Id. Regardless, Branch's claim of ineffective assistance of counsel on this ground can and should be addressed on direct appeal. C. Theft Conviction. The offense of theft has two elements. A person commits theft when he (1) takes possession or control of the property of another, or property in the possession of another (2) with the intent to permanently deprive the other thereof. Iowa Code

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