                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1105
                             Filed August 16, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEFFREY S. GUNDERSEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, District Associate Judge.



      Jeffrey Gundersen challenges his conviction for theft in the fifth degree

and obstruction of prosecution. AFFIRMED.




      Drew H. Kouris, Council Bluffs, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
                                           2


MULLINS, Judge.

       Jeffrey Gundersen appeals from his convictions for theft in the fifth degree

and obstruction of prosecution.       Gundersen challenges the sufficiency of the

evidence to support his conviction for obstruction of prosecution. Additionally, he

claims he received ineffective assistance from trial counsel when counsel failed

to ensure (1) Gundersen had a colloquy with the court before waiving his right to

jury trials and (2) the court read the verdicts in open court.

       I. Background Facts and Proceedings

       In January 2016, the State charged Gundersen by trial information with

obstruction of prosecution.      In a second, unrelated trial information—filed in

March 2016—Gundersen was charged with theft in the fourth degree.1 He filed

written waivers of jury trial in both cases.

       Each charge proceeded to a bench trial on April 28, 2016. The court

heard the cases in separate back-to-back proceedings.2

       During the trial for obstruction of prosecution, the State introduced

evidence that on the morning of February 17, 2015, Rudolph Lucero stole Steven

Walker’s orange 2005 Dodge Ram truck. Steven testified that around 7:30 a.m.

on the day in question, he had started his truck outside of his home—where he

lived with his parents—to let it warm up before he put his daughters in it. Shortly

after he walked away, he witnessed an individual (later determined to be Lucero)
1
   Gundersen was originally charged with theft in the fourth degree. See Iowa Code
§ 714.2(4) (2015) (property exceeding $200 but not exceeding $500). The court
determined the stolen items had a reasonable value of less than $200 and found
Gundersen guilty of theft in the fifth degree instead. See id. § 714.2(5) (property not
exceeding $200).
2
  Gundersen claims the district court and counsel erred in certain procedural respects
involving his theft trial, but he does not otherwise challenge the evidence introduced at
trial. For that reason, we do not discuss the facts surrounding his conviction for theft.
                                          3


jump into the truck and drive away. Steven chased the truck on foot for a short

distance before deciding to return home to pursue the thief in another vehicle.

Steven’s father, Wesley Walker, picked him up in another vehicle, and they

attempted to pursue the truck. While in the truck with his father, Steven called

911. In the audio from the 911 call, Steven can be heard panting as he relays

the events to the dispatcher. Within a short period of time, Steven received a call

from the local police alerting him his truck had been found but had been involved

in an accident and was likely a total loss.

       Steven’s parents both testified Steven had not left the house between the

hours of midnight and 7:30 a.m. when he went outside to start the truck. Both

also corroborated Steven’s account of what occurred on the morning of February

17, 2015.

       The State introduced into evidence a notarized affidavit signed by

Gundersen, in which Gundersen swore he “was present when Steven Walker of

[Steven’s address] lent Rudolph Lucero his 2005 orange Dodge Ram pickup on

2/17/2015.” Gundersen admitted he signed the affidavit while he was in jail, and

later testimony established that Gundersen and Lucero were housed in the same

cell block on the date Gundersen prepared the affidavit. Lucero sent the affidavit

to his attorney, who eventually showed it to the prosecutor in hopes she would

drop the charges against Lucero.          Lucero ultimately entered into a plea

agreement with the State and pled guilty to the lesser offense of operating a

motor vehicle without owner’s consent.

       Lucero testified from prison. Lucero stated he had seen Gundersen at a

local gas station on the afternoon of February 17, 2015, while Lucero was waiting
                                          4


for Steven to arrive. Lucero testified he was meeting Steven to sell him drugs,

but he did not have the drugs on him, and the person selling to him did not want

a second person at his home. According to Lucero, Steven gave him permission

to take his truck to get the drugs and return; Steven called the cops when Lucero

failed to return with the truck. Lucero did not testify he had told Gundersen he

was there to buy or test drive Steven’s truck.

       Much of Lucero’s testimony was in contrast with what Gundersen had told

officers when he was questioned over the phone about the affidavit. Gundersen

told the detective he was present when Steven was trying to sell his truck to

Lucero and when he handed Lucero the keys. Gundersen also told him he had

seen Steven and Lucero at the gas station between 12:30 p.m. and 1:00 p.m.

       At trial, Gundersen’s story of the event changed. He claimed that while he

had seen Lucero at the gas station and spoken with him, he was approximately

forty-five feet away from Steven and Lucero when they were talking, and

although he witnessed them having a conversation, he could not hear what was

being said.   He claimed it was Lucero who told him Lucero had been given

Steven’s keys in order to test drive the vehicle. He again reiterated that this

occurred in the afternoon.     He testified he created the affidavit because he

“believed it was true and correct to the best of [his] knowledge.”

       The district court did not render the verdicts in open court. Rather, on May

9, 2016, the district court filed two separate orders finding Gundersen guilty of

obstruction of prosecution and theft in the fifth degree.

       Gundersen filed a motion in arrest of judgment and motion for new trial in

each case. The district court considered the motions before sentencing, in open
                                             5


court. The court denied the motions and reiterated its determination Gundersen

was guilty of both offenses. Gundersen was sentenced to a term of incarceration

not to exceed two years for obstruction of prosecution and a term of incarceration

of thirty days for theft. The court ordered the two terms to run concurrently.

       Gunderson appeals.

    II. Discussion

           A. Sufficiency of the Evidence

       Gundersen maintains there was not sufficient evidence to support his

conviction for obstruction of prosecution, pursuant to Iowa Code section

719.3(1).3 “We review challenges to the sufficiency of the evidence for correction

of errors at law.” See State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017). “We

consider the evidence in the record ‘in the light most favorable to the State,

including all reasonable inferences that may be fairly drawn from the evidence.’

We will, however, consider all evidence in the record, including evidence that

does not support the verdict.” Id. (citations omitted).

       Here, the State had the burden to prove, “[Gundersen], with intent to . . .

obstruct the prosecution . . . of [Lucero], knowingly . . . ma[de] available false

evidence or furnishe[d] false information with the intent that it . . . be used in the


3
  Gundersen also challenges the sufficiency of the evidence under the guise of an
ineffective-assistance-of-counsel claim. Counsel had no duty to move for a judgment of
acquittal during the bench trial. See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997)
(“No valid purpose would be served by requiring a defendant to make a motion for
judgment of acquittal in the context of a criminal bench trial. . . . We similarly hold that
when a criminal case is tried to the court, a defendant may challenge the sufficiency of
the evidence on appeal irrespective of whether a motion for judgment of acquittal was
previously made.”). Additionally, “‘[w]hen . . . a [sufficiency-of-the-evidence] claim is
made on appeal from a criminal bench trial, error preservation is no barrier.’” State v.
Howse, 875 N.W.2d 684, 688 (Iowa 2016) (second alteration in original) (quoting State
v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001)).
                                            6

trial of that case.” See Iowa Code § 719.3(1). Specifically, Gundersen questions

whether the State provided substantial evidence to establish his intent to hinder

the prosecution of Lucero. He also maintains the affidavit would not have been

admissible at Lucero’s trial.4

       First, in spite of Gundersen’s claim otherwise, the State did not have to

prove Gundersen’s affidavit in fact obstructed the prosecution of Lucero.

Similarly, while Gundersen maintains he cannot be guilty of obstruction of

prosecution because his affidavit would not have been admissible in a trial

against Lucero, that is also not a required element of the offense. The question

is whether Gundersen intended for the affidavit to be used at Lucero’s possible

future trial, not whether it was or could have been used. Gundersen’s payment

of five dollars to a notary to have the document notarized establishes his intent

for its use in an official setting; if his only intention was to impart information to

Lucero’s attorney, Gundersen could have done so without going the extra step

and incurring the additional cost of having the document notarized. Viewing the

evidence in the light most favorable to the State, the evidence establishes

Gundersen intended for the affidavit to be used in Lucero’s trial.

       The evidence also establishes Gundersen intended to obstruct the

prosecution of Lucero. While he claims we cannot infer such an intent from the

evidence admitted at trial, it is the only reasonable inference that can be drawn


4
  Gundersen claims the affidavit would not have been admissible at trial and then cites a
case in which our supreme court determined the State should not have been allowed to
introduce affidavits because they were testimonial in nature, thus violating the
defendant’s right to confrontation. See State v. Kennedy, 846 N.W.2d 517, 527 (Iowa
2014). Those are not the facts presently before us. However, it is possible Gundersen’s
affidavit would not have been admitted at a future trial because it contained inadmissible
hearsay. See Iowa R. Evid. 5.801(c) (defining hearsay).
                                         7


from Gundersen’s knowingly authoring a false statement about witnessing

Steven Walker lend Lucero his truck. See State v. Casaday, 491 N.W.2d 782,

788 (Iowa 1992) (noting intent is usually proven “by circumstantial evidence and

inferences reasonably drawn from the conduct of the defendant and from all the

attendant circumstances in light of human behavior and experience”). At trial,

Gundersen       attempted   to   characterize   his   affidavit   as    a   possible

misunderstanding of what he witnessed occur between Steven and Lucero at the

gas station on the afternoon in question, but as the district court found, “It would

be impossible for Gundersen to have seen them on the afternoon of February 17,

2015, since the vehicle had been previously stolen and wrecked long before this

alleged meeting took place.”

      Substantial evidence supports Gundersen’s conviction for obstruction of

prosecution.

          B. Ineffective Assistance

      Gundersen raises two issues under the ineffective-assistance-of-counsel

framework. To prove his claims of ineffective assistance of counsel, Gundersen

must prove by a preponderance of the evidence (1) counsel failed to perform an

essential duty and (2) he suffered prejudice as a result. See State v. Morgan,

877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either prong is not

proved.   Id.   When analyzing the prejudicial effect of multiple allegations of

ineffective assistance of counsel, we “look to the cumulative effect of counsel’s

errors to determine whether the defendant satisfied the prejudice prong of the

Strickland test.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012) (referencing

Strickland v. Washington, 466 U.S. 668, 687 (1984)).              “If an ineffective-
                                          8


assistance-of-counsel claim is raised on direct appeal from the criminal

proceedings, we may decide the record is adequate to decide the claim or may

choose to preserve the claim for postconviction proceedings.” State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006).

              1. Waiver of Jury Trial

       Gundersen claims counsel provided ineffective assistance when he failed

to ensure Gundersen’s waiver of a jury trial was knowing, voluntary, and

intelligent and in compliance with Iowa Rule of Criminal Procedure 2.17(1).

Gundersen argues this failure constitutes a structural defect and urges us to

presume prejudice.

       Rule 2.17(1) provides in part, “Cases required to be tried by a jury shall be

so tried unless the defendant voluntarily and intelligently waives a jury trial in

writing and on the record within [thirty] days after arraignment.”        (Emphasis

added.) “On the record” means “an in-court colloquy with defendants who wish

to waive their jury trial rights.” State v. Liddell, 672 N.W.2d 805, 811–12 (Iowa

2003). Here, it is undisputed no in-court colloquy took place. But “[t]he fact that

the requirements of rule 2.17(1) have not been met does not necessarily mean

that a violation of the defendant’s right to a jury trial has in fact occurred.” State

v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008).            “The absence of an oral

colloquy . . . does not necessarily prove that a defendant failed to understand the

nature of the right waived by proceeding to a non-jury trial.” Id. at 708. As

instructed by our supreme court in Feregrino, we do not presume prejudice;

Gundersen has the burden to establish he was actually prejudiced by his

counsel’s failure to obtain a jury-trial waiver that complied with the rule. See 756
                                            9


N.W.2d at 708.      The record presently before us is inadequate to make that

determination.      Therefore, we preserve Gundersen’s claim for possible

postconviction proceedings. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa

2010).

               2. Verdict in Open Court

         Gundersen claims counsel provided ineffective assistance when counsel

failed to ensure the court rendered its verdict in open court, pursuant to Iowa

Rule of Criminal Procedure 2.17(2).         Our supreme court has interpreted this

provision “to require the court to reconvene the proceedings and announce its

verdict in open court, unless the defendant has waived his or her right to receive

the verdict in open court.” State v. Jones, 817 N.W.2d 11, 19 (Iowa 2012).

Gundersen urges us to conclude the failure to pronounce the verdict in open

court is a structural error, requiring a new trial.

         Our supreme court and the United States Supreme Court have held “the

failure to provide a defendant with a public proceeding demands a remedy

‘appropriate to the violation.’” Id. at 21 (citing Waller v. Georgia, 467 U.S. 39, 50

(1984)). Reading the verdict at a later date is an appropriate remedy. See id.

(“The defendant is not entitled to further relief if the court later reads the verdict at

sentencing.”). Here, after the district court issued two written rulings finding him

guilty, Gundersen filed a combined motion in arrest of judgment and motion for

new trial.    The court ruled on his motions in open court on the day of the

sentencing hearing, stating:

                Well, as the parties know, I was the one who presided over
         the trials in regards to both causes in both cases. There was
         obviously evidence that was presented, video evidence that was
                                          10


       presented, testimony that was presented in regards to both of these
       cases as well, and at that time I had the opportunity to assess the
       credibility of the witnesses, their testimony, the evidence that was
       presented, view the videos as well especially in regards to the theft
       case.
              In both cases in assessing, again, credibility of the
       witnesses, weighing all the evidence, I found at that time that the
       weight of the evidence supported the guilty verdict. I still find that at
       this point in time, and, as such, the Order that was previously
       issued by this Court finding you guilty, sir, of the charges of Theft in
       the Fifth Degree and in regards to the charge of Obstructing the
       Prosecution or Defense of a Case, those Motions are collectively
       overruled.

Because the court read its verdicts in open court before it sentenced Gundersen,

Gundersen has not suffered prejudice. See id. (finding the court had remedied

the issue of failing to pronounce judgment in open court when it recited its verdict

after the defendant filed a combined motion in arrest of judgment and motion for

new trial, and “[t]herefore, [the defendant] is not entitled to any further relief”).

This claim of ineffective assistance fails.

       We affirm.

       AFFIRMED.
