                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1199
                            Filed December 24, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT DEAN HENDERSON SR.,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



       A defendant appeals his three convictions for theft. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED WITH INSTRUCTION.



       Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, Austin Mowl, Legal Intern, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Olu Salami, Assistant County

Attorney, for appellee.



       Heard by Danilson, C.J., and Doyle and Tabor, JJ.
                                        2



TABOR, J.

       Robert Henderson appeals three theft convictions for exercising control

over tools stolen from three businesses at a construction site in Ankeny. He

alleges several instances of ineffective assistance of counsel. The most potent

allegation—and the ground upon which we reverse—is his claim concerning the

motion for judgment of acquittal. Henderson argues the State’s presentation of

evidence was flawed because it did not “connect the dots” between the property

identified by the theft victims and the evidence seized during execution of a

search warrant. He also claims the State failed to prove the value of a stolen

drill. Because we agree with Henderson’s argument on these two points, we

reverse his convictions and remand for judgment entry on a single count of theft

in the fifth degree.

I.     Background Facts and Proceedings

       On Monday morning, November 5, 2012, foremen for several construction

companies arrived at the Old Dominion work site near the Ankeny airport only to

discover someone had broken into their trailers over the weekend and taken

tools, equipment, and supplies. The three companies identified as theft victims in

this case were Absolute Concrete, Wolin Mechanical, and Tesdell Electric.

       Representatives of the three companies testified at Henderson’s trial.

Kyle Kriegel, superintendent for Absolute Concrete, found numerous items

missing from the company’s trailer, including a site laser, a digital transit, a

manual transit, a Bosch Bulldog hammer drill, and other miscellaneous tools.

Absolute Concrete’s trailer was burglarized again on November 12, 2012. Most
                                        3



of the tools missing from Absolute Concrete’s trailer were never recovered.

Kriegel estimated the value of the laser, transits, and drill at approximately

$12,500. Paul Robertson, field supervisor for Wolin, also found items missing

from his company’s trailer on November 5, specifically tools and new copper

pipe. Wolin purchased the pipe from Plumb Supply. Robertson testified the

Ankeny police recovered a Hilti DD 130 core drill and a Milwaukee cordless

Sawzall that belonged to his company; he estimated their combined value at

$1700. John Angaran, the foreman for Tesdell, found the padlock cut on his

company’s job box on the morning of November 5. Missing items included a

Greenlee knockout cutter and a hydraulic hand pump, valued at approximately

$1200.

      In the wake of the worksite thefts, Ankeny police contacted local scrap

metal buyers to be on the lookout for new copper pipes from Plumb Supply

bearing a Great Lakes stamp. Two local companies reported buying copper

matching that description. Alter Metal bought copper pipes from Racail Brandt

on November 8, 2012. American Scrap Company bought copper pipes from

Sarah Blaess on November 12, 2012. Both Brandt and Blaess had a connection

to Henderson.1 Henderson is the grandfather of Brandt’s son and Blaess has

been friends with Henderson for four years, and he had been doing work at her

house around that time.

      The police investigation of the thefts led to the execution of search

warrants at the residences of Brandt and Blaess on November 15, 2012. At


1
  The State offered evidence Henderson used the women’s identifications to sell the
copper piping to the scrap metal businesses.
                                           4



Brandt’s home, police recovered a DeWalt drill, which she had borrowed from

Henderson. The drill was documented as being stolen from Wolin. During the

search at Blaess’s residence, police located several tool cases in the garage.

Blaess testified Henderson had access to her garage and had pulled his truck up

to the garage between November 8 and November 15, 2012.                    Henderson

admitted unloading items into Blaess’s garage during a telephone conversation in

April 2013.

       On January 15, 2013, the State charged Henderson with one count of

first-degree theft and three counts of second-degree theft. On June 12, 2012,

the morning of trial, the State filed an amended trial information alleging three

counts: (I) first-degree theft for exercising control over property stolen from

Absolute Concrete, in violation of Iowa Code sections 714.1(4) and 714.2(1)

(2011); (II) second-degree theft for exercising control over property stolen from

Wolin, in violation of sections 714.1(4) and 714.2(2); and (III) second-degree theft

for exercising control over property stolen from Tesdell, in violation of sections

714.1(4) and 714.2(2). The State also added the allegation Henderson was a

habitual offender under Iowa Code section 902.8.

       A jury heard eight witnesses for the State and two witnesses for the

defense before returning guilty verdicts on June 14, 2012. The court sentenced

Henderson to concurrent fifteen-year terms2 on counts II and III to run

consecutive to another fifteen-year term for count I, for a total of thirty years. The

court also ran the new sentences consecutive to Henderson’s parole revocation.


2
 Henderson stipulated to his prior felony convictions for the purpose of determining his
habitual offender status.
                                          5



The court imposed the minimum fine, but suspended it due to Henderson’s

incarceration.3 Henderson now appeals.

II.       Issues Depending on Single Larceny Rule

          Henderson invokes the “single-larceny rule” in arguing counsel was

ineffective for failing to object to the marshalling instructions for the three theft

counts and for failing to seek a special interrogatory regarding the number of

thefts.    Henderson returns to that common law rule to argue imposition of

sentence on all three theft counts violated double jeopardy. We cannot reach the

merits of Henderson’s claims in either of these contexts because we are bound

by the precedent of our supreme court.

          Before the legislature adopted the current criminal code, Iowa courts

    recognized a single-larceny rule. See State v. Copenhaver, 844 N.W.2d 442,

    451 n.2 (Iowa 2014). Under that rule, the taking of property belonging to two

    different people at the same place and time constituted one single larceny.

    State v. Sampson, 138 N.W. 473, 475 (Iowa 1912).

          Henderson wishes to apply the single-larceny rule to his three theft

    offenses for exercising control over stolen property. His argument is thwarted

    by existing precedent. See State v. Schmitz, 610 N.W.2d 514, 517-18 (Iowa

    2000) (holding defendant could be prosecuted for multiple counts of possession

    of stolen property as long as the evidence supported a conviction on each

    count). Henderson recognized this impediment and asked the Iowa Supreme

    Court to retain this appeal. Because the supreme court transferred this appeal


3
  Because we reverse Henderson’s felony convictions, we do not need to address his
claim the fine was illegal.
                                         6



 to our court, Henderson’s claims that depend on overruling Schmitz must fail.

 See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (explaining

 court of appeals is not at liberty to overturn supreme court precedent).

III.   Analysis of Henderson’s Remaining Claims Against Counsel

       We review claims of ineffective assistance de novo because they involve

the constitutional right to counsel. State v. Showens, 845 N.W.2d 436, 440 (Iowa

2014). To prevail on his claims of ineffective assistance of counsel, Henderson

must prove (1) counsel failed to perform an essential duty and (2) prejudice

resulted.   See State v. Ross, 845 N.W.2d 692, 697–98 (Iowa 2014) (citing

Strickland v. Washington, 466 U.S. 668, 694 (1984)).

       Under the first prong, Henderson must show a deficiency in counsel’s

performance. Strickland, 466 U.S. at 687. We presume counsel was competent

and Henderson carries the burden to show, by a preponderance of the evidence,

that counsel’s performance included “such serious errors” that he was “not

functioning as the advocate the Sixth Amendment guarantees.” See Ross, 845

N.W.2d at 698. The burden is not satisfied by a showing counsel’s trial strategy

backfired or another attorney would have tried the case differently. Id.

       Under the second prong, Henderson must show counsel’s deficient

performance prejudiced the defense.       See id.   This prejudice prong requires

proof by a reasonable probability the result of the proceeding would have differed

but for counsel’s errors. See Strickland, 466 U.S. at 687, 694. We will resolve

ineffective-assistance-of-counsel claims on direct appeal only when the record is
                                          7



adequate; otherwise, we will preserve them for resolution in a postconviction-

relief action. Ross, 845 N.W.2d at 697.

       We analyze three claims of ineffective assistance raised by Henderson.

First, we consider whether counsel had an obligation to object under Iowa Rules

of Evidence 5.403 or 5.404(b) to testimony describing Henderson’s acts of selling

copper pipe as scrap metal. Second, we address counsel’s handling of the jury

instruction conveying the knowledge inference from Iowa Code section 714.1(4)

based on the possession of property stolen from two or more persons at different

times. Third, we examine counsel’s strategy regarding the motion for judgment

of acquittal.

       A. Should counsel have objected to evidence of Henderson’s
          scrapping of new copper pipe?

       The State offered evidence Henderson “scrapped” copper pipe stolen from

the construction site. On appeal, he alleges his attorney should have argued that

evidence was inadmissible under rules 5.403 and 5.404(b). The record suggests

Henderson was separately charged with simple misdemeanor theft for selling the

copper pipe and the State dismissed those charges after the jury’s guilty verdicts

on the felony theft offenses.

       Evidence of crimes, wrongs, or acts other than those charged “is not

admissible to prove the character of a person in order to show that the person

acted in conformity therewith.” Iowa R. Evid. 5.404(b). But such evidence may

be admissible for other purposes, such as “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.
                                        8



Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice[.]” Iowa R. Evid. 5.403.

      Henderson argues the State’s evidence he “scrapped copper alleged to be

stolen” unfairly suggested to the jury he acted in conformity with his criminal

behavior when he possessed other stolen items. The State counters that the

evidence of Henderson’s involvement in copper scrapping was inextricably

intertwined with the charged felony offenses.

      Our supreme court has recognized the doctrine of inextricably intertwined

evidence, but has applied it narrowly when the evidence is being offered to

complete the story of the crime charged. See State v. Nelson, 791 N.W.2d 414,

423 (Iowa 2010). In this case, we agree with the State that testimony concerning

Henderson’s involvement in selling new copper pipe for scrap metal was

admissible under the inextricably intertwined doctrine because it was directly

probative of the charged theft offenses and arose from the same transactions.

Wolin reported copper pipe missing from the construction site and police officers

followed leads regarding scrap metal customers to obtain their search warrants.

Accordingly, we find no basis for counsel to have objected to the admissibility of

the other bad acts evidence.

      B. Should counsel have objected to the stock jury instruction
         regarding the statutory inference of knowledge from possession
         of property stolen from two or more victims on separate
         occasions?

      The Iowa legislature has determined a fact finder may infer a person knew

or believed property found in his possession was stolen if the evidence

established the property was taken from two or more persons on separate
                                           9



occasions. Iowa Code § 714.1(4); see State v. Knapp, 426 N.W.2d 169, 172–

173 (Iowa Ct. App. 1988). The uniform jury instruction committee sponsored by

the Iowa State Bar Association developed Iowa Criminal Jury Instruction No.

1400.15 to convey that statutory inference in plain language. The district court

provided the inference instruction to the jurors considering Henderson’s case.

We are reluctant to disapprove of uniform jury instructions. State v. Weaver, 405

N.W.2d 852, 855 (Iowa 1987).

       The instruction read as follows:

             If the State has proved each of the following facts, then you
       may conclude the defendant knew or believed the property had
       been stolen:
          1. The property found in the defendant’s possession was stolen
             property.
          2. The property was previously stolen from two or more
             persons at different times.

       Henderson faults counsel for not objecting to this instruction. On appeal

he outlines three grounds for an objection. First, Henderson claims giving the

instruction was improper because the facts proved “mere possession.” Second,

he alleges the instruction allowed him to be convicted on proof of less than

beyond a reasonable doubt.         And third, he claims the inference instruction

violated his right to due process. Initially, we note counsel did object to the

inference instruction in the district court, urging an insufficient factual basis for its

submission.     Counsel stated: “it just doesn’t seem to make sense for this

particular set of facts.”    Accordingly, we consider Henderson’s foundational

objection to the instruction as preserved error.
                                          10



       Henderson’s counsel did not have a material duty to challenge the

instruction as lessening the State’s burden of proof. Our supreme court has

rejected that claim. State v. Schomaker, 338 N.W.2d 874, 878–79 (Iowa 1983).

       The instruction in question permits an inference. It leaves the trier
       of fact free to infer the elemental fact from the basic fact. Such an
       inference does not shift the burden of proof and does not adversely
       affect the reasonable doubt standard if, under the facts of the case,
       the trier could rationally make the connection.

Id. Moreover, counsel was not required to object to the inference instruction on

due process grounds. The court instructed the jury that the State must prove the

facts underlying the permissible inference, and that the State’s burden of proof

was beyond a reasonable doubt. The jury instructions read together accurately

conveyed the State’s burden.

       Finally, we do not believe giving the inference instruction had a prejudicial

impact on the misdemeanor theft conviction remaining after our reversal of the

felony convictions on sufficiency grounds in the following division of this opinion.

In Schomaker, the court declined to decide “whether the jury instruction in

question would or would not have been appropriate if the sole evidence in the

record had been that defendant was found in possession” of property stolen from

two persons on separate occasions because the record included other evidence

from which the jury could have rationally inferred defendant knew the property

was stolen. Id. at 879. The same is true here. The jury could have rationally

inferred from Henderson’s use of Brandt’s identification to sell the new copper

pipes taken from Wolin’s work trailer that he had knowledge or belief the drill he

loaned to her was also stolen property.
                                      11



      C. Did counsel overlook a viable basis to support the motion for
         judgment of acquittal?

      To prove Henderson committed theft under section 714.1(4), the State

was required to prove he exercised control over property, the property was

stolen, and at that time, he knew the property had been stolen or had reasonable

cause to believe that such property had been stolen.       The degree of theft

depends on the State proving the value of the stolen property. See Iowa Code

§ 714.2.

      To preserve error on a sufficiency challenge, trial counsel is required to

make a specific objection in his motion for judgment of acquittal. Ross, 845

N.W.2d at 700. On appeal, Henderson contests the State’s proof he possessed

property taken from Absolute Concrete and Tesdell Electric. He also challenges

the State’s evidence concerning the value of a drill taken from Wolin Mechanical

and possessed by Brandt. Counsel did not assert either of these challenges in

the district court. Consequently, Henderson raises these issues as ineffective

assistance of counsel.

      At trial, defense counsel concentrated on the State’s proof he knew the

property was stolen. Counsel moved for judgment of acquittal as follows:

      There’s no question that for each of the Counts I, II and III, the
      property belonging to the various construction companies, Absolute
      Concrete, Wolin Mechanical and Tesdell Electric was stolen.
      That’s pretty much not disputed that items were stolen; also not
      disputed that my client exercised control over the property in
      question.
             But the real question is and which we’re disputing is that my
      client had knowledge that the property was stolen at the time that
      the items were put into the garage of Sara Blaess. So for that
      reason, we dispute that my client had knowledge that the property
      was stolen, that being a conscious awareness, according to the
                                            12



         definition of knowledge, a conscious awareness that the property
         was stolen when it was put into the garage.

         We must decide if counsel followed a reasonable strategy in challenging

only the knowledge element, or if counsel breached an essential duty by not

challenging the State’s proof he had control or possession of the stolen tools

identified by the theft victims.        While improvident trial strategy does not

necessarily amount to ineffective assistance, the fact a particular decision was

made for tactical reasons also does not immunize it from a Sixth Amendment

challenge. State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006).

         Henderson’s appellate argument is a technical, yet persuasive, attack on

the State’s evidence. At trial, construction company representatives reviewed

eight photographic exhibits and identified a total of seven items4 that were

missing following the Old Dominion site break-ins. They testified to recovering

the stolen items from the Ankeny Police Department. On appeal, Henderson

argues the fact that these witnesses identified specific property retrieved from the

police department is insufficient to show that he possessed that stolen property.

         In her testimony, Blaess identified a photograph depicting the inside of her

garage, taken after the execution of the search warrant. At the prosecutor’s

behest, she placed X’s on seven tool boxes shown in the photograph that did not

belong to her. She did not testify regarding the content of the boxes.

         The State also called Ankeny police detective Nathan Lampe, who

testified that “a lot of those items” identified by the company representatives were

found in Blaess’s garage.         He testified “several pictures” were taken.      The


4
    The hydraulic pump taken from Tesdell appeared in two photographic exhibits.
                                        13



prosecutor then asked the detective: “And if I tell you a lot of those, just to move

things along, a lot of those pictures have been entered into an exhibit, would you

have any reason to disagree with me?” Lampe replied: “No.”

       On appeal, the State recognizes there was no direct testimony from

Detective Lampe stating the tools depicted in the photographic exhibits admitted

during the testimony of the theft victims were located inside the closed boxes

shown in the interior garage photograph marked by Blaess.            But the State

contends it offered “strong circumstantial evidence” from which the jury could

have deciphered a “foundational link” between the evidence that Henderson

possessed property moved into Blaess’s garage and the evidence the same

property was stolen from the construction companies. The State asserts the

open boxes depicted in the seven photographic exhibits were “visually

consistent” with the closed boxes depicted in the photograph of the interior of

Blaess’s garage.

       As a back-up argument, the State contends even if we find the evidence

insufficient to prove Henderson’s possession, he cannot show prejudice from

counsel’s performance. The State argues if counsel had moved for judgment of

acquittal on the possession ground, the trial prosecutor would have moved to re-

open the record to ask the detective one additional question to establish the

connection between the photographic exhibits.

       The State must prove every fact necessary to constitute the crime beyond

a reasonable doubt. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004). The

evidence presented must raise a fair inference of guilt; it is not enough to create
                                          14



speculation, suspicion or conjecture. Id. Detective Lampe’s general testimony

cited by the State was not sufficient to satisfy the State’s burden to prove beyond

a reasonable doubt that the items identified as stolen from the construction site

were found inside the closed tool boxes in Blaess’s garage.             Following the

State’s case-in-chief, a fact finder would have been left to speculate which, if any,

of the stolen tools had been unloaded by Henderson into the garage and later

discovered during the police search. If trial counsel had moved for judgment of

acquittal alleging inadequate proof of possession, the district court would have

granted the motion. Therefore, Henderson’s counsel was ineffective as a matter

of law.5 See State v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011).

       As Henderson points out on appeal, the only stolen tool linked to him by

Detective Lampe’s testimony was the DeWalt drill taken from Wolin. But the

State did not present any evidence proving the value of that drill. Accordingly,

Henderson can only be convicted of theft in the fifth degree. See Iowa Code

§ 714.2(5).

       In sum, we determine counsel provided ineffective assistance by

overlooking a fatal flaw in the State’s case when moving for judgment of

acquittal.    Therefore, we reverse Henderson’s convictions and remand for




5
  We are not persuaded by the State’s argument that it could have successfully moved to
re-open the record to ask the detective questions necessary to connect the dots. Even if
the court would have allowed a reopening, we don’t know how the detective would have
testified.
                                         15



dismissal of counts I and III, and for entry of judgment on one count of theft in the

fifth degree on count II.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

INSTRUCTION.
