                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0209
                             Filed February 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARCUS BANES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee County, John G. Linn, Judge.



      Defendant challenges his conviction and sentence for burglary, theft and

ongoing criminal conduct.    CONVICTION AND SENTENCE VACATED AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

       Marcus Banes was charged with burglary, theft, criminal mischief, and

ongoing criminal conduct arising out of a series of burglaries and thefts committed

in Lee County in December of 2015. Following a jury trial, Banes was convicted

of three counts of burglary in the third degree, in violation of Iowa Code sections

713.1 and 713.6A(1) (2015), one count of theft in the first degree, in violation of

Iowa Code sections 714.1(1) and 714.2(1), two counts of theft in the second

degree, in violation of Iowa Code sections 714.1(1) and 714.2(2), criminal mischief

in the second degree, in violation of Iowa Code sections 716.1 and 716.4, and

ongoing criminal conduct, in violation of Iowa Code sections 706A.1(5), 706.2(4),

and 706A.4. In this appeal, Banes challenges the sufficiency of the evidence

supporting some but not all of his convictions. He also contends the district court

erred in allowing certain hearsay testimony or his trial counsel provided

constitutionally deficient representation in failing to object to the hearsay testimony.

                                           I.

       We first address Banes’s challenges to the sufficiency of the evidence. This

court reviews challenges to the sufficiency of the evidence for the correction of

legal error. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Under this

standard, we will affirm when the verdict is supported by substantial evidence. See

State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). Evidence is substantial when the

quantum and quality of evidence is sufficient to “convince a rational fact finder that

the defendant is guilty beyond a reasonable doubt.” Id. at 76. In conducting

substantial-evidence review, this court considers the evidence in the light most

favorable to the State, including all reasonable inferences that may be fairly drawn
                                           3

from the evidence. See id. (citing State v. Heard, 636 N.W.2d 227, 229 (Iowa

2001)).

                                          A.

       Banes challenges the sufficiency of the evidence supporting two of the

convictions for burglary in the third degree, his conviction for theft in the first

degree, and his conviction for theft in the second degree. The challenged burglary

convictions arise out of the unlawful entry into Benson Auto Shop and           D&D

Trailer and Sales. The challenged conviction for theft in the first degree arises out

of the theft of tools and firearms from Benson Auto Shop.             The challenged

conviction for theft in the second degree arises out of the theft of cash, clothes,

and purses from D & D Trailer and Sales.             Banes does not challenge his

convictions for burglary, theft, and criminal mischief arising out of the unlawful entry

into the Lake Cooper Events Center.

       The primary witness for the State was Banes’s accomplice Devin Vawter.

Vawter reached a favorable plea agreement with the State in which he received

charging and sentencing concessions to resolve the charges in this case and other

cases in exchange for his testimony at Banes’s trial. According to Vawter, in the

early morning of December 25, Vawter and Banes were driving around in Banes’s

Jeep “trying to find stuff to steal.” They drove to D & D and decided to break in.

They used bolt cutters to cut the padlock off a sliding door, entered the building,

and stole cash, clothes, coats, and women’s purses. After the D & D burglary,

Banes drove to Benson Auto Shop. Vawter testified he climbed through a sliding

window, entered the building, and opened the door for Banes. Vawter testified

they stole whatever they could fit in Banes’s Jeep. Vawter testified they took a
                                         4


welder, plasma cutter, drills, tools, and some guns, among other things. Vawter

and Banes made arrangements with Kendall Elder to sell the stolen goods to a

third person. Banes drove himself and Vawter to an empty parking lot, and the

sale was transacted. Vawter also testified he and Banes broke into the Lake

Cooper Events Center. They walked up to the back door of the facility, broke the

window, reached in through the broken window, unlocked the door, and entered

the facility. Vawter testified there was a second door that they kicked in to gain

entry into the building. Vawter and Banes took two flat screen televisions and

some alcohol from the facility.

       Vawter’s testimony was corroborated by other evidence. See Iowa R. Crim.

P. 2.21(3) (“A conviction cannot be had upon the testimony of an accomplice or a

solicited person, unless corroborated by other evidence which shall tend to

connect the defendant with the commission of the offense; and the corroboration

is not sufficient if it merely shows the commission of the offense or the

circumstances thereof.”). “Corroborative evidence need not be strong as long as

it can fairly be said that it tends to connect the accused with the commission of the

crime and supports the credibility of the accomplice.” State v. Barnes, 791 N.W.2d

817, 824 (Iowa 2010).

       Pete Benson and Amy Benson, the owners of Benson Auto, had heard from

their son, Logan, that Banes may have been involved in the burglaries and that

Banes was driving a gold Jeep Cherokee. Amy testified she knew of Banes,

although it had been some time since she had seen him. In the first week of

January, Pete and Amy were in Keokuk when Amy observed Banes and the gold

Jeep Cherokee in the parking lot of an auto parts store. She testified she made
                                        5


eye contact with Banes. Amy testified she and Pete followed Banes as he drove

away from the store. She testified Banes “floored it” and she and Pete followed at

a high rate of speed until they ultimately lost him. Amy testified she called 911

during the chase and advised the operator of their location during the chase.

Police located the Jeep Cherokee within ten minutes of the car chase. It was

abandoned near Banes’s grandfather’s residence. The Jeep contained items from

Benson Auto and D & D. The vehicle was not registered to Banes; it had been

reported stolen. Vawter testified he picked up Banes from Banes’s grandfather’s

property after Banes abandoned the Jeep.

      Forensic evidence supported Vawter’s testimony.        Vawter’s fingerprints

were found at the Benson Auto garage. The police found another set of prints at

the garage, but they were not able to develop them. A tire impression was taken

from outside Benson Auto. The impression was consistent with the tires on the

Jeep Cherokee that Banes abandoned near his grandfather’s residence. Vawter’s

footprint and Banes’s palm print were found at the scene of the Lake Cooper

burglary.

       The recipients of the stolen property corroborated Vawter’s testimony. The

purchaser of the welder and plasma cutter testified Kendall Elder arranged the

purchase. The purchaser testified Elder introduced the seller as “Marcus.” The

purchaser stated Banes was present at the time of the sale, and the purchaser

identified Banes in court. The police retrieved the items from the purchaser. The

serial numbers on the tools linked the tools to Benson Auto. Banes’s girlfriend had

several of the stolen purses from D & D.
                                          6


       When this evidence is viewed in the light most favorable to the jury’s verdict,

there is substantial evidence in support of the convictions. Vawter testified to

Banes’s role in the burglaries and thefts. Banes’s palm print was found at the Lake

Cooper facility, and Banes admitted to the crimes related to the Lake Cooper

facility. Banes made arrangements to sell the property stolen from Benson Auto.

The purchaser identified Banes as being present at the scene at the time of the

sale. The Bensons identified Banes as the driver of a gold Jeep Cherokee, which

was found abandoned minutes later and which contained stolen property. Banes

gave stolen property to his girlfriend. The value of the stolen property was not in

dispute, and the value exceeded the statutory threshold to support convictions. On

this evidence, the jury reasonably could have found Banes guilty of burglary and

theft. See State v. Reuther, No. 11-1334, 2012 WL 4097274, at *2 (Iowa Ct. App.

Sept. 19, 2012) (stating “an inference of guilt based upon possession of recently

stolen property may be sufficient to support a conviction if the evidence of record

regarding the surrounding circumstances warrants a finding of guilt beyond a

reasonable doubt”); State v. Hall, 371 N.W.2d 187, 190 (Iowa Ct. App. 1985)

(“Finally, the jury could properly consider the relatively short period of time between

the burglary and the sale of the property to the antique dealer as bearing upon the

defendant’s complicity in the burglary. Coupled with the evidence of a forced entry

into the house, which would be a reasonable finding by a rational juror, it is

apparent that the evidence of the circumstances surrounding defendant’s

possession of the recently stolen property, though circumstantial, is sufficient to

permit the jury to infer that the defendant broke into the Peterson residence.”).
                                         7


       Nonetheless, Banes contends there was insufficient evidence of his

participation in the challenged burglaries and thefts. He contends his version of

events was more credible. Banes contends Vawter was not credible because

Vawter received charging and sentencing concessions for his testimony. Banes

contends the Jeep Cherokee was Vawter’s.           Banes contends Amy Benson

misidentified him. He contends the third party who purchased the tools was not

credible. Banes testified he did not steal the purses in his girlfriend’s possession

but instead received them as gifts from Vawter. Banes testified at trial and told his

version of events to the jury, and the jury rejected Banes’s version of events.

“Inherent in our standard of review of jury verdicts in criminal cases is the

recognition that the jury [is] free to reject certain evidence and credit other

evidence.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). We will not disturb

the jury’s verdict regarding the challenged burglary and theft convictions.

                                         B.

       Banes also challenges the sufficiency of the evidence supporting his

conviction for ongoing criminal conduct, in violation of Iowa Code sections

706A.1(5), 706A.2(4), and 706A.4. Where, as here, the jury was instructed without

objection, the jury instruction becomes law of the case for the purposes of

reviewing the sufficiency of the evidence. See State v. Canal, 773 N.W.2d 528,

530 (Iowa 2009) (“[Defendant] did not object to the instructions given to the jury at

trial. Therefore, the jury instructions become the law of the case for purposes of

our review of the record for sufficiency of the evidence.”). The jury was instructed

as follows:
                                           8


       Under Count IX of the Trial Information, the State must prove all of
       the following numbered elements of the crime of Ongoing Criminal
       Conduct:
       1. On or about December 1 through December 30, 2015, in Lee
       County, Iowa, the defendant committed indictable offense, as
       defined in instruction No. 18G.
       2. The indictable offenses were committed on a continuing basis
       3. The indictable offenses were committed for financial gain.

       Although these jury instructions are the law of the case for the purposes of

this appeal, we independently note the instructions are a correct statement of Iowa

law. Iowa Code section 706A.2(4) makes in “unlawful for a person to commit

specified unlawful activity.” The Code defines “specified unlawful activity” as “any

act, including any preparatory or completed offense, committed for financial gain

on a continuing basis, that is punishable as an indictable offense under the laws

of the state in which it occurred and under the laws of this state.” Iowa Code §

706A.1(5).1

       At issue here is whether these offenses were committed on a “continuing

basis.” Given the similarity between the underlying purposes of RICO and Iowa

Code chapter 706A, our supreme court has concluded the definition of “pattern of

racketeering activity” by the United States Supreme Court is a reasonable one for

“continuing basis” in section 706A.1(5). State v. Reed, 618 N.W.2d 327, 335 (Iowa

2000). The Reed court adopted the following definition:



       1  Iowa’s ongoing-criminal-conduct statute is modeled after the federal Racketeer
Influenced and Corrupt Organizations Act, commonly known as RICO, and the Ongoing
Criminal Conduct Model Act. Iowa’s statute has rightly been criticized as a significant
expansion of criminal liability beyond that contemplated under RICO and the model act
due to Iowa’s broad definition of “specified unlawful activity.” See Westco Agronomy Co.,
LLC v. Wollesen, ___ N.W.2d ___, ___, 2017 WL 6545853, at *12 n.3 (Iowa 2017); Anna
T. Stoeffler, Note, Iowa’s State RICO Statute: Wreaking Havoc on Iowa’s Criminal Justice
System, 102 Iowa L. Rev. 825, 841 (2017).
                                          9


      ‘Continuity’ is both a closed- and open-ended concept, referring
      either to a closed period of repeated conduct, or to past conduct that
      by its nature projects into the future with a threat of repetition. It is,
      in either case, centrally a temporal concept—and particularly so in
      the RICO context, where what must be continuous, RICO’s predicate
      acts or offenses, and the relationship these predicates must bear one
      to another, are distinct requirements. A party alleging a RICO
      violation may demonstrate continuity over a closed period by proving
      a series of related predicates extending over a substantial period of
      time. Predicate acts extending over a few weeks or months and
      threatening no future criminal conduct do not satisfy this
      requirement: Congress was concerned in RICO with long-term
      criminal conduct. Often a RICO action will be brought before
      continuity can be established in this way. In such cases, liability
      depends on whether the threat of continuity is demonstrated.
      Whether the predicates proved establish a threat of continued
      racketeering activity depends on the specific facts of each case.

Id. at 334–35. “[A] continuing basis may be found, even where predicate acts

occur over a short period of time, if there is a demonstrated relationship between

the predicate acts and a threat of continuing criminal activity.” State v. Agee, No.

02-0967, 2003 WL 22087479, at *2 (Iowa Ct. App. Sept. 10, 2003).                   “[T]he

relationship element of a pattern can be shown if the predicate acts ‘have the same

or similar purposes, results, participants, victims, or methods of commission or

otherwise are interrelated by distinguishing characteristics and are not isolated

events.’” Reed, 618 N.W.2d at 334 (citation omitted).

      The most analogous case to this case is State v. Harrington, No. 08-2030,

2010 WL 2925696, at *3 (Iowa Ct. App. July 28, 2010). In that case, the defendant

burglarized three homes in the early morning hours of a single day and stole a

vehicle. See Harrington, 2010 WL 2925696, at *1. The evidence also showed the

defendant was unemployed and living with various relatives. See id. at *3. The

State contended the very nature of the burglaries proved there was a threat of

repetition. See id. The State also contended the fact the defendant was not
                                        10


employed showed the burglaries would have continued had the defendant not

been arrested. See id. This court concluded these facts “without more” would not

“fairly and reasonably support a legitimate inference there was a threat of

continued unlawful activity.” See id.

       The facts of Harrington are materially indistinguishable. As in Harrington,

there was not a series of related predicates over “a substantial period of time.”

Instead, we have several commercial burglaries committed over a period of a few

days. See Reed, 618 N.W.2d at 335 (“Predicate acts extending over a few weeks

or months and threatening no future criminal conduct do not satisfy this

requirement.”); cf. State v. Olsen, 618 N.W.2d 346, 347 (Iowa 2000) (finding

sufficient evidence of ongoing criminal conduct for theft by deception over nineteen

months of one elderly couple); State v. Friedley, No. 01-1580, 2003 WL 1523343,

at *5 (Iowa Ct. App. Mar. 26, 2003) (finding “there was evidence of theft over a

period of several months, from December 1997 until February 1998, and that [the

defendant] aided and abetted in this crime” is sufficient to convict for ongoing

criminal conduct). As in Harrington, there is no evidence of a continued threat of

future criminal conduct. Both Vawter and Banes testified at trial, and neither

testified regarding any plan for future conduct. As in Harrington, we think the fact

that the defendant was unemployed is insufficient evidence, in and of itself, to

support the continuing-basis element.

       Banes’s conviction for ongoing criminal conduct is not supported by

substantial evidence even when the evidence is viewed in the light most favorable

to the jury’s verdict. The conviction and sentence for ongoing criminal conduct

must be vacated.
                                          11


                                          II.

         Banes raises an evidentiary challenge. He argues the trial court erred by

overruling a hearsay objection and/or that counsel was ineffective for failing to

object and continue to object to hearsay. The challenged statements came from

the three members of the Benson family—Logan, Amy, and Pete. All three were

asked about rumors they had heard about the involvement of Banes in the burglary

of their shop. Logan was asked “what was the name that was coming up,” to which

he replied “Marcus Banes.” The prosecutor then asked who the source of the

information was, at which point defense counsel objected “this is going into

hearsay.” The district court overruled the objection. Logan clarified the names of

those who had told him and where the rumor originated. Pete Benson was asked

without objection “did Logan tell you that he was hearing some street information

about who might be involved” and “what was the name that kept coming up.” He

replied, “Marcus Banes.” Amy Benson was asked similar questions establishing

her knowledge of Banes and the rumors before discussing the car chase. Banes

challenges the statements identifying Banes as the person involved in the

burglaries.

         We agree with the State that Banes’s counsel failed to preserve error on the

issue. Banes’s counsel objected only to Logan’s testimony identifying the source

of Logan’s information.      No objection was made to out of court statements

identifying Banes as the person involved in the burglaries. We will thus review the

claims as claims of ineffective assistance of counsel. Ineffective assistance of

counsel claims are reviewed de novo. Everett v. State, 789 N.W.2d 151, 158 (Iowa

2010).
                                          12


       To succeed on an ineffective assistance claim a defendant must show “(1)

counsel failed to perform an essential duty; and (2) prejudice resulted.” State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).                 “[W]e measure counsel’s

performance against the standard of a reasonably competent practitioner.” Id.

Poor strategy or mistakes in judgment normally do not rise to the level of ineffective

assistance. Ledezma v. State, 626 N.W.2d 132, 143 (Iowa 2001). Prejudice exists

if “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” State v. Leckington, 713

N.W.2d 208, 218 (Iowa 2006). Despite Banes’s claims to the contrary, prejudice

is not presumed under the framework of ineffective assistance even when

inadmissible hearsay is admitted. See State v. Reynolds, 746 N.W.2d 837, 845

(Iowa 2008) (“If Reynolds’s trial counsel had raised the meritorious hearsay

objection to Best’s testimony, there would have been insufficient evidence in the

record for the court to find Reynolds guilty of the six forgery charges and the related

theft charge. Accordingly, we conclude Reynolds has established a reasonable

probability that the result of the trial would have been different but for his trial

counsel’s breach of duty.”); State v. Fillmer, No. 01-0508, 2002 WL 1331892, at *1

(Iowa Ct. App. June 19, 2002) (finding no prejudice on hearsay claim). “[B]oth

elements do not always need to be addressed. If the claims lack prejudice, it can

be decided on that ground alone without deciding whether the attorney performed

deficiently.” Ledezma, 626 N.W.2d at 142.

        “Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Iowa R. Evid. 5.801(c). “[W]hen an out-of-court statement is offered,
                                         13


not to show the truth of the matter asserted but to explain responsive conduct, it is

not regarded as hearsay.” See State v. Elliot, 806 N.W.2d 660, 667 (Iowa 2011).

“For a statement to be admissible as showing responsive conduct, however, it

must not only tend to explain the responsive conduct but the conduct itself must

be relevant to some aspect of the State’s case.” State v. Mitchell, 450 N.W.2d

828, 832 (Iowa 1990).

       The challenged testimony is not hearsay. The statements were not offered

for the truth of the matter asserted. Instead, the statements were made to show

responsive conduct.     Specifically, the testimony was offered to explain the

Bensons’ decision to follow Banes in a high-speed car chase. The car chase was

relevant to the State’s case in two respects. Amy identified Banes as the driver of

the Jeep Cherokee.      In addition, the Bensons’ chase led to the immediate

discovery of the vehicle. The vehicle contained property stolen from Benson Auto

and from D & D. As discussed above, the accused’s possession of burgled goods

supports an inference that the accused was involved in the burglary. “We will not

find counsel incompetent for failing to pursue a meritless issue.” State v. Brothern,

832 N.W.2d 187, 192 (Iowa 2013).

       Banes also has not established prejudice. Vawter testified extensively

about the crimes and Banes’s involvement in the same. Vawter’s testimony was

corroborated by forensic evidence. In addition, there was independent testimony

tying Banes to the Jeep Cherokee minutes before the Jeep was found full of stolen

goods. Another witness testified Banes sold him stolen goods. Banes gave his

girlfriend two stolen purses for Christmas. In light of the overwhelming evidence

of Banes’s guilt, there is not a reasonable probability the result of the proceeding
                                         14

would be different absent the challenged testimony. See Leckington, 713 N.W.2d

at 218.

       For the foregoing reasons, we reject Banes’s evidentiary challenges and

claims of ineffective assistance of counsel.

                                         III.

       We affirm Banes’s convictions for burglary, theft, and criminal mischief. We

vacate Banes’s conviction and sentence for ongoing criminal conduct and remand

this matter for entry of dismissal with prejudice of the charge.

       CONVICTION AND SENTENCE VACATED AND REMANDED.
