                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0695
                             Filed August 15, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ISAIAH T. BUCHANAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.



      Isaiah Buchanan appeals from his convictions for robbery in the first degree,

being a felon in possession of a firearm, and carrying weapons. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.




      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
                                         2


DANILSON, Chief Judge.

       Isaiah Buchanan appeals from his convictions for first-degree robbery, in

violation of Iowa Code section 711.2 (2016); being a felon in possession of a

firearm, in violation of section 724.26(1); and carrying weapons, in violation of

section 724.4(1). Buchanan asserts the district court erred in instructing the jury

that a claim of right is not a defense to theft because he did not raise the defense.

In the alternative, he maintains that if this court concludes the claim-of-right

defense was implicated, his trial counsel was ineffective in failing to assert it

affirmatively. Buchanan also contends the court erred in denying Buchanan’s

request to have three jurors removed for cause. Finally, he claims the district court

erred in allowing the State to play the recordings of his jailhouse phone calls.

       We are not convinced Buchanan has suffered any prejudice as a result of

the claim-of-right jury instruction. He cannot establish his trial attorney breached

an essential duty in failing to raise a claim-of-right defense; this ineffective-

assistance-of-counsel claim thus fails. With respect to Buchanan’s juror challenge,

Buchanan must show that the result was a juror being seated who was not

impartial, which Buchanan has not attempted to do. Finally, we find no prejudicial

error in the admission of the recorded jail phone calls. We therefore affirm his

convictions.

I. Background Facts and Proceedings.

       On April 4, 2016, Isaiah Buchanan confronted Jose Galindo inside J’s R&B

Lounge (hereinafter J’s) in Waterloo.        Buchanan was carrying some sort of

weapon, and when he left, he had Galindo’s coat. Buchanan was charged in four
                                         3


counts: robbery in the first degree, going armed with intent, being a felon in

possession of a firearm, and carrying weapons.

       During jury selection, Buchanan moved to strike jurors 60, 7 and 92 for

cause, and the district court denied Buchanan's motions as to all three potential

jurors. Buchanan utilized peremptory strikes to remove jurors 60 and 7, but juror

92 remained on the panel and served as a juror in Buchanan’s trial.

       In opening argument, defense counsel stated the evidence would show,

       Mr. Buchanan did ask Mr. Galindo for the money that he was owed.
       The evidence will show that Mr. Galindo turned out his pockets and
       said “I don’t have any money but here, you can have my coat.” He
       offered his coat. Whether that was security, collateral for what was
       still owed or whether he thought that constituted some sort of partial
       payment, I don’t know. I don’t know what his rationale was in doing
       so. But what the evidence will show is that the coat was not
       demanded from him. It was not taken from him. There was no theft
       involved. This was Mr. Galindo’s voluntary act to try to buy himself
       more time on the debt that he owed.
               The evidence will also show that Mr. Buchanan does have a
       past. As [prosecutor] Mr. Walz indicated, there is a stipulation. Mr.
       Buchanan will acknowledge that he has previously been convicted
       of a felony. That’s his past. He has come to terms with that. He
       accepts that. He is not hiding from that. He is not running from that.
       He acknowledges it. But I believe that the evidence will also show
       that that is not a violent past. That he does not have a history of
       doing the kind of things that he has been accused of here. And we
       intend to present witnesses including Mr. Buchanan who will say as
       much.

       At trial, Galindo testified he had known Buchanan since they were young.

A few days before the interaction at J’s, Buchanan pulled up in a vehicle in front of

Galindo’s house and Galindo saw Buchanan had a pistol in his lap, either a .38 or

nine millimeter. Galindo stated, “I just told him to do what he had to do.”

       Then, on April 4, Galindo was at J’s with a friend, Rob, and played a game

of pool. Rob left and Galindo was sitting at the end of the bar having some drinks
                                         4


and talking with the owner of the establishment, Jay Wilder.           Galindo saw

Buchanan enter J’s and approach Galindo “waving a gun” at him—the same gun

Galindo had seen a few days earlier. Galindo testified Buchanan pointed the gun

at his face and “said that he wanted the money from my pockets. I told him no,

and then he decided to take my jacket.” Galindo stated the whole interaction lasted

“a minute or less.” Galindo stated he feared Buchanan was going to shoot him.

Galindo testified he did not owe Buchanan money and had never borrowed money

from Buchanan.

       On cross-examination, Galindo acknowledged he did not tell police

Buchanan had a gun when he pulled his car up to the residence. Galindo also

testified as follows:

              Q. Is there another incident that occurred around that time
       where you claim that Mr. Buchanan came up to your truck with a bat
       or something like that? A. He approached my truck.
              Q. Were you in the truck? A. Yes. I was in the truck.
              Q. Why did he approach your truck? A. I got waved down to
       stop so I stopped. I was with a friend of mine. He was in the
       passenger side. And he came up to the truck and started accusing
       me of something that I had no—no idea what he was talking about,
       and we just took off.
              Q. So it had nothing to do with you owing Mr. Buchanan
       money? A. No, sir.
              Q. Was there an incident around that time where you went to
       a person’s house to obtain some marijuana, and you saw Mr.
       Buchanan at that house? A. No, sir.
              Q. Was there a time that you went to someone’s—around this
       time, around the April 4th time, that you went to someone’s house to
       get a movie and saw Mr. Buchanan? A. I can’t recollect that, sir.
              Q. Was there a time around this April 4th date that you actually
       sat down with Mr. Buchanan and smoked marijuana with Mr.
       Buchanan? A. Years ago.
              Q. You said that you don’t recall the incident where you went
       over to the friend’s house to go get movies; is that correct? A. That’s
       correct, sir.
              ....
                                        5


              Q. You do recall though getting your deposition taken here at
      the courthouse on December 2, 2016? A. Yes, I remember that, sir.
              ....
              Q. So when you went to that friend’s house to get a movie,
      was Mr. Buchanan there? A. He showed up after I did.
              Q. Mr. Buchanan, did he in any way demand money or that
      he be repaid for a debt? A. He demanded money, but I did not owe
      him any money, and I told him I don’t know what he was talking
      about.
              Q. So you don’t know anything about this debt that Mr.
      Buchanan claims that you owe? A. This debt—he wants—he wants
      to collect a debt from me that is not even about me. I don’t even
      know about the debt that he wants—he wants to collect something
      that I have nothing to do with.
              Q. So you do know something about this debt? A. Well, it was
      brought to my attention.

      Wilder described that at about 7:30 p.m. on April 4, he was talking to Galindo

at the end of the bar at J’s when he saw Buchanan, who “had a gun” that looked

like a nine millimeter. Wilder owned a nine millimeter so he was familiar with its

appearance. He stated he also knew what a Taser looked like, and Buchanan was

not holding a Taser. Wilder said he could not understand what Buchanan was

saying to Galindo because the music was loud, but he heard Galindo say, “I don’t

have anything.” Buchanan then searched Galindo’s pockets while holding the gun

against Galindo’s stomach. Galindo then said to Buchanan, “You can have my

coat.” Wilder told Buchanan to “[g]et that thing out of here,” and Buchanan left,

“apologiz[ing] to Mr. Jay . . . [he] didn’t mean no disrespect.” Wilder called the

police when Buchanan left.

      Police arrived and were talking with Wilder when Buchanan called J’s to ask

if the police were there. Wilder said they were, and gave the phone to an officer,

but Buchanan hung up. Investigator Brice Lippert retrieved the phone number from

Wilder’s call history, and phone records confirmed it was Buchanan’s phone
                                         6


number. Lippert attempted to telephone Buchanan several times. Buchanan

insisted he had not been at J’s and had nothing to talk to the officer about. Cell

phone records indicate Buchanan traveled from Waterloo to Tennessee in the next

several hours.

       The bartender, Tina Ackerson, testified she saw Buchanan enter the bar

“like he was agitated,” approach Galindo, say something like “[j]ust give it up,” and

“finally he demanded [Galindo’s] jacket and just pulled it off of him.” She stated

she saw Buchanan with a gun in his hand, “swinging it back and forth” but not

pointing it at anyone. Ackerson described the gun as a nine millimeter semi-

automatic. She acknowledged she selected someone other than Buchanan from

a photo lineup.

       The prosecution also submitted audio recordings of several telephone calls

Buchanan made from jail.       Buchanan objected to the State’s introduction of

recordings of Buchanan's jail phone calls because they were irrelevant and unduly

prejudicial.   The district court overruled his objection, concluding they were

admissible as admissions by the defendant.

       Buchanan testified he loaned Galindo $700 eight months before the incident

at J’s, expecting repayment of $1000. Over the next eight months, Galindo paid

about $680 but then started to avoid or evade Buchanan. Buchanan stated he had

seen Galindo a few days before April 4, when he drove by Galindo’s residence and

saw him outside. Buchanan testified:

       I see him. I pull up. I stopped. I waved him to the car like come
       here. He come. He get in the car with me. And I'm like I asked him
       what’s up with my money? We’ve been playing games and this and
       that. So next thing you know, he tells me he didn’t have no money
       but his lady was going to cash a check, and she be back in [fifteen]
                                          7


       minutes. So I told him I said—he said he was going to have some
       type of payment for me in [fifteen] minutes, so I told him I’m—just call
       me, you know what I’m saying? I gave him my new numbers
       because I changed my number again, and I told him to call me. And
       he had—he said he would, and I told him, I’m like—I tell him—I’m
       like, “Man, you can call me in an hour. Just get in touch with me.”
       He didn’t call me. I started calling his phone. He don’t answer. I
       texted him. He don’t answer.

He denied having a firearm at the time.

       Buchanan testified that when he saw Galindo’s truck outside of J’s, he went

in “to talk to him about my money.” When he saw Galindo, Galindo had a “beer

bottle in his hand and a pool stick leaning against the bar,” so Buchanan pulled out

a camouflage-colored stun gun “shaped like a gun” for self-protection. He testified,

               Well, when he stood up and—like as soon as I got close to
       him, he was like—well, like I told you, I had been calling him before
       prior to that day and the day before, and he wasn’t answering the
       phone. So as soon as he—I was kind of agitated when I seen him
       at the bar. He was spending money and you owe me money, you
       know what I’m saying? So I come in. He says—he—he greets me,
       like what’s going on . . . and I immediately say where my money at.
       I probably use a little more French, but I was calm and I say where
       my money at.

Buchanan stated Galindo respond, “I don’t have any money” and showed

Buchanan he had nothing in his pockets. Buchanan continued:

       I don’t remember what exactly what was said after that, but next thing
       you know, he said, “Just—just take my coat.” And I told him “I don’t
       want your coat. I want my money.” But he started taking his coat
       off, and he had his coat in his hand, and he said, “Just take my coat,”
       and I snatched it out of his hand and throw it on the ground, like the
       cuff links was—I think it was—I’m facing—it is my right hand. It was
       in his right hand, and like one of the cuff links was still around his
       wrist, and I snatched it out of his hand, and he kind of stretched his
       hand out a little bit, and I threw it on the floor. I said, “I don’t want
       your F-ing coat. I want my money.” And I seen—I kinda seen like
       the tone in the bar kind of change, you know, like people was drunk
       and their attention was drawn to it right then when I threw the coat. I
       kind of raised my voice a little bit. I was really frustrated. So then
       that’s when Mr.—Mr. Jay says “You can’t do that here. You got to
                                         8


       go.” And Joey [Galindo] like “Just take the coat. Just take the coat,
       and let me get you your money. Take the coat.” And I apologize to
       Mr. Jay, and because I didn’t mean no disrespect. I wasn’t trying to
       cause no scene or anything like that. I was just trying to speak with
       Mr. G, you know what I’m saying, and I apologized and I left. I took
       the coat and left.

       Clifton Sallis testified he was shooting pool at J’s on April 4 and knows

Galindo and Buchanan. Sallis saw Buchanan come into the bar and ask Galindo

about money. Galindo said he didn’t have the money but offered his coat to

Buchanan until he could pay him. Sallis testified Buchanan did not threaten or act

aggressively toward Galindo. Buchanan took the coat, apologized to the crowd

and left the bar.

       The jury was instructed that to convict Buchanan of robbery in the first

degree, the State must prove all of the following:

               1. On or about April 4, 2016, the defendant had the specific
       intent to commit a theft.
               2. To carry out his intention or to assist him in escaping from
       the scene, with or without the stolen property, the defendant
                       A. committed an assault on Jose Galindo by
               intentionally pointing a firearm toward Jose Galindo or
               intentionally displaying a dangerous weapon in a
               threatening manner toward Jose Galindo
       or
                       B. threatened Jose Galindo with, or purposely
               put Jose Galindo in fear of, immediate serious injury.
               3. The defendant was armed with a dangerous weapon.

       Instruction 15 provided: “Theft is taking possession or control of property

that belongs to another with the intent to permanently deprive that other person of

the property.”

       Instruction 15A provided:

             No person who takes, obtains, disposes of, or otherwise uses
       or acquires property is guilty of theft by reason of such act if the
       person reasonably believes that the person has a right, privilege or
                                           9


       license to take, obtain, dispose of, or otherwise use or acquire the
       property, or if the person does in fact have such right, privilege, or
       license. However, this claim-of-right defense is not available to a
       person committing an offense involving a violent reclamation of
       property, such as a robbery.

Buchanan objected to this instruction, stating:

       I understand the State’s position that claim of right is not—is not
       available as a defense to a person with regard to robberies, or case
       law says robberies or burglaries or things of that nature.
               As those cases are stated, it appears to me that the defense
       is not entitled to an instruction that says that they may raise claim of
       right as a defense. That’s not, however, the same thing as saying
       that the State is entitled to an instruction saying it is not a defense. I
       do believe that under the circumstances, and since I’m aware of the
       status of the law, that I would not be able to argue to the jury that it
       is a claim that—that it is a defense to raise a claim of right. But since
       I’m already precluded from raising that argument at least with regard
       to the charge of robbery, I think it is confusing to the jury to have that
       in as an instruction, particularly since one of the—that that charge
       does have some lesser included offenses that aren’t robbery.
               ....
               . . . [I]t just seems like we’re getting a little far afield and
       potentially confusing the jury by advising them of certain things that
       I don’t believe either party is going to raise in its closing argument.
       I’m certainly not intending to raise claim of right as a defense. I didn’t
       assert it as an affirmative offense. I could potentially raise
       justification to somewhat, you know, as regard to the lesser included
       offense of assault, but as for specifically claim of right with regard to
       the element of committing a theft or intent to commit a theft, I’m
       aware that I can't raise that so I won’t be arguing it. So again, I just
       think having that additional language in there is actually more likely
       to confuse the jury than not.

       After additional argument by counsel, the court ruled:

       Listening to counsel’s arguments and as I’ve been thinking about this
       myself, including thinking about it out loud while I’m talking to you,
       there is a certain claim of right that’s implicit in the defendant’s
       version of events, whether it’s specifically called a claim of right or
       not. Under the circumstances given the way that the jury could
       choose to view the evidence, I agree with your contention, Mr. Walz
       [the prosecutor], that—that someone could—could see that as an
       issue or have a question about that. Mr. Tang [defense counsel], I’m
       going to deny your exception to instruction number 15[A] for that
       reason.
                                           10



       Buchanan was convicted of first-degree robbery, being a felon in

possession of a firearm, and carrying a firearm. Buchanan’s motion for a new trial

was denied. The court imposed a twenty-five-year indeterminate term on the

robbery conviction, a five-year term on the felon-in-possession conviction, and a

two-year term on the carrying weapons conviction. The sentences were to run

concurrently.

       Buchanan now appeals claiming error in the jury instructions given, the

denial of his objections to potential jurors for cause, and the admission of

recordings of his jailhouse phone calls.

II. Scope and Standards of Review.

       “‘[W]e review challenges to jury instructions for correction of errors at law.’

Our review is to determine whether the challenged instruction accurately states the

law and is supported by substantial evidence.          Error in giving a particular

instruction does not warrant reversal unless the error was prejudicial to the party.”

State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010) (citation omitted).

       Claims of ineffective assistance of counsel are reviewed de novo. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001). In order to prevail on a claim of

ineffective assistance of counsel, a claimant must prove that counsel failed to

perform an essential duty and prejudice resulted. See id. at 142. “Both elements

must be proven by a preponderance of the evidence. However, both elements do

not always need to be addressed. If the claim lacks prejudice, it can be decided

on that ground alone without deciding whether the attorney performed deficiently.”

Id. (citations omitted).
                                          11


       “We review the district court’s rulings on challenges to potential jurors for

cause for abuse of discretion.” State v. Jonas, 904 N.W.2d 566, 570 (Iowa 2017).

“The district court is vested with broad discretion in such rulings.” Id. “An abuse

of discretion will only be found when a court acts on grounds clearly untenable or

to an extent clearly unreasonable.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa

2015) (citation omitted).

III. Discussion.

       A. Jury instruction. On appeal, Buchanan asserts it was error for the district

court to instruct the jury that a “claim-of-right” is not a defense to robbery because

he was not relying on the defense. He maintains, “The jury should have been free

to conclude that if Buchanan was only seeking to talk to Galindo about the debt

and had no intention of taking anything from him, the State had failed to prove he

had the specific intent to commit a theft.” He asserts the instruction deprived him

of such a possibility.

       “In a criminal case, the district court is required to instruct the jury as to the

law applicable to all material issues in the case.” State v. Becker, 818 N.W.2d 135,

141 (Iowa 2012), overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880

N.W.2d 699, 708 n.3 (Iowa 2016). “On review for correction of errors at law, we

are to ‘determine whether the challenged instruction accurately states the law and

is supported by substantial evidence.’” State v. Green, 896 N.W.2d 770, 775 (Iowa

2017) (quoting State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010)). “Error in giving

or refusing to give a particular instruction warrants reversal unless the record

shows the absence of prejudice.” Becker, 818 N.W.2d at 141 (quoting State v.

Marin, 788 N.W.2d 833, 836 (Iowa 2010)); see also Iowa R. Civ. P. 1.924 (requiring
                                          12


the district court to “instruct the jury as to the law applicable to all material issues

in the case”); Iowa R. Crim. P. 2.19(5)(f) (“The rules relating to the instruction of

juries in civil cases shall apply to the trial of criminal cases.”). Prejudice occurs if

the erroneous “instruction could reasonably have misled or misdirected the jury.”

State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015).

       Instruction 15A provided,

              No person who takes, obtains, disposes of, or otherwise uses
       or acquires property is guilty of theft by reason of such act if the
       person reasonably believes that the person has a right, privilege or
       license to take, obtain, dispose of, or otherwise use or acquire the
       property, or if the person does in fact have such right, privilege, or
       license. However, this claim-of-right defense is not available to a
       person committing an offense involving a violent reclamation of
       property, such as a robbery.

       Prior to adoption of the Iowa Criminal Code, the Iowa Supreme Court held

under the common law that a person seeking repayment of a debt owed to him

does not have the felonious intent necessary to commit a robbery. See State v.

Hollyway, 41 Iowa 200, 202-03 (1875). After the Iowa Criminal Code was adopted

in 1976, this court found this “claim-of-right” defense was only available for a

charge of theft as provided in section 714.4, which states:

               No person who takes, obtains, disposes of, or otherwise uses
       or acquires property, is guilty of theft by reason of such act if the
       person reasonably believes that the person has a right, privilege or
       license to do so, or if the person does in fact have such right, privilege
       or license.

State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct. App. 2000).

       The first sentence of Instruction 15A is a recitation of section 714.4 and

Uniform Jury Instruction 1400.19. In Miller, we noted, “The explicit language of

section 714.4 appears to confine the claim-of-right defense to theft charges.” Id.
                                             13


at 785 n.2. We also observed, “The modern trend among other states has been

to decline a claim-of-right defense to offenses involving force, such as robbery or

burglary.”1 Id. at 785. Moreover, we acknowledged public policy “evinces the

modern distaste for violent self-help,” lending support to our determination that the

claim-of-right defense is not available to robbery and burglary charges. Id. at 785-

86. We have applied the principle since.2 The second sentence of Instruction 15A,

thus, accurately states the law.

       We next turn to whether the instruction is supported by substantial

evidence. See Green, 896 N.W.2d at 775. Buchanan was charged with first-

degree robbery. He asserts he did not raise the claim-of-right defense and the

court erred in concluding the claim-of-right had been implicated. He asserts, “[T]he

instruction had no relevance in this case.”

       Witnesses testified Buchanan, armed with a semiautomatic pistol,

demanded money from Galindo, and then demanded Galindo’s jacket.                        One



1
  One author has noted “the traditional rule” is that the specific intent to steal is negated
even if a person uses force to retrieve property to which they claim a right of possession,
but the “modern trend” is to reject the claim-of-right defense when force is used. Joshua
Dressler, Understanding Criminal Law 557-58 (6th ed. 2012) (citing Miller).
2
  For example, in State v. Moss, No. 10-0079, 2010 WL 5050561, at *3 (Iowa Ct. App.
Dec. 8, 2010), we ruled:
                Moss claims the $200 he was attempting to recover from Hughes
        does not provide a basis to support a robbery finding. He argues there was
        evidence from which a jury could find the debt was legitimate. However,
        the claim-of-right defense is unavailable against charges of burglary and
        robbery, which involve violent reclamation of property.
        And, more recently in State v. Mims, No. 12-2279, 2014 WL 956065, at *1 (Iowa
Ct. App. Mar. 12, 2014), we rejected a defendant’s argument that the items he took from
another “as a means to get his car back” did not support a burglary conviction, noting:
        [A] claim of right to property taken may not serve to negate intent to a
        charge of burglary. [Miller, 622 N.W.2d at 785] (concluding the claim-of-
        right defense provided in Iowa Code section 714.4 is only applicable to theft
        charges). Here, Mims lacked both a claim of right and a right to impose a
        condition before returning the property.
                                            14


witness stated Buchanan forcefully pulled the jacket from Galindo. Buchanan

testified Galindo owed him money and that he had no interest in Galindo’s jacket,

but Buchanan did not deny he took the jacket. We conclude this is sufficient

evidence to support the giving of the instruction.

       Buchanan argues the instruction required the jury to convict him of robbery

“even if Buchanan only wanted to talk to Galindo about the debt and his avoidance

of paying it.” We disagree. The instruction references a person who “takes,

obtains, disposes of, or otherwise uses or acquires property” and “violent

reclamation.” Simply talking about a debt fits none of these terms, all of which

require the gaining of possession.

       The instructions informed the jury that to find Buchanan guilty of robbery,

they had to find he had “the specific intent to commit a theft.” If the jury found only

that Buchanan wanted to talk to Galindo about paying a debt owed, they could not

find an intent to commit theft because theft was defined as “taking possession or

control of property that belongs to another with the intent to permanently deprive

that other person of the property.” Nothing in the instruction necessitates a finding

of robbery without a defendant taking or obtaining something from the other.

       The State’s case was based upon Buchanan taking the jacket at gunpoint

from Galindo. Ackerson testified Buchanan grabbed the jacket from Galindo.

Buchanan’s testimony was that he demanded money owed to him and took

Galindo’s jacket because it was offered to him. It was for the jury to determine

what Buchanan’s intent was in taking Galindo’s jacket.3 See State v. Tyler, 867


3
 Buchanan filed a supplemental pro se brief in which he argues, in essence, instruction
15A deprived him of his ability to challenge the sufficiency of the evidence of his specific
                                            15


N.W.2d 136, 193 (Iowa 2015) (“Intent, and therefore guilt or innocence, is for the

jury to determine.”); cf. State v. Brighter, 608 P.2d 855, 859 (Haw. 1980) (rejecting

defendant’s claim-of-right defense but concluding the trial court’s instruction to the

jury that a bona fide claim-of-right was not a defense to robbery “was at best

harmless error.”). Moreover, the jury was properly instructed on specific intent:

             “Specific intent” means not only being aware of doing an act
       and doing it voluntarily, but in addition, doing it with a specific
       purpose in mind.
             Because determining the defendant’s specific intent requires
       you to decide what he was thinking when an act was done, it is
       seldom capable of direct proof. Therefore, you should consider the
       facts and circumstances surrounding the act to determine the
       defendant’s specific intent. You may, but are not required to,
       conclude a person intends the natural results of his acts.

Instruction 14. We are not convinced Buchanan has suffered any prejudice as a

result of the claim-of-right jury instruction.

       We also note that in an analogous instance, our supreme court has

concluded there was no merit to a defendant’s claim it was error to instruct a jury

on the defense of intoxication although the defendant had not raised the defense

of intoxication. State v. Jenkins, 412 N.W.2d 174, 176-77 (Iowa 1987). The court

concluded there was substantial evidence of the defendant’s intoxication on the

night in question, and “the court must instruct on all material issues so that the jury

understands the matters which they are to decide.” Id. at 177; see also State v.

Cortez, No. 09-1362, 2010 WL 3894443, at *11 (Iowa Ct. App. Oct. 6, 2010)

(affirming the district court where there was substantial evidence of intoxication,




intent to commit a theft because the court “co[r]relate[d] receiving or accepting a willing
exchange of com[m]er[c]e with a[n] unwilling taking or a theft of co[m]mer[c]e with the
claim of a [r]ight to do so.”
                                          16


and the district court submitted the instruction to help clarify the issues). Likewise,

there is substantial evidence in our record related to a claim of right, and instruction

15A was more likely to reduce confusion on the part of the jury by instructing on a

person’s right or lack of right to reclaim property. Moreover, there is nothing in the

record that reflects the jury became confused during deliberations.

       B. Ineffective assistance of counsel. Buchanan asserts that if a claim-of-

right was implicated, his trial counsel was ineffective in not raising an affirmative

defense. We have previously rejected a claim that counsel breached a duty in not

raising a claim-of-right defense.     In State v. Enochs, No. 15-1118, 2016 WL

4384655, at *2-3 (Iowa Ct. App. Aug. 17, 2016), we observed:

               Given the status of Iowa law on the claim-of-right defense,
       competent counsel was not compelled to find the issue was worth
       raising—and in the process, forego a favorable plea offer from the
       State.
               Iowa recognizes a statutory claim-of-right defense in theft
       cases:
               No person who takes, obtains, disposes of, or
               otherwise uses or acquires property, is guilty of theft by
               reason of such act if the person reasonably believes
               that the person has a right, privilege, or license to do
               so, or if the person does in fact have such right,
               privilege, or license.
       Iowa Code § 714.4.
               More than a decade ago, our court concluded that statute did
       not offer a defense to burglary or robbery charges:
               The express terms of section 714.4 provide that it is
               only a defense to a theft charge. Burglary and robbery
               are not included. We may not—under the guise of
               statutory construction—enlarge or otherwise change
               the terms of a statute which require us to read
               something into the law that is not apparent from the
               words chosen by the legislature. We decline to
               legislate expansion of the defense.
       [Miller], 622 N.W.2d [at] 785 (citations omitted). We have followed
       Miller in the intervening years. See, e.g., [Mims], 2014 WL 956065,
       at *1; Greene v. State, No. 09–0233, 2009 WL 3379100, at *3 (Iowa
                                             17

       Ct. App. Oct. 21, 2009); Bucklin v. State, No. 06–1942, 2008 WL
       375219, at *3 (Iowa Ct. App. Feb. 13, 2008).

       Because Buchanan cannot establish his trial attorney breached an essential

duty in failing to raise a claim-of-right defense, his ineffective-assistance-of-

counsel claim fails.4 See Ledezma, 626 N.W.2d at 142 (noting an ineffectiveness

claim fails if either element is not proved).


4
  This court is not alone in rejecting a claim-of-right defense to robbery and burglary. For
instance, in State v. Hobbs, 64 P.3d 1218, 1222-23 (Utah App. 2003), the Utah court cited
our case with approval and observed:
                  Many other jurisdictions have addressed this issue and determined
         that although the claim of right defense may be statutorily available for theft
         offenses, it is not available for robbery or burglary offenses. For example,
         the Iowa Court of Appeals, considering an appeal of a burglary conviction,
         analyzed their robbery and burglary statutes to determine whether the
         claim of right defense was available for those crimes. See [Miller], 622
         N.W.2d [at] 785. The court determined that although Iowa’s claim of right
         defense statute expressly states its availability for a person “guilty of theft,”
         defendants accused of robbery and burglary were not permitted to use the
         defense. Id. The Miller court stated that to permit another interpretation
         “would require us to read something into the law that is not apparent from
         the words chosen by the legislature.” Id. The court went on to analyze the
         “modern trend . . . to decline to recognize the claim-of-right defense to
         offenses involving force, such as robbery or burglary.” Id.; see also People
         v. Tufunga, 987 P.2d 168, 177-78 (Cal. 1999) (outlining modern trend).
         The reasons for this conclusion are well-stated in State v. Ortiz, 305 A.2d
         800 (N.J. Super. Ct. App. Div. 1973), where the court found the proposition
         that a claim of right negates the felonious intent of robbery lacks logic and
         “is utterly incompatible with and has no place in an ordered and orderly
         society such as ours, which eschews self-help through violence. Adoption
         of the proposition would be but one step short of accepting lawless reprisal
         as an appropriate means of redressing grievances, real or fancied.” Id. at
         802.
                  We therefore hold that the claim of right defense is not available for
         the crime of robbery because the legislature specifically provided for the
         common law defense of claim of right only for theft charges. The exclusion
         of the defense for robbery charges is evidence of the legislature’s intent
         that it not be available for robbery. Consequently, the trial court correctly
         refused to instruct the jury on the claim of right defense.
See also Whitescarver v. State, 962 P.2d 192, 195 (Alaska Ct. App. 1998) (stating “there
is no ‘claim of right’ defense to robbery”); State v. Schaefer, 790 P.2d 281, 284 (Ariz. Ct.
App. 1990) (“From a policy standpoint, the claim of right defense remains anachronistic: it
encourages disputants to resolve disputes on the streets through violence instead of
through the judicial system.”); Thomas v. State, 584 So.2d 1022, 1026 (Fla. Dist. Ct. App.
1991) (holding “the common law [claim-of-right] rule . . . is not available to defeat charges
                                            18

       C. Juror challenges. Iowa Rule of Criminal Procedure 2.18(5)(k) allows a

party to challenge a prospective juror if the juror has “formed or expressed such

an opinion as to the guilt or innocence of the defendant as would prevent the juror

from rendering a true verdict upon the evidence submitted on the trial.” The test

to be applied under the rule is “whether the juror holds such a fixed opinion on the

merits of the case that he or she cannot judge impartially the guilt or innocence of

the defendant.” State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993) (quoting

State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985)). The trial court is vested with

broad discretion when ruling on a challenge for cause. State v. Tillman, 514

N.W.2d 105, 107 (Iowa 1994).

       In order to overcome the trial court’s ruling, “the defendant must show (1)

an error in the court’s ruling on the challenge for cause; and (2) either (a) the

challenged juror served on the jury, or (b) the remaining jury was biased as a result

of the defendant’s use of all of the peremptory challenges.” Id. at 108. Where, as



of robbery for forcibly taking money to satisfy a debt owed by the victim to the taker”);
Westmoreland v. State, 538 S.E.2d 119, 121 (Ga. Ct. App. 2000) (“To allow a ‘claim of
right’ defense to an offense, such as robbery by sudden snatching, within which the use
of force is implicit would sanction the use of force to claim the property.”); Brighter, 608
P.2d at 859.
        But see State v. Smith, 118 A.3d 49, 56 (Conn. 2015) (“The robbery statutes
prohibit the use or threat of physical force to commit a larceny. If a defendant had no
intent to commit a larceny, we can perceive no reason why the legislature would have
intended that the defendant still could be charged with robbery instead of being charged
with other offenses, such as assault, unlawful restraint, threatening or reckless
endangerment, that criminalize the use or threatened use of restraint or physical force,
standing alone.”); see also Edwards v. State, 181 N.W.2d 383, 387 (Wis. 1970) (“If a
person seeks to repossess himself of specific property which he owns and to which he
has the present right of possession and the means he uses involves a gun or force, he
might not have the intention to steal. While the reclamation of specific removable property
at gun point by the owner may not be armed robbery, such self-help may and generally
does constitute a lesser crime than robbery.”)
        See generally, 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(b) (3d ed.
Oct. 2017 update) and cases cited therein.
                                                19


here, a challenged juror served on the jury, the defendant must show the jury was

biased. See Neuendorf, 509 N.W.2d at 746 (“In the absence of some factual

showing that this circumstance resulted in a juror being seated who was not

impartial, the existence of prejudice is entirely speculative.”).

          Buchanan challenges the district court’s denial of his objections for cause

to three jurors. The jurors had initially indicated some knowledge of the case or a

potential witness but all asserted they could judge the proceedings fairly, based on

the instructions. Buchanan used peremptory challenges to strike two of the three

jurors, but juror 92 served on the jury. He does not assert, however, the resulting

jury was biased. Buchanan urges this court to presume prejudice and find that

under Iowa Rule of Criminal Procedure 2.18(5) and (9), his having to use

peremptory challenges to dismiss the jurors constitutes structural error and

Neuendorf must be overruled.5 This court addressed a similar challenge in State

v. Ventura, No. 17-0661, 2018 WL 2084860 (Iowa Ct. App. May 2, 2018). There,

we stated,

          Following Neuendorf, “[t]he search for legal prejudice must therefore
          focus on the potential for prejudice that flowed from forcing defendant
          to use a peremptory challenge on [the challenged juror] that might
          have been used to remove another juror.” 509 N.W.2d at 746. It is
          up to the defendant to “make some factual showing that this
          circumstance resulted in a juror being seated who was not impartial.”
          Id.
                 While we are not at liberty to revisit precedent, our supreme
          court recently revisited Neuendorf in State v. Jonas, 904 N.W.2d 566,

5
    Buchanan argues,
                 Forcing the defendant to utilize peremptory strikes to remove
         biased jurors unfairly tips the balance of the adversarial proceeding in favor
         of the State by limiting a defendant’s ability to pick a jury it deems favorable
         on par with the State’s ability to do so. Effectively decreasing the number
         of peremptory strikes available to the defense under these circumstances
         violates the spirit of rule 2.18(9).
                                            20

       583-84 (Iowa 2017). In Jonas, the court ruled that when the district
       court abuses its discretion by improperly refusing “to disqualify a
       potential juror under Iowa Rule of Criminal Procedure 2.18(5)(k) and
       thereby causes a defendant to expend a peremptory challenge under
       rule 2.18(9), the defendant must specifically ask the court for an
       additional strike of a particular juror after his peremptory challenges
       have been exhausted.” 904 N.W.2d at 583. When the defendant
       does so, “prejudice will then be presumed.” Id. However, “where a
       judge improperly denies a challenge for cause but the defendant
       does not specifically ask for an additional peremptory challenge of a
       particular juror after exhausting his peremptory challenges,”
       Neuendorf remains good law. Id.

Ventura, 2018 WL 2084860, at *1.

       Even assuming the district court erred in denying Buchanan’s challenge for

cause to Juror 92, he did not ask for an additional preemptory challenge. Thus,

Buchanan must make some factual showing that the result was a juror being

seated who was not impartial; that is, Buchanan must show actual prejudice.6 See

Jonas, 904 N.W.2d at 584. He has not attempted to do so. We therefore reject

his claim.

       D. Jailhouse telephone recordings.             At trial, Buchanan objected to

recordings of his telephone calls made from jail to his girlfriend and to the mother

of his children on the grounds they were of little or no relevance and would be

unfairly prejudicial. Counsel asserted the “content of those calls is not probative

of any element of any offense charged or of any defense” raised. The prosecutor

described the substance of the recordings as follows:




6
  As we observed in Ventura, “We are unconcerned that Jonas was decided after
[Buchanan’s] trial but before [th]is appeal, as we apply the same test in either situation.”
2018 WL 2084860, at *2 n.1. Before Jonas, Buchanan had the burden to establish that
his jury was not impartial to create a presumption of prejudice under Neuendorf. After
Jonas, because Buchanan did not request the additional peremptory strike, we still apply
the actual prejudice test of Neuendorf.
                                        21


       The jail phone calls would be along the lines of [Buchanan] talking
       about Jose Galindo not testifying and him needing not to show up for
       depo[sition]s. They also involve him trying to set up an alibi defense
       with a mother of one of his children and what to say and how—and
       where he was and regarding statements about Tre [Clifton Sallis]
       being there and not, and we do believe that him talking about what
       witnesses need to do and what—and setting up an alibi defense and
       obviously through the defense’s opening statements would appear
       to be inconsistent with anything that the defendant’s going to say.
       But also just regardless of what the defense said in their opening
       statement setting up an alibi defense that is inconsistent with the
       evidence we do believe is relevant as far as the defendant’s
       culpability in this case.

The trial court overruled the objections and allowed the statements “as admissions

by the defendant.”

       If relevant, the district court can properly admit Buchanan’s statements on

the audio recordings. See Iowa R. Evid. 5.801(d)(2)(A); State v. Odem, 322

N.W.2d 43, 47 (Iowa 1982) (“It is basic that a party may place into evidence the

admissions of a party-opponent.”). Therefore, we must determine if the proposed

evidence was relevant and, if so, whether the probative value of the evidence is

“substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Iowa R. Evid. 5.403; State v.

Neiderbach, 837 N.W.2d 180, 202 (Iowa 2013) (noting we apply a two-part test to

determine whether evidence should be excluded under rule 5.403). Evidence is

unfairly prejudicial when it “appeals to the jury’s sympathies, arouses its sense of

horror, provokes its instinct to punish, or triggers other mainsprings of human

action that may cause a jury to base its decision on something other than the

established propositions in the case.” Neiderbach, 837 N.W.2d at 202 (citation

omitted).
                                        22


       The State argues the phone conversations were relevant to Buchanan’s

guilty conscience and undercut his credibility. The State also maintains that even

if the district court abused its discretion in admitting the phone calls, Buchanan

suffered no prejudice from the parts of the phone calls concerning his working on

an alibi defense and Galindo’s presence at a deposition because much of the

evidence was already in the record. Officer Lippert testified Buchanan claimed not

to have been at J’s at the time of the incident, and Jay Wilder testified Buchanan

called the bar and told him to say he had not been there and Galindo would get his

coat back. Galindo testified about attending his deposition.

       Buchanan’s presence at J’s was not in issue after defense counsel

acknowledged in opening statements that Buchanan was present.                  We

acknowledge Buchanan did not raise an alibi defense, but efforts to contrive an

alibi defense, or avoid conviction by Galindo failing to appear are relevant to

consciousness of guilt. We agree the phone conversations on these topics were

prejudicial to Buchanan but we are unable to conclude such evidence is unfairly

prejudicial. See id.

       On appeal, Buchanan also asserts that “half of the content of the recordings

are hearsay statements of the women on the other line.” He acknowledges his

trial counsel did not seek to redact any of the recordings played, and thus, his

challenge must be addressed as a claim of ineffective assistance of counsel.

Consequently, Buchanan must establish by a preponderance of the evidence that

(1) counsel breached an essential duty in failing to assert these hearsay

objections, and (2) the result of the trial would probably be different had the

objection been made. See State v. Enderle, 745 N.W.2d 438, 440 (Iowa 2007).
                                              23


“If a defendant does not show prejudice, the case can be decided on that issue

alone without the additional inquiry into whether counsel's performance was

deficient.” Id.

       We first address the claim of ineffective assistance of counsel for failure to

seek a redaction of the claimed inadmissible or unfairly prejudicial evidence.

Buchanan objected to the audio evidence as being unduly prejudicial.                     If the

objection had been sustained none of the recordings would have been admitted

unless the State agreed, or the court ordered the offending portions deemed

unfairly prejudicial to be redacted. Defense counsel is not ineffective for failing to

seek redaction when counsel has made a proper objection to exclude all of the

same evidence. Instead, it would have been incumbent upon the State to seek

redaction of the offending portions in an effort to admit the remaining portions of

the audio. Thus, we conclude counsel is not ineffective for failing to seek a

redaction of a portion of an exhibit when counsel has made the same objection to

the entirety of the exhibit.

       With respect to the women’s portions of the conversations, Buchanan

asserts “the most problematic aspect of the calls are the discussions in which [the

mother of his children] Jada Mills encourages Buchanan to make a plea deal rather

than take the case to trial.”7 During that call, Buchanan alleges Mills accuses

Buchanan of lying and repeating that other people have told her he was “caught in




7
  Notwithstanding much effort, the recordings were only barely audible and, in some
recordings, only the recipient of the call can be heard. It is not the court’s responsibility to
assure the adequacy of the record relied upon by the parties. Moreover, we have no way
of knowing how well the jury could hear the recordings. Finally, no transcripts of the
recordings were admitted or made part of the record.
                                                  24


a lie,” and discusses how he will go to prison for seventeen years if he is convicted.

There was a conversation about Mills testifying for him and—as best we can tell—

she responded, “[Y]ou want me to say you were with me—it’s not going to work.”

When he explains that he thinks he has a good chance at trial, she responds that

“they have his [Galindo’s] statement, that’s all they need.” The conversation ends

with her repeating a story she heard from someone else that he had gotten “caught

in a lie in front of the judge.” In a later phone call, the call recipient discusses

statements she put on Galindo’s Facebook page—that he’s “already proven to be

a liar,” “people are mad about him lying,” that he “need[s] to go down there and tell

the truth” after all the “lying” he’s “already been doing.”8

          The State asserts the statements by the recipients of Buchanan’s calls were

not offered to prove the truth of the matter asserted but instead offered as context

to Buchanan’s statements, and thus, the statements are not hearsay.

          The State also relies on Enderle, and while not directly on point, we find that

case persuasive. In Enderle, the court concluded police officer statements “made

during interrogations are not ‘testimony’ given by witnesses at trial and [are] not

offered to impeach the defendant.” Id. at 443. Like the officers’ statements in

Enderle, Mills’ statements provide context for the defendant’s responses. See

Iowa R. Evid. 5.106.9


8
    Buchanan mistakenly asserts these statements were about him.
9
    Rule 5.106 provides:
                    (a) If a party introduces all or part of . . . [a] recorded statement, an
          adverse party may require the introduction, at that time, of any other part
          . . . that in fairness ought to be considered at the same time.
                    (b) Upon an adverse party’s request, the court may require the
          offering party to introduce at the same time with all or part of the . . .
          recorded statement, any other part or any other . . . recorded statement
          that is admissible under rule 5.106(a). Rule 5.106(b), however, does not
                                            25


       We agree with Buchanan the better practice would have been to redact

these statements but, for the reasons previously stated, we do not lay this blame

upon defense counsel in light of counsel’s objection.                Even if Enderle is

inapplicable to these facts, given the strength of the case against Buchanan, we

conclude Buchanan has not shown that but for the admission of the objected to

statements, the result of the proceedings would have been different. Further,

Buchanan instigated much of the discussion by asking Mills to testify for him,

knowing the call was being recorded. We find it difficult to conclude he was unduly

prejudiced by Mills’s responses when he continued the recorded conversation

about his chances at trial.

       Here, Buchanan admitted going to J’s to demand money from Galindo.

Several witnesses testified he was armed with a pistol, demanded money from

Galindo, and took his coat. He also acknowledged he had lied to police that he

was not at J’s the night of the incident. His claim of ineffective assistance of

counsel thus fails.

IV. Conclusion.

       The State’s case was based upon Buchanan taking the jacket at gunpoint

from Galindo. It was for the jury to determine what Buchanan’s intent was in taking

Galindo’s jacket. The jury was properly instructed on specific intent and we are

not convinced Buchanan has suffered any prejudice as a result of the claim-of-

right jury instruction. Buchanan cannot establish his trial attorney breached an




       limit the right of any party to develop further on cross-examination or in the
       party’s case in chief matters admissible under rule 5.106(a).
                                         26


essential duty in failing to raise a claim-of-right defense and his ineffective-

assistance-of-counsel claim thus fails.       With respect to his juror challenge,

Buchanan must show that the result was a juror being seated who was not

impartial, which Buchanan has not attempted to do. Finally, we find no prejudicial

error in the admission of the recorded jail phone calls.

       AFFIRMED.
