                    IN THE COURT OF APPEALS OF IOWA

                               No. 4-030 / 13-0605
                               Filed April 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALAN SCOTT LAWTON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Pottawattamie County, James S.

Heckerman, Judge.



      A defendant appeals following his conviction for second-degree theft

challenging his counsel’s effectiveness, the court’s admission of evidence, and a

defect in his sentence. CONVICTION AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RESENTENCING.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Joe Williams, Student Legal Intern, Matthew Wilber, County Attorney,

and Amy Zacharias, Assistant County Attorney, for appellee.



      Heard by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.

       Alan Lawton appeals following a jury’s verdict finding him guilty of theft in

the second degree. He alleges on appeal that his attorney rendered ineffective

assistance when he failed to challenge the search of Lawton’s motel room as

violating Lawton’s Fourth Amendment rights. He also claims the court erred in

admitting into evidence a recording of a phone call made while Lawton was in the

county jail. Finally, he asserts the court erred in failing to articulate on the record

the reasons for imposing the sentence it did.

       I. Background Facts and Proceedings.

       On November 1, 2012, Officer Shawn Landon of the Council Bluffs Police

Department was in the parking lot of a local motel running the license plates of

the vehicles located there to see if any of the owners of the vehicles had

outstanding warrants or if any car was stolen. Officer Landon ran the license

plate of a white Chevy pickup truck and found the license plate was not

registered to that vehicle. He called a tow company to unlock the door to the

vehicle so that he could check the VIN number, as a glove covered the VIN in the

front window. When he ran the VIN number on the truck, a response came back

that the truck had been reported stolen out of Omaha.

       Officer Landon contacted the staff of the motel, who were able to direct

him to the room where the people connected with that vehicle were staying.

Officers knocked on the motel room, and after several minutes, Jody Riddle,
                                         3



Lawton’s girlfriend, opened the door. Lawton was found in the motel bathroom

and was eventually arrested.1

       The case proceeded to trial on March 19, 2013. During trial the State

offered a recording of a phone conversation recorded by the phone system of the

county jail. The State called Stuart Delacastro, who offered testimony as to how

the phone system worked and how he was able to retrieve this recording as

associated with Lawton. Lawton’s attorney voir dired the witness, who admitted

he did not know for sure that Lawton made the phone call recorded. Lawton’s

attorney objected to the admission of the recording asserting, “It would not be

relevant to this case.” The court overruled the objection and admitted the phone

recording. The phone call was not played for the jury until after Jody Riddle

testified. Riddle admitted during her testimony that Lawton called her on March

3, the date of the recorded phone call. After Riddle was excused, the State

asked to play the recording for the jury. Lawton’s attorney objected on the basis

that the State was attempting to “impeach their own witness” and it was

“hearsay.” The court again overruled the objections and played the recording for

the jury.   The recording was a conversation between Lawton and Riddle

discussing the facts of the case.




1
  The trial information indicates Lawton was charged with two counts of theft in the
second degree, possession of a controlled substance, and ongoing criminal conduct.
However, Lawton was tried only on one count of second-degree theft, and the record is
unclear what occurred with the other charges. Because the issues on appeal do not
deal with the other charges, we will not address them further.
                                          4



      After Lawton took the stand to testify in his own defense, the case was

submitted to the jury. The jury returned a verdict the next day finding Lawton

guilty of second-degree theft. Lawton now appeals.

      II. Scope and Standards of Review.

      Lawton’s ineffective-assistance claim is reviewed de novo as it implicates

his constitutional right to counsel under the Sixth Amendment.        See State v.

Carter, 602 N.W.2d 818, 820 (Iowa 1999).         In order to prove counsel was

ineffective, Lawton must show by a preponderance of the evidence that counsel

failed to perform an essential duty and he suffered prejudice as a result. See

State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008).

      With respect to his claim the court should not have admitted the recording

of the phone call from the county jail, our review is for abuse of discretion. State

v. Weatherly, 519 N.W.2d 824, 825 (Iowa Ct. App. 1994).           We also review

Lawton’s challenge that the court failed to state on the record the reasons for

imposing the sentence for an abuse of discretion. State v. Oliver, 588 N.W.2d

412, 414 (Iowa 1998). To prove an abuse of discretion, Lawton must show the

court “exercised its discretion on grounds or for reasons clearly untenable or to

an extent clearly unreasonable.”       Weatherly, 519 N.W.2d at 825 (internal

quotation marks and citations omitted).

      III. Ineffective Assistance—Search of Motel Room.

      Lawton’s first claim is that his attorney rendered ineffective assistance

when the attorney failed to file a motion to suppress evidence obtained from a

search of Lawton’s motel room that violated Lawton’s Fourth Amendment rights.
                                         5



In support of his claim, Lawton seizes upon the following paragraph from the

minutes of testimony attached to the trial information filed by the State

              Detective Elonich will testify that on November 1, 2012, while
       looking through motel room #23 at the Lake Manawa Inn Motel that
       was occupied by the Defendants . . . he noticed numerous tools
       and miscellaneous other items that appeared to be from burglaries.
       There was a Starcaster guitar with amplifier, laptop computer,
       portable DVD player, numerous cell phones and car chargers, etc.
       The title to Mr. Wilson’s stolen Chevy pickup, along with some of
       his stolen tools was also found in the motel room that was occupied
       by the Defendants. Detective Elonich will testify that with this
       evidence he obtained a warrant for the additional charges of Theft
       in the Second Degree and Ongoing Criminal Conduct for the
       Defendants.

Lawton states he had a reasonable expectation of privacy in the motel room as

he had been staying there with his girlfriend, Jody Riddle, for five days. Lawton

asserts the search was conducted without a warrant and none of the exceptions

to the warrant requirement apply.

       Lawton admits in his brief that it is unclear from this record where he was

arrested—inside or outside the hotel room—and when he was arrested—before

or after this search. What is also unclear to this court is whether there was in fact

a search. The minutes of testimony merely say Detective Elonich “noticed” tools

and numerous items “while looking through motel room #23.”            This could be

interpreted to mean that the tools and items were in plain view while Detective

Elonich was inside the room to investigate who possessed the stolen vehicle in

the parking lot.

       The testimony of Detective Elonich at trial does not answer or clarify these

factual questions.   Detective Elonich admitted to taking pictures of the room

which was “quite full of numerous items,” but he stated he took the pictures just
                                         6



to document the room and did not search through anything, “didn’t look at serial

numbers, didn’t open purses. Just took photos.” Detective Elonich identified the

pictures he took that day, which were admitted into evidence without objection.

      This challenged paragraph in the minutes of testimony mentions that

some of the victim’s stolen tools were found in the motel room. However, at trial,

Detective Elonich testified he showed the victim the pictures taken from the

room, and the victim identified certain items as belonging to him. The items

identified were retrieved from the motel storage area after they were identified by

the victim from the pictures taken, and the items were given back to the victim.

The police did not “seize” the evidence at the time of the challenged search.

      The same paragraph in the minutes of testimony also mentions that the

title to the stolen vehicle was found in the motel room. However, elsewhere in

the minutes of testimony it states the title was found by the motel manager while

he was cleaning the room after the police and Lawton had left. In addition, at trial

Officer Landon testified he received a call from the motel manager after they had

left the scene asking him to return to the motel because the manager had found

items in the room he wanted Officer Landon to see. Included in those items the

manager gave to Officer Landon was the title to the stolen Chevy pickup. Thus,

it appears the title was not in fact “noticed” by Detective Elonich as Lawton would

have us believe from the wording of the paragraph in the minutes of testimony

but discovered by the manager of the motel while cleaning the room after the

officers had left. It was the manager who turned over the title to Officer Landon.
                                         7



       What is also unclear from this record is what evidence obtained from this

alleged search by Detective Elonich was used against Lawton at trial. Lawton

only claims in his brief that “police seized items that were eventually used in trial

against him” and “further charges were brought following the discovery of the

items.” He never alleges what items in particular were illegally seized and used

against him at trial. He mentions that the photographs taken by the officers were

prejudicial to him because they showed “items that were stolen from the truck

and a set of brass knuckles with a spike on one end.”

       While a defendant is certainly able, but not required, to raise an

ineffective-assistance-of-counsel claim on direct appeal, most of the time, the

record on direct appeal is insufficient to decide whether counsel breached an

essential duty and whether prejudice results. State v. Johnson, 784 N.W.2d 192,

198 (Iowa 2010). Where the record is inadequate to address the claim, we

preserve the claim for possible postconviction-relief proceedings where a fuller

record can be developed. Id. Here, the record is clearly inadequate to address

Lawton’s claim. We are unable to determine whether counsel had a duty to file a

motion to suppress based on the police officers’ actions on November 1, 2012,

nor can we determine whether Lawton suffered any prejudice as a result of the

lack of a motion to suppress. We therefore preserve this claim for possible

postconviction-relief proceedings.

       IV. Admission of Phone Conversation.

       Next, Lawton claims the court should not have admitted the recording of

the phone call made from the jail to Jody Riddle. He claims because the jail
                                        8



administrator could not identify Lawton as the one making the call, there was “no

showing that the recording was accurate or trustworthy as a telephone call made

by [Lawton] at the time when the recording was admitted.” He claims, had the

court not admitted the phone call, he would not have taken the stand to testify in

his own defense. Lawton asserts he felt the need to address the contents of the

conversation so he testified.

       Stuart Delacastro, the administrator of the county jail, testified the phone

system at the jail records the phone calls as they are made. The inmates are

given PINs to use when making a call or the jail can sell phone cards at a

reduced cost to inmates. The system can then be searched by an inmate’s

name, the PIN used, or the phone card used. Delacastro stated he was asked to

download the phone call in question and identified the CD and the report

generated by the system.        After the State offered the CD and report into

evidence, Lawton’s attorney requested to voir dire the witness.

               [Defense Counsel]. Sir, is there any way you know exactly
       who made that phone call? A. Only by the method I described
       earlier in searching by name or phone number.
               [Defense Counsel]. Okay. In this particular case, do you
       know that Alan Lawton made that phone call? A. I don’t know that,
       sir.
               [Defense Counsel]: I would object to it then, Your Honor?
               THE COURT: Overruled.
               [Defense Counsel]: It would not be relevant to this case.
               THE COURT: Overruled.

The court confirmed the CD and report were admitted into evidence at that time.

The recording was not played for the jury until after Jody Riddle testified. Jody

confirmed that Lawton called her from the county jail on March 3, 2013, the date
                                          9



the recording was made. When the State asked to play the recording for the jury,

Lawton’s counsel objected again:

               [Defense Counsel]: That’s fine, Your Honor, but I—at this
       time, I move to—I am objecting to it on the basis of it is impeaching
       their own witness. She was here to testify. They could have asked
       her any questions. They chose not to. It’s hearsay, and we don’t
       think it should be admitted, Your Honor.
               THE COURT: Clearly overruled. But I just—I am seriously
       considering revisiting the ruling I made earlier with respect to
       redacting the contents of the—but let’s proceed now. We will
       discuss it before the State rests.

No further discussion regarding the recording is contained in the record.2

       The State claims on appeal Lawton failed to preserve error on this claim

because his objection at trial was to relevance, not to the foundation of the

exhibit. See State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct. App. 1999) (“[A]

defendant may not announce an objection at trial and on appeal rely on a

different objection to challenge an adverse ruling.”). In addition, even if defense

counsel’s objection could be interpreted as an attack on the foundation laid for

the recording, the State argues Lawton failed to articulate at trial what aspect of

the foundation was lacking as required by the rules. See State v. Entsminger,

160 N.W.2d 480, 482–83 (Iowa 1968) (“[R]eversible error may not be predicated

upon this general objection that no proper foundation had been laid for admission

of these exhibits. A party objecting to the offer of evidence for this reason must




2
  From the statement of the court, we can deduce that an off-the-record discussion
regarding the recording occurred either sometime prior to or during the trial where
certain parts were redacted from the recording. However, without further explanation in
the record, we are unable to determine what ruling was made by the court and what
objections to the recording may have been made by defense counsel.
                                          10



point out in what particular or particulars the foundation is deficient so the

adversary may have an opportunity to remedy the alleged defect, if possible.”).

       “The preservation of error doctrine is grounded in the idea that a specific

objection to the admission of evidence be made known, and the trial court be

given an opportunity to pass upon the objection and correct any error.” State v.

Brown, 656 N.W.2d 355, 361 (Iowa 2003).

       The general rule is that unless the reasons for an objection are
       obvious one attempting to exclude evidence whether the attempted
       exclusion is by objection or motion has the duty to indicate the
       specific grounds to the court so as to alert the judge to the question
       raised and enable opposing counsel to take proper corrective
       measures to remedy the defect, if possible.

State v. Nimmo, 247 N.W.2d 228, 231 (Iowa 1976) (internal quotation marks and

citations omitted). The objecting party must “lodge specific objections so the trial

court is not left to speculate whether the evidence is in fact subject to some

infirmity that the objection does not identify.” Mulvany, 603 N.W.2d at 632. The

court considers a party to have abandoned “every ground of exception that is not

particularly specified.”   Id.   “Fairness and considerations of judicial economy

dictate that we not consider a contention on appeal which the trial court never

had the opportunity to consider.” Id.

       Our court has previously recognized that our case law is unclear as to

when a simple relevancy objection will preserve a more specific argument on

appeal.   See Mulvany, 603 N.W.2d at 632 (“Prior case law does not clearly

delineate when a simple relevancy objection is sufficient to preserve a more

specific argument on appellate review.”).       When the recording was offered,

defense counsel objected that the recording “would not be relevant to this case”
                                        11



after questioning Delacastro about his knowledge of whether Lawton himself

made the phone call. No further explanation of the objection was made on the

record before the court overruled the objection.      Because the “objection was

simplistically generic and immediately overruled, the prosecution was unable to

make a record to support the relevancy of the evidence.” Id. at 633. Specifically,

in this case the prosecution was not offered an opportunity prior to the exhibit’s

admission to present proof Lawton was the person who called Riddle.             The

prosecution could have easily provided the necessary proof, if the court had

required, as Riddle testified later that she did receive a call from Lawton from the

jail on the date the recording was made. In addition, we note the recording

identifies the caller as “Alan,” it is clear the other speaker is Riddle, and they

discuss the facts of the case along with Riddle’s proposed testimony.

       Given the limited record made on counsel’s objection to the admission of

the recording, we conclude counsel failed to preserve error on his claim that the

State failed to prove the recording was “accurate and trustworthy.”             The

objections of hearsay and improper impeachment were made after the court

admitted the exhibit and therefore were too late to preserve error on those

grounds. We find no abuse of the district court’s discretion in admitting the

recording.

       V. Sentencing.

       Finally, Lawton asserts the district court abused its discretion during

sentencing when it failed to state on the record the reasons for the sentence

imposed. A court must state on the record its reasons for selecting a particular
                                          12



sentence. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa 2010) (citing Iowa

Rule of Criminal Procedure 2.23(3)(d)). A statement is sufficient even if it is

“terse and succinct” so long as we can review the exercise of the trial court’s

discretion. Id.

       At sentencing, the district court, after hearing arguments from both

counsel and asking Lawton if there was anything he wished to say, made the

following statement on the record:

               THE COURT: All right. It will be the judgment and sentence
       of the court that in the theft charge in case number FECR048594
       that the Defendant be sentenced to a term not to exceed 15 years
       in the custody of the Director of the Department of Correctional
       Services. The IMCC at Oakdale is hereby designated as the
       reception center.
               With respect to the probation in case number FECR047367,
       the Defendant’s probation in that case is hereby revoked and the
       five-year sentence previously suspended is reinstated and the
       Court will order that sentence be served concurrently. And the
       reason for that, a, primarily is I don’t think that it really makes a bit
       of difference. I think effectively the enhancement added 10 years,
       to add another five years to what we’ve already done, I think
       especially with a mandatory three-year sentence that that requires I
       don’t think it’s going to make any difference whatsoever.

We also look to the sentencing order to see if sufficient reasons for the sentence

imposed are supplied. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001).

The sentencing order in this case does not provide any reasons for the sentence

imposed. The State concedes the district court did not supply the necessary

reasons for imposing the sentence and asks that the sentence be vacated and

the case remanded for resentencing. Upon our review of the record, we agree.

We vacate the sentence imposed and remand this case for resentencing.
                                         13



       VI. Conclusion.

       Because we find the record on direct appeal inadequate to address

Lawton’s ineffective-assistance claim, we preserve that claim for possible

postconviction-relief proceedings. We find Lawton failed to preserve error on his

claim the court erred in admitting the recording of the phone conversation.

Finally, we agree the district court abused its discretion in failing to articulate on

the record the reasons for the sentence imposed, so we vacate Lawton’s

sentence and remand for resentencing.

       CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.
