                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0457
                               Filed July 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RUDY CHASE STROUD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.



      Rudy Stroud appeals his criminal convictions arguing his counsel rendered

ineffective assistance. AFFIRMED.



      Shawn C. McCullough of Powell & McCullough, PLC, Coralville, for

appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., Ahlers, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

       Richard Swenson was the owner of a five by ten foot utility trailer with wood

sides. The trailer was registered, donned a license plate, and had a vehicle

identification number (VIN). Swenson kept the trailer in the outside area of a

storage unit facility. The trailer was secured with two locks on its tongue. On

October 15, 2017, Swenson noticed the trailer was missing. He and the owner of

the storage facility viewed surveillance footage, which showed the trailer leaving

the facility hitched to a pickup. Swenson reported the trailer stolen. Swenson also

searched for his trailer on a sell-and-swap type page on social media.              In

December, he found what he believed to be his trailer being listed for sale, which

he reported to law enforcement. The evidence shows the trailer was listed by Rudy

Stroud. Law enforcement messaged Stroud to see if the trailer was still available

and arranged a time to meet. Stroud tendered his address, and Detectives Mark

Strait and Shawn Ireland paid him a visit.

       When the detectives arrived at the provided address, Stroud opened up his

garage, which contained a trailer, and greeted the detectives. 1 Some small talk

ensued, after which the detectives advised they were with the local sheriff’s office

and were conducting random inspections on homemade trailers. Stroud confirmed

he recently registered the trailer as homemade.2 When asked whether he made

the trailer, Stroud responded, “Yeah, most of it.” He stated he had the trailer for a



1 The detectives’ encounter with Stroud was captured by Ireland’s body camera.
The video was admitted as evidence and played for the jury.
2 The trailer had actually been registered as “specially constructed.”               A
representative from the treasurer’s office verified in her testimony that this category
includes homemade trailers.
                                           3


few months, and he got it in “bits and pieces” from “a few different people,” “people

you come across stuff like that,” “random people.” He was unable to identify those

individuals. He acknowledged he had recently painted it; the trailer had yellow

paint on the fenders and black paint on the side railings.3 It also donned a license

plate not matching the one registered to Swenson. The evidence showed Stroud

registered the trailer in his name in November and received a license plate. The

detectives seized the trailer. Swenson subsequently identified the trailer as his.

The trailer’s VIN, which was ultimately uncovered by using solvent to remove the

black paint, matched that of Swenson’s trailer.

         Strait eventually made contact with Stroud and advised him the trailer was

stolen. Stroud stated he in fact did not make the trailer, but he got it from a girl,

A.C., who previously had people living with her who left the trailer at her residence.

According to Strait’s testimony, Stroud stated A.C. advised him the individuals who

left the trailer had stolen it, and A.C. asked if Stroud wanted it; Strait contacted

A.C., who confirmed Stroud’s account. At trial, A.C. testified A.O. and his girlfriend,

M.S., left the trailer at her residence and never returned to retrieve it. Eventually,

A.C. offered the trailer to Stroud. A.C. claimed she was unaware the trailer was

stolen and believed it belonged to A.O.’s father. She testified she offered it to

Stroud because she considered it abandoned. Stroud testified A.C. contacted him

about an abandoned trailer and he offered to take it off her hands. According to

Stroud, when he retrieved the trailer, it was in bad shape, and he subsequently

made several repairs and improvements. Thereafter, he used it to move his



3   Swenson’s trailer was “natural,” not painted.
                                         4


belongings from the home and then he decided to sell it. He declined knowing it

was stolen.

       Stroud was formally charged by trial information with theft and fraudulent

practices, both in the second degree. Following trial, a jury found Stroud guilty of

the lesser-included offenses of third-degree theft and fraudulent practices. Stroud

appealed following the imposition of sentence.

       On appeal, Stroud claims his counsel was ineffective in failing to object to

the following jury instruction:

       Evidence has been offered to show that the Defendant made
       statements at an earlier time.
               If you find any of the statements were made, then you may
       consider them as part of the evidence, just as if they had been made
       at this trial.
               You may also use these statements to help you decide if you
       believe the Defendant. You may disregard all or any part of the
       defendant’s testimony if you find the statements were made and
       were inconsistent with the defendant’s testimony given at trial, but
       you are not required to do so. Do not disregard the defendant’s
       testimony if other evidence you believe supports it or you believe it
       for any other reason.

Until June 2018, the foregoing was our state bar association’s model instruction

on statements by a defendant. Prior thereto, the Iowa Jury Instruction Committee

issued a report noting the supreme court requested striking the language “just as

if they had been made at this trial.” The bar association obliged. Stroud’s trial was

held several months later.

       Stroud argues his counsel rendered ineffective assistance in failing to object

to the outdated model instruction as an incorrect statement of the law. Appellate

review of claims of ineffective assistance of counsel is de novo. State v. Gordon,

943 N.W.2d 1, 3 (Iowa 2020). To succeed on his ineffective-assistance-of-counsel
                                          5


claim, Stroud must establish “(1) that counsel failed to perform an essential duty

and (2) that prejudice resulted.” State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020);

accord Strickland v. Washington, 466 U.S. 668, 687 (1984). We “may consider

either the prejudice prong or breach of duty first, and failure to find either one will

preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State

v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).

       The supreme court recently clarified the outdated instruction is a

misstatement of the law, State v. Shorter, ___ N.W.2d ___, ___, 2020 WL

3107683, at *7–8 (Iowa 2020),4 so we conclude counsel failed to perform an

essential duty in failing to object. We proceed to the prejudice prong. See id. at

*8 (noting that, although the instruction was erroneous, “this does not mean that

the instruction is necessarily prejudicial in a given case”). The prejudice prong will

only be satisfied upon “a reasonable probability that, but for counsel’s failure to

perform an essential duty, the result of the proceeding would have been different.”

State v. Booth-Harris, 942 N.W.2d 562, 577 (quoting State v. Ary, 877 N.W.2d 686,

705 (Iowa 2016)).

       Strait testified that Stroud knew the trailer was stolen and that he

constructed the trailer. The video evidence also showed Stroud claimed he built

the trailer, or at least most of it. Other evidence was presented to show Stroud

made false statements that he “specially constructed” the trailer or that it was

“homemade” in obtaining a registration for the vehicle. These party opponent

statements on the part of Stroud formed the basis for Stroud’s convictions of third-


4 We note the supreme court addressed this issue because it may have arisen on
retrial. Shorter, ___ N.W.2d at ___, 2020 WL 3107683, at *7.
                                           6

degree theft and fraudulent practices. See Iowa Code §§ 714.1(4) (2017) (defining

theft to include the exercise of “control over stolen property, knowing such property

to have been stolen, or having reasonable cause to believe that such property has

been stolen, unless the person’s purpose is to promptly restore it to the owner or

to deliver it to an appropriate public officer”); 714.8(4) (defining fraudulent practices

to include making “any entry in or alteration of any public records . . . knowing the

same to be false”). At trial, Stroud denied he knew the trailer was stolen and that

the trailer contained a VIN or was manufactured. Even assuming the jury equated

the out-of-court statements as sworn trial testimony, both Strait and Stroud were

placed on the stand and testified under oath. And other evidence was presented

to show Stroud made statements consistent with fraudulent practices. The jury

had the opportunity to assess the credibility of witness testimony and the other

evidence presented, and its verdicts necessarily show it found Stroud’s trial

testimony not credible.     In reaching its credibility determination, the jury was

expressly instructed it could consider each witness’s “interest in the trial, their

motive, candor, bias and prejudice.” We are unable to agree with Stroud that

omitting the challenged language “would have given more credibility to [his]

proffered defense.” Even if the language were omitted, the jury would have still

been entitled to consider the out-of-court statements as evidence. Given the

totality of the evidence, even if the jury had been properly instructed, we find no

reasonable probability of a different outcome. Consequently, we conclude Stroud

was not prejudiced, and counsel was not ineffective as alleged.

       We affirm Stroud’s criminal convictions.

       AFFIRMED.
