                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0559
                                Filed April 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENNIS EARL EWING,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



       Dennis Earl Ewing appeals the judgment of conviction and sentence

entered after a jury found him guilty of second-degree theft. REVERSED AND

REMANDED.



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

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, John Sarcone, County Attorney, and Justin G. Allen and

Patricia Skeffington, Assistant County Attorneys, for appellee.



       Considered by Potterfield, P.J., and Vaitheswaran, J., and Miller, S.J.*

Doyle, J., takes no part.

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MILLER, S.J.

      Dennis Earl Ewing appeals the judgment of conviction and sentence

entered after a jury found him guilty of second-degree theft, in violation of Iowa

Code sections 714.1(4) and 714.2(2) (2011).      Because Ewing’s counsel was

ineffective in failing to object to erroneous jury instructions, we reverse the

judgment of conviction and sentence, and remand for a new trial.

I. BACKGROUND FACTS AND PROCEEDINGS.

      On November 29, 2012, Ewing was charged by trial information with theft

in the second degree for acts occurring on October 31, 2012. On that date, Des

Moines Police Officer Craig Vasquez was approached by someone who reported

seeing a stolen vehicle in a nearby driveway. The vehicle in question, a scooter,

was parked in the front of Ewing’s home. Officer Vasquez checked the license

plates and confirmed the vehicle had been reported stolen.

      Ewing told Officer Vasquez the scooter had been left in the driveway two

or three weeks earlier. He did not identify the person who left the scooter. When

Officer Vasquez placed him under arrest, Ewing threw a set of keys in his

possession to his brother, Douglas. Officer Vasquez discovered one of the keys

in the set activated the stolen scooter.    None of Ewing’s possessions were

located inside the scooter.

      Trial was held on February 11, 2013. At the close of the State’s evidence,

Ewing’s trial counsel moved for judgment of acquittal, arguing the State failed to

meet its burden of proof regarding the scooter’s value. Counsel also alleged the

State failed to prove the crime occurred in Polk County.        The motion was

overruled.
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       Ewing then proceeded to present his evidence.          His brother, Douglas,

testified that he works at a garage adjacent to his Ewing’s house.           Douglas

testified he and Ewing repair vehicles for people in their neighborhood and that

the neighbors regularly drop their vehicles off at Ewing’s home. He testified it is

not unusual for people to leave their vehicles in Ewing’s driveway for periods of

time. Unless the owner calls him, Douglas does not know if a vehicle has been

left there to be repaired. Douglas testified the stolen scooter had been sitting in

the driveway in plain sight and was never moved. He never saw Ewing drive it.

No one had performed any repairs on the scooter.

       At the close of trial, the jury was given the following marshalling instruction

without objection:

                                  Instruction No. 18
              The State must prove all of the following elements of Theft in
       the Second Degree:
              1. A vehicle, a 2008 Zhongneng scooter belonging to Allen
       Simon, was stolen.
              2. On or about the 31st day of October 2012, the defendant
       exercised control over the stolen vehicle.
              3. The defendant knew the vehicle was stolen or had
       reasonable cause to believe that such property had been stolen.
              4. The defendant did not intend to promptly return it to the
       owner or to deliver it to an appropriate public officer.
              If the State has proved all of the elements, the defendant is
       guilty of Theft in the Second Degree. If the State has failed to
       prove any one of the elements, the defendant is not guilty of Theft
       in the Second Degree and you will then consider the charge of
       Operating a Motor Vehicle Without the Owner’s Consent in
       Instruction No. 22.

The jury was further instructed in Jury Instruction No. 20: “If the State has proved

by evidence beyond a reasonable doubt that the property was found in the

defendant’s possession, you may, but are not required to, conclude the
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defendant knew or had reasonable cause to believe the property had been

stolen.”

       The jury found Ewing guilty as charged. The court sentenced Ewing to a

term of incarceration not to exceed five years.

II. SCOPE OF REVIEW.

       Because a claim of ineffective assistance of counsel implicates

constitutional rights, our review is de novo. Wemark v. State, 602 N.W.2d 810,

814 (Iowa 1999). We evaluate the totality of the circumstances in a de novo

review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).

III. MERITS.

       Ewing contends his trial counsel was ineffective in several respects. He

alleges counsel erred in failing to (1) make an adequate motion for judgment of

acquittal challenging the sufficiency of the evidence to prove he knew the

property was stolen, (2) object to the marshalling instruction (Jury Instruction No.

18), and (3) object to the inference instruction (Jury Instruction No. 20).

       To establish the ineffectiveness of trial counsel, Ewing must prove his

attorney’s performance fell below “an objective standard of reasonableness,” and

“the deficient performance prejudiced the defense.”              See Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984). Prejudice is shown by a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. State v. Atwood,

602 N.W.2d 775, 784 (Iowa 1999). The ineffective-assistance claims may be

disposed of if Ewing fails to prove either prong. See State v. Query, 594 N.W.2d

438, 445 (Iowa Ct. App. 1999). While we often preserve ineffective-assistance
                                         5


claims for a possible postconviction proceeding, we consider such claims on

direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807

(Iowa 1999).

       In deciding whether trial counsel failed to perform an essential duty, “we

require more than a showing that trial strategy backfired or that another attorney

would have prepared and tried the case somewhat differently. Petitioner must

overcome a presumption that counsel is competent.”          Taylor v. State, 352

N.W.2d 683, 685 (Iowa 1985) (citations omitted).      “Improvident trial strategy,

miscalculated tactics, mistake, carelessness or inexperience do not necessarily

amount to ineffective counsel.” State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981).

Therefore, the question is whether a reasonably competent attorney would have

objected to the instructions as given.

       In order to prove prejudice a defendant must show a reasonable

probability that “but for counsel's unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2069, 80 L. Ed. 2d at 698. A reasonably probability is a probability sufficient to

undermine confidence in the outcome. Id.

       A. Motion for Judgment of Acquittal.

       Ewing first contends his trial counsel was ineffective in failing to make a

specific motion for judgment of acquittal on the basis there is insufficient

evidence he knew the scooter was stolen. To convict a person of theft under

section 714.1(4), the State is required to prove the defendant had actual

knowledge the property was stolen. See State v. Hutt, 330 N.W.2d 788, 789-90

(Iowa 1983); State v. Ogle, 367 N.W.2d 289, 292 (Iowa Ct. App. 1985).
                                         6


However, the jury was instructed Ewing had committed theft if he “knew the

vehicle had been stolen or had reasonable cause to believe that such property

had been stolen.” (Emphasis added). While the State concedes the instruction

is erroneous, it was not challenged and became the law of the case. See State

v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure to timely object to an

instruction not only waives the right to assert error on appeal, but also ‘the

instruction, right or wrong, becomes the law of the case.’” (citations omitted)).

Therefore, we must consider whether sufficient evidence supports a finding

Ewing knew the scooter was stolen or had reasonable cause to believe it had

been stolen.

         We view challenges to the sufficiency of the evidence in the light most

favorable to the State. State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002).

This includes all reasonable inferences that may be drawn from the evidence. Id.

We consider all evidence, not just that of an inculpatory nature. Id.

         We find the evidence is ample to allow a jury to find Ewing knew or had

reasonable cause to believe the scooter had been stolen.         The scooter was

discovered parked in Ewing’s driveway, where it had been for a couple of weeks.

Ewing had the key to the scooter when he was arrested.             Although Ewing

claimed someone had left the scooter there, he did not provide that person’s

name. Ewing’s brother testified he and Ewing do repairs on vehicles for people

in the neighborhood and vehicles are frequently left at Ewing’s home, but the jury

was free to disbelieve his testimony and give it the weight it deemed the

evidence should receive. See State v. Thornton, 498 N.W.2d 670, 674 (Iowa

1993).
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       Counsel has no duty to make a meritless motion. State v. Rice, N.W.2d

884, 888 (Iowa 1996). Because a motion for judgment of acquittal based on the

sufficiency of the evidence proving Ewing knew or had reason to believe the

scooter was stolen would not have succeeded, Ewing failed to establish his trial

counsel was ineffective for this failure.

       B. Jury Instructions.

       Ewing also contends his counsel was ineffective in failing to object to the

marshalling instruction and the jury instruction concerning inference.

       As stated above, the marshalling instruction the court gave to the jury was

flawed. Accordingly, trial counsel had a duty to object to it. Ewing could gain no

possible advantage from submission of the erroneous instruction, which allowed

the jury to convict him based on reasonable cause to believe the scooter had

been stolen, rather than actual knowledge it had been stolen.             Therefore,

counsel’s failure cannot be attributed to improvident trial strategy or misguided

tactics. Because there is no reasonable basis for counsel’s failure to object, we

find trial counsel breached an essential duty by failing to object to the marshalling

instruction.

       We must then determine whether Ewing was prejudiced by counsel’s

failure. Error in jury instructions “is presumed prejudicial unless the contrary

appears beyond a reasonable doubt from a review of the whole case.” State v.

Bone, 429 N.W.2d 123, 127 (Iowa 1988). As we have already determined, the

evidence was sufficient to convict Ewing on the theory he had reason to believe

the scooter was stolen. While the State argues the evidence supporting actual

knowledge was strong, Ewing presented evidence, through his brother, that
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explained how Ewing could have the scooter in his possession and not have

actual knowledge it was stolen.

       The fighting issue at trial was not whether Ewing had possession of the

stolen scooter or whether he intended to promptly return it to its owner. The

fighting issue was whether Ewing had knowledge the scooter was stolen. By

failing to object to a marshalling instruction that allowed the jury to find Ewing

guilty if he had reasonable cause to believe the scooter was stolen—a lesser

burden than proof of actual knowledge—trial counsel breached an essential duty

and Ewing was prejudiced. He is entitled to a new trial.

       Ewing also challenges the inference instruction. Because we can resolve

his appeal based on counsel’s failure to object to the marshalling instruction, we

need not reach this issue.     We note, however, that the State concedes the

inference instruction was also erroneous. We presume the same instruction will

not be given in a new trial.

       We reverse Ewing’s judgment of conviction and sentence and remand for

a new trial.

       REVERSED AND REMANDED.
