STATE OF IOWA, Plaintiff-Appellee, vs. TYREE LEE YOUNG, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-811 / 05-1345
Filed December 28, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TYREE LEE YOUNG,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
Tyree Young appeals his judgment and sentence for second-degree
robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, John P. Sarcone, County Attorney, and Nan Horvat, Assistant County
Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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VAITHESWARAN, J.
Robert Steiner hit a vehicle in which Tyree Lee Young was a passenger.
As Steiner attempted to retrieve his insurance card, Young picked Steiner’s
pocket and made off with his wallet, which contained several hundred dollars in
cash.
A jury found Young guilty of second-degree robbery. Iowa Code §§ 711.1
and 711.3 (2003). On appeal, Young contends: (1) the evidence was insufficient
to support the finding of guilt, (2) the district court erred in denying Young’s
request for a jury instruction on alternate theories, and (3) trial counsel provided
ineffective assistance in several respects.
I. Sufficiency of the Evidence
The jury was instructed that the State would have to prove the following
elements of second-degree robbery:
1. On or about April 16, 2004 the defendant had the specific intent
to commit a theft.
2. To carry out his intentions the defendant committed an assault
upon Robert Steiner.
The district court defined the term “assault” as follows:
Concerning element number 2 of Instruction No. 15, an Assault is
committed when a person does an act which is meant to cause
pain or injury, result in physical contact which will be insulting or
offensive, place another person in fear of immediate physical
contact which will be painful, injurious, insulting or offensive to
another person, when coupled with the apparent ability to do the
act.
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The State concedes that this definition is inaccurate because it requires
proof of all the assault alternatives rather than any one of them. 1 Because no
objection to this instruction was lodged, it 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, the jury had to find that Young did an act which was meant to (1)
cause pain or injury and (2) result in physical contact which would be insulting or
offensive and (3) place another person in fear of immediate physical contact
which was painful, injurious, insulting or offensive to another person. In deciding
whether there was sufficient evidence to support all these alternatives, we are
obligated to view the evidence in the light most favorable to the State. State v.
Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).
Viewed in this light, the jury could have found the following facts. After the
accident, seventy-nine-year-old Steiner felt a hand in a pocket containing his
wallet. He reached around to grab the hand. Young pulled him backwards. As a
result, Steiner “fell over backwards.”
When asked what caused him to fall,
Steiner stated “[h]im pulling me backwards trying to get my billfold out and me
hanging onto his hand.”
The jury could have found from this evidence that, when Young put his
hand in Steiner’s pocket to take his wallet, he committed an act which satisfied all
three of the assault alternatives. See State v. Spears, 312 N.W.2d 79, 81 (Iowa
1
The State’s brief says: “[T]he State agrees that under the instruction in this case, it
was required to prove an assault was committed under all assault definitions cited in the
instruction.”
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Ct. App. 1981) (finding sufficient evidence to support assault element of seconddegree robbery where defendant “reached into the pocket of the apron being
worn by the bartender, grabbed money out of his pocket . . . and fled.”).
We recognize the jury could have found that the act of removing the wallet
from Steiner’s pocket was not, in and of itself, a violent act. However, precedent
tells us that the focus is not on “the nature of the act itself” but on “the intended
results.” Spears, 312 N.W.2d at 81. Viewing all the circumstances surrounding
the removal of the wallet, the jury reasonably could have found that Young
intended to cause Steiner pain when he slipped his hand into Steiner’s pocket
and pulled him backwards. The jury also reasonably could have found that the
act of taking the wallet would result in contact with Steiner that would be insulting
or offensive to Steiner and would place him in fear of immediate physical contact
which was painful, injurious, insulting, or offensive to another person. State v.
Keeton, 710 N.W.2d 531, 534 (Iowa 2006) (quoting 21 Am. Jur. 2d Criminal Law
§ 128, at 214-15 (1998) (stating the intent required by statute “may be inferred
from the circumstances of the transaction and the actions of the defendant”)).
We are convinced the jury’s finding of guilt was supported by substantial
evidence. Shanahan, 712 N.W.2d at 134.
II. Jury Instructions
At trial, defense counsel asked the district court to instruct the jury that
they could find Young not guilty of robbery even if they subscribed to different
theories of innocence, with some believing Young was not present at the scene
and some believing he was present, but did not commit the assault. Defense
counsel characterized such an instruction as an “alternative theory instruction.”
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The district court disagreed with defense counsel’s characterization and denied
Young’s request for the instruction.
The court explained that the “alternate
theory” instruction focused on the State’s theories of guilt rather than defense
theories of innocence. Citing the uniform instruction, the court noted that the
instruction does not require unanimity on alternate theories of guilt proffered by
the State but only unanimity on an ultimate finding of guilt. See Iowa Criminal
Jury Instruction 100.16. The court advised defense counsel:
I don’t think you are talking alternate theory. I think what you are
saying is my client didn’t do it. He wasn’t there. If he was there, he
didn’t commit an assault. That is, really, not alternate theories, as I
understand that instruction to go to.
The court said that defense counsel was free to make this argument to the jury.
The district court succinctly explained that Young’s requested instruction
was not a proper defense theory. See State v. Johnson, 534 N.W.2d 118, 124
(Iowa Ct. App. 1995). Therefore, we discern no prejudicial error in the court’s
refusal to give this instruction. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa
1996) (setting forth standard of review).
III. Ineffective Assistance of Counsel
Young claims trial counsel was ineffective in: (1) failing to request an
instruction on theft from a person, (2) purportedly telling the jury that he was
guilty of theft, and (3) failing to impeach Steiner’s in-court identification of him
with a photo array containing his picture. To prevail on a claim of ineffective
assistance of counsel, a defendant must show that counsel failed to perform an
essential duty and prejudice resulted. Strickland v. Washington, 466 U.S. 668,
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690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). Our review is de
novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
On the first claim regarding counsel’s failure to request a jury instruction
on theft from a person, Young specifically asserts that “[h]ad the jury received
such an instruction, [he] would not have been found guilty of robbery.” If Young
is contending that theft is a lesser-included offense of robbery and failure to
instruct on this offense was reversible error, our highest court has rejected this
contention. State v. Holmes, 276 N.W.2d 823, 825 (Iowa 1979). On the other
hand, if Young is contending that the prosecutor should have charged him with
theft in addition to, or in lieu of, robbery, it is established that “the decision
whether to prosecute, and if so on what charges, is a matter ordinarily within the
discretion of the duly elected prosecutor.” State v. Iowa Dist. Ct., 568 N.W.2d
505, 508 (Iowa 1997). Because Young was not charged with theft, he was not
entitled to a theft instruction and trial counsel was not ineffective in failing to
request it. Johnson, 534 N.W.2d at 124.
On the second claim, Young contends defense counsel “conceded that
there was an intention to commit a theft, and that a theft occurred.” Young
further asserts that “the jury likely heard the same concession.” This discussion
took place outside the presence of the jury. In addition, there is no indication that
the district court took this issue away from the jury, as the jury was instructed on
the “intent to commit theft” element of the robbery charge. Therefore, Young was
not prejudiced by trial counsel’s discussion of this element.
On the third claim, regarding defense counsel’s failure to impeach
Steiner’s in-court identification of Young, Young contends “the evidence
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concerning the real identity of the perpetrator was murky at trial.” On our de
novo review of the record, we disagree. Young’s girlfriend at the time of the
accident unequivocally testified that he was the person who took the wallet.
Although other witness identifications of Young revealed some inconsistencies,
the girlfriend’s testimony renders it improbable that the outcome would have
changed if the photo array with Young’s picture had been introduced.
For these reasons, we reject Young’s ineffective-assistance-of-counsel
claims.
IV. Disposition
We affirm Young’s judgment and sentence for second-degree robbery.
AFFIRMED.
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