STATE OF IOWA, Plaintiff - Appellee, vs. PERRY BERNARDO BENDER, Defendant - Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 8-859 / 07-0850
Filed December 17, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PERRY BERNARDO BENDER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Kurt Stoebe (trial)
and Frederick Breen (motion to suppress), District Associate Judges.
Perry Bender appeals following conviction and sentence for possession of
a firearm by a felon and possession of marijuana as a habitual offender.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins and Laura Roan,
Assistant Attorneys General, Timothy N. Schott, County Attorney, and Ricki
Osborn, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
2
MAHAN, J.
Perry Bender appeals following conviction and sentence for possession of
a firearm by a felon and possession of marijuana as a habitual offender. He
asserts the following on appeal: (1) the district court erred in allowing certain
testimony of Jennifer Maier and rebuttal testimony of Valerie Koesis and (2) his
trial counsel was ineffective in failing to raise, litigate, and preserve the issues
Bender now argues on appeal. We affirm.
I. Background Facts and Proceedings.
On January 20, 2006, Fort Dodge police executed a search warrant at
Perry Bender’s home, where they found a .44 caliber revolver and a Ziploc bag
with remnants of marijuana. The police discovered the gun and marijuana in a
small locked safe inside a duffel bag, which was buried under some clothes. The
police found two keys to the safe, both without fingerprints.
One key was
hanging in the kitchen doorway and another was inside a kitchen drawer. A
Saint Christopher’s medal was also inside the kitchen drawer. Bender previously
wore the medal around his neck when he went to Las Vegas and saw Jennifer
Maier, his girlfriend and the mother of one of his children.
Bender denied having knowledge of the gun or the marijuana and alleged
the gun belonged to Maier. Maier and the parties’ son had moved in with Bender
from Las Vegas about three weeks prior to the search. Maier denied owning the
gun and testified that she had never seen Bender in possession of the gun.
Bender was charged with possession of a firearm by a felon and
possession of marijuana as a habitual offender. The matter was tried to a jury.
After the State rested, Bender called Maier to testify in his defense.
He
3
questioned her about her knowledge of the gun and about other people who had
access to his house. The State cross-examined Maier and asked when she had
last spoken to Bender. The court overruled Bender’s relevancy objection, and
Maier stated that Bender called her three times over the lunch hour harassing her
about her earlier testimony and accusing her of acting.
The State called a witness to rebut Maier’s testimony. The State’s rebuttal
witness, Valerie Koesis, testified to a phone conversation she had with Bender
on the day of the search. Koesis dated Bender from July 2005 to January 2007.
According to Koesis, Bender stated the police had searched his home, found
some marijuana but not enough to charge him, and taken his gun. When Koesis
questioned whether Bender could have a gun because he was a felon, Bender
replied that it did not matter because Maier was going to say it was hers.
Bender objected to Koesis’s testimony as outside the scope of rebuttal,
alleging he had not put in issue who possessed the firearm. The court allowed
Koesis’s rebuttal testimony, determining the purpose of Maier’s testimony was to
raise the issue that it was someone else’s gun. Bender next objected to Koesis’s
testimony on discovery grounds because he was never given notice of Koesis as
a rebuttal witness. Again, the court allowed Koesis’s rebuttal testimony, noting
that the State had never agreed to provide rebuttal evidence when it responded
to Bender’s pretrial discovery motion and that the State had discovered the
information regarding Koesis and Bender’s phone conversation within a week
before trial.
4
The jury convicted Bender as charged. He was sentenced to a term of
imprisonment of fifteen years for the firearm charge and 180 days on the drug
charge, to be served consecutively. Bender now appeals.
II. Scope and Standard of Review.
Our review of evidentiary rulings is for abuse of discretion. We therefore
review the trial court’s allowance or refusal to allow evidence on the basis of
abuse of discretion. Vasconez v. Mills, 651 N.W.2d 48, 55 (Iowa 2002); State v.
Weaver, 608 N.W.2d 797, 806 (Iowa 2000) (“The trial court has considerable
discretion in admitting rebuttal evidence . . . .”). A court abuses its discretion
when it exercised such discretion on grounds or for reasons clearly untenable or
to an extent clearly unreasonable.
In re J.A.L., 694 N.W.2d 748, 751 (Iowa
2005); State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).
We conduct a de novo review of alleged constitutional violations. State v.
Decker, 744 N.W.2d 346, 353 (Iowa 2008). We therefore conduct a de novo
review of ineffective assistance of counsel claims. State v. Maxwell, 743 N.W.2d
185, 195 (Iowa 2008). Unless the record on direct appeal is adequate to address
these issues, a claim of ineffective assistance of counsel is generally preserved
for postconviction proceedings. State v. Bearse, 748 N.W.2d 211, 214 (Iowa
2008).
III. Merits.
A. Admission of Evidence.
Bender argues the district court abused its discretion in admitting
(1) Jennifer Maier’s testimony as to a recent phone conversation with Bender and
5
(2) Valerie Koesis’s rebuttal testimony as to a phone conversation with Bender
on the day of the search.
1. Testimony of Jennifer Maier.
Bender contends the admission of Maier’s testimony violated his rights
upon relevancy and prejudice grounds.1
At trial, Bender objected to Maier’s
testimony about the last time Bender had contacted her.
He contended the
testimony was irrelevant. The State contended the testimony was admissible to
show motive. Over Bender’s objection, the court allowed the testimony.
The district court must employ a two-step analysis to determine whether
the challenged evidence is admissible. State v. Castaneda, 621 N.W.2d 435,
440 (Iowa 2001).
If it is not relevant, then the challenged evidence is not
admissible. Iowa R. Evid. 402. “Evidence is relevant when it has any tendency
to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.”
Castaneda, 621 N.W.2d at 440 (quotations omitted).
If the court finds the evidence is relevant, the court must then determine
whether the evidence’s probative value is substantially outweighed by the danger
of unfair prejudice. Iowa R. Evid. 403 (noting that even relevant evidence may
be excluded “if its probative value is substantially outweighed by the danger of
unfair prejudice . . . .”).
1
“Probative value gauges the strength and force of
Bender also claims Maier’s testimony violated his discovery rights. However, the only
issue preserved for appeal with regard to Maier’s testimony is Bender’s relevancy claim.
A defendant must preserve error by making an objection at the earliest opportunity after
the grounds for the objection become apparent. Tindell v. State, 629 N.W.2d 357, 359
(Iowa 2001). Bender preserved his claim of relevancy at trial by raising an objection
during Maier’s testimony.
6
relevant evidence.”
Castaneda, 621 N.W.2d at 440.
Unfair prejudice is an
“undue tendency to suggest decisions on an improper basis, commonly though
not necessarily, an emotional one.” Id.
Bender’s counsel questioned Maier about how long she had lived with
Bender, who had been in the home, who had access to the home, her clothing
and other materials, how often Bender was in the home, where Bender spent the
night, what Bender did in the home, whether she had ever seen the gun or knew
Bender had a gun, and whether the gun was hers.
Bender argued Maier’s
testimony merely indicated who had access to the apartment. However, it is
clear the implication of the questioning was that the gun was someone else’s or,
specifically, that the gun belonged to Maier.
The State’s questions to Maier with regard to the last time Bender
contacted her were relevant to show Bender was surprised by Maier’s testimony
and that he had expected her to testify the gun was hers. The evidence was not
unfairly prejudicial.
Maier’s testimony was short and only vaguely described
Bender’s tone and language. Maier testified that Bender called her three times
during the break from trial and that she hung up on him twice. Bender harassed
her about what her testimony had been about that morning and accused her of
“trying to get a Grammy or an Oscar.”
We find the testimony was relevant and not unfairly prejudicial and the
district court did not abuse its discretion in admitting it into evidence.
2. Testimony of Valerie Koesis.
Bender alleges the admission of Koesis’s rebuttal testimony was beyond
the scope of Maier’s testimony and violated his discovery rights. At trial Bender
7
objected to Koesis’s rebuttal testimony about her phone conversation with
Bender on the day of the search. He contended the testimony was beyond the
scope of rebuttal because he had not put in issue who possessed the firearm.
The State contended the testimony was admissible as direct contradictory
testimony to rebut the inference that someone else had access or ownership of
the gun under the definition of dominion and control. Over Bender’s objection,
the court allowed the testimony.
Rebuttal evidence is that which explains, repels, controverts, or disproves
evidence produced by the opposing party.
Weaver, 608 N.W.2d at 806.
Evidence that has no direct tendency to do this is inadmissible on rebuttal. Id.
Generally, rebuttal evidence is confined to new matters first introduced by the
opposing party. Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996).
The State offered the testimony of Koesis to refute the defendant’s
position that someone else may have had access to the gun. Police discovered
the gun in Bender’s home, not on his person, and therefore the issue was
whether he had constructive possession of it. Without proof of a defendant’s
dominion and control over an item, the more people who have access to the
item, the less likely it is that the defendant constructively possessed it.
See
Maxwell, 743 N.W.2d at 193-94. The subject of who accessed the gun was not a
new issue, and had been raised throughout pretrial discovery and during trial.
Koesis’s rebuttal testimony was clearly necessary to disprove the implications
raised by Maier’s testimony.
Bender also argues that the rebuttal testimony should not have been
allowed because the State failed to give notice of Koesis’s testimony. The State
8
contends it only discovered the information regarding Koesis and Bender’s phone
conversation within a week before trial. The State further claimed it had never
agreed to provide rebuttal evidence when it responded to Bender’s pretrial
discovery motion.
The State only intended to use Koesis’s testimony to rebut certain
evidence Bender chose to present. When Bender called Maier to testify in his
defense, he placed in issue other people who may have had access to the gun.
The State rebutted Bender’s evidence with Koesis’s testimony implying that the
gun was Bender’s. The State was not obligated to give notice to Bender of
Koesis’s potential rebuttal testimony.
State v. Belken, 633 N.W.2d 786, 795
(Iowa 2001) (acknowledging the State is not required to disclose rebuttal
witnesses); Greiman v. State, 471 N.W.2d 811, 813 (Iowa 1991) (“rebuttal
evidence is that which explains, repels, controverts, or disproves evidence
produced by the other side”; thus, until the defense presents evidence, the State
cannot know if rebuttal is necessary) (internal quotation omitted); see Iowa R.
Crim. P. 2.19(3). The State also noted in its response to Bender’s discovery
motion that it had specifically declined to reveal rebuttal evidence as part of its
open file policy.
We find the rebuttal evidence was properly allowed. The district court did
not abuse its discretion in admitting the testimony of Koesis.
B. Ineffective Assistance of Counsel.
Bender argues his counsel was ineffective in failing to raise, litigate, and
preserve the issues Bender now argues on appeal.
Ordinarily, we preserve
ineffective assistance of counsel claims for postconviction proceedings to allow
9
the facts to be developed and give the allegedly ineffective attorney an
opportunity to explain his or her conduct, strategies, and tactical decisions. See
Bearse, 748 N.W.2d at 214; State v. DeCamp, 622 N.W.2d 290, 296 (Iowa
2001).
Upon our review, we conclude the record is adequate to address
Bender’s ineffective assistance of counsel claims on direct appeal.
To establish a claim of ineffective assistance of counsel, a defendant must
prove (1) counsel failed to perform an essential duty and (2) prejudice resulted to
the extent it denied the defendant a fair trial. Maxwell, 743 N.W.2d at 195. A
defendant’s failure to prove either element by a preponderance of the evidence is
fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465
(Iowa 2003).
As we discussed above, the district court did not err in admitting the
testimony of Maier and Koesis. We conclude there was no violation of Bender’s
rights and counsel was therefore not ineffective for failing to raise, argue, or
preserve those issues. Furthermore, even if we were to assume counsel failed to
perform an essential duty by not raising, arguing, or preserving the issues, we
would be unable to find that prejudice resulted from such inaction. The evidence
in this case was more than sufficient to sustain the verdicts against Bender. We
find Bender’s ineffective assistance of counsel claims to be without merit.
We affirm Bender’s convictions.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
