STATE OF IOWA, Plaintiff-Appellee, vs. WAYNE SAMUEL BARNES, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-219 / 08-0519
Filed May 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WAYNE SAMUEL BARNES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Calhoun County, Joel E. Swanson,
Judge.
Appeal from convictions and sentences for burglary in the third degree
and theft in the second degree, both as a habitual offender. REVERSED AND
REMANDED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, and Cynthia Voorde, County Attorney, for appellee.
Considered by Sackett, C.J., and Potterfield and Mansfield, JJ.
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SACKETT, C.J.
The defendant appeals from his convictions and sentences for burglary in
the third degree as a habitual offender and theft in the second degree as a
habitual offender.
He contends his trial counsel did not provide effective
assistance by, among other things, failing to request an instruction that
accomplice testimony must be corroborated. We reverse and remand.
Scope and Standards of Review.
claims de novo.
We review ineffective-assistance
State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
A
defendant must demonstrate by a preponderance of the evidence "(1) his trial
counsel failed to perform an essential duty, and (2) this failure resulted in
prejudice." State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We normally
preserve such claims for postconviction relief proceedings; however, direct
appeal is appropriate when the record is adequate to determine as a matter of
law a defendant will be unable to establish one or both of the elements of the
claim. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003).
Background Facts. From the evidence introduced at trial, the jury could
find the following facts. In March of 2006, the defendant bought some pigs to
raise and sell. His sister and brother-in-law (Bellocks) allowed him to keep the
pigs on property they owned in rural Calhoun County. In return for using their
property, defendant agreed to give the Bellcocks one pig when he was ready to
sell them. Around May of 2006, the defendant moved to Kansas and stopped
caring for the pigs. The Bellcocks did not know where the defendant had gone
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and he did not contact them. After caring for the pigs for about a month, the
Bellcocks, tired of the effort and expense, sold them in June of 2006.
While in Kansas, the defendant met Brandi Rex. The defendant returned
to Iowa in March of 2007, accompanied by Rex. They moved in with Brian Sayer
and his mother. On April 6, 2007, the Bellcocks found that a riding lawn mower
they stored on their property was missing and the part of the metal siding on the
back side of the shed where it was stored had been removed. A tire and rim for
a pickup truck parked outside the shed also were missing.
The defendant offered to trade a friend a mower for some truck parts. He
said he was getting the mower from his sister because she owed him money for
hogs he owned that she had sold. The defendant’s sister testified she never
talked to the defendant about trading the lawn mower for the money she and her
husband had received when they sold the pigs.
Rex testified the defendant sometimes talked about his sister and said
“[n]ot very good things.” The defendant told Rex he had spent $1600 to raise
and fatten some hogs that his sister sold while he was in Kansas. The defendant
also made comments to Rex about wanting to burn down his sister’s house. Rex
further testified she was with the defendant and Sayer when they took a lawn
mower to Ames and pawned it. She recalled that the defendant had picked up
the lawn mower the night before. There was no key in the mower but they were
able to get a key. At the pawn shop, Rex signed the paperwork because she
was the only one with valid identification. The defendant stood by her while she
handled the sale.
After Rex and defendant had pawned the lawn mower,
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defendant told Rex he had stolen the mower from his sister. She recalled that
the defendant told her he knocked a couple of boards out of the back wall of the
shed and took the mower out that way.
Sayer testified the defendant asked for help stealing a lawn mower. Sayer
refused. The next morning, Sayer drove the defendant and Rex to where the
defendant had parked his truck. The mower was in the back of defendant’s truck
covered with a blue tarp. They bought a key for the mower, then drove to Ames
and pawned the mower.
About two months after the disappearance of the mower, a Calhoun
County deputy sheriff received information that led him to a pawn shop in Ames,
Iowa. The deputy asked the manager whether Brandi Rex, Brian Sayer, or the
defendant had pawned any items. Store records showed Brandi Rex pawned a
riding lawn mower in early April. James Bellcock later positively identified the
mower as the one stolen from him. The pawn shop worker could not positively
identify the defendant, but said Rex was accompanied by a man ten to fifteen
years older than she was. Rex is twenty-eight years old; the defendant is thirtynine. Sayer was seventeen at the time the mower was pawned.
The jury found the defendant guilty of burglary in the third degree and theft
in the second degree. The jury also found the defendant had two prior felony
convictions. The court denied the defendant’s motion for new trial, noting,
the instructions contained directions for the jury concerning the
weight of the evidence, which included any circumstantial evidence,
direct evidence, the jury considered that obviously in their decision,
also the instructions contained a request by the court for the jury to
find the value of any property they believed to be taken, which they
did do.
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The court believes that the instructions were followed by the
jury, they returned the verdict accordingly, the court finds that there
was sufficient evidence for a conviction as set forth in the verdict for
of the jury, accordingly, the motion for new trial will be denied.
The court sentenced the defendant to imprisonment not to exceed fifteen years
on each conviction, to be served consecutively.
Ineffective assistance. The defendant contends he received ineffective
assistance because trial counsel failed to request a jury instruction on
corroboration of accomplice testimony. He asserts that both Rex and Sayer were
accomplices and the jury should have been instructed that their testimony must
be independently corroborated.
Iowa Rule of Criminal Procedure 2.21(3) provides:
A conviction cannot be had upon the testimony of an accomplice or a
solicited person, unless corroborated by other evidence which shall tend to
connect the defendant with the commission of the offense; and the corroboration
is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.
Corroborating evidence serves a two-fold purpose: it tends to connect the
accused with the crime charged, and it serves as a counterweight against the
dubious credibility of an accomplice, whose motivation to testify is suspect
because the person would have a natural self interest in focusing the blame on
defendants. State v. Berney, 378 N.W.2d 915, 918 (Iowa 1985); see also State
v. Cuevas, 281 N.W.2d 627, 629 (Iowa 1979); State v. Johnson, 237 N.W.2d
819, 822 (Iowa 1976).
An accomplice is a person who willfully participates in, or is in some way
concerned in the commission of a crime. State v. Johnson, 318 N.W.2d 417, 440
(Iowa 1982).
The general rule for determining whether a witness is an
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accomplice is if he could be charged with and convicted of the specific offense
for which an accused is on trial. Id. But something more than mere knowledge
that a crime is contemplated, or mere personal presence at the time and place
where committed, must be shown in order to make one an accomplice. And it
must be established by a preponderance of the evidence that a witness was in
fact an accomplice.
Id.
The question of whether a particular witness is an
accomplice is a question of law where the facts are not disputed or susceptible to
different inferences; however, where the facts are susceptible to different
inferences the question is one of fact for the jury. Berney, 378 N.W.2d at 917;
State v. Doss, 355 N.W.2d 847, 879 (Iowa 1984); State v. Losee, 354 N.W.2d
239, 242 (Iowa 1984); State v. Sallis, 238 N.W.2d 799, 802 (Iowa 1976).
There are facts and inferences that would support by a preponderance of
evidence a finding that both Rex and Sayer meet the definition of an accomplice.
The supreme court has affirmed the rule that “the testimony of one accomplice
may not corroborate the testimony of another accomplice. State v. Douglas, 675
N.W.2d 567, 572 (Iowa 2004). The existence of corroborative evidence is a
question of law for the court, but its sufficiency is ordinarily a question of fact for
the jury. State v. Ware, 338 N.W.2d 717, 718 (Iowa 1983); State v. Bizzett, 212
N.W.2d 466, 469 (Iowa 1973). Corroborative evidence need not be strong as
long as it can fairly be said to connect defendant with the commission of the
crime in some material fact. State v. Dickerson, 313 N.W.2d 526, 529 (Iowa
1981).
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Corroborative evidence existed. See Ware, 338 N.W.2d at 718; State v.
Vesey, 241 N.W.2d 888, 890 (Iowa 1976). The existence of the corroborative
evidence triggered the requirement that the jury decide the sufficiency of the
corroboration, after being properly instructed. Bizzett, 212 N.W.2d at 468. The
jury may be required to answer a special interrogatory about the sufficiency of
corroboration. Iowa R. Crim. P. 2.22(2). We do not agree with the State that the
existence of corroborative evidence demonstrates an absence of prejudice to
Barnes, since the existence of corroboration is the threshold requirement for the
accomplice instruction.
The jury could draw different inferences as to whether Rex and Sayer
were so concerned or cooperated with defendant in the commission of the crime
so as to be subject to conviction of that offense, and if they were, whether their
testimony was sufficiently corroborated. Defendant was prejudiced by the district
court’s failure to give the instruction. We reverse and remand for a new trial.
Having so determined, we need not address the other issues raised by
defendant.
REVERSED AND REMANDED.
Potterfield, J., concurs; Mansfield, J. dissents.
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MANSFIELD, J. (dissenting)
I respectfully dissent. Given the strong evidence of Barnes’s guilt, I do not
believe he was prejudiced by his trial counsel’s failure to request the accomplice
corroboration instruction.
Putting aside for now the testimony of Barnes’s putative accomplices, the
record shows the following: In March 2006, Barnes had been given some pigs
and had nowhere to keep them. He brought them to his sister and brother-in-law
(the Bellcocks) and asked to keep them on their property while he (Barnes) took
care of them. In that same area of the acreage, the Bellcocks had a new $1500
riding lawn mower. Two months later, Barnes moved to Kansas and stopped
caring for the pigs. The Bellcocks got tired of the effort and expense of taking
care of the pigs, and did not know how to reach Barnes, so they sold them.
Doug Geibe, an acquaintance of Barnes, testified that sometime during
the spring/summer of 2007, he spoke with Barnes (who was now back in Iowa).
Geibe told Barnes that his mower was broken down and he needed a new
mower. Barnes said he had “access” to a mower and was going to be picking up
a mower from his sister’s. As Geibe testified, Barnes said “[s]omething about
he’d had some hogs or something and she’d taken them, sold them, she
apparently owed him some money over that particular deal and she had a lawn
mower and was going to give it to him in exchange for the debt that she owed
him.”
On April 6, 2007, the Bellcocks’ riding lawn mower was reported stolen. It
turned out that the stolen mower had been brought to a pawn shop in Ames on
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April 4, 2007. The pawn shop paperwork contained the signature and fingerprint
of Brandi Rex.
With this trial evidence as backdrop, we now consider the testimony of
Brandi Rex and Brian Sayer. Rex testified that that Barnes was her boyfriend in
Kansas and they moved from Kansas to Iowa in March 2007. She testified that
Barnes was “real mad” at his sister. Specifically, Barnes told Rex that he had
had some hogs that had cost him $1600 to raise and fatten. While Barnes was in
Kansas, his sister had taken the hogs and sold them.
Rex further testified that on April 4, 2007, she, Brian Sayer, and Barnes
went out to Barnes’s truck. The mower in question was already in the back of the
truck, covered by a tarp. Barnes told her at that time he had obtained the mower
in a trade. They delivered the mower to the pawn shop, where Rex signed the
paperwork. Barnes later admitted to her that he had stolen the mower from the
Bellcocks.
Sayer testified that on the night before the trip to the pawn shop, Barnes,
himself, and others were sitting around drinking beer.
Barnes asked the
members of the group to help him steal a mower. Sayer declined, but another
individual in the group agreed. They left. About an hour and a half later Barnes
returned and said they got the mower. Barnes then asked Sayer if he would go
to Ames with him and help him pawn the mower. Sayer agreed. The next day,
Sayer went with Barnes and Rex to retrieve Barnes’s parked truck, which had the
mower. They stopped at a hardware store while Sayer purchased a key for the
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mower.
Then they went to Ames to pawn the mower.
Rex filled out the
paperwork, and the mower was pawned.
The State contends that Rex and Sayer were not even accomplices, so no
accomplice corroboration instruction was warranted. I think the State has a valid
point as to Rex. She did not know the mower was stolen when they went to the
pawn shop.
Regardless, I do not believe an accomplice instruction would have made a
difference. Otherwise stated, I see no a reasonable probability that the outcome
of the trial would have been different. Strickland v. Washington, 466 U.S. 668,
694, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Hildebrant,
405 N.W.2d 839, 841 (Iowa 1987). Because of my views on this issue, and
because I believe that the other grounds raised by Barnes are also insufficient to
merit reversal, I would affirm Barnes’s convictions and sentence.
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