Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown, Judge.
The opinion of the court was delivered by: Eisenhauer, C.J.
David Miller appeals from his conviction, judgment, and sentence for escape. AFFIRMED.
Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.
David Miller appeals from his conviction, judgment, and sentence for escape, contending the court erred in not instructing the jury on the lesser-included offense of voluntary absence, and also contending his trial attorney was ineffective. We affirm.
David Miller was convicted of a felony in March 2010. After serving some time in jail and in prison, he was sent to the Burlington Residential Correctional Facility in May 2011. On July 18, Miller was checking back into the facility around 5:00 p.m. after attending afternoon Workforce Development classes. A dispute arose with a residential officer about whether Miller would be allowed to leave again for a planned evening furlough at his girlfriend's house. Miller became frustrated, said "screw it," and left the facility. At the next hourly check of residents at the facility, Miller was marked as "on escape." He was arrested more than two weeks later at a local convenience store.
The State charged Miller with escape from custody in violation of Iowa Code section 719.4(1) (2011). The facility manager, the residential officer who conducted hourly checks on July 18, the city police officer who arrested Miller, and Miller all testified in the subsequent jury trial. The court refused Miller's attorney's request to instruct the jury on voluntary absence under section 719.4(3), as a lesser-included offense of escape. The jury found Miller guilty. The court sentenced Miller to an indeterminate term not to exceed five years, to be served consecutively to his sentence on the previous felony conviction.
II. Scope and Standards of Review
We review the submission of or refusal to submit jury instructions for correction of errors at law. Iowa R. App. P. 6.907; State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998). As long as a requested instruction correctly states the law, is applicable to the case, and is not stated elsewhere in the instructions, the court must give the instruction. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Even if the court erred in refusing an instruction, no reversal is required unless the complaining party was prejudiced by the omission. State v. Negrete, 486 N.W.2d 297, 299 (Iowa 1992).
We review claims a trial attorney was ineffective de novo. State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). To succeed on an ineffective-assistance claim, a defendant must show by a preponderance of the evidence the trial attorney failed to perform an essential duty and prejudice resulted. State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We can affirm if either element is absent. Id.
A. Lesser-Included Offense. Miller contends the trial court erred in refusing to instruct the jury on the lesser-included offense of voluntary absence. See Iowa Code § 719.4(3). He acknowledges our supreme court has held voluntary absence is not a lesser-included offense of escape. State v. Beeson, 577 N.W.2d 107, 112 (Iowa 1997) ("The crimes of escape and voluntary absence are distinct from each other and contain different elements. Therefore, voluntary absence is not a lesser-included offense of escape."). He argues, however, the holding in Beeson was based on a "faulty rationale" and we "should now depart from the faulty rationale adopted in Beeson." He invites us to adopt the rationale set forth in the special concurrence to one of our unpublished decisions. See State v. Campbell, No. 10-0161, 2010 WL 3662176, at *3 (Iowa Ct. App. Sept. 22, 2010) (Mansfield, J., concurring specially). Then Judge Mansfield wrote:
If I were free to do so, I would hold that voluntary absence is a lesser-included offense of escape. Once a person has escaped from a correctional facility, he or she is clearly absent from a place where he or she is required to be. Thus I do not believe it is possible to commit the offense of escape as defined in Iowa Code section 719.4(1) without also committing the offense of voluntary absence as set forth in section 719.4(3).
Id. We are not free to disregard controlling authority from our supreme court. We conclude the district court did not err in refusing Miller's request to instruct the jury voluntary ...