Appeal from the Iowa District Court for Carroll County, Fredrick E. Breen, Judge.
The opinion of the court was delivered by: Doyle, J.
Lorenzo Hawkins appeals his conviction for theft in the second degree. REVERSED AND REMANDED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
Lorenzo Hawkins appeals his conviction for theft in the second degree, in violation of Iowa Code sections 714.1 and 714.2 (2011). Hawkins contends his trial counsel was ineffective in failing to request, or object to the omission of, a jury instruction requiring a finding of permanent intent to deprive the owner of the vehicle. We reverse and remand.
Background Facts and Proceedings.
Hawkins lived with Ashlie Kluver for approximately five years. They had a child together but were not married. In early 2011, using her tax refund proceeds, Ashlie purchased a 1993 Mercury automobile from her grandmother. Ashlie's name is on the car's title. Ashlie occasionally gave Hawkins permission to drive her car, including "to the store probably a couple times, and [to take their] daughter to daycare."
Hawkins and Ashlie broke up in early August 2011, and Ashlie moved out. Hawkins did not allow her to remove all of her property from the residence, but Ashlie "took what [she] could." She did not allow Hawkins to drive her car after the breakup.
On the morning of September 11, 2011, Ashlie's car was missing from the spot where she had parked it the previous evening. Ashlie suspected Hawkins had taken the car because there was no broken glass on the ground, Hawkins had done other "things to hurt [her]" previously, and she knew there was a spare key with her belongings that remained at the residence she had shared with Hawkins. Ashlie made a stolen vehicle report to the Carroll Police Department that day, September 11.
Ashlie's sister, Alyssa Kluver, subsequently received a message on her Facebook account from Hawkins in which he denied stealing Ashlie's car, denied having possession of the car, and stated he was in California.
On September 24, 2011, the Carroll Police Department received a notice that Ashlie's car had been recovered in Polk County, at the Value Place Hotel in Ankeny. An officer running license plates on cars in the hotel parking lot, including Ashlie's Mercury, noticed the car was reported as stolen. Through hotel management, officers linked the car to Hawkins. The hotel management knew Hawkins because he used to be a manager there. The officers were directed to the room in which Hawkins was staying.
Officers made contact with Hawkins in his room; he denied knowledge of the car. However, when the officers noticed keys belonging to the car in the room, Hawkins admitted the keys belonged to the car, but stated a friend had dropped the car off at the hotel. The car was impounded and Hawkins was arrested the next day.
The State filed a trial information charging Hawkins with theft in the second degree, in violation of Iowa Code sections 714.1 and 714.2. A jury found Hawkins guilty as charged. The district court suspended a five-year prison sentence, placed Hawkins on probation, and ordered him to reside at a residential correctional facility. Hawkins appeals.
Hawkins argues his trial counsel was ineffective in failing to request, or object to the omission of, a jury instruction requiring the State to prove he intended to permanently deprive Ashlie of her car. We review claims of ineffective assistance of counsel de novo. State v. Clay, ___ N.W.2d ___, ___, 2012 WL 6217017, at *3 (Iowa 2012). To prevail on his claim, Hawkins must show that counsel (1) failed to ...