This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Hancock County, DeDra L. Schroeder, Judge. A defendant appeals his first-degree robbery conviction.
Mark C. Smith, State Appellate Defender, Maria Ruhtenberg, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall and Robert Sand, Assistant Attorneys General, and David Solheim, County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
A Hancock County jury convicted Luis Ayabarreno of first-degree robbery after hearing his recorded confession to holding up a convenience store and stashing the proceeds at a relative's house. On appeal, Ayabarreno challenges the sufficiency of the store clerk's identification, a remark made by the prosecutor during closing argument, and his trial attorney's failure to object to the prosecutor's questions to the clerk concerning her reaction to the robbery.
Because evidence other than the clerk's description was sufficient to prove Ayabarreno's guilt beyond a reasonable doubt, we do not disturb the jury's verdict. Given the isolated nature of the prosecutor's comment during closing arguments, we find no abuse of discretion in the district court's denial of a motion for mistrial. Finally, based on the strong case against Ayabarreno, including his own confession, we find no reasonable probability the outcome of the trial would have been different had counsel objected to direct examination of the store clerk.
I. Background Facts and Proceedings
By the end of her shift on November 25, 2011, store clerk Mendi Cuellar was exhausted. Before coming into work that afternoon at the Town Mart in Klemme, she had been out shopping at after-Thanksgiving, Black Friday sales. And because it was a holiday weekend, the convenience store saw a steady stream of customers that day. So when Cuellar noticed an individual that night walking up and down the street, watching the store, she did not think much of it.
As she was closing, she took the cash and checks out of the till and placed them in bank bags for deposit the next day. Just then, a masked man came into the store and pulled a knife on her. He demanded: " Where's the money? Give me the money. Is that all the money?" Cuellar gave him three money bags. The man left and Cuellar locked the door and called 911.
Cuellar told the 911 operator the robber had covered most of his face with his hood and a bandana, but from what she could see, she believed his skin was " darker colored." Cuellar also told the operator she had " no idea" how old the robber was. Cuellar later informed investigators she believed he may have been a younger man based on his clothing and " the way he handled himself." Cuellar said the robber wore a hooded sweatshirt with " Carolina" written on it, flip-flops with socks, grey sweatpants, and a maroon or red bandana. While the robber only spoke a few sentences, Cuellar recalled he was soft-spoken, and she told investigators she did not detect an accent. The clerk also recalled the robber's hands looking orange, like a " someone with a bad spray tan."
While investigating the robbery, Hancock County Sherriff's Deputy Cory Leerar reviewed the store's surveillance video from that night and previous days. After reviewing the video, the deputy was able to identify a man entering the store, on an earlier occasion, wearing the Carolina sweatshirt described by Cuellar. The deputy was able to link the man wearing that sweatshirt to a red Chrysler Concorde with Minnesota plates. The Concorde was registered to Luis Ayabarreno. The deputy remembered seeing the vehicle parked in front of a home in Klemme. Further investigation uncovered that Maria ...