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State v. Gundersen

Court of Appeals of Iowa

August 16, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JEFFREY S. GUNDERSEN, Defendant-Appellant.

         Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, District Associate Judge.

         Jeffrey Gundersen challenges his conviction for theft in the fifth degree and obstruction of prosecution. AFFIRMED.

          Drew H. Kouris, Council Bluffs, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          MULLINS, Judge.

         Jeffrey Gundersen appeals from his convictions for theft in the fifth degree and obstruction of prosecution. Gundersen challenges the sufficiency of the evidence to support his conviction for obstruction of prosecution. Additionally, he claims he received ineffective assistance from trial counsel when counsel failed to ensure (1) Gundersen had a colloquy with the court before waiving his right to jury trials and (2) the court read the verdicts in open court.

         I. Background Facts and Proceedings

         In January 2016, the State charged Gundersen by trial information with obstruction of prosecution. In a second, unrelated trial information-filed in March 2016-Gundersen was charged with theft in the fourth degree.[1] He filed written waivers of jury trial in both cases.

         Each charge proceeded to a bench trial on April 28, 2016. The court heard the cases in separate back-to-back proceedings.[2]

         During the trial for obstruction of prosecution, the State introduced evidence that on the morning of February 17, 2015, Rudolph Lucero stole Steven Walker's orange 2005 Dodge Ram truck. Steven testified that around 7:30 a.m. on the day in question, he had started his truck outside of his home-where he lived with his parents-to let it warm up before he put his daughters in it. Shortly after he walked away, he witnessed an individual (later determined to be Lucero) jump into the truck and drive away. Steven chased the truck on foot for a short distance before deciding to return home to pursue the thief in another vehicle. Steven's father, Wesley Walker, picked him up in another vehicle, and they attempted to pursue the truck. While in the truck with his father, Steven called 911. In the audio from the 911 call, Steven can be heard panting as he relays the events to the dispatcher. Within a short period of time, Steven received a call from the local police alerting him his truck had been found but had been involved in an accident and was likely a total loss.

         Steven's parents both testified Steven had not left the house between the hours of midnight and 7:30 a.m. when he went outside to start the truck. Both also corroborated Steven's account of what occurred on the morning of February 17, 2015.

         The State introduced into evidence a notarized affidavit signed by Gundersen, in which Gundersen swore he "was present when Steven Walker of [Steven's address] lent Rudolph Lucero his 2005 orange Dodge Ram pickup on 2/17/2015." Gundersen admitted he signed the affidavit while he was in jail, and later testimony established that Gundersen and Lucero were housed in the same cell block on the date Gundersen prepared the affidavit. Lucero sent the affidavit to his attorney, who eventually showed it to the prosecutor in hopes she would drop the charges against Lucero. Lucero ultimately entered into a plea agreement with the State and pled guilty to the lesser offense of operating a motor vehicle without owner's consent.

         Lucero testified from prison. Lucero stated he had seen Gundersen at a local gas station on the afternoon of February 17, 2015, while Lucero was waiting for Steven to arrive. Lucero testified he was meeting Steven to sell him drugs, but he did not have the drugs on him, and the person selling to him did not want a second person at his home. According to Lucero, Steven gave him permission to take his truck to get the drugs and return; Steven called the cops when Lucero failed ...


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