from the Iowa District Court for Pottawattamie County, Craig
M. Dreismeier, District Associate Judge.
Gundersen challenges his conviction for theft in the fifth
degree and obstruction of prosecution. AFFIRMED.
H. Kouris, Council Bluffs, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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.
Background Facts and Proceedings
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. He filed written
waivers of jury trial in both cases.
charge proceeded to a bench trial on April 28, 2016. The
court heard the cases in separate back-to-back
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
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.
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.
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 ...