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State v. Banes

Court of Appeals of Iowa

February 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MARCUS BANES, Defendant-Appellant.

         Appeal from the Iowa District Court for Lee County, John G. Linn, Judge.

         Defendant challenges his conviction and sentence for burglary, theft and ongoing criminal conduct. CONVICTION AND SENTENCE VACATED AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

          MCDONALD, JUDGE.

         Marcus Banes was charged with burglary, theft, criminal mischief, and ongoing criminal conduct arising out of a series of burglaries and thefts committed in Lee County in December of 2015. Following a jury trial, Banes was convicted of three counts of burglary in the third degree, in violation of Iowa Code sections 713.1 and 713.6A(1) (2015), one count of theft in the first degree, in violation of Iowa Code sections 714.1(1) and 714.2(1), two counts of theft in the second degree, in violation of Iowa Code sections 714.1(1) and 714.2(2), criminal mischief in the second degree, in violation of Iowa Code sections 716.1 and 716.4, and ongoing criminal conduct, in violation of Iowa Code sections 706A.1(5), 706.2(4), and 706A.4. In this appeal, Banes challenges the sufficiency of the evidence supporting some but not all of his convictions. He also contends the district court erred in allowing certain hearsay testimony or his trial counsel provided constitutionally deficient representation in failing to object to the hearsay testimony.

         I.

         We first address Banes's challenges to the sufficiency of the evidence. This court reviews challenges to the sufficiency of the evidence for the correction of legal error. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Under this standard, we will affirm when the verdict is supported by substantial evidence. See State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). Evidence is substantial when the quantum and quality of evidence is sufficient to "convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." Id. at 76. In conducting substantial-evidence review, this court considers the evidence in the light most favorable to the State, including all reasonable inferences that may be fairly drawn from the evidence. See id. (citing State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001)).

         A.

         Banes challenges the sufficiency of the evidence supporting two of the convictions for burglary in the third degree, his conviction for theft in the first degree, and his conviction for theft in the second degree. The challenged burglary convictions arise out of the unlawful entry into Benson Auto Shop and D & D Trailer and Sales. The challenged conviction for theft in the first degree arises out of the theft of tools and firearms from Benson Auto Shop. The challenged conviction for theft in the second degree arises out of the theft of cash, clothes, and purses from D & D Trailer and Sales. Banes does not challenge his convictions for burglary, theft, and criminal mischief arising out of the unlawful entry into the Lake Cooper Events Center.

         The primary witness for the State was Banes's accomplice Devin Vawter. Vawter reached a favorable plea agreement with the State in which he received charging and sentencing concessions to resolve the charges in this case and other cases in exchange for his testimony at Banes's trial. According to Vawter, in the early morning of December 25, Vawter and Banes were driving around in Banes's Jeep "trying to find stuff to steal." They drove to D & D and decided to break in. They used bolt cutters to cut the padlock off a sliding door, entered the building, and stole cash, clothes, coats, and women's purses. After the D & D burglary, Banes drove to Benson Auto Shop. Vawter testified he climbed through a sliding window, entered the building, and opened the door for Banes. Vawter testified they stole whatever they could fit in Banes's Jeep. Vawter testified they took a welder, plasma cutter, drills, tools, and some guns, among other things. Vawter and Banes made arrangements with Kendall Elder to sell the stolen goods to a third person. Banes drove himself and Vawter to an empty parking lot, and the sale was transacted. Vawter also testified he and Banes broke into the Lake Cooper Events Center. They walked up to the back door of the facility, broke the window, reached in through the broken window, unlocked the door, and entered the facility. Vawter testified there was a second door that they kicked in to gain entry into the building. Vawter and Banes took two flat screen televisions and some alcohol from the facility.

         Vawter's testimony was corroborated by other evidence. See Iowa R. Crim. P. 2.21(3) ("A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."). "Corroborative evidence need not be strong as long as it can fairly be said that it tends to connect the accused with the commission of the crime and supports the credibility of the accomplice." State v. Barnes, 791 N.W.2d 817, 824 (Iowa 2010).

         Pete Benson and Amy Benson, the owners of Benson Auto, had heard from their son, Logan, that Banes may have been involved in the burglaries and that Banes was driving a gold Jeep Cherokee. Amy testified she knew of Banes, although it had been some time since she had seen him. In the first week of January, Pete and Amy were in Keokuk when Amy observed Banes and the gold Jeep Cherokee in the parking lot of an auto parts store. She testified she made eye contact with Banes. Amy testified she and Pete followed Banes as he drove away from the store. She testified Banes "floored it" and she and Pete followed at a high rate of speed until they ultimately lost him. Amy testified she called 911 during the chase and advised the operator of their location during the chase. Police located the Jeep Cherokee within ten minutes of the car chase. It was abandoned near Banes's grandfather's residence. The Jeep ...


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