from the Iowa District Court for Black Hawk County, Kellyann
M. Lekar, Judge.
appeals his convictions of first-degree theft, eluding,
driving while barred, trespass, and criminal mischief.
Christopher J. Roth of Forney Roth, LLC, Omaha, Nebraska, for
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., May, J., and Scott, S.J. [*]
Proctor appeals his convictions of first-degree theft,
eluding, driving while barred, trespass, and criminal
mischief. We find the district court did not err in its
decision declining to give a jury instruction on operating a
vehicle without the owner's consent as a lesser-included
offense of first-degree theft. We conclude there is
substantial evidence in the record to support Proctor's
convictions of first-degree theft and eluding. We determine
there is not substantial admissible evidence in the record to
support Proctor's conviction of fourth-degree criminal
mischief. We find Proctor has not shown he received
ineffective assistance on his claim regarding a proposed jury
instruction on operating a vehicle without the owner's
consent as a lesser-included offense of first-degree theft.
We find his claim he received ineffective assistance because
defense counsel did not file a motion to suppress should be
preserved for possible a postconviction-relief proceeding. We
affirm Proctor's convictions of first-degree theft,
eluding, driving while barred, and trespass. We reverse his
conviction of fourth-degree criminal mischief and remand to
the district court for a new judgment and sentencing order.
Background Facts & Proceedings
December 4, 2017, Jeff Clouse reported his white Chevy
Silverado pickup had been stolen. The next day, December 5,
Deputy Anthony Nai of the Black Hawk County Sheriff's
Department saw the vehicle in a parking lot in Raymond, Iowa.
Deputy Nai turned on his lights and siren, and the vehicle
drove away, reaching speeds of eighty miles per hour in a
thirty-five mile-per-hour zone. Deputy Nai pursued the pickup
but lost sight of it.
officers arrived at the scene to assist in the search for the
vehicle. The pickup was located in a wooded area; it appeared
it had been driven through a fence and struck a tree,
damaging the pickup. The pickup had been abandoned. It was
found on private property owned by the sheriff's
department for training purposes. A fence, which separated
the sheriff's department property from a residential
area, was on the ground.
located Proctor walking in a nearby field later that day. He
stated he had been driving at a high rate of speed and hit a
tree. Deputy Steven Haley took Proctor to the hospital and
informed him of his Miranda rights on the way.
Proctor told officers, "he knew that there was something
up with the vehicle, but he didn't really think about
it." Items belonging to Proctor, including his cell
phone, were found in the vehicle. Proctor did not have a
valid driver's license, as his license had been barred by
the Iowa Department of Transportation.
was charged with first-degree theft, eluding, driving while
barred, trespass, and fourth-degree criminal mischief. A jury
found Proctor guilty of these offenses. He was given
sentences of fifteen years, fifteen years, two years, one
year, and one year, all to be served concurrently. Proctor
now appeals his convictions.
counsel requested the court instruct the jury on operating a
vehicle without the owner's consent, in violation of Iowa
Code section 714.7 (2017), an aggravated misdemeanor, as a
lesser-included offense to first-degree theft, in violation
of section 714.2(1), a class "C" felony. The State
resisted the defendant's request. The district court
denied the proposed jury instruction on operating a vehicle
without the owner's consent as a lesser-included offense.
Proctor claims the district court erred in its ruling and he
was prejudiced by the court's decision.
review challenges to jury instructions for correction of
errors at law." State v. Albright, 925 N.W.2d
144, 157 (Iowa 2019). "In doing so, we determine whether
the challenged instruction accurately states the law and
whether substantial evidence supports it." Id.
"We are not required to ...