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State v. Proctor

Court of Appeals of Iowa

June 19, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
BRANDON SAMUEL PROCTOR, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

         Defendant 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 appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., May, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE.

         Brandon 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.

         I. Background Facts & Proceedings

         On 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.

         Additional 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.

         Officers 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.

         Proctor 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.

         II. Lesser-Included Offense

         Defense 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.

         "We 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 ...


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