State of Iowa v. Kenneth Azure ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1380
Filed October 6, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENNETH AZURE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
Kenneth Azure appeals his conviction for second-degree theft. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ.
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BADDING, Judge.
Kenneth Azure appeals his conviction for second-degree theft, claiming the
State did not present sufficient evidence to show that he knowingly exercised
control over a stolen vehicle he crashed after a high-speed chase. He also
contends his trial counsel was ineffective.
I. Background Facts and Proceedings.
Judy Knudsen was getting ready for bed at around 11:00 p.m. when she
looked out her apartment window and saw her Mitsubishi Lancer in the parking lot.
When she awoke at 9:00 the next morning, the car was gone. She reported the
missing vehicle to law enforcement.
Over the next two weeks, officers spotted the Lancer on four separate
occasions. The first three times, the vehicle eluded pursuit. On the fourth, officers
were able to apprehend the driver after he crashed into a utility pole and ran from
the scene. They identified the driver as Azure.
The State charged Azure with second-degree theft in violation of Iowa Code
sections 714.1(4) and 714.2(2) (2020).1 After trial, a jury found Azure guilty as
charged. The district court sentenced Azure to a five-year indeterminate term of
incarceration. Azure appealed.
II. Sufficiency of the Evidence.
Azure first contends there is insufficient evidence to support his theft
conviction. We review this claim for correction of errors at law. See State v.
Donahue, 957 N.W.2d 1, 7 (Iowa 2021). In doing so, we view the evidence in the
1The State also charged Azure with one count of driving while his license was
barred, to which Azure pled guilty.
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light most favorable to the State, which includes inferences and presumptions that
can be fairly and reasonably deduced from it. See id. We affirm if the record
contains substantial evidence to support the conviction. See id. Evidence is
substantial if it would convince a rational fact finder of the defendant’s guilt beyond
a reasonable doubt. See id. “Direct and circumstantial evidence are equally
probative.” State v. Kelso-Christy, 911 N.W.2d 663, 668 (Iowa 2018) (citation
omitted).
Iowa Code section 714.1(4) defines theft as “[e]xercis[ing] control over
stolen property, knowing such property to have been stolen, or having reasonable
cause to believe that such property has been stolen, unless the person’s purpose
is to promptly restore it to the owner or to deliver it to an appropriate public officer.”
The jury was instructed that to support a conviction under section 714.1(4), the
evidence must show the defendant knew the property was stolen. See State v.
Hutt, 330 N.W.2d 788, 789-90 (Iowa 1983). Azure challenges the sufficiency of
the evidence supporting this element of the crime, arguing that his possession of
the vehicle and flight from the police were not enough to show his guilty knowledge.
A defendant’s unexplained possession of recently stolen property justifies
an inference the defendant knew it was stolen. See State v. Stephen, 537 N.W.2d
792, 794 (Iowa Ct. App. 1995). Although Azure was found in possession of the
Lancer, he claims it was not “recently” stolen because it was reported as stolen
more than one week earlier. But what is considered “‘recent’ as applied to
possession cannot be defined as any definite time” and instead depends on the
circumstances of each case. State v. Brightman, 110 N.W.2d 315, 317 (Iowa
1961) (citation omitted). “The strength or weakness of the inference to be drawn
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from possession depends on the time lapsed between the commission of the
offense and possession by the accused, the nature of the property stolen, where
and how taken, the manner of such possession, and other conditions disclosed.”
State v. Stanton, 154 N.W. 762, 762-63 (Iowa 1915).
Azure attempts to weaken the inference by arguing the Lancer could have
been “shuffled around between several people” between the time it was reported
stolen and his arrest. In support of his argument, Azure notes the vehicle was
seen on three occasions before he was found in possession of it, and he was never
identified as a driver or passenger on those occasions.2 This was not fatal to the
State’s case considering the other circumstances surrounding Azure’s possession
of the vehicle. Significantly, all of the pursuits—including the last when Azure was
apprehended—were in the same general neighborhood in Sioux City. And during
this last pursuit, Azure appeared to recognize one of the officers who had been
involved in three of the four previous pursuits. That officer testified that each time
he spotted the vehicle, he was driving an unmarked white van as part of a “plain
clothes unit.” In the last pursuit, the officer said Azure took evasive actions in
response to the movements of his unmarked van, indicating to the officer that
Azure “had recognized my white van from previous encounters, and was trying to
go in the opposite direction of me.” From this testimony, the jury could infer Azure
had been the driver during those earlier encounters.
2 Azure additionally points out that “police officers testified they saw another
person, a woman, with the vehicle” when it was spotted before his arrest. But the
record shows that officers actually saw three individuals with the vehicle during two
of the chases—a woman and two men.
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In addition to Azure’s possession of the Lancer, his attempt to elude law
enforcement on the day of his arrest provides an inference of knowledge that he
was in possession of stolen property. See State v. Wilson, 878 N.W.2d 203, 211,
215 (Iowa 2016) (noting “that the act of avoiding law enforcement after a crime has
been committed may constitute circumstantial evidence of consciousness of guilt”
and the weight and relevance of that evidence is for the jury to decide). In State
v. Proctor, No. 18-0898, 2019 WL 2524268, at *3 (Iowa Ct. App. June 19, 2019),
we held similar evasive conduct was sufficient evidence that a defendant knew the
vehicle he was driving was stolen. Here, the inference is even stronger given that
Azure was arrested during the fourth occasion in which the vehicle attempted to
avoid law enforcement. Azure attempts to counter this, arguing he was “simply
avoiding police, potentially for other reasons not associated with the stolen
vehicle.” The State, however, “was not required to refute every possible inference
from the evidence.” State v. Ernst, 954 N.W.2d 50, 57 (Iowa 2021). And the jury
was free to reject certain evidence and credit other evidence. See State v.
Sanford, 814 N.W.2d 611, 615 (Iowa 2012).
Viewing the evidence in the light most favorable to the State, there is
sufficient evidence from which the jury could find Azure knew the Lancer was
stolen.
III. Ineffective Assistance of Counsel.
Azure next contends his trial counsel was ineffective by failing to object to
the three instances of eluding in the Lancer before his arrest as evidence of prior
bad acts. Effective July 1, 2019, the legislature modified Iowa law to eliminate a
defendant’s ability to pursue a claim of ineffective assistance of counsel on direct
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appeal from a criminal conviction. See 2019 Iowa Acts ch. 140, § 31 (codified at
Iowa Code § 814.7 (2020)). Because Azure appealed after the amendment took
effect, we cannot decide his ineffective-assistance claim. See Iowa Code § 814.7
(stating ineffective-assistance claims “shall not be decided on direct appeal”);
accord State v. Warren, 955 N.W.2d 848, 856 (Iowa 2021) (limiting consideration
of ineffective-assistance claims to direct appeals pending on July 1, 2019). Azure
may raise this claim in a postconviction-relief proceeding. See Iowa Code § 814.7
(“An ineffective assistance of counsel claim in a criminal case shall be determined
by filing an application for postconviction relief pursuant to chapter 822.”).
In the alternative, Azure asks us to adopt the plain error rule. Because our
supreme court has repeatedly rejected adopting a plain error review, see State v.
Treptow, 960 N.W.2d 98, 109 (Iowa 2021), we decline to accept his invitation.
AFFIRMED.