State of Iowa v. Alfred J. Phillips ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1402
Filed October 15, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALFRED J. PHILLIPS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Michael J.
Schilling, Judge.
Appeal from conviction of second-degree burglary. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather Quick, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and James Carter, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.
Alfred Phillips appeals his conviction for burglary in the second degree, in
violation of Iowa Code sections 713.1 and 713.5 (2013). Phillips contends his
attorney rendered constitutionally ineffective assistance by failing to challenge
the sufficiency of the evidence to establish the identity of the burglar. He also
contends the district court (1) applied the wrong standard in ruling on his motion
for new trial, and (2) abused its discretion in denying the motion for new trial. We
affirm Phillips’ conviction.
In the early morning hours of March 25, 2013, police responded to a report
of a residential burglary. At the scene, officers found a broken window where the
burglar gained entry into the residence. They also found footprints in the newly-
fallen snow leading away from the backdoor of the residence where the burglar
exited. The police followed the unbroken trail of footprints to another residence.
The footprints continued away in an unbroken trail from that residence to the
backdoor of another residence where the footprint trail terminated. The
authorities staked out this residence for several hours until they were able to
obtain and execute a search warrant. Upon executing the warrant, the
authorities found Phillips hiding in the cabinet under the kitchen sink. The police
also discovered size six-and-one-half boots hidden behind shelving in the
basement. The soles of the small boots exactly matched the size and tread
pattern of the small footprints left in the snow.
The State charged Phillips with two counts of burglary, each count
corresponding to the first two residences above-referenced. At trial, at the close
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of the State’s evidence, Phillips’ attorney moved for judgment of acquittal based
on the State’s “failure to make a prima facie case,” specifically “there [was] no
evidence given relative to the intent” of Phillips. The court denied the motion. At
the close of all evidence, Phillips’ attorney renewed the motion on the ground
“that really there’s almost no evidence of or relating to intent.” The court denied
the motion and submitted the case to the jury. The jury found Phillips guilty of
second-degree burglary related to the first residence and not guilty related to the
second. Phillips’ attorney filed motions for new trial and in arrest of judgment.
Both motions alleged “the basis for this motion includes, but is not limited to
insufficiency of the evidence and verdict inconsistent with the evidence.” The
court denied both motions.
On appeal, Phillips first contends his trial attorney was ineffective “for
failing to properly raise [sufficiency of the evidence of identity] with the district
court.” Ineffective assistance of counsel claims are reviewed de novo. Everett v.
State, 789 N.W.2d 151, 158 (Iowa 2010). Ordinarily, ineffective assistance
claims are best resolved in postconviction proceedings to enable development of
a complete record and to give trial counsel an opportunity to respond to the
claim. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). However, an
ineffective assistance claim premised on the failure of an attorney to challenge
the sufficiency of the evidence can be decided on direct appeal. See State v.
Scalise, 660 N.W.2d 58, 62 (Iowa 2003). To prevail, Phillips must show: “(1)
counsel failed to perform an essential duty and (2) prejudice resulted.” See State
v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Failure to prove either element is
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fatal to the claim. State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010). If the
verdict here is not supported by substantial evidence of identity, then Phillips’
attorney breached a duty by failing to raise the issue. See State v. Truesdell,
679 N.W.2d 611, 616 (Iowa 2004). If, however, substantial evidence of identity
supports the verdict, then Phillips’ claim fails for lack of prejudice. See id.In reviewing the sufficiency of the evidence, we view the evidence “in the
light most favorable to the State, including legitimate inferences and
presumptions that may fairly and reasonably be deduced from the record
evidence.” See State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). Evidence
supporting the verdict is substantial if “it would convince a rational fact finder that
the defendant is guilty beyond a reasonable doubt.” State v. Johnson, 770
N.W.2d 814, 823 (Iowa 2009).
We conclude there is substantial evidence supporting the verdict. The
police discovered clear, distinctive footprints in the newly-fallen snow just outside
the broken window of the first residence. The footprints led from the backdoor of
that residence for several blocks in an unbroken trail to Phillips’ residence and
then terminate. The evidence showed the footprints were left approximately
fifteen minutes prior to the police arriving at the scene. Police surrounded
Phillips’ residence until they obtained a search warrant to enter. No one entered
or left the residence while the police were outside. When the police executed the
warrant at the residence, Phillips was the only person inside. The police found
him hiding under the kitchen sink. Boots exactly matching the pattern and size of
the small footprints from the burgled house to Phillips’s residence were
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discovered hidden in the basement. The evidence showed that Phillips shoe size
was within one-half size of the small boots found in his residence. From these
facts the jury could infer the burglar was inside the residence at which the police
executed the warrant and that Phillips was the burglar. Because the verdict is
supported by substantial evidence, Phillips cannot demonstrate prejudice, and
his claim fails.
Phillips next contends the court applied the wrong standard when ruling on
his motion for new trial. The State contends error was not preserved because
the basis alleged in the motion was “insufficiency of the evidence and verdict
inconsistent with the evidence.” Pursuant to Iowa Rule of Criminal Procedure
2.24(2)(b)(6), a court has discretion to grant a new trial “[w]hen the verdict is
contrary to law or evidence.” Our supreme court clarified that standard in State
v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998) (stating a court may grant a new
trial if the court concludes “that the verdict is contrary to the weight of the
evidence”). Phillips did not cite to the rule or to Ellis in his written motion or
during argument on the motion. See State v. Thompson, 836 N.W.2d 470, 491
(Iowa 2013). He did not assert the verdict was contrary to the weight of the
evidence. See id. We agree with the State that Phillips did not preserve error.
Even if Phillips had preserved error, his claim fails because the record
shows the court applied the correct standard when ruling on Phillips’ motion for
new trial. During the hearing, the court stated, “I’m convinced under the standard
that’s set out in State v. Ellis, that there was substantial credible evidence by
which a jury could find beyond a reasonable doubt that each of the elements
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necessary to convict you . . . existed.” In its written ruling, the court found “that
substantial, credible evidence exists to support the jury verdict. The verdict was
not contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655 (Iowa
1998); Nguyen v. State, 707 N.W.2d 317, 327 (Iowa 2005).”
Finally, Phillips contends the court erred in denying his motion for new
trial. A district court may grant a new trial when the verdict is contrary to the
weight of the evidence. Ellis, 578 N.W.2d at 658-59. This standard requires the
court to determine whether “a greater amount of credible evidence supports one
side of an issue or cause than the other.” Id. at 658. On appeal, our review “is
limited to a review of the exercise of discretion by the trial court, not the
underlying question of whether the verdict is against the weight of the evidence.”
See State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).
To prevail on this claim, Phillips must demonstrate the court “exercised its
discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” See id. at 202. Only in an extraordinary case, where the
evidence preponderates heavily against the verdict, should a district court lessen
the jury’s role as the primary trier of fact and invoke its power to grant a new trial.
State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). Granting a new trial
based on a determination the verdict is against the weight of the evidence “is
reserved for those situations in which there is reason to believe that critical
evidence has been ignored in the fact-finding process.” State v. Grant, 722
N.W.2d 645, 649 (Iowa 2006).
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Most of Phillips’ argument consists of identifying other evidence the State
should have presented to make its case stronger. For example, Phillips’
contends the State should have submitted fingerprint evidence to the jury. The
only evidence he identifies that could conflict with the jury’s verdict is the report of
an attempted burglary during the time police had Phillips surrounded in his
residence. There was some indication footprints found at the scene were the
same as those the police followed to Phillips’s residence. There was, however,
conflicting evidence regarding whether this burglary occurred prior in the evening
and was only reported to the authorities at a later time. In any event, the district
court was aware of the evidence at trial, assessed it, reviewed the entire record,
applied the correct Ellis standard to its review, and concluded the greater weight
of the evidence supported the jury’s verdict. While there may have been one
piece of potentially exculpatory evidence, the district assessed that evidence.
The district court did not abuse its discretion in denying Phillips’s motion.
For the foregoing reasons, we affirm the defendant’s conviction and
sentence.
AFFIRMED.