IN THE COURT OF APPEALS OF IOWA
No. 13-1028
Filed July 16, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEANDRE GOODE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Cynthia H.
Danielson, Judge.
DeAndre Goode appeals from the judgment and sentence imposed upon
his conviction of second-degree robbery. AFFIRMED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Patrick C. Jackson, County Attorney, and Lisa Schaeffer and
Tyron T. Rogers, Assistant County Attorneys, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.
DeAndre Goode appeals from the judgment and sentence imposed upon
his conviction of second-degree robbery, contending there is insufficient
evidence of specific intent to support the conviction. He also contends his trial
counsel was ineffective in failing to object to the jury instructions and in failing to
move to exclude prior-conviction impeachment evidence. Finally, he argues the
district court’s written judgment—which ordered his sentence for second-degree
robbery be served consecutive to an unrelated sentence Goode was serving—
varies from the court’s oral announcement at the sentencing hearing that the
sentences would be served concurrently. We affirm the conviction, preserve
some of the ineffective-assistance-of-counsel claims, and remand for the entry of
a nunc pro tunc order to correct the judgment entry.
I. Background Facts and Proceedings.
Viewing the evidence presented at trial in the light most favorable to the
State, the record supports the following.
About twenty minutes before midnight on Saturday, November 24, 2012,
George Petree returned home from the grocery store. He drove by three men
walking in the opposite direction Petree was traveling. Petree looked in his
rearview mirror and noted the three men now walking in the same direction as he
was traveling. Petree parked on the street in front of his residence. As he was
carrying groceries to his house, out of the corner of his eye, Petree saw an
individual approaching him “really quick.” He turned, and a man Petree later
identified as DeAndre Goode hit him in the face. Petree was able to clearly see
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the assailant’s face. The punch knocked Petree into the railing of his porch and
then to ground.
As he was falling to the ground, Petree saw two other men approaching.
Goode and the other two men repeatedly kicked and punched Petree in his back,
side, and head as he lay curled up in a ball on the ground. Petree repeatedly
yelled for help. One of the attackers said, “I have a gun. I want to shoot him.”
Petree responded by saying, “I have a daughter, please just take my money.”
The same man said “oh, you have money, huh.” Petree told him that his money
was in his wallet. One of the attackers took Petree’s wallet from his back pocket.
The beating continued. The men also took Petree’s cell phone and his coat. The
three attackers ran off across the street together.
Petree’s neighbor, Lance Core, heard “a bunch of screaming” around
midnight. He looked out his window and saw three men kicking and punching
someone as he lay on the ground. (Core later learned the person on the ground
was Petree.) Core called the police. He estimated the assault lasted five to ten
minutes.
Petree’s wallet contained $208 in cash. His wallet also contained his
driver’s license, debit card, social security card, a card from his bank that
contained his bank account number and the bank’s routing number, some gift
cards, his mother’s food stamp card, and some probation cards. On the night of
the robbery, the police did find the food stamp card, the gift cards, and probation
cards. But Petree never got back his wallet, cash, driver’s license, debit card, the
card with his bank account information, or his social security card.
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The Monday following the robbery, Petree called his bank and reported
that he had been robbed and needed to cancel his debit card. The bank issued
Petree a new card but purposely did not cancel his old card, hoping to see if
someone would use it. In December, someone did use Petree’s stolen debit
card, overdrawing his bank account. Petree called the police.
During the subsequent investigation, the police learned that on December
10, 2012, someone began the online process of applying for a credit card to be
issued by US Bank in the name of George Petree. After an applicant accepts the
offer of credit, US Bank captures the IP address from which the acceptance is
made. The IP address for the card issued in the name of George Petree was
captured on December 13, 2012. The credit card application had been made
from an IP address registered to a Marietta Street apartment in Burlington—
DeAndre Goode had moved into that apartment in October.1 The internet
account used to order the credit card was a Mediacom account created
December 3, 2012, at Goode’s address but registered in the name of Eric Moore.
No one by the name of Eric Moore lived at the apartment, and Goode testified he
did not know anyone with that name.
1
The Marietta Street apartment was seven or eight blocks from George Petree’s home.
There was conflicting evidence whether Goode lived alone at the Marietta Street
apartment. The mother of Goode’s child, Brooke Johnson, said the apartment was
Marcus Hamb’s and that Goode moved in with Hamb when her relationship with Goode
deteriorated. Goode and his brother D’Juan Goode both testified the apartment was
Hamb’s and Hamb allowed Goode to move in. Shenterra Cratton testified Goode lived
there alone. The State offered rebuttal evidence that Goode informed his parole officer
that at first he was living with his brother Darren Goode at the Marietta Street apartment
but later listed no others living there with him. Jaime Baker testified Hamb was on
pretrial supervision in November and December 2012 and listed his address as being in
Rome, Iowa.
5
The new credit card was mailed to the address listed on the card
application, a North Third Street apartment in Burlington, where Megan Smith
lived. Smith was a friend of Goode. Someone called US Bank’s toll-free
telephone number on December 19, 2012, and activated the credit card. (A
person has to physically have the card in his or her possession to activate it.)
After activating the card, someone also called US Bank and requested a
personal identification number (PIN). A PIN makes it possible to get cash
advances off the card. In order to get a PIN, a person must speak to a live
representative of the bank, and the call is recorded. Police obtained the
recording of that telephone call. The voice on the recording was identified as
Marcus Hamb.
Purchases were made using the US Bank-issued credit card in Petree’s
name on a number of occasions between December 19 and December 28, 2012,
including a December 19 online purchase from Xbox Live. On December 20,
2012, the card was used at a Wal-Mart. Video surveillance from the store was
obtained. Three people—Goode, Hamb, and Smith—were all present when the
card was used on December 20. The car driven by the three on that date
belonged to Hamb’s mother.
The police questioned Smith, who stated she was at Wal-Mart with Goode
and Hamb. When Goode was interviewed, he admitted he was present on
December 19 when Hamb purchased the Xbox and on December 20 at the Wal-
Mart with Smith and Hamb. Goode denied any knowledge of a robbery or that
Hamb had used anything other than a gift card for those purchases.
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Goode was charged with second-degree robbery. He filed a notice of an
alibi defense. At trial, Shenterra Cratton testified she was at Goode’s Marietta
Street apartment with Goode and his daughter all night on November 24, leaving
the morning of November 25. Goode testified his cousin, Alex Goode, drove him
to Brooke Johnson’s home on November 24, where they spent a few hours with
Goode’s daughter while Johnson got ready for work, and then Alex drove Goode
and his daughter back to the Marietta Street apartment. Alex left, and Goode
and his daughter stayed home that evening watching movies with Cratton.
Goode was convicted of second-degree robbery and now appeals. He
contends there is insufficient evidence of specific intent to sustain the conviction,
trial counsel was ineffective in failing to object to the jury instructions and to prior-
conviction impeachment evidence, and the written sentencing order does not
comport with the district court’s oral announcement at the sentencing hearing.
II. Scope and Standards of Review.
The Court reviews a ruling on the sufficiency of the evidence for correction
of errors of law. State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014). We view
the evidence in the light most favorable to the State and uphold the finding of
guilt if the verdict is supported by substantial evidence. Id. at 439–40.
We review claims of ineffective assistance of counsel de novo. Id.;
Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
“When a party asserts that an inconsistency exists between an oral
sentence and a written judgment entry, we review the matter for correction of
errors at law.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995).
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III. Discussion.
A. Suffiiciency of evidence of specific intent. Goode contends the
evidence does not establish that he acted with the necessary specific intent to
commit a theft or that he knew that someone he aided and abetted had that
specific intent. The State argues this claim was not adequately preserved. We
agree.
At trial, Goode’s trial counsel moved for a directed verdict “based upon the
State’s ability to present a prima facie case that could support a conviction in this
case.” The motion for judgment of acquittal was “based on failure of the State to
provide a case that could support a conviction.” In State v. Truesdell, 679
N.W.2d 611, 615 (Iowa 2004), our supreme court observed, “To preserve error
on a claim of insufficient evidence for appellate review in a criminal case, the
defendant must make a motion for judgment of acquittal at trial that identifies the
specific grounds raised on appeal.” As was the case in Truesdell, Goode’s trial
counsel did not specifically raise the sufficiency claim made on appeal and thus
the issue is not preserved. See 679 N.W.2d at 615.
B. Ineffective assistance of counsel. Goode makes an alternative claim
that trial counsel was ineffective in failing to preserve his challenge to the
sufficiency of the evidence of specific intent.
The failure of trial counsel to preserve error at trial can
support an ineffective assistance of counsel claim. Ordinarily,
ineffective assistance of counsel claims are best resolved by
postconviction proceedings to enable a complete record to be
developed and afford trial counsel an opportunity to respond to the
claim. Yet, in some instances, the appellate record can be
adequate to address the claim on direct appeal. When the record
is adequate, the appellate court should decide the claim on direct
appeal.
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Id. at 615–16.
In order to succeed on his ineffective-assistance-of-counsel claim, a
defendant must establish by a preponderance of the evidence that (1) trial
counsel failed to perform an essential duty and (2) prejudiced resulted. State v.
Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010). A claim of ineffective
assistance of counsel fails if the defendant is unable to prove either prong of the
test. Id. at 266.
“To establish the first prong, the [defendant] must demonstrate the
attorney performed below the standard demanded of a reasonably competent
attorney.” Ledezma, 626 N.W.2d at 142.
Considering the standard of reasonableness utilized in
determining ineffective assistance claims, ineffective assistance is
more likely to be established when the alleged actions or inactions
of counsel are attributed to a lack of diligence as opposed to the
exercise of judgment. Clearly, there is a greater tendency for
courts to find ineffective assistance when there has been “an
abdication—not an exercise—of . . . professional [responsibility].”
Miscalculated trial strategies and mere mistakes in judgment
normally do not rise to the level of ineffective assistance of counsel.
Thus, claims of ineffective assistance involving tactical or strategic
decisions of counsel must be examined in light of all the
circumstances to ascertain whether the actions were a product of
tactics or inattention to the responsibilities of an attorney
guaranteed a defendant under the Sixth Amendment.
Id. at 142–43. “‘We will not find counsel incompetent for failing to pursue a
meritless issue.’” State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013) (citation
omitted).
“To establish prejudice, the defendant must demonstrate the ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the
9
proceeding would have been different.’” State v. Lane, 743 N.W.2d 178, 183
(Iowa 2007) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
1. Failure to object to sufficiency of evidence. We conclude Goode
has failed to prove counsel was ineffective in not preserving the sufficiency claim.
The jury was instructed that to prove Goode guilty of robbery in the second
degree, the State had to prove
1. On or about November 25, 2012, the defendant had the
intent to commit a theft or aided and abetted another he knew had
an intent to commit a theft.
2. In carrying out the intended theft or to assist him in
escaping from the scene, with or without the stolen property, the
defendant (a) committed an assault or aided and abetted in an
assault on George Petree.
The offense of theft is defined in section 714.1(1), which states that a person
commits theft when he “[t]akes possession or control of the property of another,
or property in the possession of another, with the intent to deprive the other
thereof.” See State v. Schminkey, 597 N.W.2d 785, 788–89 (Iowa 1999). Goode
contends there is insufficient evidence Petree’s assailants had the specific intent
to comment a theft when the assault began.
We note that because proof that a person acted with the specific purpose
of depriving the owner of his property requires a determination of what the
person was thinking when an act was done, it is seldom capable of being
established with direct evidence. Id. at 789. Consequently, the facts and
circumstances surrounding the act, as well as any reasonable inferences to be
drawn from those facts and circumstances, may be relied upon to ascertain the
person’s intent. Id.
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Here, Petree identified Goode as the person who ran up to him, punched
him in the face, and started the attack. He saw two others join in the assault.
After one of the assailants stated, “I want to shoot him,” Petree told them just to
take his money. That assailant then said, “oh you have money, huh?” Even if
we assume the assailants had no intent to commit a theft until this point, the
continued assault and the taking of Petree’s wallet after this statement supports
an inference that the assailants then intended to commit a theft. See State v.
Oetken, 613 N.W.2d 679, 686 (Iowa 2000) (“An intent to commit theft may be
inferred from an actual breaking and entering of a building which contains things
of value.”). The assault continued while Petree’s wallet was removed from
Petree’s pocket. From these facts and circumstances, a reasonable fact finder
could determine the defendant had, or aided and abetted another who had, the
specific intent to commit a theft and in carrying out the theft committed an
assault. Goode thus cannot prove counsel breached a duty in failing to
challenge the sufficiency of the evidence of intent to commit a theft.
Goode also asserts trial counsel was ineffective in not objecting to the
proposed jury instructions, which did not include an instruction on specific intent,
and in failing to move in limine to exclude evidence of Goode’s prior bad acts or
object to the State’s question about Goode having been previously convicted of
willful injury.
2. Failure to object to jury instructions. In Fountain, the defendant
was convicted of the offense of domestic abuse assault causing bodily injury.
786 N.W.2d at 262. On appeal, the defendant argued trial counsel was
ineffective in failing to request a specific intent instruction, which is an element of
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assault. Id. The supreme court concluded the trial court should have instructed
the jury on specific intent, id. at 265, and trial counsel “should have been aware
of the case law declaring that assault includes an element of specific intent.” Id.
at 266. The court wrote, “After reviewing the facts of this case and the evidence
presented, we conclude only trial strategy could explain counsel’s failure to
request a specific intent instruction.” Id. at 266–67. The court observed, though,
that “[i]f the defense strategy is to deny that any assaultive contact occurred, the
individual elements of assault become unimportant.” Id. at 267.
Here, trial counsel may have determined the individual elements of
robbery were “unimportant” because Goode was not challenging the elements of
the offense. See id. Rather, his defense was that he was not involved and
Petree had incorrectly identified him as one of the assailants. We preserve this
issue for possible postconviction relief proceedings.
3. Failure to move to exclude or object to questioning about prior
conviction. Goode acknowledged throughout his defense that he had been
recently released from prison when this offense occurred. Goode testified he
was home with Cratton and his daughter on the night Petree was attacked. To
support his defense, Goode offered evidence that he was on parole and was
subject to a 10:30 curfew.
During the State’s cross-examination of Goode, the following colloquy took
place:
Q. Okay. Now Marcus [sic], is it correct that you were
convicted of willful injury causing serious injury in 2011? A. Yes, I
was.
Q. And that’s a felony offense? A. Yes it is.
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Q. And you told your—well, you told the—the jury through
your attorney, that you spent time in custody because of that? A.
Yes I did.
On appeal, Goode argues that “[a]lthough it was clear that [his] status as a
parolee would play a large role in his defense, Goode’s attorney did not move in
limine to exclude evidence of the specific crime for which Goode was on parole.
Neither did counsel object when the State asked Goode about his conviction.”
Goode contends the quoted exchange requires a new trial. The State responds
that defense counsel may have chosen not to object to the evidence of the
specific crime “to avoid speculation that Goode had been convicted of something
even more serious.” In light of the defendant’s extensive reliance on his being on
parole, trial counsel may have chosen not to object to this one reference to willful
injury.
“[W]e must evaluate trial counsel’s actions from the perspective of when
the decision was made—during the course of trial.” State v. Ondayog, 722
N.W.2d 778, 785 (Iowa 2006). “The fact that a particular decision was made for
tactical reasons does not, however, automatically immunize the decision from a
Sixth Amendment challenge. That decision must still satisfy the ultimate test:
‘whether under the entire record and totality of circumstances’ counsel performed
competently.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2993) (citations
omitted). “Nonetheless, we do not delve into trial tactics and strategy when they
do not clearly appear to have been misguided. In other words, we will not
reverse where counsel has made a reasonable decision concerning trial tactics
and strategy, even if such judgments ultimately fail.” Ondayog, 722 N.W.2d at
786. We preserve Goode’s claim of ineffective assistance in regard to the failure
13
to object to the prior-conviction evidence for possible postconviction proceedings.
See id. at 787.
C. Sentencing.
Here, the district court sentenced Goode to a ten-year term of
incarceration. The court noted that it had limited discretion when sentencing
Goode:
As everyone has mentioned, there is no choice as to your
imprisonment. The only choice is between whether or not his
sentence will be served concurrently with the prior sentence that
was already imposed or will be made to run consecutively to the
first sentence that has been imposed in an earlier personal injury
felony.
....
At this time the Court will order that the sentences run
concurrently based in part on the fact that this sentence will have to
be 85 percent completed before you are eligible for release on this
sentence. I would like to believe that upon your release you will be
motivated to change your ways. However, in the event that you are
released and fail to comply with the terms and conditions of
probation at that time, I think you can think that this would be the
last sympathetic gesture from the court system. The case that it
will run concurrently with is his Lee County Cause Number FECR
7974.
But the written judgment entry provides: “The sentence imposed herein shall run
consecutively with the sentence imposed in Lee County Cause Number
FECR007974.”
“[W]hen a judgment entry incorrectly differs from the oral rendition of the
judgment merely as a result of clerical error, the trial court holds the inherent
power to correct the judgment entry so that it will reflect the actual
pronouncement of the court.” Hess, 533 N.W.2d at 527. When the record
unambiguously reflects that a clerical error has occurred—as it does here—“we
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will direct the district court to enter a nunc pro tunc order to correct the judgment
entry.” Id.
Iowa Code section 908.10(1) provides that a “new sentence of
imprisonment for conviction of a felony shall be served consecutively with the
term imposed for the parole violation, unless a concurrent term of imprisonment
is ordered by the court.” Here, the court ordered a concurrent term. We remand
to the district court for the entry of a nunc pro tunc order to correct the judgment
entry to “accurately reflect what was unambiguously pronounced at the
sentencing hearing.” Id. at 528.
AFFIRMED AND REMANDED.