IN THE COURT OF APPEALS OF IOWA
No. 13-0101
Filed September 17, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAYTON JOE WALTER SABASTA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, James C.
Ellefson, Judge.
Appeal from convictions of second-degree kidnapping, extortion, and
second-degree theft. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney
General, Jennifer Miller, County Attorney, and James Scheetz, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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MCDONALD, J.
Dayton Sabasta appeals his convictions for kidnapping in the second
degree, extortion, and theft in the second degree, the latter two enhanced as a
habitual offender. Sabasta contends the district court (1) erred in denying his
motion for judgment of acquittal because the convictions are not supported by
substantial evidence and (2) abused its discretion in denying his motion for new
trial because the convictions are against the weight of the evidence. Sabasta
also challenges the jury instructions. He contends his trial attorney rendered
constitutionally deficient performance by failing to object to the kidnapping
instruction, and he contends the court abused its discretion in refusing to add
specific intent language to the extortion jury instruction.
I.
One night in August 2012 in Sioux City, Lana Vandenbrink went out with
her friends Kent and Heather. Sabasta, a friend of Heather’s, joined the group.
The group later returned to Vandenbrink’s residence, where Sabasta and others
stayed the night. Although it was her residence, Vandenbrink left at some point
during the night and stayed with a friend because her residence was crowded.
She returned the next morning.
When Sabasta awoke at Vandenbrink’s residence the next morning, he
discovered he was missing approximately $3000. “Furious, yelling, screaming,”
Sabasta threatened Vandenbrink and her daughter and demanded the return of
his money. Vandenbrink and her daughter were scared and intimidated by
Sabasta.
3
On the night of this same day, Sabasta’s money had not yet been
returned. Sabasta told Vandenbrink he needed collateral until he could get his
money back. Sabasta, Vandenbrink, and two of Sabasta’s friends, Shaun and
Katie, loaded all of Vandenbrink’s belongings into two vehicles. Vandenbrink
testified Sabasta “ordered” her to load her belongings into the vehicles. Shaun
and Katie left in one vehicle, and Sabasta took Vandenbrink in the other.
Vandenbrink testified Sabasta told her she “had no choice” but to go.
Vandenbrink did not run away or try and get help because Sabasta had a
temper. Also, by this point, Sabasta had taken Vandenbrink’s cell phone.
Sabasta told Vandenbrink they were going to Des Moines, and they left.
Vandenbrink fell asleep during the drive. When she woke up, they had arrived at
Sabasta’s residence.
Once at the house, Sabasta largely confined Vandenbrink to the den. For
example, the morning after the group arrived at Sabasta’s house, Vandenbrink
asked to go outside and Sabasta told her no. Sabasta told his friend Katie to
watch Vandenbrink because Vandenbrink should not be left alone. When
Vandenbrink tried to leave the den area or inquire about what was happening,
Sabasta yelled at her to return to the room and threatened he would tape her up
with duct tape. On multiple occasions when Vandenbrink asked for her cell
phone to be returned, Sabasta told her no. On one occasion, Sabasta allowed
Vandenbrink to go outside for ten minutes while being supervised by Shaun.
Sabasta hollered out the window to Shaun, “Don’t let her get away.”
Sabasta’s purpose in holding Vandenbrink against her will was to use her
as collateral until he got back the money he believed was stolen from him.
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Sabasta directed Vandenbrink to text her friend Kent to send money. She did.
Using Sabasta’s phone, she sent a text message to Kent, asking for $600 to be
sent via Western Union. Kent sent the money, and Sabasta and Vandenbrink
drove to pick it up. Later, Sabasta directed Vandenbrink to use her phone and
ask Kent to wire more money. Kent sent another $750 via Western Union. The
day after the $750 wire transfer, Sabasta told Vandenbrink she had paid him
enough money and she could leave. He did not return her phone, her car, or her
belongings. Vandenbrink used Shaun’s phone to contact a hotel.
After Vandenbrink had been at the hotel for a period of time, Sabasta
contacted Vandenbrink again and asked if Kent would loan him money.
Vandenbrink testified this was an actual request, which was different from
Sabasta’s earlier demands for payment. Sabasta met with Vandenbrink, and he
then drove Vandenbrink to an abandoned farmhouse in Marshall County. Once
there, Vandenbrink was able to walk to a nearby house. The owner of that home
called the authorities. Responding officers found Vandenbrink walking alongside
a rural road and Sabasta in the upstairs closet of the abandoned house where he
was arrested.
II.
We first address Sabasta’s challenges to his convictions based on the
sufficiency and weight of the evidence.
A.
“Sufficiency of evidence claims are reviewed for a correction of errors at
law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). “In reviewing
challenges to the sufficiency of evidence supporting a guilty verdict, courts
5
consider all of the record evidence viewed ‘in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence.’” Id. (citation omitted). “We will uphold a verdict if substantial record
evidence supports it.” Id. (alteration omitted). “Evidence is considered
substantial if, when viewed in the light most favorable to the State, it can
convince a rational jury that the defendant is guilty beyond a reasonable doubt.”
Id. “Inherent in our standard of review of jury verdicts in criminal cases is the
recognition that the jury [is] free to reject certain evidence, and credit other
evidence.” Id.
There is sufficient evidence supporting Sabasta’s conviction for
kidnapping in the second degree. In this case, the jury was instructed the State
was required to prove the following: (1) Sabasta confined Vandenbrink with the
specific intent to hold her for ransom or to secretly confine her; (2) Sabasta knew
he did not have Vandenbrink’s consent; and (3) Vandenbrink was held for
ransom. Sabasta moved Vandenbrink against her will from her home in Sioux
City to his home in a different city. He confined her to the den of his house under
the watch of himself and others and under the threat of being duct-taped.
Sabasta further isolated and confined Vandenbrink by taking away her car, her
car keys, and her cell phone. When Vandenbrink asked for these items, Sabasta
refused, providing further evidence Vandenbrink was being held against her will.
During the course of confinement, Sabasta learned Vandenbrink’s daughter had
filed a missing persons report. Sabasta made Vandenbrink call her daughter and
tell her she was on vacation so the police would stop looking for Vandenbrink.
Finally, Sabasta explicitly stated he was holding Vandenbrink as collateral for
6
receipt of funds, and he did not release her until he believed he had been paid
enough.
There is further evidence in the record, including a few text messages
from Vandenbrink in which she states she is being held against her will or held
hostage, sufficient to support the jury’s verdict, and we need not discuss it in any
great detail. We do note several things. First, a jury could infer from Sabasta’s
threats of physical violence and threats to duct tape Vandenbrink that
Vandenbrink’s actions were not voluntary. See State v. Moss, No. 10-0079,
2010 WL 5050561, at *4 (Iowa Ct. App. Dec. 8, 2010) (holding victim did not
voluntarily accompany kidnapper to bank to withdraw money when done under
the threat of violence). Similarly, Sabasta’s contention that Vandenbrink had
ample opportunity to leave fails for the same reason. The jury could reasonably
infer Vandenbrink was being held against her will where Sabasta had previously
threatened her with harm. See id.
With respect to extortion, the court instructed the jury as follows:
On or about August 9, 2012, to August 15, 2012, Mr. Sabasta
threatened to inflict physical injury on Lana Vandenbrink. Mr.
Sabasta intended to communicate the threat to Lana Vandenbrink.
The threat was made for the purpose of obtaining something of
value for Mr. Sabasta.
“Threats of physical harm need not be directly expressed, but may be contained
in ‘veiled statements’ nonetheless implying injury to the recipient when viewed in
all the surrounding circumstances.” State v. McGinnis, 243 N.W.2d 583, 589
(Iowa 1976). “What is controlling is whether a recipient of the communication
would interpret it as a threat of injury.” Id.
7
We conclude there is sufficient evidence supporting Sabasta’s extortion
conviction. When Sabasta first discovered his money was missing, he screamed
and yelled at Vandenbrink. He had her up against a wall and was “in her face.”
He raised his hand up as if to strike Vandenbrink or her daughter. Vandenbrink
testified Sabasta threatened to beat her up “severely.” After Sabasta removed
Vandenbrink from her home and transported her to his, he threatened to duct
tape Vandenbrink. All of this was done for the purpose of having Vandenbrink
obtain money for Sabasta. She was his “collateral” for which he “hoped to obtain
[something] of value for himself.” See State v. Crone, 545 N.W.2d 267, 272
(Iowa 1996). When viewed in the light most favorable to the State, this
conviction is supported by substantial evidence.
Finally, we conclude there was substantial evidence supporting the theft
conviction. The court instructed the jury as follows:
On or about August 9, 2012, to August 15, 2012, Mr. Sabasta took
possession or control of currency. Mr. Sabasta did so with the
intent to permanently deprive Lana Vandenbrink of the currency.
The currency, at the time of the taking, was in the possession of
Lana Vandenbrink.
Here, Sabasta directed Vandenbrink to text Kent and have money sent via
Western Union. Sabasta drove Vandenbrink to the store to retrieve the money.
Vandenbrink took possession of the money at the store, and then Sabasta took
possession of the currency from Vandenbrink. Sabasta never told Vandenbrink it
was a loan or that he would repay her—the jury could infer Sabasta had the
intent to permanently deprive Vandenbrink of the currency. Vandenbrink testified
the total amount taken exceeded $1000. The district court did not err in denying
Sabasta’s motion for judgment of acquittal as to these charges.
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B.
Review of a district court’s ruling on whether a verdict was contrary to the
weight of the evidence is for an abuse of discretion. State v. Thompson, 836
N.W.2d 470, 476 (Iowa 2013). Applying the “weight of the evidence standard,”
the district court weighs the evidence and considers credibility as it determines
whether “a greater amount of credible evidence supports one side of an issue . . .
than the other.” State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). Although
the district court has wide discretion in deciding a motion for new trial, such
discretion must be exercised “carefully and sparingly” to insure the court does not
“lessen the role of the jury as the principal trier of the facts.” State v. Ellis, 578
N.W.2d 655, 659 (Iowa 1998). The district court should grant a new trial only in
the “exceptional case” where “a miscarriage of justice may have resulted.”
Reeves, 670 N.W.2d at 202. Our review is limited to the question of whether the
district court abused its discretion in denying the motion and is not a decision on
the merits of whether the verdict is against the weight of the evidence. See id. at
203. To establish an abuse of discretion, the defendant must show the district
court “exercised its discretion on grounds or for reasons clearly untenable or to
an extent clearly unreasonable.” Id. at 202.
Sabasta raises all the same arguments in support of his “weight of the
evidence” argument that he did in his argument regarding the “sufficiency of the
evidence.” The thrust of Sabasta’s argument in both instances is Vandenbrink’s
testimony is not credible. Specifically, her trial testimony, on many occasions,
was contrary to or inconsistent with her deposition testimony. In denying
Sabasta’s motion, the district court took these arguments into consideration.
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While Vandenbrink’s testimony was not perfect, it was corroborated by other
witnesses, including Sabasta’s friends Shaun and Katie. Further, Vandenbrink’s
testimony is corroborated by contemporaneous text messages she sent on those
occasions where she was able to access a cell phone. For example, she texted
she was “brought up here against my will i am not allowed to have my cell or my
car keys.” She also texted “they woke up gues im held hostage until either they
fall asleep again or til 8 wen i can get money to get outa here.”
Given the foregoing, we cannot say the district court abused its disretion in
denying Sabasta’s motion for new trial.
III.
We next address Sabasta’s challenges to the jury instructions.
A.
Sabasta contends his attorney rendered constitutionally ineffective
assistance by failing to object to the jury instructions for second and third-degree
kidnapping. Ineffective-assistance-of-counsel claims typically are addressed in
postconviction-relief proceedings where the record can be more fully developed.
See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Nonetheless, a
defendant may choose to raise such a claim on direct appeal. See Iowa Code
§ 814.7(2) (2011); see State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). When
such claims are presented on direct appeal, “the court may decide the record is
adequate to decide the claim or may choose to preserve the claim for
determination under chapter 822.” Iowa Code § 814.7. We conclude the record
is adequate to address Sabasta’s claims.
10
We review claims of ineffective assistance of counsel de novo. See
Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). To establish a claim for
ineffective assistance of counsel, Sabasta must prove “(1) his trial counsel failed
to perform an essential duty, and (2) this failure resulted in prejudice.” Straw,
709 N.W.2d at 133. Failure to prove either element is fatal to the claim. See
State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). To prove counsel failed to
perform an essential duty, Sabasta must establish his counsel’s representation
dropped below “an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). Regarding prejudice, the ultimate inquiry
is whether trial counsel’s allegedly deficient performance caused a complete
“breakdown in the adversary process” such that the conviction is unreliable. Id.
at 687. This requires the defendant to establish “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
Sabasta first contends his counsel should have objected to the fourth
element in the court’s instruction on kidnapping in the second degree. The
challenged instruction provided as follows:
Instruction No. 22
The State must prove all of the following elements of Kidnapping in
the Second Degree:
1. On or about August 9, 2012, to August 15, 2012, Mr.
Sabasta confined Lana Vandenbrink.
2. Mr. Sabasta did so with the specific intent to:
a. hold Lana Vandenbrink for ransom, or
b. secretly confine Lana Vandenbrink.
3. Mr. Sabasta knew he did not have the consent of Lana
Vandenbrink to do so.
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4. Lana Vandenbrink was held for ransom.
Sabasta contends his attorney was required to object to the instruction as a
misstatement of the law because the law requires only the victim be held for the
purpose of ransom and not that that the victim actually be held for ransom.
“[F]ailure to recognize an erroneous [jury] instruction and preserve error
breaches an essential duty.” State v. Ondayog, 722 N.W.2d 778, 785 (Iowa
2006). Element four attempted to set forth the specific requirements of second-
degree kidnapping found in section 710.3: “Kidnapping where the purpose is to
hold the victim for ransom or where the kidnapper is armed with a dangerous
weapon is kidnapping in the second degree.” The statute does not require a
victim actually be held for ransom, just that “the purpose [be] to hold the victim for
ransom.” Iowa Code § 710.3; see State v. Hayes, 532 N.W.2d 472, 475 (Iowa
Ct. App. 1995) (concluding “only a showing of intent or purpose to hold a victim
for ransom is required”). Under a very exacting reading of the challenged jury
instruction, it is possible one could conclude it misstates the law set forth in
section 710.3. Therefore, Sabasta argues his attorney had a duty to object to the
instruction. Sabasta’s argument has superficial appeal, but his claim ultimately
fails, however, for three reasons.
First, the instruction given was a uniform jury instruction. See Iowa Crim.
Jury Instruction 1000.2. “We are reluctant to disapprove [of] uniform jury
instructions.” State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987). Second, jury
instructions are to be read as whole, not in isolation. Anderson v. Webster City
Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000). When a single jury
instruction is challenged, it will be judged in context with all the other instructions.
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State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). Here, jury instruction no.
25 addressed the ransom element of the challenged instruction:
A person commits Kidnapping for Ransom when he holds someone
for the purpose of obtaining money or other valuable things as the
price of release. It makes no difference if the victim is actually
released without payment.
Instruction no. 25 thus clarified what was required to be proven in instruction no.
22. When these instructions are read together, the jury was accurately instructed
on the law. Finally, even if the challenged language in no. 22 is imprecise, the
imprecision required the State to prove more than the law requires—that Sabasta
actually ransomed the victim versus holding her for the purpose of ransom. If
there is any prejudice resulting from element 4 of the challenged instruction, it is
to the State and not Sabasta. See State v. Marin, 788 N.W.2d 833, 836 (Iowa
2010) (“Error in giving or refusing to give a particular instruction warrants reversal
unless the record shows the absence of prejudice. . . . [T]he test of prejudice is
whether it sufficiently appears that the rights of the complaining party have been
injuriously affected or that the party has suffered a miscarriage of justice.”)
Sabasta challenges instruction no. 22 in a second respect. Element 2 is a
misstatement of law. The intent to secretly confine the victim in and of itself is
not sufficient to support a conviction for second-degree kidnapping—it is simply
one of five possible alternative modes of committing kidnapping. See Iowa Code
§ 710.1(1)-(5). “[T]he validity of a verdict based on facts legally supporting one
theory for conviction of a defendant does not negate the possibility of a wrongful
conviction of a defendant under a theory containing legal error.” State v.
Martens, 569 N.W.2d 482, 485 (Iowa 1997). With a general verdict of guilty, we
13
normally have no way of determining which theory the jury accepted. See State
v. Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996). Sabasta argues because there
was only a general verdict here, it is possible the jury could have convicted him
of kidnapping in the second degree under the intent to secretly confine
alternative. This argument is more compelling than Sabasta’s first argument, but
it ultimately fails.
Sabasta’s claim is presented to us not as a direct attack against the
claimed instructional error but instead as a claim for ineffective assistance of
counsel. In this context, Sabasta must still establish he was prejudiced by trial
counsel’s failure to object to the improper jury instruction. See Ledezma v. State,
626 N.W.2d 134, 142 (Iowa 2001) (“If the claim lacks prejudice, it can be decided
on that ground alone without deciding whether the attorney performed
deficiently.”). We definitively know in this case the jury did not rest its verdict on
an improper basis because the court instructed the jury, in element 4 of
instruction no. 22, that it had to find Sabasta actually held the victim for ransom
to find him guilty of kidnapping in the second degree. The jury could not have
returned a verdict of guilty without making such a finding under these
instructions. Accordingly, Sabasta was not prejudiced by the erroneous
instruction. See Marin, 788 N.W.2d at 838.
B.
Sabasta next contends the court erred in refusing to provide a specific
intent instruction for extortion after his attorney requested it. A claim the court
should have given a requested instruction is reviewed for an abuse of discretion.
State v. Lyman, 776 N.W.2d 865, 876 (Iowa 2010). “An abuse of discretion
14
occurs ‘when the district court exercises its discretion on grounds or for reasons
clearly untenable or to an extent clearly unreasonable.’” Rowedder v. Anderson,
814 N.W.2d 585, 589 (Iowa 2012) (citation omitted).
Instruction 24 defined specific intent. The instructions for several other
charged crimes included cross-references to instruction 24. Sabasta’s attorney
requested that Instruction 35 on extortion also reference specific intent. The
district court did not include the cross reference to the specific intent instruction
because the instruction included language regarding Sabasta’s “purpose.”
Based on State v. Coffin, 504 N.W.2d 893, 895 (Iowa 1993), the district court
determined intent and purpose were interchangeable. See id. (“Comparing
element one of second-degree robbery with element three of extortion, we note
that ‘intent to commit’ coincides with ‘for the purpose of.’ Both connote specific
intent.”). The instruction actually given was correct. See State v. Bennett, 503
N.W.2d 42, 46 (Iowa Ct. App. 1993). We find no abuse of discretion in refusing
to link the extortion instruction to the specific-intent instruction.
IV.
For the reasons set forth above, we conclude Sabasta’s attorney was not
ineffective in not challenging the second-degree kidnapping instruction, the court
correctly instructed the jury on extortion, and the verdicts are supported by
substantial evidence. We further conclude the district court did not abuse its
discretion in denying Sabasta’s motion for new trial. Accordingly, we affirm.
AFFIRMED.