IN THE COURT OF APPEALS OF IOWA
No. 15-1276 Filed September 28, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
JEREMY GLENN VIRDEN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
The defendant appeals from his convictions for burglary in the second
degree, as an habitual offender, and burglary in the third degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ. 2
POTTERFIELD, Presiding Judge.
Jeremy Virden appeals from his convictions after pleading guilty to third-
degree burglary and being found guilty of second-degree burglary at the
conclusion of a jury trial. Virden maintains he received ineffective assistance
from trial counsel because counsel failed to object to prosecutorial misconduct
and failed to ensure Virden’s guilty plea to burglary in the third degree was made
voluntarily, intelligently, and with a factual basis. Virden maintains the court
abused its discretion when it denied his motion for new trial based on juror bias.
He also argues the court applied the wrong standard when ruling on his weight-
of-the-evidence challenge. Finally, Virden maintains there was not sufficient
evidence to support his conviction for burglary in the second degree.
I. Background Facts and Proceedings.
On January 28, 2015, Virden was charged by trial information with
burglary in the second degree and burglary in the third degree (motor vehicle).
About a week before trial, Virden filed his notice of intent to plead guilty to
burglary in the third degree. He entered a guilty plea the morning before trial
began and engaged in a colloquy in open court. He also filed a written guilty plea
the next day.
At the jury trial for the charge of burglary in the second degree, Carol
Baker testified that on the day in question, she took her friend Mary Scavo out to
run errands and get lunch. When they returned to Mary’s home, an SUV that
neither Mary nor Carol recognized was parked in Mary’s driveway. Carol went
into the home and could immediately tell it was being burglarized. She saw a
white man riffling through Mary’s bedroom drawers. After the man noticed Carol, 3
he ran out of the house with some of Mary’s belongings. Carol was close
enough to him to try to grab the items from him, but the man was able to get past
her to his SUV and leave.
Carol and Mary called the police.
The neighbor who lived across the street had already called the police to
report the suspicious SUV. The neighbor provided a description of the car and
stated that although he could not see the driver clearly, he could tell the driver
was wearing fluorescent-colored gloves. The neighbor saw the man enter Mary’s
house, and he saw the man leave the home sometime later with Carol chasing
him. The neighbor noted the man was still wearing the fluorescent gloves.
Carol and Mary also called Mary’s son, Victor, to come comfort Mary, who
was visibly shaken. Victor noted the ransacked nature of his mother’s home.
After officers found Virden in an SUV that matched the description given to them,
Victor was asked to identify any of the things in the vehicle belonging to his
mother. He was able to do so, noting that one of the things in the vehicle was his
mother’s identification card with her photo on it.
At a separate time, Carol was taken to see the man and the vehicle in
order to see if she could identify them. Carol stated the SUV was the same, and
she was ninety percent certain it was the same man.1
Following the close of evidence, the jury found Virden guilty of burglary in
the second degree. Virden stipulated that he was an habitual offender. At a later
date, he was sentenced to a term of incarceration not to exceed seventeen
1 At the time of trial, Mary was ninety-eight years old, and she did not testify. 4
years—fifteen years for burglary second degree as an habitual offender and two
years for burglary third degree.
Virden appeals.
II. Standards of Review.
We review claims of ineffective assistance de novo. State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006).
We review a denial of a motion for a new trial based upon juror bias for an
abuse of discretion. State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).
We review a weight-of-the-evidence challenge for an abuse of discretion
by the trial court. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). We do not
decide anew the underlying question of whether the verdict is against the weight
of the evidence. Id.
We review a claim regarding the sufficiency of the evidence to support a
conviction for correction of errors at law. State v. Williams, 695 N.W.2d 23, 27
(Iowa 2005).
III. Discussion.
A. Ineffective Assistance
Virden maintains he received ineffective assistance from trial counsel.
Specifically, he maintains trial counsel was ineffective in failing to object to a
statement made by the prosecutor during closing argument that was in violation
of the court’s ruling on the motion in limine in the second-degree-burglary trial
and in failing to ensure his guilty plea was voluntary and in accordance with Iowa
Rule of Criminal Procedure 2.8(2)(b) in the burglary third degree plea
proceedings. 5
To prevail on a claim of ineffective assistance of counsel, Virden must
prove by a preponderance of the evidence (1) his attorney failed to perform an
essential duty and (2) prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We measure counsel’s
performance against an objective standard of reasonableness under prevailing
professional norms. State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012). There is a
presumption counsel performed competently. Id. Prejudice exists where the
defendant proves by a reasonable probability that, but for counsel’s
unprofessional error, the result of the proceeding would have been different. Id.
at 496. We look to the cumulative effect of counsel’s alleged errors to determine
whether Virden satisfied his burden regarding the prejudice prong. Id. at 499.
Virden’s claim fails if either element is lacking. See Everett v. State, 789 N.W.2d
151, 159 (Iowa 2010). Although we prefer to preserve ineffective-assistance
claims for development of the record, see State v. Tate, 710 N.W.2d 237, 240
(Iowa 2006), the record here is adequate for us to decide the claims on direct
appeal.
1. Prosecutorial Misconduct.2 Prior to trial, Virden filed a motion in
limine, asking the court to instruct the State not to refer to or mention, among
2 In a recent case, the Iowa Supreme Court cautioned against conflating the terms prosecutorial misconduct, which generally describes “those statements ‘where a prosecutor intentionally violates a clear and unambiguous obligation or standard imposed by law, applicable rule or professional conduct’ as well as ‘those situations where a prosecutor recklessly disregards a duty to comply with an obligation or standard,” and prosecutorial error, which includes situations “‘where the prosecutor exercises poor judgment’ and ‘where the attorney has made a mistake’ based on ‘excusable human error, despite the attorney’s use of reasonable care.’” State v. Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (citations omitted). Here, there is no record concerning why the prosecutor made the complained-of remark, and we do not believe we can discern the intent. We use the term prosecutorial misconduct throughout, as 6
other things, “statements relating to drug use by the Defendant” and “any
evidence not produced by the State.” The court granted those portions of the
motion in limine.
During the State’s rebuttal closing statement, the prosecutor said:
But just because something is obvious doesn’t mean the State doesn’t have to prove it. I have to prove all five of those elements [of burglary in the second degree]. So I called witnesses to prove that. And nobody who pulls all those drawers out of somebody’s dresser and goes through their bathroom cabinet looking for what? Right? Does that make sense too? That he’s looking through the medicine cabinet looking for drugs? Then 24 minutes after the burglary, he’s asleep. We can fill in the gaps all we want with our imagination. But for deliberations, let’s focus on what we know.
Virden maintains the statement about drugs was both in violation of the ruling on
the motion in limine and not supported by evidence presented at trial. He
maintains the statement amounted to prosecutorial misconduct that prejudiced
him, and trial counsel was ineffective for not objecting.
Here, even if the prosecutor’s statement amounted to misconduct, “it is not
a prosecutor’s misconduct which entitles a defendant to a new trial; it is the
prejudice which results therefrom and which prevents the trial from being a fair
one.” State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976). The question we must
decide is “whether there is a reasonable probability the prosecutor’s misconduct
prejudiced, inflamed or misled the jurors so as to prompt them to convict the
defendant for reasons other than the evidence introduced at trial and the law as
both Virden and the State did in their appellate briefs. We note that we are to apply the multi-factor test outlined in State v. Graves, 668 N.W.2d 860, 877–78 (Iowa 2003) either way. See id. (stating the multifactor test set out to evaluate the statements in determining if there was misconduct and if that was misconduct was prejudicial “easily translate to an evaluation of prosecutorial error”). 7
contained in the court’s instructions.” Graves, 668 N.W.2d at 877. In making our
decision, we consider the following factors: (1) the severity and pervasiveness of
the misconduct; (2) the significance of the misconduct to the central issues in the
case; (3) the strength of the State’s evidence; (4) the use of cautionary
instructions or other curative measures; and (5) the extent to which the defense
invited the misconduct. Id.
Virden cannot establish that he was prejudiced by the prosecutor’s lone
reference to drugs in the closing argument. See Webb, 244 N.W.2d at 333
(“Ordinarily a finding of prejudice results from [p]ersistent efforts to inject
prejudicial matter before the jury. Of course, prejudice may result from isolated
prosecutorial misconduct, but we find it did not do so here.”). The comment was
made in isolation, followed by the prosecutor’s instruction to the jury to focus on
what they know, rather than fill in gaps with their imagination. Additionally, Victor
Scavo testified that the most thorough searching or ransacking “was in the
bathroom” where “all the drawers were out.” The prosecutor was offering an
explanation for why someone would have ransacked the bathroom during a
burglary, albeit in violation of the motion in limine ruling. See State v. Thornton,
498 N.W.2d 670, 676 (Iowa 1996) (“In closing arguments, counsel is allowed
some latitude. Counsel may draw conclusions and argue permissible inferences
which reasonably flow from the evidence presented.” (citation omitted)). The
evidence against Virden was strong. The neighbor had reported the suspicious
SUV to officers, noting the man driving was wearing fluorescent gloves.
Additionally, Carol saw the man in the home searching through drawers and also
described the vehicle to officers. When Virden was found within a few blocks of 8
the home less than an hour after the burglary took place, he was in a vehicle that
matched the description. Once officers were able to see in the vehicle, they
noted the presence of both the fluorescent gloves and items—including an
identification card with photo—that belonged to Mary Scavo. Although Virden’s
strategy appeared to be to dispute that he was the person who committed the
burglary, no witness saw a second party in the vehicle or the home, and Virden
was alone in the vehicle was the officers found him. Because the evidence of
Virden’s guilt was strong, we believe it is unlikely the jury looked beyond the
evidence properly before it when it convicted him of burglary in the second
degree. See State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (“Clearly, the
stronger the case against the defendant, the less likely the jury is to look beyond
the record.”).
2. Voluntariness of Plea. Virden also maintains trial counsel was
ineffective for failing to ensure his guilty plea to burglary in the third degree was
voluntary and in accordance with Iowa Rule of Criminal Procedure 2.8(2)(b). We
find no merit in Virden’s claim.
Before trial began on April 20, 2015, the court asked Virden if he still
intended to plead guilty to the third-degree burglary charge. He responded he
did, and the following exchange took place between Virden and his attorney in
open court:
Q: All right. So, Jeremy, tell us what happened in the Hy- Vee parking lot on the morning of September 18, 2014. A: I broke into a vehicle and stole some property out of it. Q: Did you have any right to do so? A: No, I did not. Q: Did you do so with the specific intent to remove property from that vehicle? A:Yes. 9
Q: Okay. You’re aware that the crime is an aggravated misdemeanor? A: Yes. Q: And you’re aware that is punishable by a maximum of two years in prison? A: Yes, I am. .... Q: Okay. Do you know the rights that you are giving up by entering a plea to that charge? Essentially, it would be your trial rights. Are you aware of those? A: Yes, I’m aware. Q: Okay. I might ask you just a few of those. Are you right now under sound mind and you’re not under the influence of any drug, medicine, or alcohol that would alter your ability to make decisions? A: No, I’m not. Q: Okay. And you previously said that you do understand the nature of that charge against you; is that correct? A: Yes. Q: Okay. And do you understand that you’re considered innocent until the State proves your guilt with evidence beyond a reasonable doubt? A: Yes. Q: Do you know that you have the right to a speedy and public trial by a jury and a right to be represented by an attorney at that trial? A: Yes. Q: You do know that if you cannot afford one, the Court will appoint one for at the State[‘s] expense; is that right? A: Yes. Q: You know you have the right to hear all the evidence against you from witnesses and subject them to cross-examination. Do you understand that? A: Yes. Q: Do you know that you also have the right to testify in your defense or refuse to testify. If you refuse to testify, any refusal will not reflect on your guilty or innocence. Do you understand that? A: Yes, I do. Q: Okay. You also have the right to produce witnesses, subpoena them to appear at trial, and have them testify on your behalf. Do you understand that? A: Yes. Q: Okay. And by pleading guilty, you’re giving up all those rights, and you know that the judge could sentence you to the maximum provided by law? A: Yes. Q: And are you pleading guilty to that charge because you are guilty; is that correct? A: That’s correct. Q: And you would like the Court to accept that guilty plea; is that correct? A: I would. DEFENSE ATTORNEY: All right. THE COURT: All right. THE COURT: Mr. Virden, your attorney went through the colloquy with you. I just want to make sure that you’re doing so voluntarily and of your own free will; is that correct? A: Correct. THE COURT: Anybody make any promises to you with regard to that plea as to what punishment you might receive? A: No. 10
THE COURT: Are you pleading guilty to that charge because you’re in fact guilty of that charge? A: That’s correct. THE COURT: All right.
The court then asked defense counsel if Virden would also be filing a written
guilty plea, and defense counsel stated he would.
The next day, Virden filed the written guilty plea. The written plea included
the maximum punishment for burglary in the third degree and listed the trial rights
Virden was waiving by pleading guilty. Virden handwrote a factual basis for the
plea and signed the document.
Based on the record before us, Virden has not established that trial
counsel failed to ensure his guilty plea conformed to the requirements of rule
2.8(2)(b). As such, Virden has not established that trial counsel breached an
essential duty, and his claim of ineffective assistance fails.
B. Juror Bias.
Virden maintains the district court abused its discretion when it denied his
motion for a new trial in the burglary second degree trial based on a theory of
juror bias.
Following the close of the State’s evidence, one of the jurors alerted the
court that he knew one of the State’s witnesses. The juror was brought into the
courtroom with both attorneys and Virden present and asked what he wanted to
tell the court. The juror stated:
I—ever since the pretrial selection, I’ve heard the name Scavo, and I couldn’t associate it with anything, but it was familiar in a way, no more than like Johnson, I guess, but Scavo is definitely a unique name. And it wasn’t until today when I saw Victor Scavo that it all—it kind of—I knew this guy. And I didn’t know how I knew it, so I went to lunch, thought about it, and remembered we used— my family used to have a market in Winterset where we created a 11
bunch of produce, and we would regularly sell to Victor Scavo for his store. And so I guess it was always professional. I never knew him personally, but I didn’t want to just hold this information. I felt it should be addressed.
The prosecutor then asked the juror if there was any reason he could not
be fair to both sides, and the juror stated, “I don’t believe so.” In response to a
question from the defense attorney, the juror stated he had not seen Victor in
approximately five years, since they stopped doing business. The defense
attorney also asked the juror if he had a positive opinion of Victor, and the juror
stated, “I mean, he not—he never wronged us in any way. I mean, he was a
good customer.” The juror stated he never met Mary Scavo and he had not told
any of the other jurors that he knew Victor. Finally, the court asked if he could
weigh the evidence impartially for both the State and the defendant, and the juror
answered, “Yes.” The defense attorney asked the court to excuse the juror and
have the alternate sit in the juror’s place because of the “long-term relationship”
the juror had with Victor. The court denied the request.
After Virden was convicted, he filed a pro se motion for new trial; one of
his bases for the new trial was juror bias. The court denied the motion, citing the
recent supreme court case State v. Webster, 865 N.W.2d 223, 239 (Iowa 2015).
“Juror bias may be actual or implied.” Webster, 865 N.W.2d at 236.
“Actual bias occurs when the evidence shows that a juror, in fact, is unable to lay
aside prejudices and judge a case fairly on the merits.” Id. “Implied bias arises
when the relationship of a prospective juror to a case is so troublesome that the
law presumes a juror would not be impartial.” Id. “Implied bias has been found 12
to arise, for instance, when a juror is employed by a party or is closely related to
a party or witness.” Id.
Here, there was no evidence the juror was actually biased. When asked
directly, the juror denied there was anything preventing him from being fair to
both sides. Additionally, the juror stated he could impartially weigh the evidence
he heard. Without other evidence of bias, the business relationship the juror had
with the State’s witness five years prior is not enough to disqualify the juror. See
id. at 238–39 (“The mere fact a juror has knowledge of parties or witnesses does
not indicate actual bias or require juror disqualification.”); see also Webster, 865
N.W.2d at 235 (finding no actual bias where juror’s daughter “liked” the victim’s
stepmother’s post on social media during the murder trial). “For the purpose of
determining juror prejudice, the relevant question is not what a juror has been
exposed to, but whether the juror holds such a fixed opinion of the merits of the
case that he or she cannot judge impartially the guilty or innocence of the
defendant.” State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985). After reviewing
the record, we cannot say the district court abused its discretion in finding that no
such fixed opinion was held by the juror in question and denying Virden’s motion
for new trial accordingly.
C. Weight of the Evidence.
Virden maintains the district court applied the wrong standard in ruling on
his weight-of-the-evidence challenge in his motion for new trial. He maintains the
court considered the sufficiency of the evidence instead, and he asks that we
remand so the district court can apply the correct standard. See State v. Ellis, 13
578 N.W.2d 655, 659 (Iowa 1998) (“‘[C[ontrary to . . . the evidence’ in rule
23(2)(b)(6) means ‘contrary to the weight of the evidence’”).
Although the court used the word “sufficient” in ruling on the challenge, we
believe a closer reading of the court’s ruling (both as stated from the bench and
the written ruling filed later) establishes that the court considered the credibility
and weight of the evidence. The court described Carol and Victor’s testimony
that Mary had not given Virden permission to be in the home as “credible.”
Additionally, the court noted that the evidence at trial was “overwhelmingly”
against the defendant. The court did not mention that it was considering the
evidence in the light most favorable to the State, which would indicate it was
engaged in considering the sufficiency of the evidence. In considering a similar
challenge on appeal, our court found that the district court applied the correct
standard. See State v. O’Shea, 634 N.W.2d 150, 155 (Iowa Ct. App. 2001)
(“While ‘substantial evidence’ is one element of the sufficiency of the evidence
standard, other indices of that standard—such as viewing evidence in the light
most favorable to the prosecution—are wholly lacking from the court’s decision.
Moreover, the district court made specific credibility findings—a thing not
permitted under a sufficiency of the evidence assessment—and the bulk of its
ruling is a near verbatim recitation of the Ellis criterion.”) Also, we note that in its
written ruling on the motion, the court cited Ellis and referenced its “wide
discretion” in deciding the motion.
Although the court used the word “sufficient,” we believe the court applied
the correct standard to Virden’s weight-of-the-evidence challenge. Moreover, 14
having reviewed the record, the district court did not abuse its discretion in doing
so.
D. Substantial Evidence.
Virden challenges the sufficiency of the evidence to support his conviction
for burglary in the second degree. Specifically, he maintains there was not
sufficient evidence to support that he was the person who committed the
burglary. In considering the sufficiency of the evidence, we review the evidence
in the light most favorable to the State. State v. Sanford, 814 N.W.2d 611, 615
(Iowa 2012). In doing so, we make all reasonable inferences that may be fairly
drawn from the evidence. Id.
Substantial evidence supports the jury’s finding that it was Virden who
committed the robbery. When the neighbor called police to report the suspicious
vehicle, he described the vehicle and stated that the driver was wearing
fluorescent gloves. Carol walked into the home while the robbery was taking
place, and she was close enough to the burglar to try to grab the stolen items
from him. Her description of the vehicle matched the neighbor’s description.
When police found that vehicle nearby a short time later—less than one hour—
Virden was the only person in the vehicle, and he appeared to be sleeping.
Carol identified the vehicle as matching the one she saw, and she identified
Virden as the burglar—albeit with “ninety percent certainty.” Officers found items
belonging to Mary in the vehicle and the fluorescent gloves. Although Virden
implies that someone else may have burglarized the home and then left him in
the vehicle with the stolen items, none of the witnesses saw a second person,
either in the vehicle when it was driving around the neighborhood or in Mary’s 15
home. Additionally, Virden notes that none of his fingerprints were found in the
home, but the neighbor testified that when the burglar exited the home, the
neighbor could see that he was still wearing the fluorescent gloves.
Considering the evidence in the light most favorable to the State, there is
sufficient evidence to support the jury’s determination that it was Virden who
burglarized the home.
IV. Conclusion.
Having considered each of Virden’s claims and finding no error, we affirm.
AFFIRMED.