IN THE COURT OF APPEALS OF IOWA
No. 15-0858 Filed May 25, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL AARON DUTCHER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, James D. Scott,
Judge.
The defendant appeals his conviction for ongoing criminal conduct.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer and
Joseph A. Fraioli (until withdrawal), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Katherine M.
Krickbaum (until her withdrawal), Assistant Attorneys General, for appellee.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ. Scott, S.J.,
takes no part. 2
POTTERFIELD, Judge.
Michael Dutcher appeals his conviction for ongoing criminal conduct.1
Dutcher maintains there was not sufficient evidence to support his conviction for
ongoing criminal conduct because the “continuing basis” element was not
satisfied. In the alternative, he maintains trial counsel was ineffective for failing
to challenge the jury instruction that defined “continuing basis.”
I. Background Facts and Proceedings
Dutcher was convicted of two counts of robbery based on robberies that
occurred in Sioux City approximately one month apart. The first robbery took
place at a Super 8 motel. Dutcher entered the motel at approximately 5:00 a.m.
on May 15, 2014, when the only person present was the front desk clerk. He
was armed with a gun and threatened to shoot and kill the clerk2 if he was not
quickly given all of the available money. After receiving approximately $960 from
the clerk, Dutcher ran out of the hotel. The second robbery took place at another
area motel, a Travelodge, on June 14, 2014. Dutcher entered at approximately
6:00 a.m., armed with a butcher knife with a six- or seven-inch blade. He again
demanded money and threatened the clerk. On the second occasion, Dutcher
received between $300 and $400. Dutcher had recently been a patron at both of
the motels; at the time, he had no permanent residence and his only source of
income was from selling marijuana. One of Dutcher’s girlfriends testified he told
1 As a result of the same trial, Dutcher was also convicted of robbery in the first degree and robbery in the second degree. Dutcher’s appeal does not challenge his other convictions, and we do not consider them except as they form the basis for ongoing criminal conduct. 2 There was testimony that the gun may have been an airsoft gun meant to look like a “real gun.” 3
her “a few times” that he would rather get a gun and rip people off than pick up
pop cans for money. Dutcher was arrested shortly after the second robbery.
Following a trial by jury in April 2015, Dutcher was convicted of robbery in
the first degree, robbery in the second degree, and ongoing criminal conduct.
Dutcher was sentenced to a term of incarceration not to exceed ten years for his
conviction for robbery in second degree; a term of incarceration not to exceed
twenty-five years for his conviction for robbery in the first degree; and a term of
incarceration not to exceed twenty-five years for his conviction for ongoing
criminal conduct. The district court ordered the sentences to run concurrently.
Dutcher appeals.
II. Standard of Review
We review sufficiency-of-the-evidence claims for correction of errors at
law. State v. Vaughan, 859 N.W.2d 492, 497 (Iowa 2015). We review all of the
evidence presented at trial, and we view it in the light most favorable to the State.
Id.
A defendant may raise an ineffective-assistance claim on direct appeal if
he has reasonable grounds to believe the record is adequate for us to address
the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If
we determine the record is adequate, we may decide the claim. Id. We review
claims for ineffective assistance of counsel de novo. Id. This is our standard
because such claims have their basis in the Sixth Amendment to the United
States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). 4
III. Discussion
A. Sufficiency of the Evidence
Dutcher does not challenge his convictions for robbery in the first degree
and robbery in the second degree. Rather, he maintains the two robberies,
approximately one month apart, are insufficient to support a conviction for
ongoing criminal conduct because they do not satisfy the element of “continuing
basis.”3
Without objection from Dutcher, the jury was instructed:
The State must prove all of the following elements of Ongoing Criminal Conduct: 1. On or about May 15, 2014 to on or about June 14, 2014, the Defendant committed these two acts: a. Robbery at Super 8 Motel, [address of motel] b. Robbery at Travelodge Motel, [address of motel] 2. The Defendant committed the robberies with the specific intent of financial gain; and 3. The Defendant committed the robberies on a continuing basis. If the State has proved all of these elements, the Defendant is guilty of Ongoing Criminal Conduct. If the State has failed to prove any one of these elements, the defendant is not guilty.
Also without objection, the jury was given the following instruction as a
definition or further explanation of “continuing basis”:
Concerning element number 3 of [the instruction above], acts are committed on a continuing basis: if the acts had the same or similar purpose, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events and if they are
3 Iowa Code section 706A.2(4) (2013) provides, “It is unlawful for a person to commit specified unlawful activity as defined in section 706A.1.” Iowa Code section 706A.1 defines “specified unlawful activity” as “any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.” 5
committed under circumstances indicating that the defendant will continue to commit similar offenses.
Here, there was sufficient evidence for a rational factfinder to conclude
Dutcher committed the robberies on a continuing basis, as the instructions
defined it. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure to
timely object to an instruction not only waives the right to assert error on appeal,
but also ‘the instruction, right or wrong, becomes the law of the case.’” (citation
omitted)). Both robberies were committed with similar purpose, results,
participants, victims, and methods of commission: in the early morning hours,
when the clerk was alone, at motels Dutcher had stayed at and was familiar with.
In both instances, Dutcher took a weapon, threatened violence against the clerk,
and demanded all of the money—including the money in the deposit bags. He
dressed completely in black clothing and used a mask to cover his face so the
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IN THE COURT OF APPEALS OF IOWA
No. 15-0858 Filed May 25, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL AARON DUTCHER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, James D. Scott,
Judge.
The defendant appeals his conviction for ongoing criminal conduct.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer and
Joseph A. Fraioli (until withdrawal), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Katherine M.
Krickbaum (until her withdrawal), Assistant Attorneys General, for appellee.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ. Scott, S.J.,
takes no part. 2
POTTERFIELD, Judge.
Michael Dutcher appeals his conviction for ongoing criminal conduct.1
Dutcher maintains there was not sufficient evidence to support his conviction for
ongoing criminal conduct because the “continuing basis” element was not
satisfied. In the alternative, he maintains trial counsel was ineffective for failing
to challenge the jury instruction that defined “continuing basis.”
I. Background Facts and Proceedings
Dutcher was convicted of two counts of robbery based on robberies that
occurred in Sioux City approximately one month apart. The first robbery took
place at a Super 8 motel. Dutcher entered the motel at approximately 5:00 a.m.
on May 15, 2014, when the only person present was the front desk clerk. He
was armed with a gun and threatened to shoot and kill the clerk2 if he was not
quickly given all of the available money. After receiving approximately $960 from
the clerk, Dutcher ran out of the hotel. The second robbery took place at another
area motel, a Travelodge, on June 14, 2014. Dutcher entered at approximately
6:00 a.m., armed with a butcher knife with a six- or seven-inch blade. He again
demanded money and threatened the clerk. On the second occasion, Dutcher
received between $300 and $400. Dutcher had recently been a patron at both of
the motels; at the time, he had no permanent residence and his only source of
income was from selling marijuana. One of Dutcher’s girlfriends testified he told
1 As a result of the same trial, Dutcher was also convicted of robbery in the first degree and robbery in the second degree. Dutcher’s appeal does not challenge his other convictions, and we do not consider them except as they form the basis for ongoing criminal conduct. 2 There was testimony that the gun may have been an airsoft gun meant to look like a “real gun.” 3
her “a few times” that he would rather get a gun and rip people off than pick up
pop cans for money. Dutcher was arrested shortly after the second robbery.
Following a trial by jury in April 2015, Dutcher was convicted of robbery in
the first degree, robbery in the second degree, and ongoing criminal conduct.
Dutcher was sentenced to a term of incarceration not to exceed ten years for his
conviction for robbery in second degree; a term of incarceration not to exceed
twenty-five years for his conviction for robbery in the first degree; and a term of
incarceration not to exceed twenty-five years for his conviction for ongoing
criminal conduct. The district court ordered the sentences to run concurrently.
Dutcher appeals.
II. Standard of Review
We review sufficiency-of-the-evidence claims for correction of errors at
law. State v. Vaughan, 859 N.W.2d 492, 497 (Iowa 2015). We review all of the
evidence presented at trial, and we view it in the light most favorable to the State.
Id.
A defendant may raise an ineffective-assistance claim on direct appeal if
he has reasonable grounds to believe the record is adequate for us to address
the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If
we determine the record is adequate, we may decide the claim. Id. We review
claims for ineffective assistance of counsel de novo. Id. This is our standard
because such claims have their basis in the Sixth Amendment to the United
States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). 4
III. Discussion
A. Sufficiency of the Evidence
Dutcher does not challenge his convictions for robbery in the first degree
and robbery in the second degree. Rather, he maintains the two robberies,
approximately one month apart, are insufficient to support a conviction for
ongoing criminal conduct because they do not satisfy the element of “continuing
basis.”3
Without objection from Dutcher, the jury was instructed:
The State must prove all of the following elements of Ongoing Criminal Conduct: 1. On or about May 15, 2014 to on or about June 14, 2014, the Defendant committed these two acts: a. Robbery at Super 8 Motel, [address of motel] b. Robbery at Travelodge Motel, [address of motel] 2. The Defendant committed the robberies with the specific intent of financial gain; and 3. The Defendant committed the robberies on a continuing basis. If the State has proved all of these elements, the Defendant is guilty of Ongoing Criminal Conduct. If the State has failed to prove any one of these elements, the defendant is not guilty.
Also without objection, the jury was given the following instruction as a
definition or further explanation of “continuing basis”:
Concerning element number 3 of [the instruction above], acts are committed on a continuing basis: if the acts had the same or similar purpose, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events and if they are
3 Iowa Code section 706A.2(4) (2013) provides, “It is unlawful for a person to commit specified unlawful activity as defined in section 706A.1.” Iowa Code section 706A.1 defines “specified unlawful activity” as “any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.” 5
committed under circumstances indicating that the defendant will continue to commit similar offenses.
Here, there was sufficient evidence for a rational factfinder to conclude
Dutcher committed the robberies on a continuing basis, as the instructions
defined it. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure to
timely object to an instruction not only waives the right to assert error on appeal,
but also ‘the instruction, right or wrong, becomes the law of the case.’” (citation
omitted)). Both robberies were committed with similar purpose, results,
participants, victims, and methods of commission: in the early morning hours,
when the clerk was alone, at motels Dutcher had stayed at and was familiar with.
In both instances, Dutcher took a weapon, threatened violence against the clerk,
and demanded all of the money—including the money in the deposit bags. He
dressed completely in black clothing and used a mask to cover his face so the
clerks could not identify him and the surveillance camera recordings could not be
used identify him.
Additionally, there was evidence to support a finding that Dutcher would
continue committing such robberies. He had stayed at and was familiar with
more motels in the area. He did not have a job and did not appear to have any
prospect for employment. He told his girlfriend he would rather get a gun and “rip
people off” than pick up pop cans. Although he testified that he sold marijuana to
earn money, the evidence suggests he was not making enough to meet his
needs, as he was sleeping in his car some nights and had to borrow money from
a girlfriend for a new tire for his vehicle. Additionally, between the first and
second robbery, officers seized Dutcher’s face mask in an unrelated traffic stop. 6
This did not deter Dutcher, as he stole a new face mask4 the day before the
second robbery. There was no evidence presented at trial to suggest Dutcher’s
circumstances or mindset had changed. Dutcher also kept in his vehicle all the
items necessary to repeat the crime of robbery, namely a replica gun, taser,
black gloves, sunglasses, mask, black shoes, and dark clothes. The jury was
free to believe that the only thing that stopped Dutcher from committing more
robberies was being caught. See United States v. Torres, 191 F.3d 799, 808
(7th Cir. 1999) (“The only reason their scheme ended was because they were
caught. We will not reward them by precluding the government from establishing
a[n-ongoing-criminal-conduct] pattern because of the quick success of law
enforcement officials.”).
Viewing the evidence in the light most favorable to the State, sufficient
evidence supports Dutcher’s conviction for ongoing criminal conduct as defined
by the jury instructions; the district court did not err in denying his motion for
judgment of acquittal.
B. Ineffective Assistance
In the alternative, Dutcher maintains trial counsel was ineffective for failing
to object to the jury instruction that defined “continuing basis.” He claims the
instruction was not an accurate statement of the law because it omitted several
pertinent factors that the jury must consider and he was prejudiced because the
jury could not find him guilty of ongoing criminal conduct if it had been properly
instructed.
4 The parties stipulated at trial that Dutcher had stolen the face mask from a local sporting goods store and had pled guilty to theft in the fifth degree for the action. 7
To prevail on a claim of ineffective assistance of counsel, Dutcher 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. Clay, 824 N.W.2d at 495. There is a presumption counsel
performed their duties 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. Dutcher’s
claim fails if either element is lacking. See Everett v. State, 789 N.W.2d 151, 159
(Iowa 2010). We prefer to preserve ineffective-assistance claims for
development of the record and to allow trial counsel an opportunity to defend
against the charge. See State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).
We decline to consider Dutcher’s claim on direct appeal. If the jury
instruction was a misstatement of the law, the record before us does not provide
insight into counsel’s reasons for not objecting. See State v. Ondayog, 722
N.W.2d 778, 786 (Iowa 2006) (“Because ‘improvident trial strategy, miscalculated
tactics, and mistakes in judgment do not necessarily amount to ineffective
assistance of counsel,’ postconviction proceedings are often necessary to
discern the difference between improvident trial strategy and ineffective
assistance.” (citation omitted)). We affirm Dutcher’s conviction and preserve his
claim of ineffective assistance for possible postconviction relief. See Iowa Code
§ 814.7(3); see also State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).