On Oct 10, 7:04=A0pm, "Dragon's Girl" <bettywir...@[EMAIL PROTECTED]
> wrote:
> On Oct 10, 10:20=A0am, "Johnny" <thi...@[EMAIL PROTECTED]
> wrote:
>
>
>
>
>
> > "Dragon's Girl" <bettywir...@[EMAIL PROTECTED]
> wrote in message
>
>
>news:b3a6d5f2-507c-4b20-803e-9ea1990fc9b1@[EMAIL PROTECTED]
> > On Oct 9, 9:15 pm, Greegor <Greego...@[EMAIL PROTECTED]
> wrote:
>
> > > On Oct 7, 11:30 pm, Kent Wills <compu...@[EMAIL PROTECTED]
> wrote:
>
> > > > On Tue, 7 Oct 2008 18:44:45 -0700 (PDT), Greegor
<Greego...@[EMAIL PROTECTED]
>
> > > > wrote:
>
> > > > >BW > but it is completely possible that
> > > > >BW > the obvious mental illness was
> > > > >BW > developed AFTER the adoptions took
> > > > >BW > place, if, indeed, the children
> > > > >BW > were adopted at all.
>
> > > > >Betty, It's plain to see where your bias runs.
>
> > > > >You'll tell any lie if you think
> > > > >it will preserve the ""big picture"" system.
>
> > > > >Excusing violations of individual rights
> > > > >using the "greater good" excuse is not
> > > > >something new, Betty!
>
> > > KW > Contrary to what you wish were the case,
> > > KW > no one has the right to abuse a child.
>
> > > Your statements about my wishes are just puke.
> > > It's all you know!
>
> > > > >It's another example of how you are
> > > > >a complete stooge for the agencies.
>
> > > > >Remember, in the USA, RIGHTS OF THE INDIVIDUAL
> > > > >are supposed to trump expediency, greater good,
> > > > >and the ""Big Picture"" every time.
>
> > > KW > You didn't have the right to abuse Lisa's daughter.
>
> > > I did not abuse any child.
> > > Unlike you, I did not ever get a trial on that.
>
> > You didn't need a trial.
> > You admitted it on usenet.
> > We all know. =A0Why lie about it now?
>
> > We all know that a posting on Usenet holds up in a court of law!
>
> > > You were found guilty of using a minor in
> > > committing Felony Garage Burglary.
> > > Was that a bench trial or did you have a jury, Kent?
>
> > > You're a regular hamburglar.
> > > Do you own the striped socks that go with the outfit?
>
> Again, no one tried him.
> Didn't need to.
> He admitted it.
> Comparing usenet to a court is lame.
I admitted WHAT, Betty?
I admitted to doing stuff which YOU don't approve of.
Tough ****.
G > A fine Patriotic American you are, Betty Wirsen!
KW > Where you charged with a crime?
KW > If not, you don't have the right
KW > to a trial.
KW > You need to accept this simple truth.
The truth and you are light years apart.
Kent Wills, The only use you have for the
TRUTH is as something you USE to sell lies.
I see from your APPEAL in the Iowa Supreme Court
that you objected to a JURY instruction.
So you had a JURY trial!
http://groups.google.com.mx/group/soc.men/msg/ae9e6becafb58fe8
http://tinyurl.com/2n229g
http://64.233.167.104/search?q=3Dcache:6mvDMR00ZsQJ:caselaw.findlaw.com/scr=
ipts/getcase.pl%3Fcourt%3Dia%26vol%3Dsc%255C20050506%255C04-0202%26invol%3D=
1+kent+wills+iowa+burglary&hl=3Den&ct=3Dclnk&cd=3D2&gl=3Dus
http://www.doc.state.ia.us/InmateInfo.asp?OffenderCd=3D1155768
http://snipurl.com/felun
----------------------
Kent Bradley Wills - Iowa Appeal and Department of Corrections record
http://www.doc.state.ia.us/InmateInfo.asp?OffenderCd=3D1155768
http://snipurl.com/felun
Name Kent Bradley Wills
Offender Number 1155768
*** M
Birth Date 01/08/1969
Age 39
Location Interstate Compact
Offense BURGLARY 2ND DEGREE
County Of Commitment Polk
Commitment Date 01/16/2004
Duration
TDD/SDD * 01/16/2009
* TDD =3D Tentative Discharge Date
* SDD =3D Supervision Discharge Date
Supervision Status Offense Class County of Commitment End Date
Probation Aggravated Misdemeanor Polk
Probation C Felony Polk
Supervision Status Offense Class County of Commitment End Date
Probation Aggravated Misdemeanor Polk 11/25/2003
I see that Kent is saying this is not the truth.
How is that?
Are the Iowa court docket, Iowa Supreme Court
and Iowa Department of Corrections telling lies?
http://tinyurl.com/2n229g
http://64.233.167.104/search?q=3Dcache:6mvDMR00ZsQJ:caselaw.findlaw.com/scr=
ipts/getcase.pl%3Fcourt%3Dia%26vol%3Dsc%255C20050506%255C04-0202%26invol%3D=
1+kent+wills+iowa+burglary&hl=3Den&ct=3Dclnk&cd=3D2&gl=3Dus
IN THE SUPREME COURT OF IOWA
No. 31 / 04-0202
Filed May 6, 2005
STATE OF IOWA,
Appellee,
vs.
KENT BRADLEY WILLS,
Appellant.
Appeal from the Iowa District Court for Polk County, Michael D.
Huppert, Judge.
Defendant appeals claiming ineffective assistance of
counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, John P. Sarcone, County Attorney, and John Judisch,
Assistant County Attorney, for appellee.
WIGGINS, Justice.
Kent Wills appeals his conviction for second-degree
burglary contending that an attached garage is a
separate occupied structure from that of the
living quarters of the residence. In this appeal,
we must determine whether trial counsel was
ineffective for (1) failing to move for judgment
of acquittal on the basis there was insufficient
evidence to convict Wills of second-degree
burglary when he entered an attached garage of
a residence when no persons were present in
the garage, but when persons were present in
the living quarters; and (2) failing to object
to a jury instruction based on this same
argument. Because we find there was no legal
basis for the motion for judgment of acquittal
or the objection to the jury instruction,
Wills' trial counsel was not ineffective.
Accordingly, we affirm the judgment of the
district court.
I. Background Facts and Proceedings.
Around 1 a.m., an Ankeny resident called
the local police to re****t that a car alarm
sounded in the resident's neighborhood. The
city dispatched a police officer to the
location. Observing nothing unusual, the
officer left the area, only to be stopped
a couple of blocks later by a person who
informed the officer he had witnessed
someone running from the area of the car
alarm. As the officer started driving back
to the area of the car alarm, he noticed a
person walking on the sidewalk. The officer
asked the person, a minor, if he had noticed
anybody running from the area. The minor
answered that he had not. While the officer
and another officer were speaking to the
minor, another resident of the neighborhood
arrived in her car and informed the officers
that she had observed two people, one of whom
was heavy set with a blinking light on his
back pocket, walking in the area of her
neighbor's residence. She observed the
heavier-set individual, later identified
as Wills, enter her neighbor's attached
garage through an unlocked service door.
She further observed a smaller individual
standing by a van parked in the neighbor's
driveway.
The officers eventually let the minor leave
even though they found a large amount of
coins, a flashlight, and an electronic pocket
organizer in his pockets. After releasing
the minor, the police officers drove to the
residence where the neighbor observed the two
suspicious people and woke the owner. The
owner, his wife, and two daughters were in
the residence sleeping at the time. After
a search of his vehicles, the owner
discovered change and an electronic pocket
organizer were missing from the vehicles.
The owner's daughter re****ted a diamond
ring and some change were missing from her
vehicle. The officers then contacted the
minor's parents, who informed the officers
the minor was with Wills. After the
officers questioned the minor again, he
admitted his involvement in the theft and
implicated Wills in the burglary. Although
Wills denied involvement in the burglary,
the officers arrested him.
The State filed a trial information charging
Wills with second-degree burglary. The State
later amended the information to include two
additional charges of burglary in the third
degree and using a juvenile to commit an
indictable offense.
The jury returned a verdict finding Wills
guilty of the crimes of burglary in the
second degree, burglary in the third degree,
and using a juvenile to commit an indictable
offense. Wills appeals his conviction for
second-degree burglary claiming ineffective
assistance of counsel.
II. Scope of Review.
Claims of ineffective assistance of counsel
are derived from the Sixth Amendment of the
United States Constitution. Strickland v.
Wa****ngton, 466 U.S. 668, 684-86, 104 S. Ct.
2052, 2063-64, 80 L. Ed. 2d 674, 691-93 (1984).
Our review for a claim involving violations
of the Constitution is de novo. State v.
Fintel, 689 N.W.2d 95, 100 (Iowa 2004).
We normally preserve ineffective-assistance-
of-counsel claims for postconviction relief
actions. State v. Carter, 602 N.W. 2d 818,
820 (Iowa 1999). However, we will address
such claims on direct appeal when the record
is sufficient to permit a ruling. State v.
Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
The appellate record in the present case
is sufficient to allow us to address Wills'
ineffective-assistance-of-counsel claims
on direct appeal.
In order for a defendant to succeed on a
claim of ineffective assistance of counsel,
the defendant must prove: (1) counsel failed
to perform an essential duty and (2) prejudice
resulted. Id. Prejudice results when "there
is a reasonable probability that, but for the
counsel's unprofessional errors, the result
of the proceeding would have been different."
State v. Hopkins, 576 N.W.2d 374, 378
(Iowa 1998) (quoting Strickland, 466 U.S. at
694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Wills' arguments also raise issues of
statutory interpretation, which we review
for correction of errors at law. State v.
Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004).
III. Analysis.
To find Wills guilty of burglary in the
second degree, the State had to prove
Wills perpetrated a burglary "in or upon
an occupied structure in which one or more
persons are present . . . ." Iowa
Code =A7 713.5(2) (2003) (emphasis added).
In this appeal, Wills first contends his
trial counsel was ineffective for failing
to move for a judgment of acquittal on the
basis there was insufficient evidence to
sup****t a finding that at the time Wills
entered the garage, there were persons
present in or upon the occupied structure.
Wills concedes the garage was an occupied
structure, but argues the living quarters
and the attached garage are separate and
independent occupied structures; therefore,
the jury could not have found there were
people present in the attached garage at
the time of the burglary.
The Code defines an "occupied structure" as:
[A]ny building, structure, appurtenances
to buildings and structures, land, water
or air vehicle, or similar place adapted
for overnight accommodation of persons, or
occupied by persons for the purpose of
carrying on business or other activity
therein, or for the storage or safekeeping
of anything of value. Such a structure
is an "occupied structure" whether or not
a person is actually present.
Id. =A7 702.12.
Wills relies on State v. Smothers,
590 N.W.2d 721 (Iowa 1999), to argue the
garage and the living quarters are separate
and independent occupied structures. In
Smothers, two separate and distinct
businesses connected by interior fire
doors were operated in the same structure.
590 N.W.2d at 723. We held the defendant
committed two burglaries by entering each
business because "[t]he facility's
construction history and physical make-up
demonstrate that the ****tions are independent
working units which constitute '[a] combination
of materials to form a construction for
occupancy [or] use.'" Id. Smothers is not
at odds with the present case because the
living quarters and the garage are not
separate or independent units of the residence.
Our review of the record reveals the garage
in question was a three-car attached garage
separated from the living quarters by a door.
The same roof covered the garage as the rest
of the residence. The living quarters
surrounded the garage on two sides. It was
structurally no different from any other
room in the residence.
The garage was a functional part of the
residence. On the night of the incident,
the door was unlocked. The owner of the
residence used two stalls in the garage to
park the family vehicles. The owner used
the third stall for his motorcycle. As such,
the garage and the living quarters are a
single "structure" or "building" functioning
as an integral part of the family residence.
Thus, the residence including the garage
is a single "occupied structure" under
section 702.12. See, e.g., People v. Ingram,
48 Cal. Rptr. 2d 256 (Ct. App. 1995)
(holding defendant's entry into an attached
garage constituted first-degree burglary
because the garage was attached to the house;
therefore, burglary of the garage was
burglary of an inhabited dwelling house);
People v. Cunningham, 637 N.E.2d 1247, 1252
(Ill. App. Ct. 1994) (holding "ordinarily
an attached garage is a 'dwelling' because
it is part of the structure in which the
owner or occupant lives"); State v. Lara,
587 P.2d 52, 53 (N.M. Ct. App. 1978)
(holding "burglary of the [attached] garage
was burglary of the dwelling house because
the garage was a part of the structure used
as living quarters"); People v. Green,
141 A.D.2d 760, 761 (N.Y. App. Div. 1988)
(holding "[s]ince the garage in the present
case was structurally part of a building
which was used for overnight lodging of
various persons, it must be considered as
part of a dwelling"); White v. State,
630 S.W. 2d 340, 342 (Tex. Ct. App. 1982)
(holding an attached garage under the same
roof as the home would be considered a
habitation within the purview of the
penal code because the garage is a
structure appurtenant to and connected
to the house); State v. Murbach,
843 P. 2d 551, 553 (Wash. Ct. App 1993)
(holding the definition of a dwelling
under Wa****ngton's burglary statute
included an attached garage).
Had Wills' trial counsel moved for a
judgment of acquittal on the basis
there was insufficient evidence to
sup****t a finding that at the time Wills
entered the garage there were no persons
present in or upon the occupied structure,
it would have been overruled by the court
because the owner and his family were
present in the residence at the time
of the burglary.
Wills also claims his counsel was
ineffective for failing to object
to the jury instruction used by the
district court on the same ground;
that the living quarters were a separate
and independent occupied structure from
the attached garage. The instruction
as given stated:
The State must prove all of the
following elements of Burglary
in the Second Degree as to Count I:
1. On or about the 12th day of
August, 2003, the defendant or
someone he aided and abetted
broke into or entered the residence at . . . .
2. The residence at . . . was an
occupied structure as defined in
Instruction No. 29.
3. The defendant or the person he
aided and abetted did not have
permission or authority to break
into the residence at . . . .
4. The defendant or the person he
aided and abetted did so with the
specific intent to commit a theft therein.
5. During the incident persons were
present in or upon the occupied
structure.
If the State has proved all of the
elements, the defendant is guilty
of Burglary in the Second Degree.
If the State has failed to prove
any of the elements, the defendant
is not guilty of Burglary in the
Second Degree and you will then
consider the charge of Attempted
Burglary in the Second Degree
explained in Instruction No. 21.
(Emphasis added.)
Wills' claim is without merit. As we
have discussed, the residence is the
one and only "occupied structure" under
the facts of this case. Had Wills'
trial counsel made this objection to
the instruction, it would have been overruled.
Therefore, Wills' trial counsel is not
ineffective for failing to move for a
judgment of acquittal or objecting to
the instruction because there was no
legal basis for the motion or objection.
See State v. Hochmuth, 585 N.W.2d 234,
238 (Iowa 1998) (holding trial counsel
was not ineffective for failing to raise
an issue that has no merit).
IV. Disposition.
We affirm the judgment of the district
court because Wills' trial counsel was
not ineffective for failing to raise
meritless issues.
AFFIRMED.
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