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Name Kent Bradley Wills Offender Number 1155768
Sex 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 = Tentative Discharge Date * SDD = Supervision Discharge Date
Supervision Status Offense Class County of Commitment End Date
Probation Aggravated Misdemeanor Polk Probation C Felony
Supervision Status Offense Class County of Commitment End Date
Probation Aggravated Misdemeanor Polk 11/25/2003
IN THE SUPREME COURT OF IOWA
No. 31 / 04-0202
Filed May 6, 2005
STATE OF IOWA,
KENT BRADLEY WILLS,
Appeal from the Iowa District Court for Polk County, Michael D.
Defendant appeals claiming ineffective assistance of
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.
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 report
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
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
reported 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
II. Scope of Review.
Claims of ineffective assistance of counsel are derived from the Sixth
Amendment of the United States Constitution. Strickland v.
Washington, 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).
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
§ 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 support 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 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. § 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
portions 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 Washington'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 support 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
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.
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).
We affirm the judgment of the district court because Wills' trial
counsel was not ineffective for failing to raise meritless issues.