From: Greegor on
G > The school teachers are NOT placed on
G > the child abuse registry for that.

KBW > But you want them to be, correct?

G > Do you think teachers and day care workers
G > should get punished less than parents for
G > the same kind of mistake?

KBW > Avoidance of the question asked noted.

Kent, you didn't even admit your NAME
even after you' were fully ID'd.

Usenet posters knew you were a liar
before I ever even heard of you, Kent.

Why WOULD a convicted GARAGE BURGLAR
who used a teen to commit his 2nd FELONY falsely
claim on the internet that he is a school teacher?







http://www.doc.state.ia.us/InmateInfo.asp?OffenderCd=1155768

IN PRINTED LAW BOOKS
West's North Western Reporter
Second Series
A Unit of the National Reporter System
Volume 696 N.W.2d 20,22 (Iowa 2005)

cited BY 06-1812 State v. CARROLL (Iowa 2007)
cited BY 08-0460 State v. Berry (Iowa 2009)

SUMMARY

http://www.iowabar.org/IowaSupremeCourt.nsf/9a275c73f72409f4862564bb00563305/13e618358d87043286256ffc0049df08!OpenDocument&Highlight=0,04-0202

A Home’s Attached Garage Can Be an Occupied Structure

State v. Wills, _____ N.W.2d _____ (Iowa 2005)(No. 31/04-0202)
Kent Bradley Wills argued that his trial attorney was ineffective
because of a failure to move for acquittal and to object to a jury
instruction. Wills argued an attached garage of a residence is a
separate occupied structure from the living quarters of the residence,
and the state failed to prove an element of a burglary charge against
him.

The Supreme Court, Wiggins, J., rejects Wills’ argument. The Court
notes the garage at the home involved in the incident was separated
from the living quarters by a door. The garage is a functional part of
the residence. The garage and living quarters are a single structure.
Under Iowa law (section 702.12, Iowa Code) the residence including the
garage is a single “occupied structure”. The Court writes, “Wills’
claim is without merit. . . . [T]he residence is the one and only
‘occupied structure’ under the facts of this case. Had Wills’ trial
counsel made this objection . . . , it would have been overruled.
Therefore, Wills’ trial counsel is not ineffective for failing to move
for a judgment of acquittal or object to the instruction because there
was no legal basis for the motion or objection.” The district court
decision denying Wills’ ineffective counsel motion is affirmed.

http://www.lexisone.com/lx1/caselaw/freecaselaw?searchType=keywordSearch&fclSearch=04-0202&action=FCLSearchCaseByTerms&pageLimit=10&format=CITE&pageNumber=1&sourceID=331&citation=&searchTerm=04-0202&sourceType=State&sourceCandidate=331&sourceCandidate=selectSource&relativeDate=1-NONE&fromDate=&toDate=&party=&judge=&counsel=

1. State v. Wills, No. 31 / 04-0202 , SUPREME COURT OF IOWA, May 6,
2005, Filed

OVERVIEW: Defendant's conviction for burglary under Iowa Code §
713.5(2) (2003) was affirmed as where defendant entered a garage that
was only separated from the living quarters by a door, the living
quarters including the garage were a single "occupied structure" under
Iowa Code § 702.12.

Kent's Appeal

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=sc%5C20050506%5C04-0202&invol=1

http://www.iowabar.org/IowaSupremeCourt.nsf/9a275c73f72409f4862564bb00563305/d2cfdda54a0050a086256ffc0049693c!OpenDocument&Highlight=0,04-0202

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 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 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 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 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.
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).

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 § 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 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. § 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 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.