IN THE COURT OF APPEALS OF IOWA

No. 17-0695

Filed August 15, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ISAIAH T. BUCHANAN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, 

Judge.

Isaiah Buchanan appeals from his convictions for robbery in the first degree, 

being a felon in possession of a firearm, and carrying weapons. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant 

Attorney General, for appellee.

Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2

DANILSON, Chief Judge.

Isaiah Buchanan appeals from his convictions for first-degree robbery, in 

violation of Iowa Code section 711.2 (2016); being a felon in possession of a 

firearm, in violation of section 724.26(1); and carrying weapons, in violation of 

section 724.4(1). Buchanan asserts the district court erred in instructing the jury 

that a claim of right is not a defense to theft because he did not raise the defense. 

In the alternative, he maintains that if this court concludes the claim-of-right

defense was implicated, his trial counsel was ineffective in failing to assert it

affirmatively. Buchanan also contends the court erred in denying Buchanan’s 

request to have three jurors removed for cause. Finally, he claims the district court 

erred in allowing the State to play the recordings of his jailhouse phone calls. 

We are not convinced Buchanan has suffered any prejudice as a result of 

the claim-of-right jury instruction. He cannot establish his trial attorney breached 

an essential duty in failing to raise a claim-of-right defense; this ineffectiveassistance-of-counsel claim thus fails. With respect to Buchanan’s juror challenge, 

Buchanan must show that the result was a juror being seated who was not 

impartial, which Buchanan has not attempted to do. Finally, we find no prejudicial 

error in the admission of the recorded jail phone calls. We therefore affirm his 

convictions.

I. Background Facts and Proceedings.

On April 4, 2016, Isaiah Buchanan confronted Jose Galindo inside J’s R&B

Lounge (hereinafter J’s) in Waterloo. Buchanan was carrying some sort of 

weapon, and when he left, he had Galindo’s coat. Buchanan was charged in four 
3

counts: robbery in the first degree, going armed with intent, being a felon in 

possession of a firearm, and carrying weapons. 

During jury selection, Buchanan moved to strike jurors 60, 7 and 92 for 

cause, and the district court denied Buchanan's motions as to all three potential 

jurors. Buchanan utilized peremptory strikes to remove jurors 60 and 7, but juror

92 remained on the panel and served as a juror in Buchanan’s trial.

In opening argument, defense counsel stated the evidence would show, 

Mr. Buchanan did ask Mr. Galindo for the money that he was owed.

The evidence will show that Mr. Galindo turned out his pockets and 

said “I don’t have any money but here, you can have my coat.” He 

offered his coat. Whether that was security, collateral for what was 

still owed or whether he thought that constituted some sort of partial 

payment, I don’t know. I don’t know what his rationale was in doing 

so. But what the evidence will show is that the coat was not

demanded from him. It was not taken from him. There was no theft 

involved. This was Mr. Galindo’s voluntary act to try to buy himself 

more time on the debt that he owed. 

The evidence will also show that Mr. Buchanan does have a 

past. As [prosecutor] Mr. Walz indicated, there is a stipulation. Mr. 

Buchanan will acknowledge that he has previously been convicted 

of a felony. That’s his past. He has come to terms with that. He 

accepts that. He is not hiding from that. He is not running from that. 

He acknowledges it. But I believe that the evidence will also show 

that that is not a violent past. That he does not have a history of 

doing the kind of things that he has been accused of here. And we 

intend to present witnesses including Mr. Buchanan who will say as 

much.

At trial, Galindo testified he had known Buchanan since they were young. 

A few days before the interaction at J’s, Buchanan pulled up in a vehicle in front of

Galindo’s house and Galindo saw Buchanan had a pistol in his lap, either a .38 or 

nine millimeter. Galindo stated, “I just told him to do what he had to do.” 

Then, on April 4, Galindo was at J’s with a friend, Rob, and played a game 

of pool. Rob left and Galindo was sitting at the end of the bar having some drinks 
4

and talking with the owner of the establishment, Jay Wilder. Galindo saw 

Buchanan enter J’s and approach Galindo “waving a gun” at him—the same gun 

Galindo had seen a few days earlier. Galindo testified Buchanan pointed the gun 

at his face and “said that he wanted the money from my pockets. I told him no, 

and then he decided to take my jacket.” Galindo stated the whole interaction lasted 

“a minute or less.” Galindo stated he feared Buchanan was going to shoot him. 

Galindo testified he did not owe Buchanan money and had never borrowed money 

from Buchanan. 

On cross-examination, Galindo acknowledged he did not tell police 

Buchanan had a gun when he pulled his car up to the residence. Galindo also 

testified as follows:

Q. Is there another incident that occurred around that time 

where you claim that Mr. Buchanan came up to your truck with a bat 

or something like that? A. He approached my truck.

Q. Were you in the truck? A. Yes. I was in the truck.

Q. Why did he approach your truck? A. I got waved down to 

stop so I stopped. I was with a friend of mine. He was in the 

passenger side. And he came up to the truck and started accusing 

me of something that I had no—no idea what he was talking about, 

and we just took off.

Q. So it had nothing to do with you owing Mr. Buchanan 

money? A. No, sir.

Q. Was there an incident around that time where you went to 

a person’s house to obtain some marijuana, and you saw Mr. 

Buchanan at that house? A. No, sir.

Q. Was there a time that you went to someone’s—around this 

time, around the April 4th time, that you went to someone’s house to 

get a movie and saw Mr. Buchanan? A. I can’t recollect that, sir.

Q. Was there a time around this April 4th date that you actually 

sat down with Mr. Buchanan and smoked marijuana with Mr. 

Buchanan? A. Years ago.

Q. You said that you don’t recall the incident where you went 

over to the friend’s house to go get movies; is that correct? A. That’s 

correct, sir.

. . . .
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Q. You do recall though getting your deposition taken here at 

the courthouse on December 2, 2016? A. Yes, I remember that, sir.

. . . . 

Q. So when you went to that friend’s house to get a movie, 

was Mr. Buchanan there? A. He showed up after I did.

Q. Mr. Buchanan, did he in any way demand money or that 

he be repaid for a debt? A. He demanded money, but I did not owe 

him any money, and I told him I don’t know what he was talking

about.

Q. So you don’t know anything about this debt that Mr. 

Buchanan claims that you owe? A. This debt—he wants—he wants 

to collect a debt from me that is not even about me. I don’t even 

know about the debt that he wants—he wants to collect something 

that I have nothing to do with. 

Q. So you do know something about this debt? A. Well, it was 

brought to my attention.

Wilder described that at about 7:30 p.m. on April 4, he was talking to Galindo 

at the end of the bar at J’s when he saw Buchanan, who “had a gun” that looked 

like a nine millimeter. Wilder owned a nine millimeter so he was familiar with its 

appearance. He stated he also knew what a Taser looked like, and Buchanan was 

not holding a Taser. Wilder said he could not understand what Buchanan was 

saying to Galindo because the music was loud, but he heard Galindo say, “I don’t 

have anything.” Buchanan then searched Galindo’s pockets while holding the gun 

against Galindo’s stomach. Galindo then said to Buchanan, “You can have my 

coat.” Wilder told Buchanan to “[g]et that thing out of here,” and Buchanan left, 

“apologiz[ing] to Mr. Jay . . . [he] didn’t mean no disrespect.” Wilder called the 

police when Buchanan left.

Police arrived and were talking with Wilder when Buchanan called J’s to ask 

if the police were there. Wilder said they were, and gave the phone to an officer, 

but Buchanan hung up. Investigator Brice Lippert retrieved the phone number from 

Wilder’s call history, and phone records confirmed it was Buchanan’s phone 
6

number. Lippert attempted to telephone Buchanan several times. Buchanan 

insisted he had not been at J’s and had nothing to talk to the officer about. Cell 

phone records indicate Buchanan traveled from Waterloo to Tennessee in the next 

several hours. 

The bartender, Tina Ackerson, testified she saw Buchanan enter the bar 

“like he was agitated,” approach Galindo, say something like “[j]ust give it up,” and 

“finally he demanded [Galindo’s] jacket and just pulled it off of him.” She stated 

she saw Buchanan with a gun in his hand, “swinging it back and forth” but not 

pointing it at anyone. Ackerson described the gun as a nine millimeter semiautomatic. She acknowledged she selected someone other than Buchanan from 

a photo lineup.

The prosecution also submitted audio recordings of several telephone calls 

Buchanan made from jail. Buchanan objected to the State’s introduction of 

recordings of Buchanan's jail phone calls because they were irrelevant and unduly 

prejudicial. The district court overruled his objection, concluding they were 

admissible as admissions by the defendant.

Buchanan testified he loaned Galindo $700 eight months before the incident 

at J’s, expecting repayment of $1000. Over the next eight months, Galindo paid 

about $680 but then started to avoid or evade Buchanan. Buchanan stated he had 

seen Galindo a few days before April 4, when he drove by Galindo’s residence and 

saw him outside. Buchanan testified:

I see him. I pull up. I stopped. I waved him to the car like come 

here. He come. He get in the car with me. And I'm like I asked him 

what’s up with my money? We’ve been playing games and this and 

that. So next thing you know, he tells me he didn’t have no money 

but his lady was going to cash a check, and she be back in [fifteen] 
7

minutes. So I told him I said—he said he was going to have some 

type of payment for me in [fifteen] minutes, so I told him I’m—just call 

me, you know what I’m saying? I gave him my new numbers 

because I changed my number again, and I told him to call me. And 

he had—he said he would, and I told him, I’m like—I tell him—I’m 

like, “Man, you can call me in an hour. Just get in touch with me.”

He didn’t call me. I started calling his phone. He don’t answer. I 

texted him. He don’t answer.

He denied having a firearm at the time. 

Buchanan testified that when he saw Galindo’s truck outside of J’s, he went 

in “to talk to him about my money.” When he saw Galindo, Galindo had a “beer 

bottle in his hand and a pool stick leaning against the bar,” so Buchanan pulled out 

a camouflage-colored stun gun “shaped like a gun” for self-protection. He testified, 

Well, when he stood up and—like as soon as I got close to 

him, he was like—well, like I told you, I had been calling him before 

prior to that day and the day before, and he wasn’t answering the 

phone. So as soon as he—I was kind of agitated when I seen him 

at the bar. He was spending money and you owe me money, you 

know what I’m saying? So I come in. He says—he—he greets me,

like what’s going on . . . and I immediately say where my money at. 

I probably use a little more French, but I was calm and I say where 

my money at.

Buchanan stated Galindo respond, “I don’t have any money” and showed 

Buchanan he had nothing in his pockets. Buchanan continued:

I don’t remember what exactly what was said after that, but next thing 

you know, he said, “Just—just take my coat.” And I told him “I don’t 

want your coat. I want my money.” But he started taking his coat 

off, and he had his coat in his hand, and he said, “Just take my coat,” 

and I snatched it out of his hand and throw it on the ground, like the 

cuff links was—I think it was—I’m facing—it is my right hand. It was 

in his right hand, and like one of the cuff links was still around his 

wrist, and I snatched it out of his hand, and he kind of stretched his 

hand out a little bit, and I threw it on the floor. I said, “I don’t want 

your F-ing coat. I want my money.” And I seen—I kinda seen like 

the tone in the bar kind of change, you know, like people was drunk 

and their attention was drawn to it right then when I threw the coat. I 

kind of raised my voice a little bit. I was really frustrated. So then 

that’s when Mr.—Mr. Jay says “You can’t do that here. You got to 
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go.” And Joey [Galindo] like “Just take the coat. Just take the coat, 

and let me get you your money. Take the coat.” And I apologize to

Mr. Jay, and because I didn’t mean no disrespect. I wasn’t trying to 

cause no scene or anything like that. I was just trying to speak with 

Mr. G, you know what I’m saying, and I apologized and I left. I took 

the coat and left.

Clifton Sallis testified he was shooting pool at J’s on April 4 and knows 

Galindo and Buchanan. Sallis saw Buchanan come into the bar and ask Galindo 

about money. Galindo said he didn’t have the money but offered his coat to 

Buchanan until he could pay him. Sallis testified Buchanan did not threaten or act 

aggressively toward Galindo. Buchanan took the coat, apologized to the crowd 

and left the bar.

The jury was instructed that to convict Buchanan of robbery in the first 

degree, the State must prove all of the following:

1. On or about April 4, 2016, the defendant had the specific 

intent to commit a theft.

2. To carry out his intention or to assist him in escaping from 

the scene, with or without the stolen property, the defendant

A. committed an assault on Jose Galindo by 

intentionally pointing a firearm toward Jose Galindo or 

intentionally displaying a dangerous weapon in a 

threatening manner toward Jose Galindo

or

B. threatened Jose Galindo with, or purposely 

put Jose Galindo in fear of, immediate serious injury.

3. The defendant was armed with a dangerous weapon. 

Instruction 15 provided: “Theft is taking possession or control of property 

that belongs to another with the intent to permanently deprive that other person of 

the property.”

Instruction 15A provided:

No person who takes, obtains, disposes of, or otherwise uses 

or acquires property is guilty of theft by reason of such act if the 

person reasonably believes that the person has a right, privilege or 
9

license to take, obtain, dispose of, or otherwise use or acquire the 

property, or if the person does in fact have such right, privilege, or 

license. However, this claim-of-right defense is not available to a 

person committing an offense involving a violent reclamation of 

property, such as a robbery.

Buchanan objected to this instruction, stating:

I understand the State’s position that claim of right is not—is not 

available as a defense to a person with regard to robberies, or case

law says robberies or burglaries or things of that nature. 

As those cases are stated, it appears to me that the defense 

is not entitled to an instruction that says that they may raise claim of 

right as a defense. That’s not, however, the same thing as saying 

that the State is entitled to an instruction saying it is not a defense. I

do believe that under the circumstances, and since I’m aware of the 

status of the law, that I would not be able to argue to the jury that it 

is a claim that—that it is a defense to raise a claim of right. But since 

I’m already precluded from raising that argument at least with regard 

to the charge of robbery, I think it is confusing to the jury to have that 

in as an instruction, particularly since one of the—that that charge 

does have some lesser included offenses that aren’t robbery. 

. . . .

. . . [I]t just seems like we’re getting a little far afield and 

potentially confusing the jury by advising them of certain things that 

I don’t believe either party is going to raise in its closing argument.

I’m certainly not intending to raise claim of right as a defense. I didn’t 

assert it as an affirmative offense. I could potentially raise 

justification to somewhat, you know, as regard to the lesser included

offense of assault, but as for specifically claim of right with regard to 

the element of committing a theft or intent to commit a theft, I’m 

aware that I can't raise that so I won’t be arguing it. So again, I just 

think having that additional language in there is actually more likely 

to confuse the jury than not.

After additional argument by counsel, the court ruled:

Listening to counsel’s arguments and as I’ve been thinking about this 

myself, including thinking about it out loud while I’m talking to you, 

there is a certain claim of right that’s implicit in the defendant’s 

version of events, whether it’s specifically called a claim of right or 

not. Under the circumstances given the way that the jury could 

choose to view the evidence, I agree with your contention, Mr. Walz

[the prosecutor], that—that someone could—could see that as an 

issue or have a question about that. Mr. Tang [defense counsel], I’m 

going to deny your exception to instruction number 15[A] for that 

reason.
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Buchanan was convicted of first-degree robbery, being a felon in 

possession of a firearm, and carrying a firearm. Buchanan’s motion for a new trial 

was denied. The court imposed a twenty-five-year indeterminate term on the 

robbery conviction, a five-year term on the felon-in-possession conviction, and a 

two-year term on the carrying weapons conviction. The sentences were to run 

concurrently. 

Buchanan now appeals claiming error in the jury instructions given, the 

denial of his objections to potential jurors for cause, and the admission of 

recordings of his jailhouse phone calls.

II. Scope and Standards of Review.

“‘[W]e review challenges to jury instructions for correction of errors at law.’ 

Our review is to determine whether the challenged instruction accurately states the 

law and is supported by substantial evidence. Error in giving a particular 

instruction does not warrant reversal unless the error was prejudicial to the party.”

State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010) (citation omitted). 

Claims of ineffective assistance of counsel are reviewed de novo. Ledezma 

v. State, 626 N.W.2d 134, 141 (Iowa 2001). In order to prevail on a claim of 

ineffective assistance of counsel, a claimant must prove that counsel failed to 

perform an essential duty and prejudice resulted. See id. at 142. “Both elements 

must be proven by a preponderance of the evidence. However, both elements do 

not always need to be addressed. If the claim lacks prejudice, it can be decided 

on that ground alone without deciding whether the attorney performed deficiently.” 

Id. (citations omitted).
11

“We review the district court’s rulings on challenges to potential jurors for 

cause for abuse of discretion.” State v. Jonas, 904 N.W.2d 566, 570 (Iowa 2017). 

“The district court is vested with broad discretion in such rulings.” Id. “An abuse 

of discretion will only be found when a court acts on grounds clearly untenable or 

to an extent clearly unreasonable.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 

2015) (citation omitted).

III. Discussion.

A. Jury instruction. On appeal, Buchanan asserts it was error for the district 

court to instruct the jury that a “claim-of-right” is not a defense to robbery because 

he was not relying on the defense. He maintains, “The jury should have been free 

to conclude that if Buchanan was only seeking to talk to Galindo about the debt 

and had no intention of taking anything from him, the State had failed to prove he 

had the specific intent to commit a theft.” He asserts the instruction deprived him 

of such a possibility.

“In a criminal case, the district court is required to instruct the jury as to the 

law applicable to all material issues in the case.” State v. Becker, 818 N.W.2d 135, 

141 (Iowa 2012), overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880 

N.W.2d 699, 708 n.3 (Iowa 2016). “On review for correction of errors at law, we 

are to ‘determine whether the challenged instruction accurately states the law and 

is supported by substantial evidence.’” State v. Green, 896 N.W.2d 770, 775 (Iowa 

2017) (quoting State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010)). “Error in giving 

or refusing to give a particular instruction warrants reversal unless the record 

shows the absence of prejudice.” Becker, 818 N.W.2d at 141 (quoting State v. 

Marin, 788 N.W.2d 833, 836 (Iowa 2010)); see also Iowa R. Civ. P. 1.924 (requiring
12

the district court to “instruct the jury as to the law applicable to all material issues 

in the case”); Iowa R. Crim. P. 2.19(5)(f) (“The rules relating to the instruction of 

juries in civil cases shall apply to the trial of criminal cases.”). Prejudice occurs if 

the erroneous “instruction could reasonably have misled or misdirected the jury.” 

State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015). 

Instruction 15A provided, 

No person who takes, obtains, disposes of, or otherwise uses 

or acquires property is guilty of theft by reason of such act if the 

person reasonably believes that the person has a right, privilege or 

license to take, obtain, dispose of, or otherwise use or acquire the 

property, or if the person does in fact have such right, privilege, or 

license. However, this claim-of-right defense is not available to a 

person committing an offense involving a violent reclamation of 

property, such as a robbery.

Prior to adoption of the Iowa Criminal Code, the Iowa Supreme Court held 

under the common law that a person seeking repayment of a debt owed to him 

does not have the felonious intent necessary to commit a robbery. See State v. 

Hollyway, 41 Iowa 200, 202-03 (1875). After the Iowa Criminal Code was adopted 

in 1976, this court found this “claim-of-right” defense was only available for a 

charge of theft as provided in section 714.4, which states:

No person who takes, obtains, disposes of, or otherwise uses 

or acquires property, is guilty of theft by reason of such act if the 

person reasonably believes that the person has a right, privilege or 

license to do so, or if the person does in fact have such right, privilege 

or license.

State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct. App. 2000). 

The first sentence of Instruction 15A is a recitation of section 714.4 and 

Uniform Jury Instruction 1400.19. In Miller, we noted, “The explicit language of 

section 714.4 appears to confine the claim-of-right defense to theft charges.” Id. 
13

at 785 n.2. We also observed, “The modern trend among other states has been 

to decline a claim-of-right defense to offenses involving force, such as robbery or 

burglary.”1 Id. at 785. Moreover, we acknowledged public policy “evinces the 

modern distaste for violent self-help,” lending support to our determination that the 

claim-of-right defense is not available to robbery and burglary charges. Id. at 785-

86. We have applied the principle since.2 The second sentence of Instruction 15A, 

thus, accurately states the law. 

We next turn to whether the instruction is supported by substantial 

evidence. See Green, 896 N.W.2d at 775. Buchanan was charged with firstdegree robbery. He asserts he did not raise the claim-of-right defense and the 

court erred in concluding the claim-of-right had been implicated. He asserts, “[T]he 

instruction had no relevance in this case.” 

Witnesses testified Buchanan, armed with a semiautomatic pistol, 

demanded money from Galindo, and then demanded Galindo’s jacket. One 

 

1 One author has noted “the traditional rule” is that the specific intent to steal is negated 

even if a person uses force to retrieve property to which they claim a right of possession, 

but the “modern trend” is to reject the claim-of-right defense when force is used. Joshua 

Dressler, Understanding Criminal Law 557-58 (6th ed. 2012) (citing Miller). 

2 For example, in State v. Moss, No. 10-0079, 2010 WL 5050561, at *3 (Iowa Ct. App. 

Dec. 8, 2010), we ruled:

Moss claims the $200 he was attempting to recover from Hughes 

does not provide a basis to support a robbery finding. He argues there was 

evidence from which a jury could find the debt was legitimate. However, 

the claim-of-right defense is unavailable against charges of burglary and 

robbery, which involve violent reclamation of property. 

And, more recently in State v. Mims, No. 12-2279, 2014 WL 956065, at *1 (Iowa 

Ct. App. Mar. 12, 2014), we rejected a defendant’s argument that the items he took from 

another “as a means to get his car back” did not support a burglary conviction, noting: 

[A] claim of right to property taken may not serve to negate intent to a 

charge of burglary. [Miller, 622 N.W.2d at 785] (concluding the claim-ofright defense provided in Iowa Code section 714.4 is only applicable to theft 

charges). Here, Mims lacked both a claim of right and a right to impose a 

condition before returning the property. 
14

witness stated Buchanan forcefully pulled the jacket from Galindo. Buchanan 

testified Galindo owed him money and that he had no interest in Galindo’s jacket, 

but Buchanan did not deny he took the jacket. We conclude this is sufficient 

evidence to support the giving of the instruction. 

Buchanan argues the instruction required the jury to convict him of robbery 

“even if Buchanan only wanted to talk to Galindo about the debt and his avoidance 

of paying it.” We disagree. The instruction references a person who “takes, 

obtains, disposes of, or otherwise uses or acquires property” and “violent 

reclamation.” Simply talking about a debt fits none of these terms, all of which 

require the gaining of possession. 

The instructions informed the jury that to find Buchanan guilty of robbery,

they had to find he had “the specific intent to commit a theft.” If the jury found only 

that Buchanan wanted to talk to Galindo about paying a debt owed, they could not 

find an intent to commit theft because theft was defined as “taking possession or 

control of property that belongs to another with the intent to permanently deprive 

that other person of the property.” Nothing in the instruction necessitates a finding 

of robbery without a defendant taking or obtaining something from the other.

The State’s case was based upon Buchanan taking the jacket at gunpoint 

from Galindo. Ackerson testified Buchanan grabbed the jacket from Galindo. 

Buchanan’s testimony was that he demanded money owed to him and took 

Galindo’s jacket because it was offered to him. It was for the jury to determine 

what Buchanan’s intent was in taking Galindo’s jacket.3 See State v. Tyler, 867 

 

3 Buchanan filed a supplemental pro se brief in which he argues, in essence, instruction 

15A deprived him of his ability to challenge the sufficiency of the evidence of his specific 
15

N.W.2d 136, 193 (Iowa 2015) (“Intent, and therefore guilt or innocence, is for the 

jury to determine.”); cf. State v. Brighter, 608 P.2d 855, 859 (Haw. 1980) (rejecting 

defendant’s claim-of-right defense but concluding the trial court’s instruction to the 

jury that a bona fide claim-of-right was not a defense to robbery “was at best 

harmless error.”). Moreover, the jury was properly instructed on specific intent:

“Specific intent” means not only being aware of doing an act 

and doing it voluntarily, but in addition, doing it with a specific 

purpose in mind. 

Because determining the defendant’s specific intent requires 

you to decide what he was thinking when an act was done, it is 

seldom capable of direct proof. Therefore, you should consider the 

facts and circumstances surrounding the act to determine the

defendant’s specific intent. You may, but are not required to, 

conclude a person intends the natural results of his acts.

Instruction 14. We are not convinced Buchanan has suffered any prejudice as a 

result of the claim-of-right jury instruction. 

We also note that in an analogous instance, our supreme court has 

concluded there was no merit to a defendant’s claim it was error to instruct a jury 

on the defense of intoxication although the defendant had not raised the defense 

of intoxication. State v. Jenkins, 412 N.W.2d 174, 176-77 (Iowa 1987). The court 

concluded there was substantial evidence of the defendant’s intoxication on the 

night in question, and “the court must instruct on all material issues so that the jury 

understands the matters which they are to decide.” Id. at 177; see also State v. 

Cortez, No. 09-1362, 2010 WL 3894443, at *11 (Iowa Ct. App. Oct. 6, 2010) 

(affirming the district court where there was substantial evidence of intoxication,

 

intent to commit a theft because the court “co[r]relate[d] receiving or accepting a willing

exchange of com[m]er[c]e with a[n] unwilling taking or a theft of co[m]mer[c]e with the 

claim of a [r]ight to do so.” 
16

and the district court submitted the instruction to help clarify the issues). Likewise, 

there is substantial evidence in our record related to a claim of right, and instruction 

15A was more likely to reduce confusion on the part of the jury by instructing on a 

person’s right or lack of right to reclaim property. Moreover, there is nothing in the

record that reflects the jury became confused during deliberations.

B. Ineffective assistance of counsel. Buchanan asserts that if a claim-ofright was implicated, his trial counsel was ineffective in not raising an affirmative 

defense. We have previously rejected a claim that counsel breached a duty in not 

raising a claim-of-right defense. In State v. Enochs, No. 15-1118, 2016 WL 

4384655, at *2-3 (Iowa Ct. App. Aug. 17, 2016), we observed:

Given the status of Iowa law on the claim-of-right defense, 

competent counsel was not compelled to find the issue was worth 

raising—and in the process, forego a favorable plea offer from the 

State.

Iowa recognizes a statutory claim-of-right defense in theft 

cases:

No person who takes, obtains, disposes of, or 

otherwise uses or acquires property, is guilty of theft by 

reason of such act if the person reasonably believes 

that the person has a right, privilege, or license to do 

so, or if the person does in fact have such right, 

privilege, or license.

Iowa Code § 714.4.

More than a decade ago, our court concluded that statute did 

not offer a defense to burglary or robbery charges:

The express terms of section 714.4 provide that it is 

only a defense to a theft charge. Burglary and robbery 

are not included. We may not—under the guise of 

statutory construction—enlarge or otherwise change 

the terms of a statute which require us to read 

something into the law that is not apparent from the 

words chosen by the legislature. We decline to 

legislate expansion of the defense.

[Miller], 622 N.W.2d [at] 785 (citations omitted). We have followed

Miller in the intervening years. See, e.g., [Mims], 2014 WL 956065, 

at *1; Greene v. State, No. 09–0233, 2009 WL 3379100, at *3 (Iowa 
17

Ct. App. Oct. 21, 2009); Bucklin v. State, No. 06–1942, 2008 WL 

375219, at *3 (Iowa Ct. App. Feb. 13, 2008).

Because Buchanan cannot establish his trial attorney breached an essential 

duty in failing to raise a claim-of-right defense, his ineffective-assistance-ofcounsel claim fails.4 See Ledezma, 626 N.W.2d at 142 (noting an ineffectiveness 

claim fails if either element is not proved).

 

4 This court is not alone in rejecting a claim-of-right defense to robbery and burglary. For 

instance, in State v. Hobbs, 64 P.3d 1218, 1222-23 (Utah App. 2003), the Utah court cited 

our case with approval and observed: 

Many other jurisdictions have addressed this issue and determined 

that although the claim of right defense may be statutorily available for theft 

offenses, it is not available for robbery or burglary offenses. For example, 

the Iowa Court of Appeals, considering an appeal of a burglary conviction, 

analyzed their robbery and burglary statutes to determine whether the 

claim of right defense was available for those crimes. See [Miller], 622 

N.W.2d [at] 785. The court determined that although Iowa’s claim of right 

defense statute expressly states its availability for a person “guilty of theft,” 

defendants accused of robbery and burglary were not permitted to use the 

defense. Id. The Miller court stated that to permit another interpretation 

“would require us to read something into the law that is not apparent from 

the words chosen by the legislature.” Id. The court went on to analyze the 

“modern trend . . . to decline to recognize the claim-of-right defense to 

offenses involving force, such as robbery or burglary.” Id.; see also People 

v. Tufunga, 987 P.2d 168, 177-78 (Cal. 1999) (outlining modern trend). 

The reasons for this conclusion are well-stated in State v. Ortiz, 305 A.2d 

800 (N.J. Super. Ct. App. Div. 1973), where the court found the proposition 

that a claim of right negates the felonious intent of robbery lacks logic and 

“is utterly incompatible with and has no place in an ordered and orderly 

society such as ours, which eschews self-help through violence. Adoption 

of the proposition would be but one step short of accepting lawless reprisal 

as an appropriate means of redressing grievances, real or fancied.” Id. at 

802.

We therefore hold that the claim of right defense is not available for 

the crime of robbery because the legislature specifically provided for the 

common law defense of claim of right only for theft charges. The exclusion 

of the defense for robbery charges is evidence of the legislature’s intent 

that it not be available for robbery. Consequently, the trial court correctly 

refused to instruct the jury on the claim of right defense.

See also Whitescarver v. State, 962 P.2d 192, 195 (Alaska Ct. App. 1998) (stating “there 

is no ‘claim of right’ defense to robbery”); State v. Schaefer, 790 P.2d 281, 284 (Ariz. Ct. 

App. 1990) (“From a policy standpoint, the claim of right defense remains anachronistic: it 

encourages disputants to resolve disputes on the streets through violence instead of 

through the judicial system.”); Thomas v. State, 584 So.2d 1022, 1026 (Fla. Dist. Ct. App. 

1991) (holding “the common law [claim-of-right] rule . . . is not available to defeat charges 
18

C. Juror challenges. Iowa Rule of Criminal Procedure 2.18(5)(k) allows a 

party to challenge a prospective juror if the juror has “formed or expressed such 

an opinion as to the guilt or innocence of the defendant as would prevent the juror 

from rendering a true verdict upon the evidence submitted on the trial.” The test 

to be applied under the rule is “whether the juror holds such a fixed opinion on the 

merits of the case that he or she cannot judge impartially the guilt or innocence of 

the defendant.” State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993) (quoting 

State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985)). The trial court is vested with 

broad discretion when ruling on a challenge for cause. State v. Tillman, 514 

N.W.2d 105, 107 (Iowa 1994).

In order to overcome the trial court’s ruling, “the defendant must show (1) 

an error in the court’s ruling on the challenge for cause; and (2) either (a) the 

challenged juror served on the jury, or (b) the remaining jury was biased as a result 

of the defendant’s use of all of the peremptory challenges.” Id. at 108. Where, as 

 

of robbery for forcibly taking money to satisfy a debt owed by the victim to the taker”); 

Westmoreland v. State, 538 S.E.2d 119, 121 (Ga. Ct. App. 2000) (“To allow a ‘claim of 

right’ defense to an offense, such as robbery by sudden snatching, within which the use 

of force is implicit would sanction the use of force to claim the property.”); Brighter, 608 

P.2d at 859.

But see State v. Smith, 118 A.3d 49, 56 (Conn. 2015) (“The robbery statutes 

prohibit the use or threat of physical force to commit a larceny. If a defendant had no 

intent to commit a larceny, we can perceive no reason why the legislature would have 

intended that the defendant still could be charged with robbery instead of being charged 

with other offenses, such as assault, unlawful restraint, threatening or reckless 

endangerment, that criminalize the use or threatened use of restraint or physical force, 

standing alone.”); see also Edwards v. State, 181 N.W.2d 383, 387 (Wis. 1970) (“If a 

person seeks to repossess himself of specific property which he owns and to which he 

has the present right of possession and the means he uses involves a gun or force, he 

might not have the intention to steal. While the reclamation of specific removable property 

at gun point by the owner may not be armed robbery, such self-help may and generally 

does constitute a lesser crime than robbery.”) 

See generally, 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(b) (3d ed. 

Oct. 2017 update) and cases cited therein. 
19

here, a challenged juror served on the jury, the defendant must show the jury was

biased. See Neuendorf, 509 N.W.2d at 746 (“In the absence of some factual 

showing that this circumstance resulted in a juror being seated who was not 

impartial, the existence of prejudice is entirely speculative.”).

Buchanan challenges the district court’s denial of his objections for cause 

to three jurors. The jurors had initially indicated some knowledge of the case or a 

potential witness but all asserted they could judge the proceedings fairly, based on 

the instructions. Buchanan used peremptory challenges to strike two of the three 

jurors, but juror 92 served on the jury. He does not assert, however, the resulting 

jury was biased. Buchanan urges this court to presume prejudice and find that 

under Iowa Rule of Criminal Procedure 2.18(5) and (9), his having to use 

peremptory challenges to dismiss the jurors constitutes structural error and 

Neuendorf must be overruled.

5

 This court addressed a similar challenge in State 

v. Ventura, No. 17-0661, 2018 WL 2084860 (Iowa Ct. App. May 2, 2018). There, 

we stated,

Following Neuendorf, “[t]he search for legal prejudice must therefore 

focus on the potential for prejudice that flowed from forcing defendant 

to use a peremptory challenge on [the challenged juror] that might 

have been used to remove another juror.” 509 N.W.2d at 746. It is 

up to the defendant to “make some factual showing that this 

circumstance resulted in a juror being seated who was not impartial.” 

Id.

While we are not at liberty to revisit precedent, our supreme 

court recently revisited Neuendorf in State v. Jonas, 904 N.W.2d 566,

 

5 Buchanan argues, 

Forcing the defendant to utilize peremptory strikes to remove 

biased jurors unfairly tips the balance of the adversarial proceeding in favor 

of the State by limiting a defendant’s ability to pick a jury it deems favorable 

on par with the State’s ability to do so. Effectively decreasing the number 

of peremptory strikes available to the defense under these circumstances 

violates the spirit of rule 2.18(9).
20

583-84 (Iowa 2017). In Jonas, the court ruled that when the district 

court abuses its discretion by improperly refusing “to disqualify a 

potential juror under Iowa Rule of Criminal Procedure 2.18(5)(k) and 

thereby causes a defendant to expend a peremptory challenge under 

rule 2.18(9), the defendant must specifically ask the court for an 

additional strike of a particular juror after his peremptory challenges 

have been exhausted.” 904 N.W.2d at 583. When the defendant 

does so, “prejudice will then be presumed.” Id. However, “where a 

judge improperly denies a challenge for cause but the defendant 

does not specifically ask for an additional peremptory challenge of a 

particular juror after exhausting his peremptory challenges,”

Neuendorf remains good law. Id.

Ventura, 2018 WL 2084860, at *1.

Even assuming the district court erred in denying Buchanan’s challenge for 

cause to Juror 92, he did not ask for an additional preemptory challenge. Thus, 

Buchanan must make some factual showing that the result was a juror being 

seated who was not impartial; that is, Buchanan must show actual prejudice.6 See 

Jonas, 904 N.W.2d at 584. He has not attempted to do so. We therefore reject 

his claim.

D. Jailhouse telephone recordings. At trial, Buchanan objected to 

recordings of his telephone calls made from jail to his girlfriend and to the mother 

of his children on the grounds they were of little or no relevance and would be 

unfairly prejudicial. Counsel asserted the “content of those calls is not probative 

of any element of any offense charged or of any defense” raised. The prosecutor 

described the substance of the recordings as follows:

 

6 As we observed in Ventura, “We are unconcerned that Jonas was decided after 

[Buchanan’s] trial but before [th]is appeal, as we apply the same test in either situation.” 

2018 WL 2084860, at *2 n.1. Before Jonas, Buchanan had the burden to establish that 

his jury was not impartial to create a presumption of prejudice under Neuendorf. After 

Jonas, because Buchanan did not request the additional peremptory strike, we still apply 

the actual prejudice test of Neuendorf.
21

The jail phone calls would be along the lines of [Buchanan] talking 

about Jose Galindo not testifying and him needing not to show up for 

depo[sition]s. They also involve him trying to set up an alibi defense 

with a mother of one of his children and what to say and how—and 

where he was and regarding statements about Tre [Clifton Sallis]

being there and not, and we do believe that him talking about what 

witnesses need to do and what—and setting up an alibi defense and

obviously through the defense’s opening statements would appear 

to be inconsistent with anything that the defendant’s going to say. 

But also just regardless of what the defense said in their opening 

statement setting up an alibi defense that is inconsistent with the 

evidence we do believe is relevant as far as the defendant’s

culpability in this case.

The trial court overruled the objections and allowed the statements “as admissions 

by the defendant.” 

If relevant, the district court can properly admit Buchanan’s statements on 

the audio recordings. See Iowa R. Evid. 5.801(d)(2)(A); State v. Odem, 322 

N.W.2d 43, 47 (Iowa 1982) (“It is basic that a party may place into evidence the 

admissions of a party-opponent.”). Therefore, we must determine if the proposed 

evidence was relevant and, if so, whether the probative value of the evidence is 

“substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence.” Iowa R. Evid. 5.403; State v. 

Neiderbach, 837 N.W.2d 180, 202 (Iowa 2013) (noting we apply a two-part test to 

determine whether evidence should be excluded under rule 5.403). Evidence is 

unfairly prejudicial when it “appeals to the jury’s sympathies, arouses its sense of 

horror, provokes its instinct to punish, or triggers other mainsprings of human 

action that may cause a jury to base its decision on something other than the 

established propositions in the case.” Neiderbach, 837 N.W.2d at 202 (citation 

omitted). 
22

The State argues the phone conversations were relevant to Buchanan’s 

guilty conscience and undercut his credibility. The State also maintains that even 

if the district court abused its discretion in admitting the phone calls, Buchanan 

suffered no prejudice from the parts of the phone calls concerning his working on 

an alibi defense and Galindo’s presence at a deposition because much of the 

evidence was already in the record. Officer Lippert testified Buchanan claimed not 

to have been at J’s at the time of the incident, and Jay Wilder testified Buchanan 

called the bar and told him to say he had not been there and Galindo would get his 

coat back. Galindo testified about attending his deposition.

Buchanan’s presence at J’s was not in issue after defense counsel 

acknowledged in opening statements that Buchanan was present. We 

acknowledge Buchanan did not raise an alibi defense, but efforts to contrive an 

alibi defense, or avoid conviction by Galindo failing to appear are relevant to 

consciousness of guilt. We agree the phone conversations on these topics were 

prejudicial to Buchanan but we are unable to conclude such evidence is unfairly 

prejudicial. See id.

On appeal, Buchanan also asserts that “half of the content of the recordings 

are hearsay statements of the women on the other line.” He acknowledges his 

trial counsel did not seek to redact any of the recordings played, and thus, his 

challenge must be addressed as a claim of ineffective assistance of counsel. 

Consequently, Buchanan must establish by a preponderance of the evidence that 

(1) counsel breached an essential duty in failing to assert these hearsay 

objections, and (2) the result of the trial would probably be different had the 

objection been made. See State v. Enderle, 745 N.W.2d 438, 440 (Iowa 2007). 
23

“If a defendant does not show prejudice, the case can be decided on that issue 

alone without the additional inquiry into whether counsel's performance was 

deficient.” Id.

We first address the claim of ineffective assistance of counsel for failure to 

seek a redaction of the claimed inadmissible or unfairly prejudicial evidence.

Buchanan objected to the audio evidence as being unduly prejudicial. If the 

objection had been sustained none of the recordings would have been admitted 

unless the State agreed, or the court ordered the offending portions deemed 

unfairly prejudicial to be redacted. Defense counsel is not ineffective for failing to 

seek redaction when counsel has made a proper objection to exclude all of the 

same evidence. Instead, it would have been incumbent upon the State to seek 

redaction of the offending portions in an effort to admit the remaining portions of 

the audio. Thus, we conclude counsel is not ineffective for failing to seek a 

redaction of a portion of an exhibit when counsel has made the same objection to 

the entirety of the exhibit. 

With respect to the women’s portions of the conversations, Buchanan

asserts “the most problematic aspect of the calls are the discussions in which [the 

mother of his children] Jada Mills encourages Buchanan to make a plea deal rather 

than take the case to trial.”7 During that call, Buchanan alleges Mills accuses 

Buchanan of lying and repeating that other people have told her he was “caught in 

 

7 Notwithstanding much effort, the recordings were only barely audible and, in some 

recordings, only the recipient of the call can be heard. It is not the court’s responsibility to 

assure the adequacy of the record relied upon by the parties. Moreover, we have no way 

of knowing how well the jury could hear the recordings. Finally, no transcripts of the 

recordings were admitted or made part of the record.
24

a lie,” and discusses how he will go to prison for seventeen years if he is convicted.

There was a conversation about Mills testifying for him and—as best we can tell—

she responded, “[Y]ou want me to say you were with me—it’s not going to work.” 

When he explains that he thinks he has a good chance at trial, she responds that 

“they have his [Galindo’s] statement, that’s all they need.” The conversation ends 

with her repeating a story she heard from someone else that he had gotten “caught 

in a lie in front of the judge.” In a later phone call, the call recipient discusses 

statements she put on Galindo’s Facebook page—that he’s “already proven to be 

a liar,” “people are mad about him lying,” that he “need[s] to go down there and tell 

the truth” after all the “lying” he’s “already been doing.”

8

 

The State asserts the statements by the recipients of Buchanan’s calls were 

not offered to prove the truth of the matter asserted but instead offered as context 

to Buchanan’s statements, and thus, the statements are not hearsay. 

The State also relies on Enderle, and while not directly on point, we find that 

case persuasive. In Enderle, the court concluded police officer statements “made 

during interrogations are not ‘testimony’ given by witnesses at trial and [are] not 

offered to impeach the defendant.” Id. at 443. Like the officers’ statements in 

Enderle, Mills’ statements provide context for the defendant’s responses. See 

Iowa R. Evid. 5.106.

9

 

8 Buchanan mistakenly asserts these statements were about him.

9 Rule 5.106 provides:

(a) If a party introduces all or part of . . . [a] recorded statement, an 

adverse party may require the introduction, at that time, of any other part 

. . . that in fairness ought to be considered at the same time.

(b) Upon an adverse party’s request, the court may require the 

offering party to introduce at the same time with all or part of the . . . 

recorded statement, any other part or any other . . . recorded statement 

that is admissible under rule 5.106(a). Rule 5.106(b), however, does not 
25

We agree with Buchanan the better practice would have been to redact 

these statements but, for the reasons previously stated, we do not lay this blame 

upon defense counsel in light of counsel’s objection. Even if Enderle is 

inapplicable to these facts, given the strength of the case against Buchanan, we 

conclude Buchanan has not shown that but for the admission of the objected to 

statements, the result of the proceedings would have been different. Further, 

Buchanan instigated much of the discussion by asking Mills to testify for him, 

knowing the call was being recorded. We find it difficult to conclude he was unduly 

prejudiced by Mills’s responses when he continued the recorded conversation 

about his chances at trial.

Here, Buchanan admitted going to J’s to demand money from Galindo. 

Several witnesses testified he was armed with a pistol, demanded money from 

Galindo, and took his coat. He also acknowledged he had lied to police that he 

was not at J’s the night of the incident. His claim of ineffective assistance of 

counsel thus fails.

IV. Conclusion.

The State’s case was based upon Buchanan taking the jacket at gunpoint 

from Galindo. It was for the jury to determine what Buchanan’s intent was in taking 

Galindo’s jacket. The jury was properly instructed on specific intent and we are 

not convinced Buchanan has suffered any prejudice as a result of the claim-ofright jury instruction. Buchanan cannot establish his trial attorney breached an 

 

limit the right of any party to develop further on cross-examination or in the 

party’s case in chief matters admissible under rule 5.106(a).
26

essential duty in failing to raise a claim-of-right defense and his ineffectiveassistance-of-counsel claim thus fails. With respect to his juror challenge, 

Buchanan must show that the result was a juror being seated who was not 

impartial, which Buchanan has not attempted to do. Finally, we find no prejudicial 

error in the admission of the recorded jail phone calls. 

AFFIRMED.