IN THE COURT OF APPEALS OF IOWA

No. 15

- 0144 Filed October 12, 2016

JONATHAN LEE BREWER JR. , Applicant

- Appellant,

vs.
STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink
, Judge.

Jonathan Brewer appeals from the denial of his application for
postconviction relief. AFFIRMED.

Karmen R. Anderson of the Law Office of Karmen Anderson
, Des Moines
, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout , Assistant
Attorney General, for appellee State.

Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*

* Senior j udge assigned by order pursuant to Iowa Code section 602.9206 (2015).2

DANILSON, Chief Judge.
Jonathan Brewer appeals from the denial of his application for
postconviction relief (PCR), contending his criminal trial and appellate counsel
provided constitu tionally defective representation. The district cour t rejected his
claims. On appeal, Brewer as serts the district court erred in concluding trial
counsel was not ineffective and the prosecutor’s improper closing arguments
were not prejudicial.
I. Backg round Facts and Proceedings.
The background facts are set out in detail in State v. Brewer , No. 11

- 1330,

2012 WL 38607 4 5, at *1

- 2 (Iowa Ct. App. Sept. 6, 2012). In short
, Darshelle
Moore dated both Jonathan Brewer and Henry Palmer. Brewer , 2012 WL

386075, at *1

. On February 13, 2011, Brewer burst through the door of M oore’s
apartment and thr ew gasoline on Palmer’s grandson (Tyrone Cameron) and then
threw the gasoline can at Palmer , who had come to investigate the loud noises.

Id. Moore called 911 , which resulted in police searching for Brewer and his

vehicle

. Id. Cameron’s girlfriend, Renee Thompson, testified she was at the
apartment but hiding when the door was forced open. Id. She also testified that
earlier that night, Brewer was driving a truck and had rammed her vehicle with
his own, stopped her vehicle, and then threatened Cameron. Id. Thompson and

Cameron then d rove away t o Moore’s building. Id. Palmer identified Brewer as

the intruder at trial . T he jury found Brewer guilty of firs t

- degree burglary. Id. at

*3

- 4.
Brewer sought a new trial based on newly discovered evidence

— an
affidavit from Moore, who did not testify at trial or appear for her deposition. Id.3

at *6. The trial court held hearings on the motion, twice delaying the hearing until
Moore was present to testify. While Moore’s affidavit stated she “ never stated to
anyone involved in the trial that Jonathan L. Brewer was there or had anything to

do with that crime ,” she admi tted she “might” have called 911, and that if the 911
dispatcher told the police that Jonathan Brewer was involved in the burglary, that
information would have come from the person who placed the 911 call. T he

court overruled the motion for new trial

.
O n appeal
, we affirmed the conviction, concluding in part: “ Given the
strong evidence that Brewer was the person who broke into the apartment and
doused Cameron with gasoline, we agree with the district court’s assessment
that Moore’s affidavit was not newly discovered material evidence that would
have changed the outcome of the trial. ” Id. at *7.
Brewer filed a PCR application, asserting trial and appellate counsel were

ineffective and the prosecutor had engaged in misconduct . With respect to trial

coun sel, Brewer maintained counsel failed in several respects. Brewer
contended counsel did not adequately investigate witnesses
, did not adequately
impeach witness es with their deposition testimony
, did not object to improper
closing remarks by the prosecuto r, and failed to object to the jury instruction
defining the elements of first

- degree burglary. He also assert ed appellate

counsel should have raised the additional issues on direct appeal.
Following a hearing, the district court r ejected his claims of ineffective

assistance of counsel. The PCR court addressed each of Brewer’s claims.
When summarizing, the court wrote:4

The trial in this case was fair. [Brewer’s] guilt was evident. His counsel was an experienced criminal lawyer, but she was limited by the violent and indisputable nature of her client ’ s conduct. A lawyer, no matter how skilled, cannot change the inculpatory facts blatantly or unde niably created by the defendant’ s conduct. The overwhelming evidence of [Brewer’s] guilt precludes any conclusion that, even if any of his claims had merit,

. . . the verdict would have been different. Mr. Brewer has not met his burden to prove ineffective assistance of trial or appellate counsel. Nor has he shown how trial counsel’ s f ailure to do any of the things complained of amounted to a breach of an essential duty. He has failed to prove he was prejudiced by the alleged errors of trial counsel. Given the record, all other claims made are without merit, and, even if supported by the record, would probably not lead to a different verdict. The petition for postconviction relief is denied.
Brewer appeals.
II. Scope and Standard of Review.
Generally, we review postconviction rulings on error. Ledezma v. State
, 626 N.W.2d 134, 141 (Iowa 2001). But we review claims of ineffective

assistance of counsel de novo because they are based on constitutional
guarantees under the United States and Iowa Constitutions

. Nguyen v. State
, 878 N.W.2d 744, 750 (Iowa 2016). We apply a two

- pronged test: “We ask if trial
counsel breached an essential duty.” Id. at 752. “We also ask whether prejudice
resulted from said breach. The [applicant] has the burden of proving both
elements by a preponderance of the evidence.” Id. (cit ation omitted). We “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [applicant] must overcome the
presumption that, under the circumstances, the challenged action ‘mi ght be
considered sound trial strategy.’” Id. (quoting Strickland v. Washington
, 466 U.S.5

668, 689 (1984) (citation omitted)). Moreover, if the applicant fails to prove either

element, we need not address the other. Id. at 754.

III. Discussion.
Upon our de novo review, we agree with the district court ’s ruling that

m any of Brewer ’s complain t s involve reasonable strategic decisions by trial and
appellate counsel, and in any event, Brewer failed to prove any claimed error
caused prejudice. We thus do n ot address further Brewer’s assertions that trial
counsel conducted an inadequate investigation 1 and failed to impeach Thompson
with her criminal history
, 2 or that appellate counsel failed to raise the issues of
prosecutorial misconduct and the impropriety of the marshalling instruction on
burglary in the first degree. And because we agree with the district court that
Brewer did not prove trial counsel was ineffective, his claim that appellate

counsel was ineffec tive in failing to raise the additional contentions is without

merit. See State v. Taylor , 689 N.W.2d 116 , 134 (Iowa 2004) (noting the
“important” principle that “counsel has no duty to raise an issue that lacks merit”)

. We address only two of his many c laims in more detail.

1 As explained in Ledezma , 626 N.W.2d at 145 , “ Counsel is required to conduct a reasonable investigation or make reasonable decisions that make a particular investigation unnecessary. Thus, the duty to investigate is not unlimited, and trial counsel is not required to interview every potential witness. ” (Citations omitted

. ) Here, Brewer’s claim related only to the fail ure to investigate a potential witness, but even if investigated an d called as a witness, we do not believe the result of the trial was likely to have changed. 2 While trial counsel testified she could not “recall a strategic reason for not doing so,” and that it “may simply have been an error on my part,” not to impeach Thompson with the witness’s prior felony convictions, we agree with the district court’s finding that Brewer cannot prove prejudice result ed in light of the strength of the other evidence against him

.6

A. Jury i

nstructions. Brewer contends that trial counsel was ineffective in
failing to object to the marshalling instruction for first

- degree burglary. 3 The jury

was instructed:

The State must prove all of the following elements of Burglary in the First Degree: 1. On or about the 13th day of February, 2011, the Defendant entered a residence

. . . ; 2. The residence was an occupied structure as defined in Instruction No. 20 ; 3. Persons were present in the occupied structure; 4. T he Defendant did not have permission or authority to enter the residence

. . . ; 5. The Defendant did so with the specific intent to commit an assault, theft or felony

; and 6. During the burglary, Defendant had possession of incendiary material. If the State has proved all of the elements, the Defendant is guilty of Burglary in the First Degree. If the State has failed to prove any one of the elements, the Defendant is not guilty of Burglary in the First Degree and you will then consider the charge of Attempted Burglary in the First Degree explained in Instruction No. 22.
(Emphasis added.)

Brewer contends the trial court was required to instruct the jury on the
specific felony, theft
, or assault Brewer intended commit , and trial counsel did not

o bject to the instructions. The State agrees such an instruction is required
, see

State v. Mesch , 574 N.W.2d 10, 12 (Iowa 1997) , but argues Brewer cannot

3 Iowa Code section 713.1 provides:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or af ter the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.7

establish prejudice

. As to this claim, 4 the PCR court concluded Brewer had

“ failed to establish that if trial counsel had objected to any of the instructions, the

result of the trial would have been different. ”

In Mesch
, in addition to the general instruction about burglary, the trial

court had defined “assault” and “theft” in separate instructions . It did not
, however, specify what felony the defendant had inten d ed to commit. The court

wrote:

One of the elements of common

- law burglary was that the breaking and entering be “with the intent to commit a felony” therein. In keeping with the common

- law def inition, we hold that the intent to commit a felony, assault or theft is an element of attempted burglary under section 713.2. The State is therefore required to specify the felony that the defendant intended to commit after the breaking and entering. To avoid confusion or speculation on the part of the jury, the district court must also instruct on the elements constituting the felony. Failure to do both is reversible error. See State v. Gordon
, 560 N.W.2d 4, 6

– 7 (Iowa 1997) (holding court must leave t o jury determination of elements of offense). See also Iowa Crim. J [ury] Inst. 1300.4 (1993) (indicating that burglary instruction must “describe” felony). Here, over [the defendant’s] objection , the district court simply instructed the jury in terms of the statute: [Defendant] at tempted to enter “with the specific intent to commit a felony, assault, or theft.” The district court was required to specify what felony [the defendant] intended to commit after the breaking and entering and the elements consti tuting such felony. Its failure to do so constituted reversible error. Requiring the State to specify the felony is not onerous. W hile the State may not know what the defendant actually intended to do inside the dwelling, the State knows very well what evidence of intent it has. If the State has evidence of intent to commit certain felonies, and not others, it should request instructions only on those the evidence supports. The district court cannot submit instructions on felonies for which there is no evidence.

. . . In addition, unless we require the State to specify the felony or felonies, [this defendant] and defendants similarly situated may be convicted on

4 The PCR court characterized the claim: “ Brewer complains that trial counsel breached an essential duty by failing to object to the jury instructions. Applicant misunderstands the elements of burglary and mischaracterizes the evidence and the court’ s instructions .”8

nothing more than proof of “who knows what she would have been up to had she entered.”

Mesch , 574 N.W.2d at 14

- 15

.
In State v. Oetken
, 613 N.W.2d 679, 686 (Iowa 2000)
, the court explained:
To commit burglary in Iowa, a person unlawfully entering a premises must have the intent to commit a felony, assault or theft therein. See Iowa Code § 713.3. In Mesch
, the trial court refused to instruct the jury as to which crime or felony an accused charged with burglary intended to commit. We reversed the defendant’ s conviction on the grounds that, unless the State limits its prosecution and request ed jury instructions to theft or assault, the State must specify which felony it believes a burglar intended to commit. Mesch
, 574 N.W.2d at 14. We also directed the court to instruct the jury as to the elements constituting the felony

. Id. Generally, a court is required to instruct the jury as to the pertinent issues, the law, and the definition of the crime. State v. Kellogg
, 542 N.W.2d 514, 516 (Iowa 1996); Henderson v. Scurr
, 313 N.W.2d 522, 525 (Iowa 1981). Particular terms need not be defined, though, if readily understood by persons of ordinary intelligence. Only technical terms or legal terms of art must be explained. Kellogg
, 542 N.W.2d at 516. We need not decide, however, whether “theft” is a term readily understood by persons of ordinary intelligence or whether it is a legal term of art warranting a definitional instruction. Even assuming an instruction defining the crime of theft should have been given, we conclude the defendant suffered no prejudice from the absence of such an instruct ion here.
Thus, instructional error is not necessarily reversible error

. Oetken , 613 N.W.2d

at 686. And in Oetken
, n o reversible error was found because:
In the context of the burglary statute and the facts presented herein, the evidence overwhelmingly indicated Oetken [the defendant] intended to commit theft by breaking into private residences, and stealing firearms, televisions, and other personal propert y. Oetken was not prejudiced by the jury’ s understanding of the term “theft.” Nor, for the reasons set forth in the previous division , was he prejudiced by the jury’ s application of the commonly accepted meaning of “possession.” It is therefore
unnecess ary for us to consider whether his attorney abrogated a duty by failing to request further instruction in these regards.

Id

.9

Here, we are not convinced Brewer’s conviction was “on nothing more
than proof of ‘ who knows what [] he would have been up to had [] he entered. ’ ”

Mesch , 574 N.W.2d at 1 5. The State made its theory clear in closing

arguments

— that Brewer had the intent to commit an assault

. Now, there could be alternative theories of what [Brewer] was going to do. Was he going to commit attempted mu rder? Was he going to commit a willful injury? He’s certainly committed an assault, right? I mean, pouring gasoline on a person is an assault

. We conclude, i n the context of the burglary statute and the facts presented

at the trial , the evidence overwhelmingly indicated Brewer i ntended to commit an
assault after breaking and entering. See State v. Clay , 824 N.W.2d 488, 499

- 500
(Iowa 2012) (finding that even though trial counsel should have objected to
prosecutor’s misstatement of l aw with respect to intent to deprive, evidence
showed defendant intended to permanently deprive owner of vehicle)

. 5

Consequently, we agree with the district court that Brewer failed to establish
prejudice by counsel’s failure to object to the erroneous in structions or appellate
counsel’s failure to raise the issue on direct appeal

.

5 The Clay court wrote:

With this testimony in the record, we cannot say trial counsel’s conduct in not objecting to the prosecutor’s statement of law regarding the crime of theft is sufficient to undermine our confidence in the verdict. We say this because the only evidence in the record was the out

- of

- court statements regarding Clay’s intent that he stole the vehicle and had the intent to take it to South Dakota. This evidence could lead a reasonable jury to conclude that Clay took the car for more than a joyride and is suffic ient for the jury to find Clay had the intent to permanently deprive Overman of his vehicle. Therefore, this evidence does not undermine our confidence in the verdict, even if the court had properly instructed the jury that Clay had to have the intent to permanently deprive Overman of his vehicle in order to commit a theft. 824 N.W.2d at 499

- 500.10

B. Prosecutor’s statements during closing argument. Brewer claims
the prosecutor improperly vouched for the credibility a witness and injected his

person al opinions in closing arguments. Brewer argues he was denied a fair trial
by trial counsel’s failure to object to prosecutorial misconduct and appellate
counsel’s failure to raise the issue on appeal. We will refer to Brewer’s
allegations as claims of “prosecutorial error.” 6 See State v. Schlitter
, 881 N

. W

. 2d

380 , 393

- 94 (Iowa 2016).
In analyzing Brewer’s claims , we must first decide if prosecutorial error

occurred. See id. at 394 (“ We discussed the role of the prosecutor in criminal

cases in [ State v. ] Graves
, 668 N.W.2d [860,] 870 [(Iowa 2003)]

. We also
identified a multifactor test to evaluate the statements made during closing
arguments in determining if there was misconduct and if that misconduct was

6 In Schlitter

, our supreme court stated: Prosecutorial misconduct includes those statements “where a prosecutor intentionally violates a clear and unambiguous ob ligation or standard imposed by law, applicable rule or professional conduct,” as well as “those situations where a prosecutor recklessly disregards a duty to comply with an obligation or standard.”

. . . Prosecutorial error occurs “where the prosecutor e xercises poor judgment” and “where the attorney has made a mistake” based on “excusable human error, despite the attorney’s use of reasonable care.”

. . . This distinction also conforms to the general definitions for misconduct and a trial error. Compare Misconduct, Black’

s Law Dictionary (10th ed. 2014) (defini ng misconduct as “[a]n attorney’ s dishonesty or attempt to persuade a court or jury by using deceptive or reprehensible methods”), w ith Trial Error, Black’

s Law Dictionary (defining trial error as “[a] mistake in or deviation from proper trial procedure during the presentation of a case to a jury”). Going forward, we adopt the ABA’ s recommendation on our review of prosecutorial behavior and distinguish between incidences of prosecutorial error and prosecutorial misconduct. A prosecutor who has committed error should not be described as committing misconduct. 881 N.W.2d at 393

- 94 (citations omitted) (emphasis added).11

prejudicial. Id. at 877

- 78. These same factors easily t ranslate to an evaluation of
prosecutorial error.”)

. 7

If prosecutor error occurred and defense counsel failed to object,
we must then consider whether an attorney performing within the range of normal competency would have made an objection and/or requ ested a mistrial. If there is no possibility that trial counsel ’ s failure to act can be attributed to reasonable trial strategy, then we can conclude the defendant has established that counsel failed to perform an essential duty.

. . . The final step of our analysis, should the defendant ’ s claim survive to this point, will be to assess whether the record permits a determination of the prejudice prong of the ineffective

- assistance claim. In this regard, we will examine whether there is a reasonable probab ility the outcome of the trial would have been different had trial counsel performed competently.

Graves , 668 N.W.2d at 870

. It is the prosecutor’s duty to assure the accused a fair trial. Id. And while
a prosecutor is allowed “some latitude during closing argument in analyzing the
evidence” and “may argue the reasonable inferences and conclusions to be
drawn from the evidence,” the prosecutor may not express personal beliefs. Id.
at 874 (cit ations omitted).

Brewer maintains the following statements by the prosecutor in closing

were i mproper: “Renee [Thompson] is a very credible witness.” “I’m sure Tyrone
[Cameron] was absolutely afraid [ to identify Brewe r.]” Even if we were to agree

7 The Graves court noted a n isolated act of prosecutorial error may not amount to a constitutional violation

. 668 N.W.2d at 880.

“ [I]t is the prejudice resulting from [prosecutorial error], not the [prosecutorial error] itself, that entitles a defendant to a new trial.” In determining prejudice the court looks at several factors “within the context of the entire trial.” We consider (1) the severity and pervasiveness of the [prosecutorial error] , (2) the significance of the [prosecutorial error] to the central issues in the case, (3) the strength of the State’s evidence, (4) the use of cautionary instructions or other curative measur es, and (5) the extent to which the defense invited the [prosecutorial error]. Id

. at 869 (citations omitted).12

the first comment constituted improper vouching f or Thompson’s credibility or the
second comment constituted improper personal opinion
, see id.
, Brewer’s
criminal appeals counsel testified she reviewed the record, considered the best
possible issues to raise, and excluded those she believed lacked merit
, including
a claim of prosecutorial error

. 8 A ppellate counsel must exercise sound discretion
in selecting which issues to raise on appeal

. The prosecutor’s statements were isolated and not particularly signi ficant
in contrast to the strength of Palmer’s testimony identifying Brewer as the
intruder who poured gasoline on his grandson and threw the gas can at Palmer.

In the context of the entire trial, we agree that any failure to object did not
prejudice Brew er and appellate counsel breach ed no duty in deciding not to raise
the issue on appeal

. See Ledezma , 626 N.W.2d at 143 (miscalculated strategies
and mere mistakes in judgment normally do not rise to the level of ineffective
assistance of counsel).

8 Appellate counsel testified:

If this is an isolated incident, the Court’ s not going to do anything about it. I mean, it has to kind of flow throughout the closing arguments. The other thing that the c ourt would say about this is how it ’ s done is couched into how it corroborates with other testimony and how her testimony is not really controverted by anything else. So as I said, it ’ s done mor e as a comparison, you know, her testimony compared with everybody else. No one ’ s really contradicting her. And then he says, you know, that makes her

— and he submits that she ’ s a credible witness. I mean, if he was doing it throughout the cl osing argume nt, you know, Renee’ s telling the truth, such

- and

- such is telling the truth, that would be more problematic. But this isolated incident of saying she’ s very credible and in comparison

— and then, you know, compares the other testimony, that ’ s not going to b e a reversible error. Q. If [the prosecutor] were to make comments about other witnesses, such as Tyrone Cameron, being scared to come forward with the truth or other comments such as that, do you think that would make this issue more problematic? A. No, I don’ t think so.13

The d istrict court concluded Brewer failed to establish the requisite
prejudice to prove trial and appellate counsel provided constitutionally deficient
representation. U pon our de novo review
, we agree. Therefore, w e affirm the
denial of Brewer’s application for postconviction relief.

AFFIRMED.