IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1975
                            Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAUN MICHAEL SAVALA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Taylor County, Gary G. Kimes,

Judge.



      Shaun Savala appeals the trial court’s denial of his motion for judgment of

acquittal as to a second-degree theft charge contending the State failed to prove

the requisite specific intent. He further claims ineffective assistance of counsel.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                              2


POTTERFIELD, Presiding Judge.

         Shaun Savala appeals from his convictions for second-degree theft1 and

second-degree burglary.2        Savala asserts the trial court erred in denying his

motion for judgment of acquittal as to the second-degree theft charge,

contending the State failed to prove the requisite specific intent.      He further

argues ineffective assistance of counsel for his attorney’s failure to object to a

crime classification being told to the jury in an introductory statement to the jury

instructions. We affirm.

I. Background Facts and Proceedings

         During the summer of 2015, Savala began staying at his mother’s home.

His mother allowed him to stay at her home on the condition that Savala refrain

from using methamphetamine.             During one of his stays, Savala began

withdrawing from the effects of methamphetamine and began displaying volatile

and aggressive behavior. This led Savala’s mother to lock the door after him one

day and to tell him not to return to her home.

         On the morning of August 13, 2015, Savala returned to his mother’s home

despite her having forbidden him from doing so.         Savala testified he walked

thirteen miles throughout the night to reach his mother’s home.          When he

reached her home, he began knocking on her front door requesting to be allowed

in to gather his belongings from her house. Despite his repeated requests, his

mother refused to let him into the house.




1
    Iowa Code §§ 714.1(1), 714.2(2) (2015).
2
    Iowa Code § 713.5(1)(b).
                                        3


       After several minutes of trying to enter the house and his mother refusing

to open the door, Savala kicked in a window near the door. When he did this, his

mother sprayed him in the face with pepper spray. Angered, Savala retrieved his

own can of pepper spray from his backpack on the porch and returned to the

window to spray his mother in the face and on her body.

       During this time, his mother yelled for assistance from her other son who

resided in the home with her. She pleaded for that son to call 911. His mother

experienced what she described as excruciating burning pains in her eyes that

temporarily impaired her vision.

       When the other son entered the room, he saw Savala standing in the

home. That son left the room before returning again to find both his mother and

Savala gone from the house. Savala’s mother had run to a neighbor’s home for

fear Savala’s anger would escalate and he would subject her to further injury.

       At some point during this time, Savala found the keys to his mother’s new

car on the floor of the home. Savala claims the keys had been on a coffee table

near the window he kicked in. Knowing the police were en route and would

arrive quickly due to the small size of the town and his previous experiences with

the town’s police department, Savala took the keys and fled in his mother’s car.

       When his mother returned home and regained her sight, she noticed her

car was missing. She later testified that she did not give Savala permission to

take the vehicle.
                                          4


       Six days later, police officers conducted a buy-bust drug deal,3 in which

officers arrested a woman in a truck in a parking lot. Savala was a passenger in

that truck.   Although he refused to identify himself, officers identified him as

Savala and as being the person sought in connection with the theft of his

mother’s car. He was arrested pursuant to a warrant.

       Police officers testified Savala admitted to stealing his mother’s vehicle.

Savala eventually disclosed the location of his mother’s vehicle—inside a barn on

someone else’s property.       After the police impounded the car, his mother

recovered it by paying a fee in excess of $200.           The body of the vehicle

sustained scratches on its top, in front of the hood, and along the sides, as

though it had been driven through bushes. It also had mud packed underneath

it.

       The sole key to the vehicle was missing. Savala’s mother had to have the

car reprogrammed and had to purchase a new key. At the time of trial, Savala

had still not returned the key to his mother. He testified that he knew the person

who had the key but refused to disclose their identity saying, he is “not a snitch.”

He further testified, “If I get out, I will go get them and give them back to her.” He

also testified that he assumed his mother had a spare key.

       Savala testified at trial that he intended on returning the car to his mother

on the day he was arrested.




3
  A police officer testified this procedure is “when an officer or deputy will contact
someone they have as a confidential informant and uses them to purchase drugs.”
                                         5


II. Standards of Review

       “A motion for judgment of acquittal is a means of challenging the

sufficiency of the evidence, and we review such claims for corrections of errors at

law.” State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010). In so doing “[w]e

consider all of the record evidence viewed in the light most favorable to the State,

including all reasonable inferences that may be fairly drawn from the evidence.”

State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016) (citation omitted). “We will

uphold a verdict if substantial record evidence supports it.” Id. (citation omitted).

“Evidence is substantial when ‘a rational trier of fact could conceivably find the

defendant guilty beyond a reasonable doubt.’”        Id. (citation omitted).     If the

“evidence only raises ‘suspicion, speculation, or conjecture,’ it is not substantial

evidence.” Id. (citation omitted).

       We review ineffective-assistance-of-counsel claims de novo.             State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion

       A. Motion for Judgment of Acquittal

       Savala maintains the district court erred in denying his motion for

judgment of acquittal regarding the second-degree-theft charge. He contends

the State did not present sufficient evidence to prove he had the requisite intent

to permanently deprive his mother of her vehicle. He argues that his conviction

should be vacated and his case remanded for conviction on the lesser-included

offense of operating a motor vehicle without owner’s consent.

       For the theft charge, the State had the burden to establish Savala

committed theft when he took “possession or control of the property of another,
                                          6


or property in the possession of another, with the intent to deprive the other

thereof.” Iowa Code § 714.1(1). To prove Savala acted with the requisite intent

to permanently deprive his mother of her car, we must determine what Savala

was thinking when the act was done. See State v. Schminkey, 597 N.W.2d 785,

789 (Iowa 1999). Because of the nature of this type of inquiry, direct proof will

probably not be available and will depend on many factors. See id. We can infer

the existence of the specific intent “from the facts and circumstances surrounding

the act, as well as any reasonable inferences to be drawn from those facts and

circumstances.” Id.

          At trial, Savala admitted to taking his mother’s vehicle without her

permission. He testified that he had taken his mother’s other cars on many prior

occasions, sometimes without express permission, but that he always returned

the cars and the keys to her.       However, Savala’s mother testified that while

Savala had taken her cars in the past without her permission and that he had

always returned them, she had never allowed anyone, including Savala, to drive

this particular vehicle given that it was so new to her and she considered it her

“baby.” She also acknowledged that even in the past, Savala never returned a

car “trashed” or damaged.

          However, notwithstanding his prior incidents of taking his mother’s cars

without her permission, the circumstances surrounding how Savala took this

particular car provide valuable insight into his mental state at the time of the

taking.     First, Savala testified he went to his mother’s home to pick up his

clothing, which he described as being contained in several bags. However, he

arrived at his mother’s house on foot and had made no prior arrangements for a
                                            7


ride afterwards. Then, he took the car keys after having forcibly broken into his

mother’s home and assaulted her by spraying pepper spray in her face and on

her body. Savala testified that he saw his mother’s “car keys laying on the floor

so I just grabbed them and took off before the cops got there.” Finally, Savala

never returned the vehicle to his mother. The vehicle was recovered on the day

of his arrest when he revealed to police officers the car’s location, which was

hidden in a barn area away from public sight.         The vehicle’s damaged and

trashed condition also undermines the credibility of Savala’s claim he intended to

return the vehicle to his mother. Furthermore, Savala’s failure to identify the third

party in possession of the sole key to his mother’s car indicates a further intent to

permanently deprive his mother of her car.          These surrounding facts and

circumstances satisfy us that a rational jury could conclude Savala possessed

the necessary intent to permanently deprive his mother. We affirm.

       B. Ineffective Assistance of Counsel

       Savala also alleges that trial counsel’s failure to object to the introductory

statement of the jury instructions, when the second-degree-burglary charge was

identified as a class “C” felony, denied him constitutionally effective assistance of

counsel. He contends this is equivalent to informing the jury of the potential

punishment for the offense. He requests a new trial.

       To succeed on this claim, Savala must show by a preponderance of the

evidence that “(1) trial counsel failed to perform an essential duty, and (2)

prejudice resulted from this failure.” See State v. Fountain, 786 N.W.2d 260,

265-66 (Iowa 2010) (citation omitted). Savala must prove both elements of this

test, or his claim will fail. See id. at 266.
                                           8


       We ordinarily do not consider ineffective-assistance claims on direct

appeal. See State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981). While “[w]e

prefer to reserve such questions for postconviction proceedings so the

defendant’s trial counsel can defend against the charge . . . we depart from this

preference in cases where the record is adequate to evaluate the appellant’s

claim.” Id. (citation omitted).

       The questioned statement occurred in the moments leading up to the

court’s reading of the jury instructions to the jury.

               The County Attorney of Taylor County filed a trial information
       against the defendant, Shaun Michael Savala, charging the
       defendant with the following crimes: burglary in the second degree,
       a class “C” felony, in violation of sections 713.1 and 713.5(1)(b) of
       the Iowa Criminal Code; theft in the second degree in violation of
       sections 714.1(1) and 714.2(2) of the Iowa Criminal Code; and theft
       in the third degree in violation of sections 714.1 and 714.2(3) of the
       Iowa Criminal Code. The State has alleged that on or about the
       13th day of August, 2015, the above-named defendant broke into
       his mother’s home and then stole her car and $1,000.00 in cash
       from her. To this Information the defendant has entered pleas of
       not guilty. Upon the issues thus joined, you are instructed as
       follows . . . .

(Emphasis added.)

       The crux of Savala’s argument is that the jury was given inappropriate

information that permitted it to improperly consider the range of punishment

should they find Savala guilty of the offense, and that defense counsel’s failure to

object amounted to ineffective assistance. We disagree.

       We agree with Savala the court telling the jury the classification of the

charge was unnecessary.           However, we do not feel it rises to the level of

impropriety so as to require a new trial. “It is well-settled that juries should not be

instructed regarding the statutory penalty for the charged offenses.” State v.
                                           9

Hanes, 790 N.W.2d 545, 549 (Iowa 2010). As we have previously explained, “‘a

trial has one purpose—to seek the truth,’ and ‘[p]enalties have nothing to do with

the factual determination that a defendant did or did not commit a crime.’” Id.

(alteration in original) (citation omitted). “Knowledge of the penalty would only

serve to confuse and distract the jury from its unique and important judicial

function.” Id. (citation omitted).

         Here, the court’s statement indicated the level of felony but in no way

implied the potential punishment upon a finding of guilt. Additionally, the court

instructed the jury that “[t]he duty of the jury is to determine if the defendant is

guilty or not guilty. In the event of a guilty verdict, you have nothing to do with

punishment.”

         We are not satisfied that Savala has made a sufficient showing that

counsel breached a duty, as this could have been a strategic decision not to

draw the jury’s attention to the felony classification.4 In any event, the mention of

the felony classification was brief and did not prejudice Savala. Therefore, our

inquiry into counsel’s effectiveness necessarily ends. See Fountain, 786 N.W.2d

at 66.

IV. Conclusion

         Based on the foregoing, we find the trial court properly denied Savala’s

motion for judgment of acquittal, and we deny his ineffective-assistance-of-

counsel claim.

         AFFIRMED.

4
  See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001) (stating “[m]iscalculated trial
strategies and mere mistakes in judgment normally do not rise to the level of ineffective
assistance of counsel”).