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Case No. 18-0898

State of Iowa
v.
Brandon Samuel Proctor

Appellee

State of Iowa

Appellant

Brandon Samuel Proctor

Attorneys for Appellee

Martha E. Trout, Assistant Attorney General

Attorneys for Appellant

Christopher J. Roth

Court of Appeals

Court of Appeals Opinion

Opinion Number:
18-0898
Date Published:
Jun 19, 2019
Summary

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Doyle, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (10 pages)

            Brandon Proctor appeals his convictions of first-degree theft, eluding, driving while barred, trespass, and criminal mischief.  OPINION HOLDS:  We find the district court did not err in its decision declining to give a jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We conclude there is substantial evidence in the record to support Proctor’s convictions of first-degree theft and eluding.  We determine there is not substantial admissible evidence in the record to support Proctor’s conviction for fourth-degree criminal mischief.  We find Proctor has not shown he received ineffective assistance on his claim regarding a proposed jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We find his claim he received ineffective assistance because defense counsel did not file a motion to suppress should be preserved for possible postconviction relief.  We affirm Proctor’s convictions of first-degree theft, eluding, driving while barred, and trespass.  We reverse his conviction of fourth-degree criminal mischief and remand to the district court for a new judgment and sentencing order.

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