State v. Banes, 910 N.W.2d 634

Background

Marcus Banes was tried for multiple December 2015 commercial burglaries/thefts and related offenses in Lee County; a jury convicted him of several counts of burglary, theft (first and second degree), criminal mischief, and ongoing criminal conduct.
The State’s primary witness was accomplice Devin Vawter, who testified he and Banes committed the break-ins and sold stolen goods; Vawter had a plea agreement in exchange for testimony.
Corroborating evidence included: recovered stolen items in an abandoned Jeep Cherokee, fingerprint/palmprint and footprint evidence, tire impressions consistent with the Jeep, identification of Banes at the sale of stolen tools, and possession of stolen purses by Banes’s girlfriend.
Banes challenged (1) the sufficiency of evidence for two burglary convictions and two theft convictions, and (2) the sufficiency of evidence for the ongoing-criminal-conduct charge; he also argued hearsay was admitted and trial counsel was ineffective for failing to object further.
The court affirmed the burglary/theft/criminal mischief convictions but vacated and remanded with instructions to dismiss with prejudice the ongoing criminal conduct conviction for lack of sufficient evidence of a ‘‘continuing basis.’n ### Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Banes)	Held
Sufficiency of evidence for burglary/theft counts	Accomplice testimony plus forensic, physical, and purchaser/custody evidence sufficiently connects Banes to the crimes	Vawter unreliable (plea deal); Jeep belonged to Vawter; misidentification; explanations for possession of items	Affirmed — substantial evidence supported convictions when viewed in light most favorable to State
Sufficiency for ongoing criminal conduct (continuing-basis element)	Predicate acts over December show related, repeated criminal activity committed for financial gain	Acts occurred only over days; no evidence of threat of future criminal activity or substantial temporal span	Reversed — insufficient evidence of closed- or open-ended ‘‘continuity’’; vacated and dismissed with prejudice
Admission of Benson family statements identifying Banes (hearsay)	Statements were admissible not for truth but to explain the Bensons’ responsive conduct (the car chase that led to recovery of jeep and property)	Statements were inadmissible hearsay identifying Banes; prejudiced Banes	Overruled — statements admissible to explain conduct; even if error, evidence of guilt was overwhelming so no prejudice
Ineffective assistance for failure to object further to hearsay	Counsel’s failure did not prejudice defendant given corroborating evidence	Counsel should have objected and preserved hearsay error	Denied — counsel not ineffective because admission was not objectionable as hearsay and, in any event, no prejudice shown

Key Cases Cited

State v. Sanford, 814 N.W.2d 611 (Iowa 2012) (standard of review for sufficiency: substantial evidence)
State v. Webb, 648 N.W.2d 72 (Iowa 2002) (substantial-evidence review; view evidence in light most favorable to State)
State v. Reed, 618 N.W.2d 327 (Iowa 2000) (adopts RICO continuity framework for ‘‘continuing basis’’ in ongoing-criminal-conduct statute)
State v. Barnes, 791 N.W.2d 817 (Iowa 2010) (accomplice testimony requires corroboration that tends to connect defendant to offense)
State v. Hall, 371 N.W.2d 187 (Iowa Ct. App. 1985) (possession of recently stolen property + circumstances can support inference of guilt)
State v. Canal, 773 N.W.2d 528 (Iowa 2009) (unchallenged jury instructions become law of the case for sufficiency review)
State v. Elliot, 806 N.W.2d 660 (Iowa 2011) (out-of-court statements are not hearsay when offered to explain responsive conduct)
State v. Mitchell, 450 N.W.2d 828 (Iowa 1990) (statement admissible as explanation of conduct only if the conduct itself is relevant)
State v. Leckington, 713 N.W.2d 208 (Iowa 2006) (prejudice standard for ineffective assistance claims)