On Sat, 18 Oct 2008 00:21:04 -0600, "Reality_Check©"
 wrote:

>Kent Wills wrote:
>> On Fri, 17 Oct 2008 20:46:51 -0600, "Reality_Check©"
>>  wrote:
>>
>> [...]
>>
>>>>> Yep ... a serious mark !
>>>>
>>>> Sort of
>>>
>>> No, a serious mark.
>>
>>    I don't think tjab's going to get a serious mark.  That you think
>> so is fine, but I doubt many will agree with you.
>
>We know, jackass.
>

    You agree with me again.  Cool.
    In time, you may start to agree that your racism is stone cold
stupid, and change your life accordingly.


Me:
    Given that like you, tjab doesn't believe I'm Kent Wills, unless
 he's been lying about what he calls Rule #1, he'll likely feel the
 burn for a bit.  Metaphorically anyway.

Prof. Jonez/Reality Check/assorted other nyms:

Yep ... a serious mark !

Me:

   Wow.  I wouldn't expect you to agree with me.

Message-ID:

Kent Wills wrote:
> On Sat, 18 Oct 2008 00:21:04 -0600, "Reality_Check©"
>  wrote:
>
>> Kent Wills wrote:
>>> On Fri, 17 Oct 2008 20:46:51 -0600, "Reality_Check©"
>>>  wrote:
>>>
>>> [...]
>>>
>>>>>> Yep ... a serious mark !
>>>>>
>>>>> Sort of
>>>>
>>>> No, a serious mark.
>>>
>>>    I don't think
>>
>> We know, jackass.
>>
>
>    You agree with me again.  Cool.

"The jury returned a verdict finding Kent Wills guilty of the crimes of
burglary in the second degree, burglary in the third degree, and using
a juvenile to commit an indictable offense."

http://www.doc.state.ia.us/InmateInfo.asp?OffenderCd=1155768

Name    Kent Bradley Wills
Offender Number    1155768
Sex    M
Birth Date    01/08/1969
Age    38
Location    Interstate Compact
Offense    BURGLARY 2ND DEGREE
County Of Commitment    Polk
Commitment Date    01/16/2004
Duration
TDD/SDD *01/16/2009



> http://WWW.judicial.state.ia.us/Supreme_Court/Recent_Opinions/2005050...


> IN THE SUPREME COURT OF IOWA
> No. 31 / 04-0202
> Filed May 6, 2005


> STATE OF IOWA,
>          Appellee,
> vs.
> KENT BRADLEY WILLS,
>          Appellant.


> Appeal from the Iowa District Court for Polk County, Michael D.
> Huppert, Judge.


>          Defendant appeals claiming ineffective assistance of
> counsel.  AFFIRMED.


> Linda Del Gallo, State Appellate Defender, and Tricia Johnston,
> Assistant State Appellate Defender, for appellant.


> Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
> General, John P. Sarcone, County Attorney, and John Judisch, Assistant
> County Attorney, for appellee.


> WIGGINS, Justice.


> Kent Wills appeals his conviction for second-degree burglary
> contending that an attached garage is a separate occupied structure
> from that of the living quarters of the residence.  In this appeal, we
> must determine whether trial counsel was ineffective for (1) failing
> to move for judgment of acquittal on the basis there was insufficient
> evidence to convict Wills of second-degree burglary when he entered an
> attached garage of a residence when no persons were present in the
> garage, but when persons were present in the living quarters; and (2)
> failing to object to a jury instruction based on this same argument.
> Because we find there was no legal basis for the motion for judgment
> of acquittal or the objection to the jury instruction, Wills' trial
> counsel was not ineffective.  Accordingly, we affirm the judgment of
> the district court.


> I.  Background Facts and Proceedings.


> Around 1 a.m., an Ankeny resident called the local police to report
> that a car alarm sounded in the resident's neighborhood.  The city
> dispatched a police officer to the location.  Observing nothing
> unusual, the officer left the area, only to be stopped a couple of
> blocks later by a person who informed the officer he had witnessed
> someone running from the area of the car alarm.  As the officer
> started driving back to the area of the car alarm, he noticed a person
> walking on the sidewalk.  The officer asked the person, a minor, if he
> had noticed anybody running from the area.  The minor answered that he
> had not.  While the officer and another officer were speaking to the
> minor, another resident of the neighborhood arrived in her car and
> informed the officers that she had observed two people, one of whom
> was heavy set with a blinking light on his back pocket, walking in the
> area of her neighbor's residence.  She observed the heavier-set
> individual, later identified as Wills, enter her neighbor's attached
> garage through an unlocked service door.  She further observed a
> smaller individual standing by a van parked in the neighbor's
> driveway.


> The officers eventually let the minor leave even though they found a
> large amount of coins, a flashlight, and an electronic pocket
> organizer in his pockets.  After releasing the minor, the police
> officers drove to the residence where the neighbor observed the two
> suspicious people and woke the owner.  The owner, his wife, and two
> daughters were in the residence sleeping at the time.  After a search
> of his vehicles, the owner discovered change and an electronic pocket
> organizer were missing from the vehicles.  The owner's daughter
> reported a diamond ring and some change were missing from her
> vehicle.  The officers then contacted the minor's parents, who
> informed the officers the minor was with Wills.  After the officers
> questioned the minor again, he admitted his involvement in the theft
> and implicated Wills in the burglary.  Although Wills denied
> involvement in the burglary, the officers arrested him.


> The State filed a trial information charging Wills with second-degree
> burglary.  The State later amended the information to include two
> additional charges of burglary in the third degree and using a
> juvenile to commit an indictable offense.


> The jury returned a verdict finding Wills guilty of the crimes of
> burglary in the second degree, burglary in the third degree, and using
> a juvenile to commit an indictable offense.  Wills appeals his
> conviction for second-degree burglary claiming ineffective assistance
> of counsel.


> II.  Scope of Review.


> Claims of ineffective assistance of counsel are derived from the Sixth
> Amendment of the United States Constitution.  Strickland v.
> Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64, 80 L. Ed.
> 2d 674, 691-93 (1984).  Our review for a claim involving violations of
> the Constitution is de novo.  State v. Fintel, 689 N.W.2d 95, 100
> (Iowa 2004).  We normally preserve ineffective-assistance-of-counsel
> claims for postconviction relief actions.  State v. Carter, 602 N.W.2d
> 818, 820 (Iowa 1999).  However, we will address such claims on direct
> appeal when the record is sufficient to permit a ruling.  State v.
> Artzer, 609 N.W.2d 526, 531 (Iowa 2000).  The appellate record in the
> present case is sufficient to allow us to address Wills' ineffective-
> assistance-of-counsel claims on direct appeal.


> In order for a defendant to succeed on a claim of ineffective
> assistance of counsel, the defendant must prove:  (1) counsel failed
> to perform an essential duty and (2) prejudice resulted.  Id.
> Prejudice results when "there is a reasonable probability that, but
> for the counsel's unprofessional errors, the result of the proceeding
> would have been different."  State v. Hopkins, 576 N.W.2d 374, 378
> (Iowa 1998) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068,
> 80 L. Ed. 2d at 698).  Wills' arguments also raise issues of statutory
> interpretation, which we review for correction of errors at law.
> State v. Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004).


> III.  Analysis.


> To find Wills guilty of burglary in the second degree, the State had
> to prove Wills perpetrated a burglary "in or upon an occupied
> structure in which one or more persons are present . . . ."  Iowa Code
> § 713.5(2) (2003) (emphasis added).


> In this appeal, Wills first contends his trial counsel was ineffective
> for failing to move for a judgment of acquittal on the basis there was
> insufficient evidence to support a finding that at the time Wills
> entered the garage, there were persons present in or upon the occupied
> structure.  Wills concedes the garage was an occupied structure, but
> argues the living quarters and the attached garage are separate and
> independent occupied structures; therefore, the jury could not have
> found there were people present in the attached garage at the time of
> the burglary.


> The Code defines an "occupied structure" as:


> [A]ny building, structure, appurtenances to buildings and structures,
> land, water or air vehicle, or similar place adapted for overnight
> accommodation of persons, or occupied by persons for the purpose of
> carrying on business or other activity therein, or for the storage or
> safekeeping of anything of value.  Such a structure is an "occupied
> structure" whether or not a person is actually present.


> Id. § 702.12.


> Wills relies on State v. Smothers, 590 N.W.2d 721 (Iowa 1999), to
> argue the garage and the living quarters are separate and independent
> occupied structures.  In Smothers, two separate and distinct
> businesses connected by interior fire doors were operated in the same
> structure.  590 N.W.2d at 723.  We held the defendant committed two
> burglaries by entering each business because "[t]he facility's
> construction history and physical make-up demonstrate that the
> portions are independent working units which constitute '[a]
> combination of materials to form a construction for occupancy [or]
> use.'"  Id. Smothers is not at odds with the present case because the
> living quarters and the garage are not separate or independent units
> of the residence.


> Our review of the record reveals the garage in question was a three-
> car attached garage separated from the living quarters by a door.  The
> same roof covered the garage as the rest of the residence.  The living
> quarters surrounded the garage on two sides.  It was structurally no
> different from any other room in the residence.


> The garage was a functional part of the residence.  On the night of
> the incident, the door was unlocked.  The owner of the residence used
> two stalls in the garage to park the family vehicles.  The owner used
> the third stall for his motorcycle.  As such, the garage and the
> living quarters are a single "structure" or "building" functioning as
> an integral part of the family residence.  Thus, the residence
> including the garage is a single "occupied structure" under section
> 702.12.  See, e.g., People v. Ingram, 48 Cal. Rptr. 2d 256 (Ct. App.
> 1995) (holding defendant's entry into an attached garage constituted
> first-degree burglary because the garage was attached to the house;
> therefore, burglary of the garage was burglary of an inhabited
> dwelling house); People v. Cunningham, 637 N.E.2d 1247, 1252 (Ill.
> App. Ct. 1994) (holding "ordinarily an attached garage is a 'dwelling'
> because it is part of the structure in which the owner or occupant
> lives"); State v. Lara, 587 P.2d 52, 53 (N.M. Ct. App. 1978) (holding
> "burglary of the [attached] garage was burglary of the dwelling house
> because the garage was a part of the structure used as living
> quarters"); People v. Green, 141 A.D.2d 760, 761 (N.Y. App. Div. 1988)
> (holding "[s]ince the garage in the present case was structurally part
> of a building which was used for overnight lodging of various persons,
> it must be considered as part of a dwelling"); White v. State, 630 S.W.
> 2d 340, 342 (Tex. Ct. App. 1982) (holding an attached garage under the
> same roof as the home would be considered a habitation within the
> purview of the penal code because the garage is a structure
> appurtenant to and connected to the house); State v. Murbach, 843 P.2d
> 551, 553 (Wash. Ct. App 1993) (holding the definition of a dwelling
> under Washington's burglary statute included an attached garage).


> Had Wills' trial counsel moved for a judgment of acquittal on the
> basis there was insufficient evidence to support a finding that at the
> time Wills entered the garage there were no persons present in or upon
> the occupied structure, it would have been overruled by the court
> because the owner and his family were present in the residence at the
> time of the burglary.


> Wills also claims his counsel was ineffective for failing to object to
> the jury instruction used by the district court on the same ground;
> that the living quarters were a separate and independent occupied
> structure from the attached garage.  The instruction as given stated:


> The State must prove all of the following elements of Burglary in the
> Second Degree as to Count I:


> 1.  On or about the 12th day of August, 2003, the defendant or someone
> he aided and abetted broke into or entered the residence at . . . .


> 2.  The residence at . . . was an occupied structure as defined in
> Instruction No. 29.


> 3.  The defendant or the person he aided and abetted did not have
> permission or authority to break into the residence at . . . .


> 4.  The defendant or the person he aided and abetted did so with the
> specific intent to commit a theft therein.


> 5.  During the incident persons were present in or upon the occupied
> structure.


> If the State has proved all of the elements, the defendant is guilty
> of Burglary in the Second Degree.  If the State has failed to prove
> any of the elements, the defendant is not guilty of Burglary in the
> Second Degree and you will then consider the charge of Attempted
> Burglary in the Second Degree explained in Instruction No. 21.


> (Emphasis added.)


> Wills' claim is without merit.  As we have discussed, the residence is
> the one and only "occupied structure" under the facts of this case.
> Had Wills' trial counsel made this objection to the instruction, it
> would have been overruled.


> Therefore, Wills' trial counsel is not ineffective for failing to move
> for a judgment of acquittal or objecting to the instruction because
> there was no legal basis for the motion or objection.  See State v.
> Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (holding trial counsel was
> not ineffective for failing to raise an issue that has no merit).


> IV.  Disposition.


> We affirm the judgment of the district court because Wills' trial
> counsel was not ineffective for failing to raise meritless issues.


> AFFIRMED.



>
> Andrew Usher

On Sat, 18 Oct 2008 13:14:37 -0600, "Reality_Check©"
 wrote:

>Kent Wills wrote:
>> On Sat, 18 Oct 2008 00:21:04 -0600, "Reality_Check©"
>>  wrote:
>>
>>> Kent Wills wrote:
>>>> On Fri, 17 Oct 2008 20:46:51 -0600, "Reality_Check©"
>>>>  wrote:
>>>>
>>>> [...]
>>>>
>>>>>>> Yep ... a serious mark !
>>>>>>
>>>>>> Sort of
>>>>>
>>>>> No, a serious mark.
>>>>
>>>>    I don't think tjab's going to get a serious mark.  That you think
>>>> so is fine, but I doubt many will agree with you.
>>>
>>> We know, jackass.
>>>
>>
>>     You agree with me again.  Cool.
>>     In time, you may start to agree that your racism is stone cold
>> stupid, and change your life accordingly.
>

    I've accepted that you agree with me.  You don't need to continue
letting me, or anyone else, know.  It's fine that you want to, but
it's not needed.  Really.


Me:
    Given that like you, tjab doesn't believe I'm Kent Wills, unless
 he's been lying about what he calls Rule #1, he'll likely feel the
 burn for a bit.  Metaphorically anyway.

Prof. Jonez/Reality Check/assorted other nyms:

Yep ... a serious mark !

Me:

   Wow.  I wouldn't expect you to agree with me.

Message-ID: 



>"The jury returned a verdict finding Kent Wills guilty of the crimes of
>burglary in the second degree, burglary in the third degree, and using
>a juvenile to commit an indictable offense."
>
>http://www.doc.state.ia.us/InmateInfo.asp?OffenderCd=1155768
>
>Name    Kent Bradley Wills
>Offender Number    1155768
>Sex    M
>Birth Date    01/08/1969
>Age    38
>Location    Interstate Compact
>Offense    BURGLARY 2ND DEGREE
>County Of Commitment    Polk
>Commitment Date    01/16/2004
>Duration
>TDD/SDD *01/16/2009
>
>
>
>> http://WWW.judicial.state.ia.us/Supreme_Court/Recent_Opinions/2005050...
>
>
>> IN THE SUPREME COURT OF IOWA
>> No. 31 / 04-0202
>> Filed May 6, 2005
>
>
>> STATE OF IOWA,
>>          Appellee,
>> vs.
>> KENT BRADLEY WILLS,
>>          Appellant.
>
>
>> Appeal from the Iowa District Court for Polk County, Michael D.
>> Huppert, Judge.
>
>
>>          Defendant appeals claiming ineffective assistance of
>> counsel.  AFFIRMED.
>
>
>> Linda Del Gallo, State Appellate Defender, and Tricia Johnston,
>> Assistant State Appellate Defender, for appellant.
>
>
>> Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
>> General, John P. Sarcone, County Attorney, and John Judisch, Assistant
>> County Attorney, for appellee.
>
>
>> WIGGINS, Justice.
>
>
>> Kent Wills appeals his conviction for second-degree burglary
>> contending that an attached garage is a separate occupied structure
>> from that of the living quarters of the residence.  In this appeal, we
>> must determine whether trial counsel was ineffective for (1) failing
>> to move for judgment of acquittal on the basis there was insufficient
>> evidence to convict Wills of second-degree burglary when he entered an
>> attached garage of a residence when no persons were present in the
>> garage, but when persons were present in the living quarters; and (2)
>> failing to object to a jury instruction based on this same argument.
>> Because we find there was no legal basis for the motion for judgment
>> of acquittal or the objection to the jury instruction, Wills' trial
>> counsel was not ineffective.  Accordingly, we affirm the judgment of
>> the district court.
>
>
>> I.  Background Facts and Proceedings.
>
>
>> Around 1 a.m., an Ankeny resident called the local police to report
>> that a car alarm sounded in the resident's neighborhood.  The city
>> dispatched a police officer to the location.  Observing nothing
>> unusual, the officer left the area, only to be stopped a couple of
>> blocks later by a person who informed the officer he had witnessed
>> someone running from the area of the car alarm.  As the officer
>> started driving back to the area of the car alarm, he noticed a person
>> walking on the sidewalk.  The officer asked the person, a minor, if he
>> had noticed anybody running from the area.  The minor answered that he
>> had not.  While the officer and another officer were speaking to the
>> minor, another resident of the neighborhood arrived in her car and
>> informed the officers that she had observed two people, one of whom
>> was heavy set with a blinking light on his back pocket, walking in the
>> area of her neighbor's residence.  She observed the heavier-set
>> individual, later identified as Wills, enter her neighbor's attached
>> garage through an unlocked service door.  She further observed a
>> smaller individual standing by a van parked in the neighbor's
>> driveway.
>
>
>> The officers eventually let the minor leave even though they found a
>> large amount of coins, a flashlight, and an electronic pocket
>> organizer in his pockets.  After releasing the minor, the police
>> officers drove to the residence where the neighbor observed the two
>> suspicious people and woke the owner.  The owner, his wife, and two
>> daughters were in the residence sleeping at the time.  After a search
>> of his vehicles, the owner discovered change and an electronic pocket
>> organizer were missing from the vehicles.  The owner's daughter
>> reported a diamond ring and some change were missing from her
>> vehicle.  The officers then contacted the minor's parents, who
>> informed the officers the minor was with Wills.  After the officers
>> questioned the minor again, he admitted his involvement in the theft
>> and implicated Wills in the burglary.  Although Wills denied
>> involvement in the burglary, the officers arrested him.
>
>
>> The State filed a trial information charging Wills with second-degree
>> burglary.  The State later amended the information to include two
>> additional charges of burglary in the third degree and using a
>> juvenile to commit an indictable offense.
>
>
>> The jury returned a verdict finding Wills guilty of the crimes of
>> burglary in the second degree, burglary in the third degree, and using
>> a juvenile to commit an indictable offense.  Wills appeals his
>> conviction for second-degree burglary claiming ineffective assistance
>> of counsel.
>
>
>> II.  Scope of Review.
>
>
>> Claims of ineffective assistance of counsel are derived from the Sixth
>> Amendment of the United States Constitution.  Strickland v.
>> Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 2063-64, 80 L. Ed.
>> 2d 674, 691-93 (1984).  Our review for a claim involving violations of
>> the Constitution is de novo.  State v. Fintel, 689 N.W.2d 95, 100
>> (Iowa 2004).  We normally preserve ineffective-assistance-of-counsel
>> claims for postconviction relief actions.  State v. Carter, 602 N.W.2d
>> 818, 820 (Iowa 1999).  However, we will address such claims on direct
>> appeal when the record is sufficient to permit a ruling.  State v.
>> Artzer, 609 N.W.2d 526, 531 (Iowa 2000).  The appellate record in the
>> present case is sufficient to allow us to address Wills' ineffective-
>> assistance-of-counsel claims on direct appeal.
>
>
>> In order for a defendant to succeed on a claim of ineffective
>> assistance of counsel, the defendant must prove:  (1) counsel failed
>> to perform an essential duty and (2) prejudice resulted.  Id.
>> Prejudice results when "there is a reasonable probability that, but
>> for the counsel's unprofessional errors, the result of the proceeding
>> would have been different."  State v. Hopkins, 576 N.W.2d 374, 378
>> (Iowa 1998) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068,
>> 80 L. Ed. 2d at 698).  Wills' arguments also raise issues of statutory
>> interpretation, which we review for correction of errors at law.
>> State v. Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004).
>
>
>> III.  Analysis.
>
>
>> To find Wills guilty of burglary in the second degree, the State had
>> to prove Wills perpetrated a burglary "in or upon an occupied
>> structure in which one or more persons are present . . . ."  Iowa Code
>> § 713.5(2) (2003) (emphasis added).
>
>
>> In this appeal, Wills first contends his trial counsel was ineffective
>> for failing to move for a judgment of acquittal on the basis there was
>> insufficient evidence to support a finding that at the time Wills
>> entered the garage, there were persons present in or upon the occupied
>> structure.  Wills concedes the garage was an occupied structure, but
>> argues the living quarters and the attached garage are separate and
>> independent occupied structures; therefore, the jury could not have
>> found there were people present in the attached garage at the time of
>> the burglary.
>
>
>> The Code defines an "occupied structure" as:
>
>
>> [A]ny building, structure, appurtenances to buildings and structures,
>> land, water or air vehicle, or similar place adapted for overnight
>> accommodation of persons, or occupied by persons for the purpose of
>> carrying on business or other activity therein, or for the storage or
>> safekeeping of anything of value.  Such a structure is an "occupied
>> structure" whether or not a person is actually present.
>
>
>> Id. § 702.12.
>
>
>> Wills relies on State v. Smothers, 590 N.W.2d 721 (Iowa 1999), to
>> argue the garage and the living quarters are separate and independent
>> occupied structures.  In Smothers, two separate and distinct
>> businesses connected by interior fire doors were operated in the same
>> structure.  590 N.W.2d at 723.  We held the defendant committed two
>> burglaries by entering each business because "[t]he facility's
>> construction history and physical make-up demonstrate that the
>> portions are independent working units which constitute '[a]
>> combination of materials to form a construction for occupancy [or]
>> use.'"  Id. Smothers is not at odds with the present case because the
>> living quarters and the garage are not separate or independent units
>> of the residence.
>
>
>> Our review of the record reveals the garage in question was a three-
>> car attached garage separated from the living quarters by a door.  The
>> same roof covered the garage as the rest of the residence.  The living
>> quarters surrounded the garage on two sides.  It was structurally no
>> different from any other room in the residence.
>
>
>> The garage was a functional part of the residence.  On the night of
>> the incident, the door was unlocked.  The owner of the residence used
>> two stalls in the garage to park the family vehicles.  The owner used
>> the third stall for his motorcycle.  As such, the garage and the
>> living quarters are a single "structure" or "building" functioning as
>> an integral part of the family residence.  Thus, the residence
>> including the garage is a single "occupied structure" under section
>> 702.12.  See, e.g., People v. Ingram, 48 Cal. Rptr. 2d 256 (Ct. App.
>> 1995) (holding defendant's entry into an attached garage constituted
>> first-degree burglary because the garage was attached to the house;
>> therefore, burglary of the garage was burglary of an inhabited
>> dwelling house); People v. Cunningham, 637 N.E.2d 1247, 1252 (Ill.
>> App. Ct. 1994) (holding "ordinarily an attached garage is a 'dwelling'
>> because it is part of the structure in which the owner or occupant
>> lives"); State v. Lara, 587 P.2d 52, 53 (N.M. Ct. App. 1978) (holding
>> "burglary of the [attached] garage was burglary of the dwelling house
>> because the garage was a part of the structure used as living
>> quarters"); People v. Green, 141 A.D.2d 760, 761 (N.Y. App. Div. 1988)
>> (holding "[s]ince the garage in the present case was structurally part
>> of a building which was used for overnight lodging of various persons,
>> it must be considered as part of a dwelling"); White v. State, 630 S.W.
>> 2d 340, 342 (Tex. Ct. App. 1982) (holding an attached garage under the
>> same roof as the home would be considered a habitation within the
>> purview of the penal code because the garage is a structure
>> appurtenant to and connected to the house); State v. Murbach, 843 P.2d
>> 551, 553 (Wash. Ct. App 1993) (holding the definition of a dwelling
>> under Washington's burglary statute included an attached garage).
>
>
>> Had Wills' trial counsel moved for a judgment of acquittal on the
>> basis there was insufficient evidence to support a finding that at the
>> time Wills entered the garage there were no persons present in or upon
>> the occupied structure, it would have been overruled by the court
>> because the owner and his family were present in the residence at the
>> time of the burglary.
>
>
>> Wills also claims his counsel was ineffective for failing to object to
>> the jury instruction used by the district court on the same ground;
>> that the living quarters were a separate and independent occupied
>> structure from the attached garage.  The instruction as given stated:
>
>
>> The State must prove all of the following elements of Burglary in the
>> Second Degree as to Count I:
>
>
>> 1.  On or about the 12th day of August, 2003, the defendant or someone
>> he aided and abetted broke into or entered the residence at . . . .
>
>
>> 2.  The residence at . . . was an occupied structure as defined in
>> Instruction No. 29.
>
>
>> 3.  The defendant or the person he aided and abetted did not have
>> permission or authority to break into the residence at . . . .
>
>
>> 4.  The defendant or the person he aided and abetted did so with the
>> specific intent to commit a theft therein.
>
>
>> 5.  During the incident persons were present in or upon the occupied
>> structure.
>
>
>> If the State has proved all of the elements, the defendant is guilty
>> of Burglary in the Second Degree.  If the State has failed to prove
>> any of the elements, the defendant is not guilty of Burglary in the
>> Second Degree and you will then consider the charge of Attempted
>> Burglary in the Second Degree explained in Instruction No. 21.
>
>
>> (Emphasis added.)
>
>
>> Wills' claim is without merit.  As we have discussed, the residence is
>> the one and only "occupied structure" under the facts of this case.
>> Had Wills' trial counsel made this objection to the instruction, it
>> would have been overruled.
>
>
>> Therefore, Wills' trial counsel is not ineffective for failing to move
>> for a judgment of acquittal or objecting to the instruction because
>> there was no legal basis for the motion or objection.  See State v.
>> Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (holding trial counsel was
>> not ineffective for failing to raise an issue that has no merit).
>
>
>> IV.  Disposition.
>
>
>> We affirm the judgment of the district court because Wills' trial
>> counsel was not ineffective for failing to raise meritless issues.
>
>
>> AFFIRMED.
>
>
>
>>
>> Andrew Usher 
>

Kent Wills wrote:
> On Sat, 18 Oct 2008 13:14:37 -0600, "Reality_Check©"
>  wrote:
>
>> Kent Wills wrote:
>>> On Sat, 18 Oct 2008 00:21:04 -0600, "Reality_Check©"
>>>  wrote:
>>>
>>>> Kent Wills wrote:
>>>>> On Fri, 17 Oct 2008 20:46:51 -0600, "Reality_Check©"
>>>>>  wrote:
>>>>>
>>>>> [...]
>>>>>
>>>>>>>> Yep ... a serious mark !
>>>>>>>
>>>>>>> Sort of
>>>>>>
>>>>>> No, a serious mark.
>>>>>
>>>>>    I don't think
>>>>
>>>> We know, jackass.
>>>>
>>>
>>>     You agree with me again.  Cool.
>>
>
>    I've accepted that you agree with me.

"The jury returned a verdict finding Kent Wills guilty of the crimes of
burglary in the second degree, burglary in the third degree, and using
a juvenile to commit an indictable offense."

http://www.doc.state.ia.us/InmateInfo.asp?OffenderCd=1155768