IN THE COURT OF APPEALS OF IOWA

No. 3-722 / 02-1467

Filed November 26, 2003

STATE OF IOWA,

            Plaintiff-Appellee,

vs.

RONNIE ALAN KRAFT,

            Defendant-Appellant.

            Appeal from the Iowa District Court for Sac County, Joel E. Swanson, Judge.

            Ronnie Kraft appeals the judgment and sentence entered upon his conviction for third-degree kidnapping.  CONVICTION AFFIRMED; REMANDED FOR RECONSIDERATION OF MOTION FOR NEW TRIAL.

            Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.

            Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Pamela Dettmann, County Attorney, and David Jennett, Assistant County Attorney, for appellee.

            Considered by Vogel, P.J., and Mahan and Zimmer, JJ.

VOGEL, P.J.

            Ronnie Kraft appeals the judgment and sentence entered upon his conviction for third-degree kidnapping, in violation of Iowa Code section 710.1(4) (2001).  We affirm.

Background Facts and Proceedings.

            A jury could have found the following facts beyond a reasonable doubt.  Alicia Richardson and Kraft began dating in early 2001.  In May of that year, Richardson and her children moved in with Kraft.  A tumultuous relationship ensued and a no-contact order was entered forbidding Kraft contact with Richardson.  Richardson moved out of the house and into a home in Lanesboro.  While living there, Kraft broke into the house and was charged with burglary.

            Fearing he would be sent to prison, Kraft attempted to convince Richardson to assist him in getting the burglary charge dismissed.  On May 17, 2002, Kraft persuaded Richardson to meet with him and a lawyer.  After the meeting, Richardson resisted Kraft’s attempts to get her to go for a ride in his car, and she drove herself to a Farm and Home store.  Kraft followed, and while Richardson was inside the store, took the keys from her vehicle.  When she returned and noticed her keys were gone, Kraft dangled the keys out his window and said “take the keys.”  As Richardson was reaching for them, Kraft grabbed her by the hair and belt and pulled her through the window into his vehicle.  Once inside, Kraft put Richardson in a headlock and drove out of town, continuing on back roads, towards his home in Yetter. 

            While on the road, Kraft accused Richardson of sleeping with her ex-husband, and he stopped the car a number of times, punching her in the face and leg.  He continued to try to persuade her to change her story about the Lanesboro break-in.  Once in Yetter, he parked in the driveway of his house and told Richardson to go inside.  After initially refusing, Kraft pulled her out of the vehicle by her hair and forced her inside.  He brought her upstairs and told her to sit on the bed. 

            Terry Keil, a customer at the Farm and Home store witnessed and reported the incident, believing he had seen an abduction.  Upon investigation, law enforcement surmised the parties involved were Richardson and Kraft.  The Calhoun County sheriff, a deputy, and a state trooper proceeded to Kraft’s home.  After knocking on the door and waiting for several minutes, Kraft came to the door.  The sheriff asked whether Richardson was inside, and Kraft insisted that she was not.  Kraft then asked for a “couple of minutes,” and five to ten minutes later Richardson emerged from the home, shaken and with noticeable injuries to her face.

            Based on this series of events, the State charged Kraft with third-degree kidnapping.  Following a trial, the jury found him guilty as charged and the court sentenced him to a term of imprisonment not to exceed ten years.  Kraft appeals, contending (1) insufficient evidence exists to support the conviction, (2) counsel provided ineffective assistance, and (3) the court applied an incorrect standard on his motion for new trial.

Sufficiency of the Evidence.

            Kraft argues insufficient evidence exists to support the kidnapping conviction.^[1]  A person commits third-degree kidnapping when the person

Either confines a person or removes a person from one place to another, knowing that the person who confines or removes the other person has neither the authority nor the consent of the other to do so; provided, that to constitute kidnapping the act must be accompanied with . . . [t]he intent to secretly confine such person.

Iowa Code § 710.1(4).  The court further instructed the jury that “an intent to secretly confine means more than restricting the movement of Alicia Richardson.  It means an intent to conceal or hide Alicia Richardson or prevent her discovery.” 

            A review of the record reveals substantial evidence supporting that Kraft both “confined” and “removed” Richardson.  First, the evidence is overwhelming that Kraft did not have the authority or consent to force Richardson into his car.  Terry Keil, who witnessed the incident, testified that he observed Kraft placing Richardson in a headlock and confining her in the car, while she was pleading in a loud voice “don’t, don’t.”  Richardson also testified she had no intention of getting into Kraft’s car, but that he grabbed her by the hair, hard enough to pull hair out of her scalp, and dragged her through the car window while she was yelling, “stop, stop.” 

            Moreover, substantial evidence supports that Kraft’s actions were motivated by an “intent to conceal or hide” her.  When he first pulled her into the car, Kraft held Richardson down with her head in his lap, preventing her from escaping and minimizing her visibility from onlookers.  Rather than taking the main roads, Kraft drove on gravel roads while heading from Sac City to his house in Yetter.  Upon arrival at his house, Kraft again grabbed Richardson by the hair and dragged her into the house by her arm.  Once inside the house, he ordered her upstairs and told her to sit on an upstairs bed.  Finally, when law enforcement arrived, he initially lied and “guaranteed” Richardson was not in the house, denying their request to check inside the house.  Only five or ten minutes later did he return to the front door revealing that Richardson was indeed inside.

            Accordingly, we hold that substantial evidentiary support exists for the jury's finding of kidnapping.  See State v. Newman, 326 N.W.2d 796, 802 (Iowa 1982) (finding substantial evidence to support a kidnapping conviction where defendant enticed a girl into his vehicle and continued driving to an unoccupied and secluded road which lessened his chances of detection). 

Ineffective Assistance of Counsel.

            Kraft contends trial counsel was ineffective in failing to object to the admission of certain “other crimes” evidence during trial.  In particular, he points to references in the testimony of drug use and drug dealing.  In order to establish ineffective assistance of counsel, defendant must show by a preponderance of the evidence that: (1) counsel failed to perform an essential duty; and (2) prejudice resulted.  Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983).  We generally preserve ineffective assistance of counsel claims for possible postconviction proceedings; however, we may address them on defendant's direct appeal when the record is sufficient to present the claims.  State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).  We preserve this claim for postconviction relief.  See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998) (determining preservation warranted to allow trial counsel an opportunity to explain his decisions). 

Motion for New Trial.

            Finally, Kraft maintains the district court applied an incorrect standard when considering his motion for new trial.  See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).  The State concurs in this assessment.  Our review of the court’s written ruling similarly convinces us the court applied a sufficiency rather than a weight-of-the-evidence standard.  We affirm the conviction but remand to the district court for reconsideration of the motion for new trial under the correct standard.  See id.  

            CONVICTION AFFIRMED; REMANDED FOR RECONSIDERATION OF MOTION FOR NEW TRIAL.