State of Iowa v. Kenneth Azure

IN THE COURT OF APPEALS OF IOWA

No. 20-1380
Filed October 6, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KENNETH AZURE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.

Kenneth Azure appeals his conviction for second-degree theft. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., and Greer and Badding, JJ.
2

BADDING, Judge.

Kenneth Azure appeals his conviction for second-degree theft, claiming the

State did not present sufficient evidence to show that he knowingly exercised

control over a stolen vehicle he crashed after a high-speed chase. He also

contends his trial counsel was ineffective.

I. Background Facts and Proceedings.

Judy Knudsen was getting ready for bed at around 11:00 p.m. when she

looked out her apartment window and saw her Mitsubishi Lancer in the parking lot.

When she awoke at 9:00 the next morning, the car was gone. She reported the

missing vehicle to law enforcement.

Over the next two weeks, officers spotted the Lancer on four separate

occasions. The first three times, the vehicle eluded pursuit. On the fourth, officers

were able to apprehend the driver after he crashed into a utility pole and ran from

the scene. They identified the driver as Azure.

The State charged Azure with second-degree theft in violation of Iowa Code

sections 714.1(4) and 714.2(2) (2020).1 After trial, a jury found Azure guilty as

charged. The district court sentenced Azure to a five-year indeterminate term of

incarceration. Azure appealed.

II. Sufficiency of the Evidence.

Azure first contends there is insufficient evidence to support his theft

conviction. We review this claim for correction of errors at law. See State v.

Donahue, 957 N.W.2d 1, 7 (Iowa 2021). In doing so, we view the evidence in the

1The State also charged Azure with one count of driving while his license was
barred, to which Azure pled guilty.
3

light most favorable to the State, which includes inferences and presumptions that

can be fairly and reasonably deduced from it. See id. We affirm if the record

contains substantial evidence to support the conviction. See id. Evidence is

substantial if it would convince a rational fact finder of the defendant’s guilt beyond

a reasonable doubt. See id. “Direct and circumstantial evidence are equally

probative.” State v. Kelso-Christy, 911 N.W.2d 663, 668 (Iowa 2018) (citation

omitted).

Iowa Code section 714.1(4) defines theft as “[e]xercis[ing] control over

stolen property, knowing such property to have been stolen, or having reasonable

cause to believe that such property has been stolen, unless the person’s purpose

is to promptly restore it to the owner or to deliver it to an appropriate public officer.”

The jury was instructed that to support a conviction under section 714.1(4), the

evidence must show the defendant knew the property was stolen. See State v.

Hutt, 330 N.W.2d 788, 789-90 (Iowa 1983). Azure challenges the sufficiency of

the evidence supporting this element of the crime, arguing that his possession of

the vehicle and flight from the police were not enough to show his guilty knowledge.

A defendant’s unexplained possession of recently stolen property justifies

an inference the defendant knew it was stolen. See State v. Stephen, 537 N.W.2d

792, 794 (Iowa Ct. App. 1995). Although Azure was found in possession of the

Lancer, he claims it was not “recently” stolen because it was reported as stolen

more than one week earlier. But what is considered “‘recent’ as applied to

possession cannot be defined as any definite time” and instead depends on the

circumstances of each case. State v. Brightman, 110 N.W.2d 315, 317 (Iowa

1961) (citation omitted). “The strength or weakness of the inference to be drawn
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from possession depends on the time lapsed between the commission of the

offense and possession by the accused, the nature of the property stolen, where

and how taken, the manner of such possession, and other conditions disclosed.”

State v. Stanton, 154 N.W. 762, 762-63 (Iowa 1915).

Azure attempts to weaken the inference by arguing the Lancer could have

been “shuffled around between several people” between the time it was reported

stolen and his arrest. In support of his argument, Azure notes the vehicle was

seen on three occasions before he was found in possession of it, and he was never

identified as a driver or passenger on those occasions.2 This was not fatal to the

State’s case considering the other circumstances surrounding Azure’s possession

of the vehicle. Significantly, all of the pursuits—including the last when Azure was

apprehended—were in the same general neighborhood in Sioux City. And during

this last pursuit, Azure appeared to recognize one of the officers who had been

involved in three of the four previous pursuits. That officer testified that each time

he spotted the vehicle, he was driving an unmarked white van as part of a “plain

clothes unit.” In the last pursuit, the officer said Azure took evasive actions in

response to the movements of his unmarked van, indicating to the officer that

Azure “had recognized my white van from previous encounters, and was trying to

go in the opposite direction of me.” From this testimony, the jury could infer Azure

had been the driver during those earlier encounters.

2 Azure additionally points out that “police officers testified they saw another
person, a woman, with the vehicle” when it was spotted before his arrest. But the
record shows that officers actually saw three individuals with the vehicle during two
of the chases—a woman and two men.
5

In addition to Azure’s possession of the Lancer, his attempt to elude law

enforcement on the day of his arrest provides an inference of knowledge that he

was in possession of stolen property. See State v. Wilson, 878 N.W.2d 203, 211,

215 (Iowa 2016) (noting “that the act of avoiding law enforcement after a crime has

been committed may constitute circumstantial evidence of consciousness of guilt”

and the weight and relevance of that evidence is for the jury to decide). In State

v. Proctor, No. 18-0898, 2019 WL 2524268, at *3 (Iowa Ct. App. June 19, 2019),

we held similar evasive conduct was sufficient evidence that a defendant knew the

vehicle he was driving was stolen. Here, the inference is even stronger given that

Azure was arrested during the fourth occasion in which the vehicle attempted to

avoid law enforcement. Azure attempts to counter this, arguing he was “simply

avoiding police, potentially for other reasons not associated with the stolen

vehicle.” The State, however, “was not required to refute every possible inference

from the evidence.” State v. Ernst, 954 N.W.2d 50, 57 (Iowa 2021). And the jury

was free to reject certain evidence and credit other evidence. See State v.

Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

Viewing the evidence in the light most favorable to the State, there is

sufficient evidence from which the jury could find Azure knew the Lancer was

stolen.

III. Ineffective Assistance of Counsel.

Azure next contends his trial counsel was ineffective by failing to object to

the three instances of eluding in the Lancer before his arrest as evidence of prior

bad acts. Effective July 1, 2019, the legislature modified Iowa law to eliminate a

defendant’s ability to pursue a claim of ineffective assistance of counsel on direct
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appeal from a criminal conviction. See 2019 Iowa Acts ch. 140, § 31 (codified at

Iowa Code § 814.7 (2020)). Because Azure appealed after the amendment took

effect, we cannot decide his ineffective-assistance claim. See Iowa Code § 814.7

(stating ineffective-assistance claims “shall not be decided on direct appeal”);

accord State v. Warren, 955 N.W.2d 848, 856 (Iowa 2021) (limiting consideration

of ineffective-assistance claims to direct appeals pending on July 1, 2019). Azure

may raise this claim in a postconviction-relief proceeding. See Iowa Code § 814.7

(“An ineffective assistance of counsel claim in a criminal case shall be determined

by filing an application for postconviction relief pursuant to chapter 822.”).

In the alternative, Azure asks us to adopt the plain error rule. Because our

supreme court has repeatedly rejected adopting a plain error review, see State v.

Treptow, 960 N.W.2d 98, 109 (Iowa 2021), we decline to accept his invitation.

AFFIRMED.