author: MAHAN, Judge.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Wayne Eugene SINCLAIR, Defendant-Appellant.
    No. 99-1855.
    Court of Appeals of Iowa.
    Dec. 13, 2000.

      Donna M. Schauer, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Douglas Hammerand, Assistant Attorney General, and Laura Roan, Assistant Attorney General, Kevin Parker, County Attorney, for appellee.
    Heard by HUITINK, P. J., and MAHAN and VAITHESWARAN, JJ.
   MAHAN, Judge.

Wayne Eugene Sinclair appeals his conviction for two counts of second-degree kidnapping in violation of Iowa Code sections 710.1(1) or (2) and 710.3 (1999), attempted murder in violation of Iowa Code section 707.11, and first-degree burglary in violation of Iowa Code sections 713.1 and 713.3. He contends: (1) there was insufficient evidence to convict him of two counts of second-degree kidnapping, (2) the State did not present sufficient evidence he attempted to murder Larry Johnson, (3) the State did not present sufficient evidence he committed first-degree burglary, (4) he did not receive effective assistance of counsel, and (5) he did not voluntarily, knowingly, and intelligently waive his right to a jury. We affirm.

Background Facts and Proceedings. Defendant married Tammy Sinclair in 1995. Two children were born of the marriage, G.S. and K.S., ages five and three, respectively, at the time of the incident. In October 1998, a no-contact order was issued against Sinclair, ordering him to have no contact with Tammy, her relatives, or her residence in Indianola. Both parties repeatedly violated the order. With Tammy’s permission, Sinclair was allowed to see the children. He spent Christmas and New Year’s with Tammy and the children.

Sinclair asked Tammy if he could have the children the weekend of January 16-17, 1999. Tammy refused. On January 13, the Wednesday prior to that weekend, Sinclair went to Tammy’s workplace and gave her a twenty-page letter he had written. On January 14, Sinclair consulted with a psychiatrist. The psychiatrist found Sinclair depressed and suicidal. He recommended inpatient hospitalization due to risk of self-harm. Sinclair was involuntarily admitted to the psychiatric unit of Lutheran Hospital for twenty-four hours. According to Sinclair’s discharge summary, he had no suicidal or homicidal idea-tions and was future-oriented at the time of discharge. Sinclair called Tammy on January 15 to let her know he had been released from the psychiatric unit of Lutheran Hospital. He asked again whether he could see the children the weekend of January 16-17. Tammy told him she was undecided and would let him know the following day.

Sinclair arrived at Tammy’s house with a pizza at approximately 6:00 p.m. on January 16. Sinclair and Tammy began arguing. He accused her of seeing another man. Sinclair became very angry. He was yelling and his moods were changing. As Tammy described it, “At one point one minute he would be on the floor on his knees in front of me crying. A second later, it was like looking at the devil himself.” She smelled alcohol on his breath and thought he was under the influence. Sinclair later admitted to Tammy he had been drinking.

Sinclair closed all the blinds and put the chain lock on the door of the house. When Tammy went to pick up the phone to call the police, Sinclair pulled out a gun from the inside pocket of his coat. The children were crying hysterically behind Tammy on the couch. Sinclair put the gun back in his pocket and stated, “I can’t believe I did that. Now I’m going to have to kill myself because I will not live the rest of my life in prison.” At one point, he asked Tammy to go out into the garage with him and shoot him. Tammy asked Sinclair to leave numerous times. He refused because he was afraid Tammy would call the police. He told her he was going to put the children to bed and make love to her all night long. He ordered Tammy into the bathroom and raped her. Afterwards, he said, “I can’t believe I just raped you. Did I really just rape you?”

Tammy testified she knew she had to get herself and the children out of the house in order to survive. She talked Sinclair into driving to Des Moines with her and the children so they could drop the children off at his mother’s home while they sought marriage counseling. At Sinclair’s mother’s house, they attempted to call a counselor, but determined it would be Monday before they could contact anyone. Tammy convinced Sinclair to let her return to Indianola in exchange for allowing him to keep the children until the following day.

Tammy returned to Indianola and spent the night in her home. She called Sinclair the following morning, January 17. She described his demeanor on the phone as follows: “He sounded like he was in a lot better state of mind. He was a lot more calm. He sounded more like himself.... He didn’t seem like he was under the influence of anything at that time.” They arranged for Sinclair to bring the children home at 3:00 p.m. that afternoon. Tammy then called her aunt and explained the events of the previous night. She asked her aunt to bring her father, Kenneth Johnson, and her brother, Larry Johnson, to her house because she was afraid of what would happen when Sinclair arrived. Tammy’s aunt then went to the police and reported the events of the previous night. In a written note to the police, Tammy told the officers when Sinclair would be returning with the children, described the type of car he would be driving, and provided its license plate number. She told police he had a gun.

That afternoon, officers waited along the highway for Sinclair, planning to stop him for violating the no-contact order. When he drove by, officers turned on their lights and siren and attempted to stop him. At first, Sinclair slowed down and appeared to be stopping for the officers. He proceeded, however, to lead officers on a high-speed chase through Indianola. He ran several stop signs and exceeded the speed limit. At one point, Sinclair was traveling sixty-five to seventy miles per hour in a twenty-five mile per hour zone.

Sinclair eventually led the chase past the home of Tammy’s grandmother, Helen Rupe, who lived across the street from Tammy. As he drove by, Sinclair slowed down, aimed his gun out the passenger window .of his car, and shot at Larry Johnson as he stood in Rupe’s front yard. The passenger window of the car shattered. Sinclair pointed the gun out the back window of his car and shot at officers as they pursued him. The officers ducked to avoid being shot. The bullet shattered the back window of Sinclair’s car.

A deputy rammed his patrol car into Sinclair’s car to stop him. Officers surrounded Sinclair and pointed their guns at him. Sinclair exited his car with a gun in his hand. He waved the gun around and demanded Tammy be brought to him. He said once he saw his wife he would “shoot it out” with police. He got the children out of the back seat of his car and kept them close to him. He walked toward Tammy’s house with the children next to him and the gun to his head.

Sinclair hit the front door of Tammy’s house with his shoulder two or three times to push it open and entered the house with the children. He called police and insisted on talking to Tammy. They spoke on the phone for six to seven hours on January 17. Sinclair remained in the house with the children in a standoff with police for four days.

On January 21, officers implemented a plan to end the standoff by allowing Sin-clam to see Tammy and speak with her from a distance. Officers supplied Tammy with a bulletproof vest and accompanied her to the house. When Sinclair came out of the house with the children at his side, officers tackled him. As the officers approached, Sinclair attempted to pull a gun out of his coat pocket. Sinclair had a gun in his hand when he was arrested.

In a trial information filed February 1, 1999, Sinclair was charged with twenty-one criminal counts. In April 1999, the court granted Sinclair’s pretrial motion for change of venue, changing venue from Warren County to Cerro Gordo County. On July 6, 1999, defendant filed a written waiver of jury trial and made a record of the waiver to the court. A bench trial commenced on July 27, 1999, in the Warren County District Court. On August 4, 1999, the court found Sinclair guilty, by written verdict and order, of the following: two counts of second-degree kidnapping, one count of attempted murder, one count of first-degree burglary, one count of terrorism, three counts of possession of a firearm or offensive weapon by a convicted felon, six counts of assault of a peace officer, four counts of child endangerment, and one count of eluding or attempting to elude a pursuing law enforcement vehicle. Defendant filed a motion for new trial. Evidence admitted during the hearing on defendant’s motion included the deposition of trial counsel, affidavits of potential defense witnesses, a letter by Gary Gron-stedt, D.O., and defendant’s medical records. The court denied the motion for new trial, and sentenced Sinclair to a term of incarceration not to exceed eighty-two years. Sinclair appeals.

Sufficiency of the Evidence. We review challenges to the sufficiency of the evidence for errors at law. Iowa R.App.P. 4. The standards governing a challenge to the sufficiency of the evidence are well established:

When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the state, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record. Direct and circumstantial evidence are equally probative so long as the evidence raises “a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture.” It is necessary to consider all the evidence in the record and not just the evidence supporting the verdict to determine whether there is substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational factfinder [sic] that the defendant is guilty beyond a reasonable doubt.

State v. Mills, 458 N.W.2d 395, 397 (Iowa App.1990) (quoting State v. Wheeler, 403 N.W.2d 58, 60 (Iowa App.1987)). In a bench trial, the court is the fact finder. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). A decision in a bench trial has the same force as a jury verdict. State v. Ross, 512 N.W.2d 830, 832 (Iowa App.1993). We review a trial court’s findings in a jury-waived ease as we would a jury verdict: If the verdict is supported by substantial evidence, we will affirm. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000).

Sinclair challenges the sufficiency of the evidence to convict him of the following: second-degree kidnapping, attempted murder, and first-degree burglary. We conclude sufficient evidence existed to convict Sinclair on each of these counts.

Kidnapping. In order to find Sinclair guilty of second-degree kidnapping, the State was required to prove:

1. On or about January 17, 1999, the defendant removed/confined G.S./K.S.
2. With specific intent to use G.S./K.S. as a shield or hostage.
3. Defendant knew he did not have the authority of G.S./K.S. to do so.
4.Defendant was armed with a dangerous weapon at the time he removed/confined G.S./K.S.

Sinclair contends there was no evidence he removed or confined the children with the specific intent to use them as a shield or hostage. He also claims the State failed to show he did not have authority to have the children in his custody. We disagree.

Sinclair used the children as a shield from the beginning of the four-day standoff with officers. After a deputy rammed his patrol car into Sinclair’s car, Sinclair exited his car with a gun in his hand. He waved the gun around, then put the gun to his head and walked to the rear passenger side of his car. He retrieved the children, keeping them close to him as he walked down the street to Tammy’s house. He demanded to see Tammy and told officers he would “shoot it out” with them once he saw her. Several officers testified they felt threatened by Sinclair when he pointed a gun at them. The officers did not shoot him or otherwise respond to the threats, however, because the children were walking in close proximity to Sinclair.

Sinclair continued to use the children as a shield when he entered Tammy’s house and kept the children there with him for the next four days. During the standoff with officers, Sinclair threatened to put a bullet in each child’s head. The tactical team could not implement certain tactical plans normally available to it, due to the presence of the children. When the tactical team implemented its plan on January 21, Sinclair came out of the house with the children near him. When one of the children started to wander away from Sinclair, he reached out and pulled the child back in order to keep him close.

Sinclair had no authority to have the children in his custody. A parent’s right to custody and control of a child is not absolute. State v. Siemer, 454 N.W.2d 857, 862 (Iowa 1990). Parents may not hide behind the guise of authority to escape punishment for conduct that is proscribed for all others by the kidnapping statute. Id. at 863. Sinclair obtained “custody” of the children on January 16 by threatening Tammy with a gun. Tammy and the children left the house with Sinclair because Tammy believed it necessary for them to survive. She allowed Sinclair to keep the children because it was the only way he would let her leave his mother’s apartment and return to her home in Indianola. She feared for her life if she stayed with him that night.

We conclude Sinclair used his children as a shield throughout the four-day standoff with officers. He had no authority to do so. Substantial evidence supports Sinclair’s second-degree kidnapping conviction. We affirm the district court on this issue.

Attempted Murder. In order to prove defendant guilty of attempted murder, the State was required to prove:

1. On or about January 17, 1999, the defendant shot at Larry Johnson.
2. By his acts, the defendant expected to set in motion a force or chain of events which could have caused or resulted in the death of Larry Johnson.
3. When the defendant acted, he specifically intended to cause the death of Larry Johnson.

Sinclair contends there is insufficient evidence to convict him of the attempted murder of Larry Johnson. He points to discrepancies in Larry Johnson’s pretrial deposition testimony and his trial testimony. According to Sinclair, Johnson changed certain aspects of his story at trial. Sinclair claims the State’s witnesses testified inconsistently as to the speed the defendant was traveling and the location of Sinclair’s car when he shot at Larry.

Credibility questions such as the ones raised by defendant are best left to the fact finder. See State v. Forsyth, 547 N.W.2d 833, 837 (Iowa 1996). We find sufficient evidence in the record to convince a reasonable fact finder Sinclair attempted to murder Larry Johnson.

Larry Johnson testified he was standing outside his grandmother’s, Helen Rupe, house when he saw Sinclair drive by while being pursued by officers. When Sinclair saw Larry, he slowed down, aimed his gun, and shot at Larry. According to Larry, Sinclair had a “revenge-type” look on his face when he slowed the car. Larry saw the passenger window of Sinclair’s car shatter, and he hit the ground. Larry feared for his life when Sinclair shot at him. The bullet Sinclair shot at Larry was recovered from the front door of Rupe’s house.

Anthony Chambers was standing in front of Rupe’s house, and observed Sinclair aim the gun at Larry as he drove by. He testified as follows:

You know, he just didn’t pull the trigger at that point. But he was aiming intentionally at the person in the yard. It wasn’t just pointing it, waiving it around, he was sighting down the barrel.

Helen Rupe observed the passenger window of Sinclair’s car “just peeled down like a tin can with something blowing through it.” She saw Larry hit the ground when the shots were heard. “We thought he had been shot,” she testified. Tammy, who watched Larry fall to the ground from across the street, yelled, “Oh, My God, he shot at Larry.” Sinclair later told Tammy, “I can’t believe I shot at your brother.”

The testimony of these witnesses provided the fact finder with sufficient evidence to convict Sinclair of attempted murder. We affirm the trial court on this issue.

Burglary. In order to prove defendant guilty of first-degree burglary, the State was required to prove:

1. On or about January 17, 1999, the defendant broke into the home at 501 South E. Street, Indianola, Warren County, Iowa.
2. The home was an occupied structure. ■
3. Persons were present in the occupied structure.
4. The defendant did not have permission or authority to break into the home.
5. The defendant did so with the specific intent to commit an assault.
6. During the incident the defendant possessed a dangerous weapon.

By definition, first-degree burglary requires proof of entry into an occupied structure where persons are present, with the intent to commit a felony, theft, or assault and while the burglar possesses a dangerous weapon or incendiary device or inflicts bodily injury. Iowa Code § 713.3; State v. Rubino, 602 N.W.2d 558, 564 (Iowa 1999). Sinclair concedes he entered Tammy’s home without permission or authority while in possession of a dangerous weapon. He contends, however, the State failed to satisfy its burden of proof because no persons were present when he entered the home. He also contends the State failed to prove he entered the home with the specific intent to commit an assault.

The element of intent in burglary is seldom susceptible to proof by direct evidence. State v. McFarland, 598 N.W.2d 318, 320 (Iowa App.1999) (quoting State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994)). Usually proof of intent will depend upon circumstantial evidence and inferences drawn from such evidence. Id. Intent to commit an assault may be inferred from the circumstances of the defendant’s entry into the premises and his acts preceding and following entry. Id. at 320-21.

The record supports the district court’s finding defendant intended to assault Tammy when he broke into her home. Sinclair led police on a high-speed chase toward Tammy’s home. He apparently saw Kenneth and Tammy at the home as he drove past. He demanded to see Tammy immediately after the chase ended and he got out of his car. Once inside the house, Sinclair went on a “searching mission” to see if someone was inside. He fired the gun twice while inside the house. He urinated several times on Tammy’s side of the bed. Sinclair was very angry while talking on the phone with Tammy during the standoff. He blamed her for “setting him up” by calling the police. There is sufficient evidence Sinclair intended to assault Tammy when he entered the home.

Burglary laws are based on the notion people should be able to feel secure in their homes. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). The crime of burglary has been historically viewed as an offense against the security enjoyed in one’s habitat, tied to the ancient maxim “a man’s home is his castle.” Rubino, 602 N.W.2d at 564 (quoting 3 Wharton’s Criminal Law §§ 316, 325, at 223, 253 (1995)). The risk of harm to persons distinguishes the crime of first-degree burglary and elevates it in terms of proof and severity of punishment from second- or third-degree burglary. Rubino, 602 N.W.2d at 564.

Kenneth testified he and Tammy were at her house when Sinclair drove by with officers in pursuit. As he drove past, Sinclair glanced over at Tammy’s house. Tammy was standing in the doorway and Kenneth was standing on the porch. Sinclair could see one or both of them as he drove past. After defendant’s car went by, Tammy ran out of the house. Kenneth yelled at her to stop, and then instructed her to go across the street to her grandmother’s house. Kenneth left the house and walked down the street toward defendant’s car. He observed defendant walking down the street with the children near him and the gun pointed at his neck. Kenneth knew Sinclair was headed toward Tammy’s house. Therefore, he returned to Tammy’s house in search of a weapon. He eventually found a large hammer. Kenneth locked the front door with a deadbolt and the chain lock. As Sinclair approached, Kenneth determined “a hammer over a gun wasn’t the best idea.” He headed for the back door. As Kenneth struggled to unlock the back door to exit, he heard the defendant hitting the front door in an attempt to force it open. He had the back door unlocked and partially open as Sinclair hit the front door. Kenneth went out the back' door, leaving the door ajar so Sinclair would not hear him and pursue him through the backyard. Officers and other witnesses testified Sinclair hit the door two or three times before it opened, and he entered the house with the children.

Under Iowa Code section 702.13, a crime commences with the first act directed toward the commission of the crime and ends with the perpetrator’s capture or elusion of pursuers. State v. Tillman, 514 N.W.2d 105, 109 (Iowa 1994). Entry includes breaking of the plane of the threshold of a house. Pace, 602 N.W.2d at 773 (defendant committed burglary when he pushed inward on the wooden door of the house after victim retreated into the house and struggled to close the door). As Sinclair approached, Kenneth no longer felt “secure” in the home. He abandoned the home in order to protect himself from Sinclair. Kenneth was still in the home when Sinclair began the process of knocking down the door. But for Kenneth locking the front door, he would have certainly been in the home when Sinclair entered. We conclude as Kenneth attempted to escape out the back door, Sinclair was in the process of breaking down the door, the first act directed toward the commission of the burglary. Sinclair should not benefit from Kenneth’s ability to escape just as Sinclair made his entry into the home. We conclude Kenneth was a “person present” in the home at the time Sinclair broke into it. We affirm the district court on this issue.

Ineffective Assistance of Counsel. We review claims of ineffective assistance of counsel de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Sinclair contends his trial counsel was ineffective in the following respects: (1) for failing to investigate fully and provide notice to the court concerning defendant’s diminished responsibility and defense in support thereof; (2) for failing to speak to potential witnesses and present an affirmative defense on Sinclair’s behalf; and (3) in suggesting, without investigation of defendant’s mental state, a waiver of jury.

The defendant bears the burden of demonstrating ineffective assistance of counsel. State v. Morgan, 559 N.W.2d 603, 612 (Iowa 1997); Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994); State v. Kane, 557 N.W.2d 97, 102 (Iowa App.1996). “A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Our ultimate concern in claims of ineffective assistance is with the “fundamental fairness of the proceeding whose result is being challenged.” State v. Johnson, 604 N.W.2d 669, 673 (Iowa App.1999) (quoting Strickland, 466 U.S. at 696, 104 S.Ct. at 2069, 80 L.Ed.2d at 699).

Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). In this case, a deposition of defendant’s trial counsel was taken prior to the hearing on the motion for new trial. Therefore, we have an adequate record from which to decide the issue raised by defendant.

We have carefully reviewed the deposition of Sinclair’s trial counsel. Trial counsel’s testimony reveals a reasonable trial strategy. He made a reasonable tactical decision not to pursue a diminished responsibility defense. He explained why he decided to rest without presenting evidence on defendant’s behalf. Counsel adequately explained why he and Sinclair waived a jury trial. In addition, the record reveals Sinclair’s waiver of a jury trial was knowing, voluntary, and intelligent. He has shown no prejudice resulting from the waiver. We conclude trial counsel did not violate an essential duty in his representation of Sinclair. Therefore, we reject Sinclair’s ineffective assistance of counsel claims in their entirety.

Waiver of Jury Trial. We review de novo Sinclair’s claim based on his constitutional right to a jury trial. State v. Wilkens, 346 N.W.2d 16, 18 (Iowa 1984). We make an independent evaluation of the totality of circumstances involved. Id.

The waiver of a constitutional right must be a voluntary, knowing, intelligent act, done with awareness of the relevant circumstances and likely consequences. State v. Johnson, 318 N.W.2d 417, 426 (Iowa 1982). A written jury waiver taken in compliance with Rule of Criminal Procedure 16(1) is prima facie evidence the waiver was voluntary and intelligent. State v. Lawrence, 344 N.W.2d 227, 230 (Iowa 1984). When the defendant subsequently attacks its validity, he bears the burden of proving otherwise. Id.

Sinclair waived his right to a jury in writing, in a separate hearing before the court, and again on the record before the trial began. The court and trial counsel questioned Sinclair extensively on his decision to waive a jury trial. Sinclair has failed to meet his burden of proving an invalid waiver. He has failed to show his mental state was somehow impaired during the three instances in which he waived a jury trial. Based on the record before us, we conclude Sinclair’s waiver was voluntary, knowing, and intelligent.

Conclusion. We affirm Sinclair’s convictions. We reject all ineffective assistance of counsel claims raised by Sinclair. We conclude Sinclair knowingly, voluntarily, and intelligently waived his right to a jury trial.

AFFIRMED.

      . Kidnapping in the second degree, in violation of Iowa Code § 710.1(1) or (2) and § 710.3 (counts I and II); attempted murder, in violation of Iowa Code § 707.11 (counts III and IV); burglary in the first degree, in violation of Iowa Code §§ 713.1 and 713.3 (count V); terrorism, in violation of Iowa Code § 708.6 (count VI and VII); possession of a firearm or offensive weapon by a convicted felon, in violation of Iowa Code § 724.26 (counts VIII, IX, and X); assault on a peace officer, in violation of Iowa Code §§ 708.1(3) and 708.3A (counts XI through XVI); child endangerment, in violation of Iowa Code §§ 726.6(l)(a) and 726.6(3) (counts XVII through XX); and eluding or attempting to elude a pursuing law enforcement vehicle in violation of Iowa Code § 321.279 (count XXI).

      . New counsel was appointed on September 17, 1999, and filed the motion for new trial.

      . Because we decide this issue on the merits, we need not address the State's contention Sinclair failed to preserve error on this issue.


source: Caselaw Access Project

author: ZIMMER, P.J.

license: Public Domain

text:
    STATE of Iowa, Plaintiff-Appellee, v. Leonard Theodore MILLER, Jr., a/k/a Leonard Paul Gilbert Miller, Jr., Defendant-Appellant.
    No. 99-797.
    Court of Appeals of Iowa.
    Dec. 13, 2000.

      Linda Del Gallo, State Appellate Defender, and Stephen J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, William E. Davis, County Attorney, and Robert E. Weinberg, Assistant County Attorney, for appellee.
    Considered by ZIMMER, P.J., and HECHT and VAITHESWARAN, JJ.
   ZIMMER, P.J.

Leonard Miller, Jr. appeals from the judgment and sentence entered following his plea of guilty to burglary in the third degree. He argues the district court failed to include in the sentencing order an accounting of credit for time served. Miller also contends he received ineffective assistance of counsel. We affirm.

On October 19, 1998, Davenport police investigated an alleged burglary at the home of Kenneth Konrardy. At that time, Kenneth also claimed a man had been calling his house asking for his wife, Lisa. Kenneth provided police with the phone number he had saved on his caller identification. Officer Rick Keller, posing as Kenneth, called the number and talked to Miller, who admitted kicking in the Kon-rardys’ door. Keller then asked Miller to meet with him and discuss the situation.

The two men met at a nearby drug store. Miller informed Keller that he and Lisa Konrardy had spent the previous evening together at a motel where he had provided Lisa crack cocaine in exchange for sex. As proof of the encounter, Miller provided Keller a pair of women’s black underwear, a handwritten note, and a book of coupons, all belonging to Lisa. Miller then claimed he broke into the Konrardy home to retrieve $220 Lisa had taken from him at the motel. Keller revealed his identity and arrested Miller for burglary in the third degree.

On December 1, 1998, the State charged Miller with third-degree burglary as an habitual offender in violation of Iowa Code sections 713.6A and 909.8 (1997). On March 11, 1999, Miller pleaded guilty as charged in exchange for the State’s dismissal of two other felony charges based on another incident. He was sentenced to an indeterminate, fifteen-year term. Miller now appeals. He contends the district court should have included in the sentencing order an accounting of his credit for time served. He also maintains his defense counsel was ineffective and asks that the claim be preserved for possible post-conviction relief.

I. Scope of Review. Our review of a challenge to a district court’s application of a sentencing statute is for corrections of errors at law. State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000) (citations omitted). We review claims of ineffective assistance of counsel de novo. State v. Johnson, 604 N.W.2d 669, 673 (Iowa App.1999).

II. Credit for Time Served. In support of his argument that the sentencing order should have included a statement of credit for time served, Miller cites Iowa Code sections 901.6 and 903A.5 and Iowa Rule of Criminal Procedure 23. The Iowa Supreme Court recently rejected the same contention in State v. Hawk, 616 N.W.2d 627, 530 (Iowa 2000). Sections 901.6 and 903A.5 and rule 23 do not require a judicial accounting of credit for time served. Id.

III. Ineffective Assistance of Counsel. Miller asserts his trial counsel failed to properly advise him of or investigate a claim-of-right defense to the burglary charge. He claims he was justified in breaking into the Konrardy residence to retrieve $220 that Lisa had taken from him. Citing Iowa Code section 714.4, Miller argues his claim of right negated his intent to commit a theft, an element of the burglary charge.

In determining whether trial counsel was ineffective, we look at “ ‘whether under the entire record and totality of the circumstances counsel’s performance was within the normal range of competence.’ ” State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (quoting Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)). In order for Miller to prevail, the record must demonstrate (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Artzer, 609 N.W.2d at 531 (citation omitted). Prejudice is found where there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Id. (citation omitted). Ordinarily, ineffective assistance of counsel claims are reserved for postcon-viction relief actions. Id. (citation omitted). However, when the appellate record is sufficient to permit a ruling, we will address the claims on direct appeal. Id. We deem this record sufficient.

Defense counsel breaches an essential duty by failing to pursue defenses which have a legal basis under the pending charges. See Artzer, 609 N.W.2d at 532 (concluding counsel not ineffective for failing to pursue defenses of intoxication and diminished capacity on defendant’s second-degree murder charge because those defenses not legally available on that charge). Iowa Code section 714.4 codifies the claim-of-right defense:

No person who takes, obtains, disposes of, or otherwise uses or acquires property, is guilty of theft by reason of such act if the person reasonably believes that the person has a right, privilege or license to do so, or if the person does in fact have such right, privilege or license.

(emphasis added). No Iowa case has decided whether section 714.4 also provides a defense to a burglary charge. When the allegation of ineffectiveness includes a question of first impression, the issue for us on appeal is whether a normally competent attorney could have concluded that the question was not worth raising. See State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999) (citation omitted). Counsel is not ineffective when the issue counsel failed to raise has no merit. See id. at 207. Our first step is to consider whether there is any merit to the issue Miller claims his counsel should have raised. See id.

We conclude there is no merit to the issue. We hold the defense is unavailable in a burglary case. In interpreting a statute, we look to its language, and if its meaning is clear, we are not permitted to search beyond its express terms. State v. Nelson, 329 N.W.2d 643, 646 (Iowa 1983) (interpreting Iowa Code section 704.4 which codifies justification defense). Legislative intent is expressed by omission as well as inclusion. State v. Miller, 590 N.W.2d 45, 47 (Iowa 1999). The express terms of section 714.4 provide that it is only a defense to a theft charge. Burglary and robbery are not included. We may not — under the guise of statutory construction — enlarge or otherwise change the terms of a statute as the legislature adopted it. Id. (citation omitted). To adopt Miller’s interpretation of this statute would require us to read something into the law that is not apparent from the words chosen by the legislature. See State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999) (citation omitted). We decline to legislate expansion of the defense.

An examination of other states’ case law supports the conclusion that there is little merit to the issue. The modern trend among other states has been to decline to recognize the claim-of-right defense to offenses involving force, such as robbery or burglary. See People v. Tufunga, 21 Cal.4th 935, 90 Cal.Rptr.2d 143, 987 P.2d 168, 177 (1999) (noting trend but recognizing continued viability of the defense in California in very limited circumstances). Moreover, many of the leading cases permitting forcible recapture of property were decided before 1900. See id. 90 Cal.Rptr.2d 143, 987 P.2d at 178 (citing People v. Butler, 65 Cal.2d 569, 55 Cal.Rptr. 511, 421 P.2d 703 (1967) (Mosk, J., dissenting)). Based on the language of their claim-of-right statutes, other states have made determinations similar to ours in both the robbery and burglary contexts. See, e.g., State v. Messier, 16 Conn.App. 455, 549 A.2d 270 (1988) (declining to recognize burglary as a means of regaining property); Westmoreland v. State, 245 Ga.App. 482, 538 S.E.2d 119 (2000) (concluding claim of right statute did not state it was a defense to robbery); People v. Thomas, 162 A.D.2d 742, 557 N.Y.S.2d 426, 427 (1990) (concluding claim of right statute did not state it was a defense to burglary); People v. Hodges, 113 A.D.2d 514, 496 N.Y.S.2d 771 (1985) (same with regard to robbery). For example, in People v. Hodges, the New York court held that a defendant could not assert the state’s statutory claim-of-right defense to a robbery charge when he used force to recover money he had spent on the purchase of contraband. Hodges, 496 N.Y.S.2d at 774. The court based its holding in part on the language of the New York claim-of-right statute, which only expressly made the defense available in a larceny prosecution. See Hodges, 496 N.Y.S.2d at 773. In limiting the defense, the New York court also concluded that “the proposition that a claim of right negates the felonious intent in robbery ‘is utterly incompatible with and has no place in an ordered and orderly society ... which eschews self-help through violence.’ ” Id. at 774 (quoting State v. Ortiz, 124 N.J. Super. 189, 305 A.2d 800, 802 (1973)).

Iowa public policy evinces the modern distaste for violent self-help and lends further support to our interpretation of section 714.4. Section 714.4 prevents rightful owners from being charged with theft if they manage to regain their property. Thus, there is no protection of the thiefs possessory interest against that of the rightful owner. An individual may even use reasonable force to prevent or terminate interference with property rights, if the individual is present at the taking. See Iowa Code § 704.4; Nelson, 329 N.W.2d at 646. However, basic public policy dictates that even rightful owners should not be permitted to perpetrate break-ins or use force to regain their property, once it has been taken. As one court noted, to accept the claim-of-right defense in contexts where force has been used is “one step short of accepting lawless reprisal as an appropriate means of redressing grievances,.... ” Hodges, 496 N.Y.S.2d at 774 (citation omitted). In holding that a justification defense does not exist for a defendant who attempts through force to recapture property that was taken at an earlier time, our own supreme court has stated that nothing in the code “approves of after-the-fact vigilante action.” Nelson, 329 N.W.2d at 646. The same policy would presumably extend to one who breaks into a residence to retake property that was previously stolen from him. Miller’s actions in this case were nothing more than vigilante self-help.

A few states, such as California and Missouri, continue to recognize the viability of the claim-of-right defense in situations where force has been used. E.g., Tufunga, 90 Cal.Rptr.2d 143, 987 P.2d at 173 (recognizing propriety of claim-of-right instruction in robbery case); State v. Quisenberry, 639 S.W.2d 579, 582 n. 4 (Mo.1982) (recognizing claim of right as defense to burglary). Those states rely on the rationale that a legitimate claim of right to property negates the intent element of a burglary or robbery charge — the intent to commit a theft. See, e.g., Tufunga, 90 Cal.Rptr.2d 143, 987 P.2d at 174-75; Quisenberry, 639 S.W.2d at 582 n. 4. We do not find their reasoning persuasive. The purpose behind criminalization of burglary bolsters our conclusion that section 714.4 should not be a defense to burglary. In statutory interpretation, we consider the objective of the statute and seek a result that advances, rather than defeats, that purpose. State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999) (citing Harris v. Olson, 558 N.W.2d 408, 410 (Iowa 1997)). The crime of burglary was not designed to protect property rights, as the theft statutes are. See State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999) (citation omitted). Instead, the crime is considered to be an offense against the security of habitation or occupancy:

Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation-the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime to escape [sic]_ The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.

Id. (quoting State v. Nible, 200 Cal.App.3d 838, 844, 247 Cal.Rptr. 396 (1988)). While the law supports a claim of right defense, it does not condone the invasion of the sanctity of another’s home to regain property rights, when viable legal channels exist to effect a remedy. Expanding the elaim-of-right defense to burglary would undermine the purpose of the burglary statute.

We align ourselves with the majority of states that do not recognize a claim-of-right defense to violent reclamations of property. See Tufunga, 90 Cal.Rptr.2d 143, 987 P.2d at 177 (citing to cases in the majority jurisdictions). We conclude our legislature statutorily limited the defense by enacting 714.4 and naming only theft as an offense to which the defense can be asserted. Miller’s trial counsel breached no duty by failing to assert a nonmeritorious defense. We affirm the conviction.

AFFIRMED.

      . Burglary is defined by Iowa Code § 713.1:
      Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, ... or any person having such intent who breaks an occupied structure, commits burglary.

      . A claim of right has been held to be a defense to larceny-related offenses at common law. See 67 Am.Jur.2d Robbery § 19. In State v. Hollyway, 41 Iowa 200 (1875), the Iowa Supreme Court concluded that evidence of a defendant’s claim of right to property was admissible in a robbeiy trial because it tended to negate the intent element. Holly-way was decided long before Iowa’s criminal code and section 714.4 were enacted. The explicit language of section 714.4 appears to confine the claim-of-right defense to theft charges, as discussed infra.

      . Iowa Code section 554.9503 serves as additional evidence of Iowa public policy against self-help tactics. Section 554.9503 governs a secured party’s right to repossess the property which serves as security. The secured party may only repossess without judicial process if it can be done without breach of the peace. See Iowa Code § 554.9503 (emphasis added). In general, the law frowns on the use of force to collect even the most legitimate debts. See, e.g., Tufunga, 90 Cal.Rptr.2d 143, 987 P.2d at 179 (declining to extend claim-of-right defense to forcible taking (robbery) perpetrated to satisfy or collect a debt); People v. English, 32 Ill.App.3d 691, 336 N.E.2d 199, 201 (1975) ("a creditor may not employ violence, threats, or weapons to collect the debt but should pursue his remedies in the normal channels of peaceful and legal redress.”).


author: PAUL H. ANDERSON, Justice. LANCASTER, Justice STRINGER, Justice

text:
    STATE of Minnesota, Respondent, v. Arron Scott KING, Petitioner, Appellant.
    No. C9-99-298.
    Supreme Court of Minnesota.
    March 1, 2001.
   OPINION

PAUL H. ANDERSON, Justice.

In this case, we are asked to determine whether testimony given at a guilty plea hearing by an alleged accomplice to a crime bears adequate indicia of reliability such that it can be admitted against a criminal defendant charged with the same crime. A Washington County jury found defendant/appellant Arron King guilty of two counts of aiding and abetting first-degree burglary. At King’s trial, the state introduced a redacted version of the guilty plea testimony of King’s alleged accomplice. King objected to the use of the plea testimony on the grounds that it was inadmissible hearsay and that its admission violated his Sixth Amendment Confrontation Clause rights. The court allowed the testimony and gave an instruction on the alleged accomplice’s unavailability and his prior convictions. Following the guilty verdicts, the court sentenced King on one count to serve 57 months in prison. King appealed and a divided panel of the Minnesota Court of Appeals affirmed. We reverse and remand for a new trial.

Appellant Arron King was convicted of a July 15, 1998 burglary of a private residence in Grant, Minnesota. The burglarized house is in the country and is somewhat secluded. The owner resided in the upper two levels of the house, and a tenant, Andreas Koelbl, resided in the walkout basement level.

Koelbl worked evenings as a bartender, so he was often home during the afternoon. On the afternoon- of July 15, Koelbl was in his apartment when he heard the homeowner’s dog barking. He then heard someone knocking on the front door. When the knocking continued, he walked to his window and looked out to the driveway. He saw someone, later identified as King, in the driveway. On the day of the incident, Koelbl reported to the police that King was standing by a car in the driveway and that King began walking toward the house only after Koelbl heard a loud bang from upstairs. At trial, Koelbl testified that as he looked at King, the knocking continued. He further testified that he saw King walking toward the house, and that after Koelbl moved away from the window he heard a loud bang from upstairs.

After hearing the loud bang, Koelbl exited the house through a basement-level door. Koelbl then walked to the front of the house, where he was able to observe that the front door was open and that the deadbolt lock was lying on the ground. He also saw an unfamiliar car parked in the driveway with the motor running, but no driver or other persons were visible. Koelbl got into the car, drove to a neighbor’s house, and instructed the neighbor to call the police. Koelbl then returned to the house with the intent to block the driveway and to get a better description of whoever was involved in the burglary. Upon returning to the house, Koelbl began to pull the car into the driveway, which Koelbl estimated to be about 40 yards long. As he pulled into the driveway, Koelbl spotted King squatting by the side of the driveway.

Koelbl testified that King was closer to the house than to the street. There is conflicting testimony as to exactly where King was squatting, but he was not next to the house because that area would not have been visible from Koelbl’s position at the end of the driveway. Koelbl testified that King appeared startled to see Koelbl driving what turned out to be King’s car and King began motioning Koelbl to come to him. King then began to run toward Koelbl with his hand on his waistband, so Koelbl, fearing for his safety, backed the car out of the driveway and into the street. Koelbl further testified that King started to follow him, but then turned and ran off through a pasture. Koelbl subsequently spotted King’s alleged accomplice, Arron Weatherspoon, running toward the same pasture. Once King and Weatherspoon were out of sight, Koelbl returned to the house, where he waited for the police.

When the police arrived, they discovered disturbed drawers and closets on the upper level of the house and in Koelbl’s basement apartment. Socks from the homeowner’s drawers were found around the upper level of the house and in the yard. Some of the socks in the yard contained pieces of jewelry. The police also found a sock in the yard that did not belong to either the homeowner or Koelbl. The police ascertained that the homeowner had over $7,000 in jewelry taken from her house. This jewelry was never found. Koelbl had approximately $75 in mostly one-dollar bills and a cellular phone taken from his apartment. Koelbl’s VCR was unplugged and left sitting on a chair outside his apartment.

After an extensive manhunt, King and Weatherspoon were arrested several hours later while hiding in some brush near Highway 36. King voluntarily surrendered to the police, but Weatherspoon resisted arrest. King was taken to the Washington County Jail and booked. All of the items found on King during both a search incident to arrest and a search at the jail were later determined to be his own. After receiving King’s consent, the police searched King’s car and found only King’s property. During the search incident to Weatherspoon’s arrest, the police recovered 54 one-dollar bills.

During the booking process, King inquired about his car. Washington County Sheriffs Deputy James Gribble, who was processing King, acted as though he did not understand King’s questions. Gribble testified that King then explained the situation to Gribble in a way that suggested King had been inside the house. Gribble could not remember the exact words used by King, but gave the following testimony. “After I told him [King] I didn’t know' what he was talking about, he stated something close to the effect of the guy’s house we were in, he took my car.” Gribble also testified that when he told King that his car had been impounded, King responded that he did not know why the police were holding his car because he did not go into the house.

Washington County Sheriffs Investigator Dean Tilley interviewed King twice regarding his role in the burglary, giving him Miranda warnings each time. King agreed to waive his right to remain silent and then talked to Tilley. In both interviews, King repeatedly stated that he had not been inside the house and that the reason he was at the house was because Weatherspoon, who is King’s uncle, had asked him for a ride to the house of someone Weatherspoon claimed to know.

King gave the following version of events to Tilley. King stated that Weath-erspoon paged him and offered to pay for gas if King would give him a ride to someone’s house. Weatherspoon told King that he was going to the house because the person who lived there owed Weather-spoon money and was going to pay him back. Following Weatherspoon’s directions, King drove his car to the house in Grant. When they arrived, Weatherspoon got out of the car and knocked on the front door, while King stayed with the car. After receiving no answer, Weatherspoon began walking around the house. King initially claimed that Weatherspoon came out the front door, but then King stated he was not sure exactly what Weatherspoon did because after waiting for Weather-spoon for a few minutes, King decided to look for him around the back of the house. It was only when he returned to the front yard that he noticed the front door was open and his car was missing.

During the second interview, Tilley attempted to catch King in a lie by asking King whether he walked around the pool in the backyard, even though there was no pool. In five different responses to Til-ley’s questions about the pool, King stated that he did not remember seeing a pool or that he did not notice a pool. King did admit that he had not walked all the way around the house as he had initially stated, but that he had only walked around the back of the house and then turned around and returned to the front of the house. King also gave a description of the backyard to Tilley that is consistent with the state’s exhibit on the layout of the lot.

King stated that he first thought Weath-erspoon had left with his car, but then he spotted Koelbl in the car at the end of the driveway. King said he motioned to Koelbl because he wanted to explain that he was not involved in what was going on at the house. King next ran toward Koelbl, holding his pager so he would not lose it. King stated that Koelbl started to drive toward him at full speed and then he became scared, so he ran away.

Both King and Weatherspoon were charged with two counts of aiding and abetting first-degree burglary in violation of Minn.Stat. §§ 609.582 (2000) and 609.05 (2000). The burglary statute requires that either the accused enter a building without consent and intend to commit a crime or enter without consent and actually commit a crime. Minn.Stat. § 609.582, subd. 1(a) (2000). King and Weatherspoon were both charged under the accomplice statute, which provides that an accomplice is liable for the principal crime if the accomplice intentionally assists in some manner. Minn.Stat. § 609.05(a) (2000). The counts against King and Weatherspoon were under alternate charging theories, the first based on entering the house with the intent to commit a crime and the second based on entering and actually taking something from the house.

Weatherspoon pleaded guilty to one count as part of a plea agreement. Weatherspoon requested that as part of his plea agreement he be released pending sentencing so he could make arrangements for the care of his sick wife. In exchange for his plea and plea testimony, the state recommended that Weatherspoon receive a 37-month sentence and that Weather-spoon be released pending his sentencing. On September 16, 1998, Weatherspoon entered a guilty plea and testified to his participation in the burglary. Per his plea agreement, he was released pending sentencing, which was scheduled for November 13,1998.

King pleaded not guilty and requested a jury trial. King’s trial took place on November 2-4, 1998, after two postponements for reasons unrelated to this appeal. Before trial, the state made three unsuccessful attempts to subpoena Weather-spoon to appear at King’s trial. The state attempted to serve Weatherspoon once for each trial date. On the second attempt, the officer attempting to serve Weather-spoon spoke to Weatherspoon’s mother who indicated that he had moved, but did not provide the police with any further information. On November 3, 1998, the state contacted the court services worker who was performing Weatherspoon’s pre-sentence investigation. The worker made one attempt to contact Weatherspoon by phone and was unable to do so. On that same day, the state requested that Weath-erspoon be declared unavailable and that it be allowed to read his plea testimony to the jury. Over King’s objection, the court found that Weatherspoon was unavailable as a matter of law and instructed the attorneys to work together to develop a redacted version of Weatherspoon’s plea testimony that could be read to the jury.

On the last day of the trial, the district court ruled that Weatherspoon’s redacted plea testimony was admissible in King’s trial under Minn. R. Evid. 804(b)(3) because it was given under oath and was against Weatherspoon’s penal interest. Weatherspoon’s redacted plea testimony was then read to the jury. Before the presentation, the court instructed the jury on Weatherspoon’s unavailability and informed the jury of Weatherspoon’s prior offenses. Additionally, the court ruled that King’s attorney could elaborate in her closing argument on the difference between testimony given at trial and the plea testimony.

In his plea testimony, Weatherspoon stated that King was with him at the time of the burglary and that he and King had gone to the house with the intent to break-in. Specifically, Weatherspoon indicated that he and King had planned that King would kick in the door. However, Weath-erspoon did not indicate who actually kicked in the door, only that it was kicked in and that he and King entered the house. The state also introduced past-crime Spreigl evidence that 3 years earlier King had committed an attempted burglary in Hennepin County. The state introduced the evidence to show a similar mo-dus operandi of King because in the 1995 burglary, to which King pleaded guilty, King and an accomplice attempted to take jewelry and a VCR from a house during the break-in and covered their hands with socks. The jury then found King guilty on both counts of aiding and abetting first-degree burglary and the court sentenced King on one count to serve 57 months in prison.

On appeal to the court of appeals, King argued that the district court erred in admitting Weatherspoon’s plea testimony and therefore he is entitled to a new trial. King claimed that the district court erred in finding Weatherspoon unavailable because the state did not make a good-faith effort to locate Weatherspoon. King also argued that it was improper to admit Weatherspoon’s testimony because it was not a statement against Weatherspoon’s interest. King further maintained that even if the court of appeals were to conclude that admission of the testimony was proper under Minn. R. Evid. 804(b)(3), admitting Weatherspoon’s testimony violated King’s Sixth Amendment Confrontation Clause rights. King claimed the error could not be harmless beyond a reasonable doubt because Weatherspoon’s testimony was the only direct evidence to show that King was a participant in a burglary. Finally, King argued that if it was proper to allow Weatherspoon’s testimony, the district court should have included in its instructions a statement about the reason for Weatherspoon’s unavailability. A divided panel of the court of appeals affirmed King’s conviction in an unpublished opinion.

I.

On appeal to our court, King raises the same issues he raised before the court of appeals. He argues that the admission of Weatherspoon’s plea testimony was improper under both the Minnesota Rules of Evidence and the Sixth Amendment Confrontation Clause of the United States Constitution. In order for Weatherspoon’s plea testimony to be admissible under the rules of evidence, the district court must find that Weatherspoon was unavailable and the statement, when made, was against Weatherspoon’s interest. Minn. R. Evid. 804(b)(3). In order for the plea testimony to be admissible under the Confrontation Clause, the district court must find that Weatherspoon was unavailable and that the statement is reliable. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Here, because we conclude King’s constitutional claim is dis-positive, we will proceed directly to our analysis of that claim.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *_» ppg. Const, amend. VI. Even though a Confrontation Clause analysis is one involving questions of both fact and law, our review must be conducted independently of the lower courts’ analyses to guarantee that the protections in the Confrontation Clause are satisfied. Lilly v. Virginia, 527 U.S. 116, 136, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Therefore, appellate courts must review de novo the issue of whether admitted testimony violates a defendant’s Confrontation Clause rights. Lilly, 527 U.S. at 136, 119 S.Ct. 1887; State v. Leroy, 604 N.W.2d 75, 77 (Minn.1999).

A literal reading of the Sixth Amendment would bar all use of hearsay statements against a criminal defendant, but the amendment does not actually do so. Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (holding that hearsay statements of an unavailable declarant that bear adequate in-dicia of reliability do not violate the Sixth Amendment). A court must follow a two-step inquiry to determine whether a hearsay statement may be admitted without violating a criminal defendant’s Sixth Amendment rights. Roberts, 448 U.S. at 65, 100 S.Ct. 2531. The state must first establish the necessity of the hearsay statement by showing the unavailability of the declarant. Id. If unavailability is proved, then the state must prove that the statement bears adequate “indicia of reliability” for it to be admissible. Id. at 66, 100 S.Ct. 2531.

We have not previously addressed what must be proved for a witness to be unavailable for purposes of the Confrontation Clause, but the United States Supreme Court did address this issue in Roberts, 448 U.S. at 65-78, 100 S.Ct. 2531. In Roberts, the Court held that the state bears the burden of establishing that a witness is unavailable and that, therefore, the hearsay testimony is necessary. Roberts, 448 U.S. at 65, 77, 100 S.Ct. 2531. To prove unavailability, the state must show that a good faith effort was made to procure the witness’ presence. Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). What efforts are required of a state in each situation is a question of reasonableness. Roberts, 448 U.S. at 74, 100 S.Ct. 2531. However, “[i]f there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” Id. (emphasis in original). In Roberts, the state made five attempts to subpoena a witness over a 5-month period. Id. at 59, 100 S.Ct. 2531. Additionally, the witness’ mother was questioned in voir dire about her daughter’s whereabouts. Id. The mother testified that she had no way of reaching her daughter, even in an emergency. Id. On these facts, the Court concluded that the witness was unavailable. Id. at 60-61, 100 S.Ct. 2531.

In the case before us, the district court found Weatherspoon unavailable after the state made three unsuccessful attempts to serve a subpoena on him. King claims that it was error for the court to find that the state put forth a reasonable effort to locate Weatherspoon. King also argues that the nature of the error is compounded because of the state’s responsibility for Weatherspoon’s absence. King asserts that if the state had not facilitated Weath-erspoon’s release as part of his plea agreement, Weatherspoon would ^have been available to testify.

It is undisputed that the state made some effort to locate Weatherspoon, but the effort was not at the same level as the state’s efforts in Roberts. The state did not attempt to contact Weatherspoon through his court services worker until after King’s trial had begun, and then the worker only made one attempt to locate him by telephone. The state did not follow up with Weatherspooris mother. Nor did the state attempt to contact Weatherspoon through his wife, even though it knew she lived in the area, had some contact with Weatherspoon, and that Weatherspoon had specifically sought his release to take care of her. Further, unlike the situation in Roberts, the state did not have any witness testify as to Weatherspooris unavailability.

The state did not take a number of the affirmative measures that had a reasonable possibility of locating Weather-spoon. Without ascribing a motive to the state, the cumulative effect of the state’s actions is troublesome: (1) the state made certain that Weatherspooris plea testimony contained incriminating statements about King, (2) the state agreed to Weatherspoon’s release, and (3) the state expended minimal efforts to find Weather-spoon for King’s trial. Under these circumstances, a less than vigorous attempt to locate Weatherspoon is of questionable fairness to the defendant because it allows the state to avoid the inherent risks of putting a witness on the stand. Instead, the state can use testimony from a guilty plea setting, which is under the direct control of the prosecutor and requires disclosing only the basic elements of the offense necessary for the court to accept the plea. Despite our concern about Weather-spoon’s unavailability, we only need to decide whether the state met its burden in showing that Weatherspoon was unavailable if we feonclude that Weatherspoon’s statement was reliable. Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Therefore, we reserve deciding whether the state met its burden in establishing Weatherspoon’s unavailability and first will determine if Weatherspoon’s plea testimony had adequate indicia of reliability. We nonetheless caution the state that when the unavailability of a witness is at issue, we will look carefully for a good-faith effort to locate such a witness.

II.

The Confrontation Clause requires the state to prove that a hearsay statement bears adequate indicia of reliability; otherwise, the statement' is presumptively barred and cannot be admitted against a criminal defendant. Wright, 497 U.S. at 816, 110 S.Ct. 3139; Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Statements that fall within a “firmly-rooted” hearsay exception are assumed to be reliable and are therefore admissible. Roberts, 448 U.S. at 66,100 S.Ct. 2531. However, if the state seeks to admit a statement not within a firmly-rooted hearsay exception, there must be “a showing of particularized guarantees of trustworthiness.” Id. The guarantees of trustworthiness are gauged from the totality of the circumstances that existed when the statement was made. Wright, 497 U.S. at 819, 110 S.Ct. 3139. The Supreme Court has declined to provide a specific list of factors to consider when evaluating the totality of the circumstances, but the Court has held that the key inquiry is whether the statement is so reliable that cross-examination would have been of only “marginal utility.” Id. at 820-22, 110 S.Ct. 3139. In the absence of such reliability, the Confrontation Clause bars the use of a hearsay statement against a criminal defendant. Id. “[Unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Id. at 821.

In 1999, a plurality of the Supreme Court concluded that the statement against interest exception to the hearsay rule, found in Fed.R.Evid. 804(b)(3), is not a “firmly-rooted” exception for purposes of Confrontation Clause analysis. Lilly, 527 U.S. at 134, 119 S.Ct. 1887. When we have analyzed statements against interest under the Confrontation Clause in the past, we have either assumed that the statement against interest exception is a firmly-rooted exception or we have considered such statements reliable under the totality of the circumstances because of their self-inculpatory nature. E.g., State v. Aubid, 591 N.W.2d 472, 480 (Minn.1999); State v. Dukes, 544 N.W.2d 13, 19 (Minn.1996). However, in Lilly, the Supreme Court stated that confessions by an accomplice that incriminate the criminal defendant are “inherently unreliable” even absent any express promises of leniency. 527 U.S. at 131, 139, 119 S.Ct. 1887. The Court further emphasized that due to their unreliability, accomplice statements that shift or spread blame must be subject to cross-examination. Id. at 182, 119 S.Ct. 1887 (explaining the holding in Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)). But the Court’s holding in Lilly does not mean that statements against interest will automatically violate the Confrontation Clause. What it does mean is that the state must affirmatively prove the reliability of a statement against interest and cannot rest on the mere fact that it is a statement against interest. If the state fails to affirmatively prove reliability, the statement’s use will violate the defendant’s Confrontation Clause right to cross-examine a witness.

Weatherspoon’s testimony was given under oath at his plea hearing, but he was not subject to cross-examination at that hearing. Weatherspoon did not receive a reduced sentence, although the state did agree to recommend a sentence at the bottom of the range recommended in the sentencing guidelines. Additionally, in return for his plea, Weatherspoon was released from custody pending sentencing. Weatherspoon’s plea agreement was not contingent on his testimony against King, although his testimony was consistent with one of the statements he gave police during his custodial interrogation, when he arguably was seeking to curry favor with the investigators.

Here, in light of the holding in Lilly requiring an affirmative showing of reliability and the Supreme Court’s distrust of co-conspirator statements against interest that shift or spread blame, only the oath given to Weatherspoon weighs in favor of his testimony being admissible. The benefits provided to Weatherspoon and the inherent unreliability of accomplice statements must be weighed against Weather-spoon’s oath. We Rote that in the guilty plea the state used the term “you” without clarifying whether “you” meant Weatherspoon or Weatherspoon and his accomplice. As presented, the testimony comported with the charge of aiding and abetting, but cross-examination might have revealed that Weatherspoon acted alone in certain respects. We also recognize that despite the oath to tell the “whole truth,” the full story is often not revealed in guilty plea testimony. Considering all factors, we conclude the state did not overcome the presumption against admissibility of Weatherspoon’s plea testimony and did not prove that cross-examination of Weatherspoon would be of only marginal utility. We hold that the admission of Weatherspoon’s plea testimony violated King’s Sixth Amendment Confrontation Clause rights and therefore the district court erred in admitting the testimony.

III.

Our decision that the admission of Weatherspoon’s plea testimony violated King’s Confrontation Clause rights does not end our inquiry. A defendant is not automatically entitled to a new trial when his constitutional rights are violated. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). A conviction can stand only if the error committed was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. 824; Juarez, 572 N.W.2d at 291. In Juarez, we explained that the harmless error analysis is actually a harmless error impact analysis and the inquiry is not “whether a jury would have convicted the defendant without the error, rather *** whether the error reasonably could have [had an impact on] * * * the jury’s decision.” Id. at 292. As further explanation, we held that if the verdict is “surely unattributable” to the error, then the error is harmless beyond a reasonable doubt. State v. Keeton, 589 N.W.2d 85, 91 (Minn.1998); State v. Greenleaf, 591 N.W.2d 488, 503, cert. denied, Greenleaf v. Minnesota, 528 U.S. 863, 120 S.Ct. 156, 145 L.Ed.2d 132 (1999).

Part of Weatherspoon’s plea testimony is corroborated by other direct testimony. Koelbl identified King as one of two men present on the day of the burglary and King admitted that he was at the house. However, the key criminal elements in dispute are the same elements that the state used Weatherspoon’s testimony to prove. Both of King’s convictions rest on the assumption that King assisted Weatherspoon in some manner with at least the intent of committing a crime. To prove King’s assistance under either theory, the state needed to prove that King drove Weatherspoon to the house knowing that Weatherspoon intended to illegally enter the house and take something, that King entered the house and intended to take something, or that King actually took something. The only direct evidence that shows King’s intent to assist with a burglary or his actual participation in the burglary is the plea testimony of Weatherspoon.

The only testimony providing any corroboration for the critical parts of Weath-erspoon’s plea testimony is the testimony of Deputy Gribble. Gribble admitted that he could not remember King’s exact words. But Gribble testified that King told him “something close to the effect of the guy’s house we were in, he took my car.” This testimony is important to the state because it places King “in” the house as opposed to “at” the house, as King has claimed. This is a critical distinction. In essence, the state rests a critical aspect of its case on a distinction between “in” and “at” without any assurance that the term “in” was ever used. The difficulty in relying on Gribble’s testimony is further complicated by the fact that Gribble also testified that King went on to state directly that he had not been in the house.

The other piece of evidence that the jury could have considered was the fact that King had attempted to burglarize a house 3 years earlier, and in that attempt he and his accomplice attempted to take jewelry and a VCR and covered their hands to avoid leaving fingerprints. Past-crime evidence cannot be used to show conduct in conformity with character, but it can be used to show a modus operandi. Minn. R. Evid. 404(b)(3), Here, the state offered, and the court approved, the use of the past-crime evidence to show modus oper-andi. The state explained that the purpose it sought to use the evidence, and upon which the court found its use acceptable, was to show entry into the house without consent. Therefore, in this ease, the jury could properly consider King’s prior conviction only to establish that in the past he had attempted to take valuable things from a home — VCR and jewelry— and covered his hands-with the socks — to avoid leaving fingerprints. This type of identification information, while relevant, is hardly unique to King and it is not the unique method of burglary characterized by the dissent. If the jury were only considering the evidence for its proper purpose, it is not as strong as the direct evidence provided in the Weatherspoon plea testimony.

In completing a “harmless error impact” analysis, we do not consider whether the jury could have convicted King absent Weatherspoon’s testimony. Rather, it is necessary to determine what effect Weath-erspoon’s testimony had on the jury’s verdict and more specifically, whether the jury’s verdict is “surely unattributable” to the testimony. Juarez, 572 N.W.2d at 292. To convict King, the jury must have found that King intended to assist Weatherspoon in the burglary. When we look to the evidence used to establish King’s intent, the jury could consider the equivocal testimony of Gribble, the circumstantial evidence of King’s activities while at the house, evidence of King’s prior conviction, and the direct statements contained in Weatherspoon’s plea testimony. Of the available evidence, the strongest and clearest evidence of King’s involvement is Weatherspoon’s incriminating plea testimony. Hence, we believe that it is coun-terintuitive to suggest that the jury would ignore the strongest and clearest evidence before it, Weatherspoon’s plea testimony, and instead rely on weaker, equivocal evidence. Therefore, upon review of the entire record, we conclude that Weather-spoon’s plea testimony reasonably could have had an impact on the verdict. As a result, we cannot say that the jury’s verdict was surely unattributable to the error. Accordingly, we hold that the district court’s error in admitting Weatherspoon’s plea testimony was not harmless error and therefore King is entitled to a new trial.

Reversed and remanded for further proceedings consistent with this opinion.

LANCASTER, Justice

(dissenting).

I concur in Parts I and II of the opinion, but respectfully dissent as to Part III. Numerous pieces of evidence support the jury’s conviction, only one of which was Weatherspoon’s plea statement. I therefore conclude that the district court’s decision to admit the statement was harmless beyond a reasonable doubt.

When reviewing an error to determine whether it is harmless beyond a reasonable doubt, we must conduct a thorough examination of the record as a whole in order to determine if the verdict was unattributable to the error. State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997); State v. VanWagner, 504 N.W.2d 746, 749 (Minn.1993) (“The error and its impact are to be examined within the context of the record as a whole, considering the strength of the state’s evidence and the weaknesses of any defense evidence.”). The court may not view each incident in isolation when deciding if an error is harmless. State v. Dillon, 582 N.W.2d 558, 558 (Minn.1995) (“The reviewing court * * * must read the entire record * * *.”). Whether an error is harmless depends on factors such as the importance of the testimony or statement, the presence or absence of corroborating or contradicting evidence, and the overall strength of the prosecution’s case. State v. Wildenberg, 573 N.W.2d 692, 702 (Minn.1998); Dillon, 532 N.W.2d at 558 (“As a general rule, the stronger the evidence of guilt, the less likely that any error is prejudicial.”).

King admitted that he used his car to drive Weatherspoon to the house in Grant. He acknowledged being at the house during the burglary, and an eyewitness confirmed his presence there. During the booking process, King described the robbery to Deputy Gribble in such a way as to imply that he, King, had been inside the house. Further, King’s interviews with Investigator Tilley contain inconsistencies relating to what he did and saw during the robbery. During his second interview, King admitted that he did not tell the full truth at his initial interview and conceded that he told a “bogus” story. The jury also heard evidence that King fled the scene after being discovered by Koelbl and that King evaded capture for several hours during a wide-spread manhunt involving local police officers, police dogs, the state patrol, and a state patrol helicopter.

The state also introduced evidence of King’s 1996 attempted second-degree burglary conviction to demonstrate modus op-erandi. Minn. R. Evid. 404(b) (“Evidence of another crime, wrong, or act is not admissible to prove * * * character * * * [but it] may * * * be admissible [to prove] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”). The majority acknowledges that intent was an issue in the case, but asserts that the other-crimes evidence here could not be used to show intent: “[T]he jury could properly consider King’s prior conviction only to establish that in the past he had attempted to take valuable things from a home * * *.” Supra at 810 (emphasis added). However, upon introduction of the evidence the district court instructed:

THE COURT: At this time the state intends to introduce evidence of an occurrence on September 14th, 1995 at Hennepin County. This evidence is being offered for the limited purpose of assisting in determining whether defendant committed those acts with which defendant is charged in the complaint I have read to you.

The majority dismisses the remarkable similarities between the present case and King’s prior conviction. Specifically, in the 1996 burglary King and an accomplice broke into and ransacked a residence. During the burglary, jewelry boxes were overturned and emptied, drawers were open and disturbed, and a VCR was sitting on a chair, apparently ready to be taken. At the scene, police found several socks strewn about, found socks near a fence that King had jumped, and found a pair of socks close to where King was ultimately apprehended. The facts surrounding King’s 1996 burglary conviction are essentially identical to the case at hand. In the current case, the house was broken into and ransacked, the contents of drawers, closets, and jewelry boxes were in disarray, jewelry was stolen, a VCR sat outside the home, socks were strewn about the scene, and some of the socks contained pieces of jewelry.

The combined effect of all of this evidence points unerringly to King’s guilt. Despite the majority’s concern that Weatherspoon’s testimony was the only direct evidence placing King in the house, circumstantial evidence can be sufficient to support a conviction. E.g., State v. Whittaker, 568 N.W.2d 440, 452 (Minn.1997). Moreover, the crime for which King was convicted, aiding and abetting burglary, does not require that King entered the house. Minn.Stat. § 609.05, subd. 1 (2000) (“A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”). Further, any possible prejudice resulting from the introduction of Weatherspoon’s statement was minimized because the jury was aware of Weatherspoon’s conviction for aiding and abetting burglary, and King used the conviction to impeach the plea statement. During the jury charge, the judge also reminded the jury that it should consider Weatherspoon’s conviction when deciding the weight to give to the statement.

In summary, given the strength of the state’s evidence against King and the minimal impact that Weatherspoon’s statement could have had on the jury, the verdict was surely unattributable to the admission of the plea statement. Therefore, I would hold that the admission of the statement was harmless error and King is not entitled to a new trial.

STRINGER, Justice

(dissenting)

I join in the dissent of Justice Joan Ericksen Lancaster.

      . Below is the text of Weatherspoon’s redacted plea testimony as read to the jury.
      Q: Mr. Weatherspoon, on July 15, 1998, is it true you were in the City of Grant in Washington County?
      A: I believe that's was, yes.
      Q: You were with another fellow named Arron King, is that right?
      A: Yes.
      Q: The two of you came to Grant Township from St. Paul, is that right?
      A: Yes.
      Q: And when you got to the City of Grant you went north on Manning Avenue and ended up at a residence located at 9850[sic] 65th Street, is that right?
      A: Yes.
      Q: When you arrived at the residence with Mr. King, the two of you got out of the car, is that right?
      A: Yes.
      Q: Did he get out first? You got out first?
      A: I got out first, he got out second.
      Q: Okay. And you went up to the door, knocked on the door and eventually broke the door down, is that correct?
      A: Yes.
      Q: And as it turned out, there was somebody home in this residence at the time, right?
      A: As it turned out, yes.
      Q: And your intent when you knocked down the door of this residence was to go in and take something, is that right?
      A: Yes.
      Prosecutor: Now, investigator, moving to page 11.
      Q: And was there some discussion as to the fact that you were going to go in and take something from this residence?
      A: Well, yeah. Yeah.
      Q: What was that discussion?
      A: Well, we didn't talk about going in the house, but we did say he was going to kick down the door. We did it, went in.
      Q: Your intent in going into that residence was to take an item or items that were in there, is that correct?
      A: Yes. We went in there, yes, we were going to take something.
      Q: And in fact you did come out of that residence with various items?
      A: Yes.
      Q: And that included some cash, some jewelry, things like that?
      A: Yes.
      Q: And you had no one’s consent to enter the residence, is that right?
      A: No, we didn't have it.
      Q: At what point did you become aware somebody was in this residence?
      A: When I came out and there was a guy driving backwards in the car down the driveway, that’s when I knew somebody had to have been — he had to come from the house. I didn’t know he was there beforehand or nothing like that.

        Q: And again, all this occurred in Washington County in the City of Grant, is that right?
      A: Yes.

      . We acknowledge that Weatherspoon was charged with aiding and abetting, a necessary element of which is that another person participated in the crime. However, Weath-erspoon need not have identified King to establish that he committed the crime with another.

      . There were four justices who concluded that the statement against interest exception was not a firmly-rooted hearsay exception and therefore reliability of such statements must be proved. Lilly, 527 U.S. at 134, 119 S.Ct. 1887. In a concurrence, Justice Scalia stated that he believed the use of statements against interest is a “paradigmatic” Confrontation Clause violation. Id. at 143, 119 S.Ct. 1887 (Scalia, J. concurring).

      .Contrary to the dissent’s assertion, King's statements during interrogation did not contain “several inconsistencies,” but rather his statements were consistent on the pertinent points of the interrogation despite persistent questioning by Investigator Tilley. This consistency is all the more remarkable because King's answers were often interrupted with further questions which resulted in confusion as to which question was being answered and the questioning consisted of numerous untrue statements and misleading questions which appear to have been intended to trick or trap King into making damaging admissions. A thorough review of King’s interviews with Investigator Tilley indicates that these interviews do not support the dissent's harmless error argument.

      . The state explained, “[t]he element on which this evidence would be offered would be entry without consent. The question here, of course, is did he go into the house.”

      . The dissent characterizes the past-crime evidence as the type on which the jury relied, instead of relying on the more direct Weather-spoon plea testimony. However, we have concerns about affirming a conviction based on earlier conviction. Evidence of prior convictions may be permissibly used only in limited circumstances. "While the jurors in this case were entitled to consider this evidence in determining whether [the defendant] in fact committed the acts alleged, they were not entitled to convict him based on their assessment of him as a person or based on what he has done in the past.” United States v. Bahe, 40 F.Supp.2d 1302, 1312 (D.N.M.1998). In much the same way, we should not affirm a conviction that was obtained through the use of constitutionally prohibited testimony simply because King committed a crime using a similar, albeit common, method 3 years earlier. Further, we have concerns about expanding the use of the past-crime evidence beyond the purpose for which it was offered and accepted at trial in order that we can justify affirming a conviction under a harmless error analysis.

      . King gave false information about what he did during the burglary, first explaining that he made a full circle of the house to look for Weatherspoon. Then when Investigator Til-ley questioned King about the layout of the back yard, King confessed that he failed to tell the full truth and that he in fact never circled the house but instead looked for Weather-spoon from the corner of the yard.