Opinion
No. 3-380 / 02-0967
Filed September 10, 2003
Appeal from the Iowa District Court forPolk County, Douglas Staskal, Judge.
Defendant appeals from conviction of and sentence for the crime of ongoing criminal conduct. AFFIRMED.
Blair Bennett, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Following a jury trial, Larry Agee was convicted of five counts of forgery, in violation of Iowa Code sections 715A.1, 715A.2(1)(d) and 715A.2(2)(a)(3) (2001), as well as one count of ongoing criminal conduct, in violation of Iowa Code sections 706A.1, 706A.2(1)(c) and (d). The five forgery counts served as the predicate offenses for the ongoing criminal conduct count. While Agee admits the record contained sufficient evidence to support his forgery convictions, he appeals the district court's denial of his motion for a directed verdict of acquittal as to the ongoing criminal conduct charge. Upon our review for errors at law, State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001), we affirm.
To support a charge of ongoing criminal conduct under Iowa Code section 706A.2(1)(c), there must be proof that the defendant knowingly conducted the affairs of an enterprise through specified unlawful activity, or knowingly participated in an enterprise so conducted. Specified unlawful activity is defined as
Iowa Code section 706A.2(1)(d) criminalizes conspiracy or an attempt to violate, or solicitation or facilitation of a violation of section 706A.2(1)(c).
any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.
Iowa Code § 706A.1(5) (emphasis added). Agee argues that the evidence demonstrates no more than an eight-day period of criminal activity on his part, and contends that, absent a threat of future criminal activity, such a short period of time is inadequate to constitute commission of indictable offenses on a "continuing basis."
Initially, we question whether Agee preserved this issue for our review. To preserve error, a motion for judgment of acquittal must point out the specific deficiencies in the evidence. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Here, in seeking a directed verdict of acquittal, Agee argued that the record did not contain sufficient evidence of ongoing criminal conduct because it failed to establish the existence of (1) an enterprise or (2) the commission of separate acts on different occasions. At no time did Agee claim that the period of time during which the forgeries were committed was too short to satisfy the statutory requirement of a continuing basis, or that the record did not contain substantial evidence of a threat of continuing criminal activity. It therefore appears that error was not preserved on the claim now urged. See id. However, even if Agee had preserved error on this claim, he could not prevail.
Jury Instruction No. 21, which defined a continuing basis, did not address the duration of time over which the underlying forgeries occurred. It informed the jury that the predicate forgeries had been committed on a continuing basis if they had
the same or similar purpose, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events and if they were committed under circumstances indicating that the defendant will continue to commit similar offenses.
Agee did object to this instruction, but argued only that the instruction would allow a jury to convict a defendant for multiple, but simultaneously-occurring, predicate offenses. He therefore requested additional language that would require the jury to find that the predicate forgeries had been committed separately. His objection was overruled and his request denied.
Agee challenges the sufficiency of the evidence to support his conviction for ongoing criminal conduct. For Agee to succeed on such a claim, the record must reveal that the jury verdict was not supported by substantial evidence, orevidence sufficient to convince a rational trier of fact, beyond a reasonable doubt, of Agee's guilt. Turner, 630 N.W.2d at 610. The totality of the record is viewed in the light most favorable to the State, including any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998). Viewing the record in such a light, we conclude that it does contain substantial evidence Agee committed the forgeries on a "continuing basis."
We agree with Agee that if the underlying or predicate offenses occur over a one-week period of time, and there is no threat of continued criminal activity, there is no evidence of a continuing basis. See State v. Reed, 618 N.W.2d 327, 334-35 (Iowa 2000). However, a continuing basis may be found, even where predicate acts occur over a short period of time, if there is a demonstrated relationship between the predicate acts and a threat of continuing criminal activity. Id. at 335. A relationship exits if the predicate acts "`have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.'" Id. at 334 (citation omitted).
The ongoing criminal conduct charge in this case was based upon evidence that Agee and another man, Floyd Conner, were engaged in what is known as a "split deposit scheme." Such a scheme involves the theft of both blank checks and mail containing checks already made out to payees. The perpetrators of this type of scheme steal outgoing mail from Individual A, and use any completed checks in that mail to gather information about Individual A, such as his or her name, financial institution and account number. They then make out a blank check taken from Individual B, listing Individual A as the payee, forging Individual B's signature, and forging an endorsement from Individual A on the back. The perpetrators deposit the forged check at Individual A's financial institution, and receive a portion of the deposit back in cash.
Agee and Conner had stolen mail from an area business shortly before their arrest. When Agee and Connor were arrested, Agee was in possession of stolen mail, checks and deposit slips, as well as blank checks taken from one individual. Five of those blank checks had been forged in a manner consistent with a split deposit scheme. This and other evidence, including a police scanner and a numerical list of eleven financial institutions found in Agee's wallet, indicated that Agee and Connor were engaging in a well-organized scheme of fraud that was not limited to the particular victims in this case. The record contained substantial evidence of a threat of future criminal activity of the same nature and kind as the predicate forgeries. The record therefore sufficiently supports Agee's conviction for ongoing criminal conduct, and his conviction of and sentence for that offense must stand.