Opinion
No. 03-0426.
July 28, 2004.
Appeal from the Iowa District Court for Woodbury County, Gary E. Wenell, Judge.
Defendant appeals from his conviction for robbery in the second degree, burglary in the third degree, and assault while participating in a felony. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas Mullin, County Attorney, and Patrick Jennings, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Raul Fuentes appeals from his conviction for robbery in the second-degree, burglary in the third-degree, and assault while participating in a felony. He contends the evidence is insufficient to support his conviction for robbery. He also contends the district court erred in failing to grant a mistrial, in failing to instruct the jury on operating a motor vehicle without the owner's consent, and in failing to merge his conviction of assault with his conviction of robbery. By way of pro se brief, Fuentes contends the court erred in failing to grant a mistrial because one of the jury members did not fully understand English. We affim in part, reverse in part, and remand with directions.
I. Background Facts and Proceedings.
On October 8, 2002, Fuentes spent a couple of hours at the "No Place" bar with Tisha Kavanagh and her two children. Fuentes asked another patron, Jose Rodriguez, for a ride. Rodriguez agreed, and drove Fuentes, Kavanagh, and her children to Brianna Edwards's residence. Edwards was Fuentes's former girlfriend.
Fuentes exited the van and went to Edwards's apartment. Rodolfo Valdez was watching the apartment for Edwards. Fuentes pushed through the door past Valdez, who told Fuentes to leave. Fuentes took a DVD player, VCR, backpack, and bag from the apartment, and he and Kavanagh loaded the items into the van.
Rodriguez decided he no longer wanted Fuentes and Kavanagh in his van. He drove to a parking lot near a restaurant so they could get a taxi. Rodriguez got out of the van and told Fuentes and Kavanagh to take their belongings out. Fuentes got out of the passenger seat. However, Kavanagh said she was not going to walk in the rain with her children. Fuentes directed Kavanagh to get in the driver's seat and he climbed back into the passenger seat. When Rodriguez tried to grab the van's gear shift, Fuentes reached over and hit him. Rodruiguez let go and Kavanagh and Fuentes drove the van back to their residence.
The van was found by the police that same night near a bar. It was damaged but in drivable condition. The keys were not with the vehicle.
Fuentes was charged with robbery in the second degree, burglary in the second-degree, and assault while participating in a felony. Fuentes was tried to a jury on January 21, 2003. The jury returned a verdict finding Fuentes guilty of second-degree robbery, third-degree burglary, and assault while participating in a felony. Fuentes was sentenced to a term not to exceed ten years on the robbery count, a term not to exceed five years on the burglary count, and a term not to exceed five years on the assault count. The two five-year sentences were ordered to run consecutively with each other, but concurrently with the ten-year sentence.
II. Sufficiency of the Evidence.
Fuentes first contends the evidence is insufficient to support a conviction for second-degree robbery. Specifically, Fuentes contends the evidence does not show he had the specific intent to commit a theft.
We review claims of insufficient evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id.
A person commits robbery when, having the intent to commit a theft, the person commits an assault upon another. Iowa Code § 711.1 (2001). One of the elements of theft is the intent to deprive the owner of the property. Iowa Code § 714.1(1). Such intent to deprive requires more than a temporary dispossessing of another's property, although a deprivation is not necessarily a permanent thing. State v. Berger, 438 N.W.2d 29, 31 (Iowa Ct.App. 1989). It means to permanently withhold, or to withhold for so long, or under such circumstances, that its benefit or value is lost; or the property is disposed of so that it is unlikely the owner will recover it. Id.
Proof that the defendant acted with the specific purpose of depriving the owner of his property requires a determination of what the defendant was thinking when an act was done. State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999). When determining criminal intent, the condition of the mind at the time the crime is committed is rarely susceptible of direct proof but depends on many factors. State v. Venzke, 576 N.W.2d 382, 384 (Iowa Ct.App. 1997). It may be inferred from outward acts and attending circumstances. Id.
Fuentes testified he did not intend to steal the van; only use it to get Kavanagh and her children home. He further testified the van was dropped off a few blocks from their residence so that it could be found and returned the owner. Kavanagh testified Fuentes stated he wanted to keep the van and drive around it, but she told him she was concerned the police would find it. Police recovered the van the night it was taken. It was damaged, but drivable. The keys were not inside the vehicle.
We conclude the evidence is insufficient to support a conviction of second-degree robbery. Although Kavanagh testified Fuentes stated he wanted to keep the van and drive it around, Kavanagh did not know how long Fuentes intended to keep the vehicle. She testified, "[H]e told me he wanted to drive it around while we had it." This is not ample evidence by which a jury could find beyond a reasonable doubt that Fuentes intended to permanently deprive Rodriguez of his vehicle. The evidence that shows Fuentes did not intend to permanently deprive Rodriguez of the van is greater: Fuentes testified he did not intend to keep the van; the van was not driven a great distance from where taken; the van was found the same night it was taken; no attempt was made to conceal the van; and the van was in drivable condition.
Because the evidence is insufficient to support a conviction for second-degree robbery, we conclude the district court erred in denying Fuentes's motion for judgment of acquittal. We reverse Fuentes's conviction for second-degree robbery.
Because we reverse the conviction for second-degree robbery we must address the conviction for assault while participating in a felony. The felony in question was the robbery we now reverse. The jury did not reach a verdict on the lesser included offense of simple assault. However, it necessarily found the State had established all the elements of simple assault. An amended judgment should be entered. State v. Morris, 677 N.W.2d 787, 788 (Iowa 2004).
III. Motion for Mistrial.
Fuentes next contends the district court erred in denying his motion for mistrial. During Kavanagh's testimony, she described Fuentes as a "career criminal." Fuentes contends this remark was highly prejudicial.
We review the court's ruling on these motions for an abuse of discretion. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003). This court will not find an abuse of discretion "unless the defendant shows that the trial court's discretion was exercised on grounds clearly untenable or clearly unreasonable." Id. An "untenable" reason is one that lacks substantial evidentiary support or rests on an erroneous application of the law. Id.
A mistrial is appropriate when "an impartial verdict cannot be reached" or the verdict "would have to be reversed on appeal due to an obvious procedural error in the trial." Id. at 902. We conclude Kavanagh's comment did not prejudice Fuentes. During cross-examination, Fuentes admitted he had previous convictions for forgery, burglary in the second degree, and robbery. Because this evidence was admitted without objection, Fuentes was not prejudiced. See State v. McGuire, 572 N.W.2d 545, 548 (Iowa 1997). Furthermore, the court admonished the jury not to consider Kavanagh's remark. The district court did not abuse its discretion in denying Fuentes's motion for mistrial based on Kavanagh's comment.
In his pro se brief, Fuentes argues the district court erred in denying his motion for mistrial because one of the jury members did not understand English. It is well settled that known objections to prospective jurors, or those which may be ascertained, are waived if no challenge is made before the jury is sworn. State v. Grove, 171 N.W.2d 519, 521 (Iowa 1969). Fuentes's objection could have been ascertained during voir dire. Accordingly, the district court did not abuse its discretion in denying Fuentes's motion for mistrial based on a juror's difficulty reading English.
IV. Conclusion.
We reverse Fuentes's conviction of second-degree robbery based on insufficient evidence he intended to commit a theft. We also direct the trial court to set aside the conviction for assault while participating in a felony and enter judgment of conviction for simple assault. We need not address Fuentes's claims regarding the district court's failure to instruct on a lesser-included offense of second-degree robbery. Likewise, we need not consider Fuentes's claim regarding the court's failure to merge his convictions of assault while participating in a felony and second-degree robbery. We affirm Fuentes's conviction of burglary in the third degree.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.
Mahan, P.J., concurs; Zimmer, J., specially concurs.
I specially concur. I agree with the majority's conclusion that our supreme court's decisions in State v. Schminkey, 597 N.W.2d 785 (Iowa 1999) and State v. Morris, 677 N.W.2d 787 (Iowa 2004) require us to reverse the defendant's conviction for second-degree robbery. I write specially to respectfully suggest that the evidence presented by the State is this case should be sufficient to allow a jury to conclude that Fuentes assaulted another with the intent to commit a theft.