Opinion
No. 03-0915.
March 31, 2005.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Wendell Harrington appeals his convictions, following jury trial, for ongoing criminal conduct, burglary in the second degree, theft in the second degree, and two counts of burglary in the third degree. JUDGMENTS AND SENTENCES REVERSED AND CASE REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, JJ., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Wendell Harrington appeals his convictions, following jury trial, for ongoing criminal conduct, burglary in the second degree, theft in the second degree, and two counts of burglary in the third degree. He contends the court erred in (1) allowing the admission of evidence of uncharged prior bad acts and drug usage, (2) overruling his objections to the aiding and abetting instruction, (3) overruling his motion for mistrial based upon prosecutorial misconduct, (4) overruling his motions for judgment of acquittal based upon insufficiency of the evidence, and (5) allowing the State to amend the trial information after the close of all the evidence. Harrington also raises several claims of ineffective assistance of trial counsel. Harrington filed a pro se brief in which he reiterates many of the contentions set forth by his appellate counsel. We reverse and remand for new trial.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following facts. On December 5-6, 2002, roommates Emily Larson and Molly Thomason lived at 2907 Sheridan in Des Moines. They returned home in the early morning hours of December 6 to find their house had been burglarized. The intruder had broken an outside light and entered through a window. The contents of their kitchen cabinets had been strewn about and all of Thomason's bras and underwear were gone. Larson later realized her black Honda Accord was also missing. Inside her vehicle Larson had left an identification card she acquired while living in Colorado.
On January 14, 2003 Andrew Vis and his wife resided at 2813 Sheridan in Des Moines. They returned home at approximately 10:15 p.m. from a gym to find their house had been burglarized. The contents of Mr. Vis's briefcase, some cupboards, their refrigerator, and dresser drawers had all been dumped out. The Vis's computer, printer, scanner, Palm Pilot and case, microwave, DVD player, and a jar of coins were all missing. Inside the Palm Pilot case Mr. Vis had stored cards from Blockbuster, Heavenly Ham, and Wellspring Christian Bookstore. In addition, some of Mrs. Vis's jewelry, shoes, underwear, and bras were taken. The intruder apparently tried to enter through a window because one of the Vis's windows was broken but could not be opened because it was painted shut, so instead the burglar had broken the hinge on the back door and entered there.
On January 17, 2003 Carolyn Leonhard resided at 3929 Amherst in Des Moines. She heard her dogs barking and awoke just in time to see her 1996 Lumina minivan driving away without the headlights on. In addition to the van, the burglar took a laptop computer, a desktop computer, a Palm Pilot, several DVDs, a PlayStation 2, a digital camcorder, and Mrs. Leonhard's wallet. Leonhard's daughter was visiting at the time and found her suitcase had been emptied out and her purse and underwear were missing. Mrs. Leonhard thought the intruder entered through the kitchen window.
On January 18, 2003 Officer Steven Schinkel of the Des Moines Police Department saw a black Honda Accord parked in front of a residence at 1704 21st Street and ran the license plates. He was advised the vehicle was stolen on or about December 6, 2003 from Larson. Schinkel and fellow officer Paul Little observed the vehicle for about twenty minutes until it drove away. They followed the vehicle and stopped it a short while later. The defendant, Harrington, was driving the Accord and had a female passenger, Jessica Lewis. In the glove box the officers found Larson's Colorado identification card.
On January 21, 2003 Detective Frank Irvin Jr. executed a search warrant at the 1704 21st Street residence of Eddie Johnson. Johnson stated that Harrington was renting a room from him in January of 2003. In Harrington's bedroom the officers found the black purse belonging to Mrs. Leonhard's daughter and the cards that were in Andrew Vis's Palm Pilot case when it was taken. Johnson denied ownership of any of the stolen property. Irvin testified, over Harrington's objection, that he also found a mirror, a film canister, a pipe, a knife, and a pair of clippers that can hold a cotton ball in Harrington's bedroom. Irvin stated that based on his training and experience he believed these items to be drug paraphernalia, items "used by someone that does controlled substances."
On February 21, 2003, Harrington was charged, by trial information, with: ongoing criminal conduct (Count I), in violation of Iowa Code section 706A.2(1)(d) (2003); theft in the second degree (Count II), in violation of sections 714.1(4) and 714.2(2); two counts of burglary in the third degree (Counts III and V), in violation of sections 713.1 and 713.6A; and burglary in the second degree (Count IV), in violation of sections 713.1 and 713.5(2). Harrington was charged under Counts I and V as an habitual offender under Iowa Code section 902.8. He filed a motion to sever the charges, a pro se motion to suppress, and both he and his attorney filed separate motions in limine. Following hearing the district court denied all of the motions.
Count I was amended prior the start of the trial by agreement of the parties to charge Harrington under paragraph (c) rather than (d) of section 706A.2(1).
The motions to suppress and sever were re-urged and again overruled just prior to trial.
Jury trial commenced on May 5, 2003. At trial Des Moines police officer Kelly Willis testified, over Harrington's objections, to his interview with Harrington regarding several burglaries which took place in 1987 and Harrington's confession to those burglaries. Willis stated, "I think we verified just over a hundred of those burglaries that Mr. Harrington pointed out as actually having occurred." He testified Harrington stated that in committing the burglaries he would wear black clothing and gloves and commit the burglaries at night, he would usually enter the homes through windows, he would commit several burglaries in the same neighborhood, and he would often take property from the home and put it in the victim's car and then steal the car as well. Willis also testified Harrington admitted to him that Harrington had a drug problem in 1987. Harrington told Willis he would make anywhere from three to eight hundred dollars a night on burglaries, and most of that would go to support his and his girlfriend's drug habits.
Ranika Coates, Harrington's daughter, testified for Harrington at trial. She stated that at the relevant times in question Harrington resided at 1443 17th Court, not with Johnson. She also stated that on the day Harrington was stopped in the Honda Accord she saw JoAnn Anderson, Johnson's sister who was residing with him at the time, give Harrington the keys to the black Accord so he could take Jessica Lewis home. JoAnn Anderson could not be located to testify at trial.
Harrington moved for a judgment of acquittal at the close of the State's evidence and again at the close of all the evidence, arguing there was insufficient evidence on all five counts. The trial court denied both motions. Also at the close of all the evidence the State moved to amend Count I of the trial information to charge Harrington under section 706A.2(4) instead of 706A.2(1)(c). Harrington objected to the proposed amendment. The court allowed the amendment.
Harrington objected to the aiding and abetting instruction as being conducive to causing the jury to speculate someone aided and abetted him even though there was no evidence of other parties being involved in the burglaries, and thus being prejudicial. He also objected to the marshalling instruction on Count I, urging two separate entities were required. The court overruled the objections. At the close of the case Harrington reopened the record to move for mistrial based upon prosecutorial misconduct. He claimed the prosecutor's comment during closing argument that Jessica Lewis was a potential aider and abettor was prejudicial to him because there was no evidence to support that contention. The court heard arguments on the motion for mistrial and overruled the motion finding the State's argument was a "fair comment" on the evidence.
The jury found Harrington guilty as charged on all counts. The court sentenced him to a term of incarceration not to exceed twenty-five years on Count I, fifteen years on Counts II and V, five years on Count III, and ten years on Count IV. Counts II and V were ordered to run consecutively to one anther, with all other counts to run concurrently with one another and with Counts II and V.
Harrington appeals his convictions contending the trial court erred in (1) allowing the admission of evidence of uncharged prior bad acts and drug usage, (2) overruling his objections to the aiding and abetting instruction, (3) overruling his motion for mistrial based upon prosecutorial misconduct, (4) overruling his motions for judgment of acquittal based upon insufficiency of the evidence, and (5) allowing the State to amend the trial information after the close of all the evidence. Harrington also raises several claims of ineffective assistance of trial counsel. We address these issues separately and in a slightly different order.
II. MERITS.
A. Amendment to Trial Information.
At the close of all the evidence Harrington pointed out a discrepancy in the court's denial of his previous motion for judgment of acquittal on Count I, in that the court relied on section 706A.2(4) in denying the motion and Harrington was charged under 706A.2(1)(c). The trial court acknowledged this inconsistency and the State asked to amend the trial information as to Count I to charge Harrington with ongoing criminal conduct under 706A.2(4). Harrington objected to the amendment as untimely and prejudicial to his defense. The court heard arguments on the amendment and allowed the State to amend the trial information. It found the amendment would not charge a wholly new or different offense and that Harrington's rights would not be substantially prejudiced by the amendment because his trial strategy throughout had been that he was not guilty of the underlying predicate acts and that strategy was not affected by the amendment.
Harrington argues the trial court erred in allowing the State to amend the trial information because it was untimely and caused him unfair surprise. He contends he prepared to defend Count I based upon the charge in the trial information under section 706A.2(1)(c), and the amendment was allowed in contradiction to Iowa Rule of Criminal Procedure 2.4(8)( a) because it occurred after trial, it was prejudicial to his defense, and 706A.2(4) constituted a wholly new and different offense.
Rule 2.4(8)( a) provides:
The court may, on motion of the state, either before or during the trial, order the indictment amended so as to correct errors or omissions in matters of form or substance. Amendment is not allowed if substantial rights of the defendant are prejudiced by the amendment, or if a wholly new and different offense is charged.
The first part of this rule is discretionary: the court may order amendment to correct errors or omissions. State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). Thus, our review of this part of the rule is for an abuse of discretion. Id. "We find an abuse of discretion only when the party claiming such shows that the court exercised the discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Id. The second part of the rule limits the trial court's discretion, and thus our review of the second part is for correction of errors at law. Id.
A trial information, like an indictment, may be amended to correct errors or omissions of form or substance so long as a two-pronged test is satisfied: (1) substantial rights of the defendant are not prejudiced thereby, and (2) a wholly new or different offense is not charged.
Id. (quoting State v. Berney, 378 N.W.2d 915, 919 (Iowa 1985)). Amending a trial information to allege a different means of committing the same crime, specified in a separate division of the statute, is permitted because it "would clearly not be a `wholly new and different offense.'" State v. Sharpe, 304 N.W.2d 220, 223 (Iowa 1981).
We agree with the trial court that section 706A.2(4) does not charge a wholly new and different offense than section 706A.2(1)(c), but instead merely charges a different means of committing the same crime of ongoing criminal conduct. Furthermore, Harrington's rights were not substantially prejudiced by the amendment because his trial strategy throughout had been that he was not guilty of the underlying predicate acts and that strategy was not affected by allowing the State to urge the different means of committing the same offense under section 706A.2(4). Thus, we conclude the trial court did not err in allowing the State to amend the trial information.
B. Prior Bad Acts and Drug Evidence.
Our scope of review is for correction of errors of law. Iowa R. App. P. 6.4. Our standard of review in analyzing challenges to the admission of evidence of other crimes, wrongs, or acts is for abuse of discretion. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997); State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997); State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). We will reverse the trial court's decision only upon a showing that the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997). "Even if an abuse of discretion is found, reversal is required only when the abuse is prejudicial." State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999).
This issue is governed by Iowa Rule of Evidence 5.404( b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In determining whether the challenged evidence is admissible we, like the trial court, must employ a two-step analysis. Brown, 569 N.W.2d at 116. We first decide whether the evidence is relevant for a purpose other than to show that the defendant acted in conformity with his or her propensity to commit the wrongful act. Id. There is a presupposition that relevant evidence is admissible. Iowa R. Evid. 5.402; Anderson, 565 N.W.2d at 342.
If the evidence is relevant for a legitimate purpose, we move to the second step, to decide whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Brown, 569 N.W.2d at 116; see also Iowa R. Evid. 5.403.
A proper weighing of probative value and unfair prejudice requires that the court consider "on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility."
State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001) (quoting State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991)). There must be "clear proof" that the defendant committed the prior bad acts. Brown, 569 N.W.2d at 117. "An affirmative finding in this balancing process precludes admissibility of even relevant evidence." Plaster, 424 N.W.2d at 231; see also Iowa R. Evid. 5.403.
1. 1987 confession to prior crimes.
Harrington contends the trial court erred in admitting the testimony of Officer Willis regarding his 1987 confession to burglaries because its probative value was substantially outweighed by the danger of unfair prejudice. The State contends the court was correct in admitting Harrington's confession to participation in the 1987 burglaries under the "identity exception" in rule 5.404( b).
When prior crimes evidence is offered to prove identity, the test of relevancy is whether the prior crime and the crime for which defendant is being charged reveal circumstances that are "strikingly similar" or of a "unique nature," such that involvement in the prior crime makes it more likely that defendant was involved in the present crime.
State v. Butler, 415 N.W.2d 634, 636 (Iowa 1987).
We do not believe that the circumstances of the crimes Harrington confessed to in 1987 and the circumstances of the present burglaries are so "striking similar" or of a "unique nature" such that his involvement in the prior crimes makes it more likely he was involved in the present ones. See id. Although there are some similarities, several of the things Officer Willis testified Harrington had confessed to him regarding the manner in which he committed the burglaries in 1987 are different than what occurred in the present case. For example, Willis testified that in committing the 1987 burglaries Harrington would sometimes put items in pillowcases, stash them in neighbor's bushes, and then retrieve them later. There is no evidence any of these things occurred in the present burglaries.
Furthermore, Officer Willis testified on cross-examination he could not say that the manner in which Harrington admitted to committing the burglaries in his 1987 confession (e.g., dressing in black, committing the crimes at night, and entering through a window) was "significantly different" than the manner in which other burglaries are committed, and in fact he has come to find out that "several burglaries are committed in that form." He further testified that he did not know if stealing a car if one was available was "common" for burglars but that "it has happened. Several — it just depends on the individual."
We conclude the testimony from Willis relating to Harrington's 1987 confession was not relevant to any legitimate issue in the present case and did nothing more than to show Harrington had a propensity to commit burglaries. See State v. Mitchell, 633 N.W.2d 295, 300 (Iowa 2001); Brown, 569 N.W.2d at 116. This evidence should not have been admitted at trial. The trial court erred in ruling on Harrington's motion in limine that the evidence would be admitted and overruling Harrington's trial objections to the evidence.
Furthermore, assuming that evidence of the prior burglaries had some relevance to the identity of the perpetrator in the present case, we further conclude that its probative value was substantially outweighed by the danger of unfair prejudice.
Any probative value of the evidence of Harrington's prior burglaries was weakened by the fact the evidence related to crimes dating back fifteen plus years. See State v. Casady, 491 N.W.2d 782, 785-86 (Iowa 1992) (finding that although the remoteness of evidence affects its weight rather than its admissibility, lapses of fifteen and twelve years between the prior crimes and current crime were significant). In addition, as discussed above and acknowledged by the State in its brief, the circumstances of the prior burglaries were not of such a unique nature, or so strikingly similar to the present crimes, as to make Harrington's involvement a foregone conclusion. Although there are some similarities, they are common to many burglaries, they do not create any substantial link between the prior crimes and the present crimes, and the other crimes evidence has little or no strength in supporting the identity issue. We therefore conclude the time gap between the prior and present crimes, together with the weakness of any similarities, leaves the evidence with very little, if any, probative value and tips the scale in favor of exclusion of the evidence.
"On the other side of the balancing process, the trial court was required to consider the degree of prejudice that would result from the admission of the prior acts testimony." Rodriquez, 636 N.W.2dat 243. Unfairly prejudicial evidence is evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.
Id. at 240 (quoting Plaster, 424 N.W.2d at 231). We believe the evidence of Harrington's numerous prior burglaries would in fact provoke the jury's instinct to punish and motivate it to base its decision on the fact he admitted to committing numerous burglaries in the past, rather than basing its decision on the evidence concerning the burglaries and other crimes charged in the present case.
Thus, based on the weakness of the probative value of evidence of Harrington's prior burglaries and the danger of unfair prejudice from such evidence, we conclude the evidence's probative value was substantially outweighed by the danger of unfair prejudice. We conclude the trial court abused its discretion in admitting this evidence.
2. Drug Evidence.
Harrington also argues Officer Willis's testimony regarding Harrington's prior drug dependency and the testimony of Detective Irvin that he believed certain items found in Harrington's room to be drug paraphernalia constitutes improper character evidence, was not relevant, was unfairly prejudicial, and should have been excluded under rules 5.404( b) and 5.403. The State contends error was not preserved on whether this evidence was unfairly prejudicial because it was not addressed in the motion in limine, and the objections to the evidence during trial sought to exclude the evidence only on relevance grounds, not under rule 5.404( b). However, the State asserts that if error was preserved on this issue then the evidence was admissible under the "motive exception" in rule 5.404( b).
For the reasons urged by the State, we have serious concerns as to whether Harrington's current rule 5.404( b) and rule 5.403 arguments were all preserved for our review. However, because we believe this issue should be addressed for purposes of a possible retrial we pass any question of error preservation and address the merits of his claim.
The State, in essence, is arguing that because Harrington admitted in 1987 that his motive for committing those burglaries was to obtain money to support his drug dependency, he must have the same motive for committing the current crimes. However, the only evidence that Harrington currently, some fifteen years later, might have had a drug dependency or used drugs is the testimony of Detective Irvin.
At trial Irvin testified that he believed the items he found in Harrington's bedroom to be drug paraphernalia. He stated he found a mirror, film canister, pipe, knife, and clippers that can hold cotton balls. He answered in the affirmative when asked if he recognized those items "as being regularly used by someone that does controlled substances." Such is the only evidence in the record that Harrington may have currently been using drugs. It has only the weakest tendency to show Harrington had a current drug dependency that would motivate him to commit burglaries.
Furthermore, we believe that any evidence suggesting Harrington might have been using or addicted to drugs could be highly prejudicial to him. It could easily appeal to the jury's instinct to punish those who purchase and use drugs. See generally State v. Liggins, 524 N.W.2d 181, 188-89 (Iowa 1994) (finding admission of evidence of cocaine delivery and distribution inherently prejudicial in murder case because it appealed to jury's instinct to punish drug dealers).
Based on the minimal amount and weakness of evidence in the record showing Harrington might have been currently addicted to or using illegal drugs, and the temporal separation of fifteen plus years between the current crimes and his prior confessed dependency, we conclude there is very little probative value to either the evidence of his past dependency or the possible paraphernalia. Furthermore, due to the high potential for prejudice from drug related evidence, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice. Assuming, without so deciding, that Harrington's timely objection was sufficient to raise the issue, we find the trial court abused its discretion in admitting the drug evidence. Furthermore, for the reasons discussed above, we do not believe the evidence against Harrington was so overwhelming as to cause us to ignore the ruling on the drug evidence on the basis of harmless error. See Liggins, 524 N.W.2d at 189.
Again, assuming, without deciding, the adequacy of Harrington's objection we conclude the trial court erred in admitting Willis's testimony regarding Harrington's 1987 confession to prior burglaries and Harrington's prior drug dependency, as well as the testimony and evidence relating to the possible drug paraphernalia found in Harrington's bedroom. The relevance of the evidence to any issue was at best extremely weak and its probative value was outweighed by the danger of unfair prejudice. The admission of this evidence was unfairly prejudicial to Harrington.
C. Aiding and Abetting Instruction.
The district court has a duty to instruct fully and fairly on the law regarding all issues raised by the evidence. Iowa R. Crim. P. 2.19(5)( f); State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). The court may phrase the instructions in its own words, provided the instructions given fully and fairly advise the jury of the issues it is to decide and the law which is applicable. Liggins, 557 N.W.2d at 267. Any error in jury instructions must be prejudicial to warrant reversal. State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997).
At trial Harrington objected to the court submitting aiding and abetting instructions to the jury. The prosecution argued that because the female, Jessica Lewis, was with Harrington in the stolen car when he was arrested, and some of the property taken during the robberies included women's undergarments, the jury could reasonably conclude Harrington was aiding and abetting a female. The trial court overruled Harrington's objection to the aiding and abetting instructions for the reasons given by the State.
Harrington argues on appeal that the trial court erred in giving the aiding and abetting instructions over his objection because the evidence did not warrant such instructions. He contends that although Jessica Lewis was in the stolen vehicle when he was stopped, there is no showing she was in any way involved in the crimes charged. Harrington further claims that, as in State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973), the court's granting of aiding and abetting instructions was prejudicial because it "opened up to speculation participation by others, without any proof of such participation."
The State contends there was sufficient evidence to support the aiding and abetting instructions based on the fact Lewis was in the stolen vehicle with Harrington and the fact women's undergarments were taken from all three houses. In the alternative the State asks that we revisit the presumed prejudice standard rejected in Mays. It argues that even if the instructions were wrongly given it was harmless error and did not prejudice Harrington because it is not reasonable to conclude the jury convicted Harrington based on speculation that he aided and abetted an unidentified person in the burglaries.
We conclude that here, just as in Mays, the "aiding and abetting instruction[s] necessarily assumed that two or more individuals were involved in the crime, but no evidence at all was introduced that anyone beside [Harrington] was involved — assuming it shows that he was involved." Mays, 204 N.W.2d at 864. We find there was insufficient evidence that Lewis, or anyone other than Harrington, was involved in the crimes so as to support instructions allowing the jury to find Harrington guilty by aiding an abetting another. "A person cannot aid and abet the commission of a crime unless another commits the offense; one cannot aid and abet himself in the commission of an offense." Id. (quoting 21 Am. Jur. 2d Criminal Law § 119, at 197 (1973)). In addition, the prosecutor conceded during argument on Harrington's motion for mistrial that during closing arguments he stated that Lewis in fact could not be linked to these crimes. Accordingly, the court should not have given the aiding and abetting instructions.
Furthermore, we decline the State's invitation to reject the presumed prejudice standard set forth by our supreme court in Mays. The State argues the instructions did not prejudice Harrington because given the minimal evidence of participation by an accomplice in this record it is not reasonable to conclude the jury convicted him based on unwarranted speculation he aided and abetted another. However, we agree with the court in Mays that the potential for unwarranted speculation based on instructions unsupported by the evidence is the very reason instructions on aiding and abetting should not have been given. They opened up to speculation by the jury participation by others without any proof of such participation. Id. at 865. "The present case falls under the principle that an instruction submitting an issue unsubstantiated by evidence is generally prejudicial." Id.
Finally, Harrington claims that "subsumed" in his objection to the aiding and abetting instructions are arguments relating to the court's failure to give a corroboration instruction and that he was prejudiced because the jurors were not instructed on the definition of an accomplice or that they could not use Lewis's mere presence to convict Harrington without evidence corroborating her involvement. The State argues that Harrington's "corroboration of accomplice" instruction argument was not subsumed in his objection and is thus not preserved because it is a claim made for the first time on appeal. We agree with the State and find this issue has not been preserved for our review.
Accordingly, we conclude the trial court erred in giving the aiding and abetting instructions and the submission of those instructions was prejudicial to Harrington. The convictions must be reversed for this additional reason.
D. Sufficiency of the Evidence.
Normally, when error occurs at trial resulting in a reversal of a criminal conviction on appeal, double-jeopardy principles do not prohibit a retrial. An exception exists, however, when the defendant's conviction is reversed on grounds that the evidence was insufficient to sustain the conviction. Thus, when a reviewing court determines prejudicial trial error occurred in a criminal trial, the case will not be remanded for retrial when the evidence at trial was insufficient to support the conviction. Instead, it is dismissed.
. . . In determining whether retrial is permissible all the evidence admitted during the trial, including erroneously admitted evidence, must be considered. The rationale for doing this is based on the reliance by the State upon the trial court's decision to admit the evidence and the possibility that the State would have been able to introduce other evidence if error would have been found at trial, or otherwise employed different tactics to avoid a dismissal. Thus, we must turn to a consideration of the sufficiency of all the evidence to determine the relief to be granted.
State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (citations omitted).
We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). In reviewing such challenges we give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). We will uphold a trial court's denial of a motion for judgment of acquittal if there is substantial evidence in the record to support the defendant's conviction. State v. McPhillips, 580 N.W.2d 748, 752 (Iowa 1998). If a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt, the evidence is substantial. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p).
Harrington argues the trial court erred in denying his motions for judgment of acquittal because there was insufficient evidence on each of the counts against him.
Harrington also makes a passing reference to the "weight of the evidence" standard under State v. Ellis, 578 N.W.2d 655 (Iowa 1998), in this section of his brief. However, he makes no further argument or analysis regarding a weight of the evidence challenge to his convictions and we deem any such issue waived. See Iowa R. App. P. 6.14 (1)( c).
In Count II Harrington was charged with theft in the second degree for exercising control over Emily Larson's stolen Honda Accord. Harrington contends the State failed to prove he had the "requisite mens rea" because there was no evidence that he knew the Honda Accord he was driving was stolen. He emphasizes that the car had been missing for over a month when he was stopped by police, he had done nothing to alter the license or color of the car, and his daughter testified JoAnn Anderson had given him the keys to drive Lewis home.
However, the jury also heard evidence that Harrington was caught driving a stolen car, items in the car revealed the identity of the true owner, Harrington was found in possession of items from other burglaries which were in the same area from which the car had been taken, and the burglaries involved some similarities.
Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The credibility of witnesses, in particular, is for the jury. A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. Liggins, 557 N.W.2d at 269; see also State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (same). Thus, the jury was free to disbelieve Harrington's daughter and conclude it was not mere coincidence that Harrington was driving the stolen car and was in possession of other stolen property from burglaries in the same area from which the car had been taken from. Accordingly, we conclude a rational trier of fact could have found Harrington guilty beyond a reasonable doubt of theft in the second degree and thus the evidence of Harrington's guilt of that crime is substantial.
On Counts III, IV, and V, Harrington argues the State failed to prove he was the one who committed the burglaries as there was no biological evidence (DNA), fingerprints, or clothing found at any of the crime scenes linking him to the burglaries. However, the absence of such evidence would not preclude the jury from finding Harrington guilty on these counts. First, direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p). Second, as set forth above, Harrington was in possession of items stolen from each of the three burglaries: the car from Larson; the purse from Leonhard's daughter; and business cards from Mr. Vis. Furthermore, there was evidence connecting Harrington to Johnson's residence where the stolen purse and the cards were found. Such evidence included not only Johnson's testimony but also a digital cable box rented in Harrington's name found in the bedroom that Johnson testified was occupied by Harrington. Finally, there were some similarities between the present burglaries and those Harrington confessed to committing in 1987.
We conclude that when all of the evidence is viewed in the light most favorable to the State, a rational trier of fact could conceivably find Harrington guilty beyond a reasonable doubt of the burglaries as charged. See Lambert, 612 N.W.2d at 813.
Finally, Harrington contends the State failed to prove he received financial gain from his specified unlawful activities and thus there was insufficient proof of guilt of the ongoing criminal conduct charge (Count I). Pursuant to the jury instructions as given and after elimination of instructions and portions of instructions concerning aiding and abetting, in order to prove ongoing criminal conduct the State had to establish (1) that Harrington committed "specified unlawful activity" involving any two or more of the burglaries and the theft charged, (2) he did so on a continuing basis, and (3) he committed these acts for financial gain. "Specified unlawful activity" was defined to the jury as "any act, including any preparatory or completed offense, committed for financial gain on a continuing basis and which is punishable as an indictable offense." See Iowa Code § 706A.1(5). The jury was also instructed that the crimes of theft, burglary, and operating a motor vehicle without the owner's consent are all indictable offenses. "Financial gain" is not defined by the statute.
We have already determined the court properly allowed the amendment to the trial information and thus the specific section Harrington was charged under, and the jury instructed upon, regarding ongoing criminal conduct was section 706A.2(4).
Harrington argues the State failed to show he received any financial gain from the charged offenses because there were no large amounts of money found on his person or property. However, we read the relevant jury instructions and statute to require only proof that the defendant's purpose was for financial gain, not that he or she actually received financial gain. A jury could easily infer here that valuable items taken from the victims' homes were taken for the purpose of financial gain. Therefore, we conclude the jury could reasonably infer from the evidence that if Harrington was the person who committed two or more of the burglaries and theft his purpose was financial gain.
Harrington further contends the State was required, but failed, to prove the existence of two distinct entities, (1) a person, and (2) an enterprise, in order to prove him guilty of ongoing criminal conduct. We conclude the State was not required to prove a separate enterprise under the ongoing criminal conduct alternative with which Harrington was charged and upon which the jury was instructed.
For all of the reasons set forth above, we conclude that when all of the evidence, including the erroneously admitted evidence, is viewed in the light most favorable to the State a rational trier of fact could conceivably find Harrington guilty beyond a reasonable doubt of the crimes charged. Thus, there is substantial evidence in the record to support the jury's guilty verdicts. The trial court did not err in denying Harrington's motions for judgment of acquittal.
III. CONCLUSION.
For all of the reasons set forth above, we conclude the trial court did not err in allowing the State to amend the trial information because the amendment did not charge a wholly new and different offense and did not prejudice Harrington's defense. The court abused its discretion in allowing Officer Willis's testimony regarding Harrington's 1987 confession to prior burglaries and his prior drug dependency. The evidence of the possible drug paraphernalia was not admissible, as the probative value of such evidence did not substantially outweigh the danger of its unfair prejudice. Furthermore, the court erred in submitting the aiding and abetting instruction to the jury and Harrington was prejudiced by such instruction. Accordingly, the judgments and sentences of the district court must be reversed. Finally, considering all of the evidence in the light most favorable to the State, including the erroneously admitted evidence, we conclude there is sufficient evidence in the record to support Harrington's convictions. Thus, retrial is permissible and the case shall be remanded for a new trial. Because we have reversed and remanded for a new trial it is unnecessary for us to address Harrington's claims of ineffective assistance of counsel. All other issues raised in appellate counsel's brief and Harrington's pro se brief are either controlled by our resolution of the issues we have expressly addressed or need not be addressed because we are reversing and remanding the case for new trial.