Opinion
No. 5-637 / 04-1477
Filed November 9, 2005
Appeal from the Iowa District Court for Page County, Timothy O'Grady and Gordon C. Abel, Judges.
Daniel Newberg appeals from his convictions for third-degree criminal mischief and intimidation with a dangerous weapon, in violation of Iowa Code sections 716.1, 716.5 and 708.6 (2003). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Richard Davidson, County Attorney, and Anthony Almquist, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Hecht, J., and Schechtman, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Daniel Newberg appeals from his convictions, following trial to the court, for third-degree criminal mischief and intimidation with a dangerous weapon, in violation of Iowa Code sections 716.1, 716.5 and 708.6 (2003). We affirm.
Background Facts and Proceedings.
On March 19, 2004, Bret Richards and Tony Swanson were driving separate vehicles on Washington Street in Clarinda. When he was about one-half block from the intersection with Sixteenth Street, Richards heard a sound that he thought was a BB gun and also what he considered to be pellets hitting his truck. When he later inspected his truck, he noticed damage that had not previously been there. At about the same time, Swanson heard three pings and the sound of something hitting his vehicle. Shortly thereafter, his rear window shattered. After stopping to look at the damage, Swanson observed a small hole through both panes of sliding glass.
Richards and Swanson proceeded to the Clarinda Police Department to report the incident. Officers Hit and Geist responded to the report and went to an apartment occupied by Daniel Newberg. Officer Geist asked Newberg if he had been having any trouble with loud vehicles driving by his apartment. Newberg responded that a loud white truck with a green stripe had driven by his place and that a newer black truck had been following. At that moment, Swanson drove his vehicle past Newberg's apartment, and Newberg identified it as the one with which he had complained. Responding to the officers' questions, Newberg admitted he possessed a .22 rifle and a pellet gun. He then retrieved the pump action pellet gun from behind a couch which was situated near a window and facing Washington Street.
The officers placed Newberg under arrest for the damage to Swanson's truck and later obtained a search warrant to search his apartment. In the search of the apartment, the officers located a bottle of copper-plated BBs which were of the same type found in Newberg's pellet gun. They also found two containers of steel-plated BBs.
The State subsequently charged Newberg with intimidation with a dangerous weapon and third-degree criminal mischief. Prior to trial, the parties stipulated that a BB gun is a dangerous weapon and that the damage to the vehicles exceeded $500. After a bench trial, the district court found Newberg guilty of both charges. Newberg appeals from these convictions claiming (1) the evidence is insufficient to support either conviction, and (2) trial counsel provided ineffective assistance by failing to challenge the validity of the search warrant.
Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence for the correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). A trial court's findings of guilt are binding if supported by substantial evidence. Id. If a rational trier of fact could find the defendant guilty beyond a reasonable doubt, the evidence is substantial. State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). The evidence is examined in the light most favorable to the State, including all legitimate inferences which may be fairly and reasonably deduced from the record. State v. Simpson, 528 N.W.2d 627, 632-33 (Iowa 1995).
Identity of Perpetrator.
Newberg first asserts there is inadequate proof that he was the perpetrator of both offenses. While there clearly was no direct evidence that Newberg shot the weapon that struck the vehicles, there is ample circumstantial evidence supporting the district court's finding of Newberg's guilt. Iowa courts have routinely noted that circumstantial and direct evidence are equally probative. See, e.g., State v. Parrish, 502 N.W.2d 1, 3 (Iowa 1993). Circumstantial evidence must simply "raise a fair inference of guilt; it must do more than create speculation, suspicion, or conjecture." State v. Blair, 347 N.W.2d 416, 421 (Iowa 1984).
We first note that the vehicles were struck by projectiles consistent with ammunition fired from a BB or pellet gun. Newberg possessed such a weapon and ammunition for it in his apartment. Newberg admitted he was annoyed by the noise emitting from Richards's vehicle. Officers opined that the shots most likely came from a direction in which no one but Newberg lived. Finally, Newberg's front window, which faced the street, had been modified to facilitate removal of the screen, making it easier to shoot a gun through it. As the district court aptly noted, "Newberg had both the motive and opportunity to fire the shots in question." Accordingly, we hold substantial circumstantial evidence supports the district court's finding that Newberg was the individual that fired the shots in question.
Specific Intent to Damage — Right or License to Damage.
Newberg next asserts the criminal mischief charge must fail because "there was no specific intent to damage . . . nor was there evidence offered to show that Mr. Newberg had no right, license or privilege to damage the properties question. . . ." Again, we disagree on both accounts.
As previously stated, circumstantial evidence is a staple of our criminal system. Moreover, it is reasonable for a jury to infer that an actor intends the natural results of his acts. See State v. Barnum, 554 N.W.2d 716, 720 (Iowa Ct.App. 1996). Of the shots that were fired, at least two struck vehicles located in the traveled portion of a public street. One shot struck a vehicle causing a surface imprint, while another shot struck the back window of the other vehicle and shattered it. It is reasonable to infer that the shooter intended to damage the property at which he fired the shots. In addition, a jury could reasonably find on this record that the shooter had neither the right, license, or privilege to shoot the two vehicles. Both Richards and Swanson testified as to their shocked reactions upon being struck by the BBs, and they both immediately reported the shootings to police.
Reasonable Apprehension of Serious Injury.
The intimidation charge requires proof that the occupant of the vehicle at which shots were fired was placed in "reasonable apprehension of serious injury." Newberg argues the State presented inadequate proof of this element.
At trial, the prosecutor asked Swanson if he was scared when the shooting occurred. Swanson responded, "Yeah. . . . I was just really scared. I didn't really know what was going on. It just had me worried. I don't know." We conclude this direct evidence sufficiently proved Swanson was placed in apprehension of serious injury notwithstanding the failure of the witness to express himself in language that exactly tracked the language of the statute that formed the basis of the charge.
Ineffective Assistance of Counsel.
Newberg asserts his trial counsel was ineffective in failing to challenge the validity of the search warrant which eventually resulted in the seizure of the BBs. He claims the search warrant does not contain information giving rise to probable cause that a crime was committed and that it does not describe with enough specificity the place to be searched and the items to be seized.
We review claims of ineffective assistance de novo. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). To prove an ineffective assistance of counsel claim, Newberg must show by a preponderance of the evidence (1) trial counsel failed to perform an essential duty; and (2) prejudice resulted from counsel's error. Id. (citing State v. Myers, 653 N.W.2d 574, 577 (Iowa 2002)). Failure to demonstrate either element is fatal to a claim of ineffective assistance. Id.
We find the record adequate to address this claim on direct appeal and choose to resolve it on the prejudice prong. The only items seized during the search, with which Newberg maintains he was prejudiced at trial, were containers of BBs. We find no likelihood that Newberg would have been acquitted even if counsel had made a motion that resulted in the suppression of this evidence. Newberg's gun, which was provided to police prior to execution of the challenged search warrant, contained copper-plated BBs. As the State now notes, all the seized containers of BBs added was that Newberg had more ammunition than was discovered in the gun on the night of the incident. Suppression of the BB containers would have done nothing to detract from the substantiality of the other evidence supporting his conviction. Accordingly, we conclude Newberg suffered no cognizable prejudice as a consequence of counsel's failure to seek suppression of the evidence seized during the execution of the allegedly deficient search warrant.