Opinion
No. 3-825 / 02-1238.
Filed December 24, 2003.
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
Bobby Rhoden appeals from his convictions and sentences for four counts of forgery in violation of Iowa Code section 715A.2(2)(a)(3) (2001). REVERSED AND REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, William E. Davis, County Attorney, and Don Frank, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, J.J.
Bobby Rhoden appeals from his convictions and sentences for four counts of forgery in violation of Iowa Code section 715A.2(2)(a)(3) (2001). We reverse and remand for a new trial.
Background Facts and Proceedings. Steven Zaehringer's apartment was burglarized on December 13, 2001. One of the items stolen was his checkbook. After Zaehringer discovered someone was forging the stolen checks, he notified several local stores not to accept checks under his name.
On December 22, 2001, someone attempted to pass a check in Zaehringer's name at Mother Hubbard's Cupboard. The clerk tried to call the police discreetly, but the man became suspicious and left, taking the check with him. Two clerks from Mother Hubbard's saw the man get into a gray, four-door Oldsmobile with a dealership temporary license plate on the rear window.
The police showed the store surveillance tape to Zaehringer, and he identified his neighbor, Bobby Rhoden, as the check writer. The police also conducted a fingerprint analysis of roughly 30 checks written on Zaehringer's account without his permission. Rhoden's fingerprints were found on three of the checks.
Rhoden was charged with four counts of forgery, one count for each check bearing his fingerprints and one count for the incident at Mother Hubbard's. A jury convicted Rhoden of all four counts. The district court sentenced Rhoden to four concurrent terms of four years six months and fined him $750.00 for each conviction. Rhoden appeals, contending the district court erred by instructing the jury on the theory of aiding and abetting. He also raises several other claims, but because of our disposition of the jury instruction issue, we find it unnecessary to address his other assignments of error.
Jury Instructions. At the close of evidence, the State submitted instructions allowing the jury to find Rhoden guilty of forgery as either a principal or as an aider and abettor. Rhoden's counsel objected, stating, "We would raise the issue of notice and due process with respect to that particular instruction. The trial information did not indicate that this was an aiding and abetting case, and we therefore would request that that be deleted." The district court overruled the objection, and the jury was instructed on the theory of aiding and abetting. Relying on State v. Mays, 204 N.W.2d 862, 864-865 (Iowa 1973), Rhoden claims this was a violation of his due process rights and constituted reversible error because the State presented no evidence at trial on the aiding and abetting theory.
The State asserts Rhoden's objection the jury instructions was insufficient to preserve error on a due process claim for insufficiency of the evidence. The State contends Rhoden objected to the jury instructions only on notice grounds. While Rhoden's objection certainly could have been more specific, we conclude it was sufficient to preserve error. In its response to the objection, the State addressed both the notice issue and the sufficiency of the evidence issue. Given this context, we conclude Rhoden's objection was "of sufficient clarity and specificity to have alerted the trial court to the particular error alleged and relied upon." State v. Baker, 560 N.W.2d 10, 14 (Iowa 1997).
Because Rhoden alleges a violation of his constitutional rights, our review is de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984).
Rhoden contends the State presented no evidence that another person was involved in the forgeries. The State points out that Rhoden was not charged with the burglary of Zaehringer's apartment or with the theft of any of the items taken from the apartment. The State argues that those facts, combined with the evidence of roughly thirty other forged checks that did not have Rhoden's fingerprints on them would have allowed the jury to infer that someone besides Rhoden was involved in the crimes. We find this argument unconvincing. Rhoden was not charged with forging the other thirty checks, burglarizing the apartment, or stealing items from Zaehringer's apartment. He was charged with forging three checks bearing his fingerprints and attempting to pass a fourth check at Mother Hubbard's on December 22. As to these crimes, we agree with Rhoden: the State presented no evidence of another person's involvement.
At oral argument, the State asserted the testimony from one of the Mother Hubbard's clerks that the man got into the passenger side of the gray automobile also indicates someone else was involved in the forgeries. A person aids and abets a crime when he lends countenance to or assents to another's criminal activity. State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct. App. 1999). An aider and abettor is not required to have the intent to commit the crime, but is only required to have knowledge that the perpetrator posseses the intent to commit the crime. State v. Hustead, 538 N.W.2d 867, 870 (Iowa Ct. App. 1995). Because the State is arguing Rhoden is guilty of aiding and abetting, we would have to infer that the unidentified driver had the intent to commit forgery. Even if we were to consider the merits of an argument raised only at oral argument and not in the State's brief, we would conclude that under these circumstances, there is no evidence the driver had knowledge of, much less the intent to commit, the forgery.
The State posits nonetheless that Rhoden established no reversible error resulting from the submission of the aiding and abetting theory because the record includes sufficient evidence of Rhoden's guilt as a forger of four checks. The State concedes, however, that if we conclude sufficient evidence of aiding and abetting is lacking, we must overturn State v. Mays, 204 N.W.2d at 864-865, to uphold Rhoden's convictions. This we are not inclined to attempt as we are obligated to follow the decisions of our supreme court. See State v. Eichler, 248 Iowa 1267, 1270, 83 N.W.2d 576, 578 (1957) ("If our previous holdings are to be overruled, we should ordinarily prefer to do it ourselves."); and State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) ("We are not at liberty to overturn Iowa Supreme Court precedent."). It is reversible error for the district court to give an aiding and abetting instruction when no evidence of another person's involvement is presented at trial. Mays, 204 N.W.2d at 864-865. Accordingly we reverse and remand for a new trial.