Opinion
No. 1-923 / 98-1692.
Filed March 27, 2002.
Appeal from the Iowa District Court for Scott County, MARK D. CLEVE, Judge.
The defendant appeals from the judgment and sentence entered upon jury verdicts finding him guilty of second-degree theft and being a habitual offender. REVERSED AND REMANDED.
Sally Heckman Peck of Peck Law Firm, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Eric Sterson appeals from the judgment and sentence entered upon jury verdicts finding him guilty of second-degree theft and being a habitual offender. Sterson contends (1) the State failed to prove the theft occurred in Iowa, (2) prosecution is barred by the statute of limitations, (3) the pretrial photo identification procedure used was constitutionally defective, and (4) there was insufficient evidence to convict him. Because we find the State was barred from prosecuting the charged offense by the statute of limitations, we reverse.
I. BACKGROUND FACTS.
In 1995, Andrew Blunck, a resident of Bettendorf, Iowa, advertised his computer for sale in a local paper. An individual, identifying himself as Eric Smith, responded to the advertisement. Smith called Blunck and stated he would come down one night. According to Blunck, Smith "rescheduled the appointment, came down, wrote out a check, and I helped him load up the computer, and that's the last I saw." The check, in the amount of $1,800, was dated March 3, 1995, and drawn on the account of Eric L. Smith and Christina Smith. The account holders listed a Rockford, Illinois address on the check. The check was drawn on a bank located in Rockford.
Blunck took the check to his bank and deposited it. The bank subsequently returned the check because the account on which it was written was closed. Blunck then took the check to the Scott County Attorney's office.
On July 5, 1995, an investigator showed Blunck a photo array. Blunck identified a man depicted in one of the photos as the person who gave him the bad check for his computer. The photograph Blunck selected, which was a mug shot of a man identified as Eric L. Smith, had been obtained from the Rockford, Illinois police department. The defendant was the person depicted in the photograph. On July 11, 1995, Scott County authorities filed a complaint charging Eric L. Smith with second-degree theft. Later that month, a warrant was issued for Smith's arrest.
The record reveals Eric Sterson was incarcerated in Illinois on charges unrelated to this proceeding from December of 1996 through March of 1998. It appears he did not learn of the Iowa warrant for his arrest until July 22, 1997, when prison authorities informed him of its existence. At some point in time, the State of Iowa sought to have Sterson returned to Scott County from Illinois. The record does not disclose exactly when this occurred. On March 2, 1998, Sterson agreed to waive extradition and return to Iowa. He was transported to Iowa and booked at the Scott County Jail on March 9, 1998.
On March 20, 1998, the Scott County Attorney filed a trial information formally charging Eric L. Smith, a/k/a Eric Sterson, with committing the offense of second-degree theft on March 3, 1995. The State later filed an amended trial information alleging the defendant was a habitual offender.
Prior to trial, the defendant filed a pro se petition for writ of habeas corpus based, in part, on the running of the statute of limitations. The district court denied his petition and the case proceeded to trial. At trial, Blunck identified Sterson as the person who gave him a bad check for his computer. The jury found Sterson guilty of second-degree theft and determined that he was a habitual offender. The court sentenced him to up to fifteen years imprisonment. Sterson appeals.
II. STATUTE OF LIMITATIONS ISSUE.
A. Scope of review. We review issues involving statutory construction for errors at law. State v. Howard, 610 N.W.2d 535, 536 (Iowa Ct.App. 1999). We are not bound by the trial court's legal determinations. Id. B. Merits. Sterson claims the district court erred in determining that his prosecution was not barred by the statute of limitations. The State made the following argument to the district court in response to Sterson's claim that the State was barred from prosecuting his offense:
Sterson was, in fact, out of this jurisdiction for a period of time, which would toll the statute of limitations. . . . All the State must prove, if an individual is incarcerated in another state, is absence from the state for a period of time, which would, in fact, toll the statute of limitations.
The State obviously assumed that the statute of limitations was tolled merely by Sterson's incarceration outside Iowa. The district court agreed with the State and found the statute of limitations was tolled.
Iowa Code section 802.3(1) (1995) provides that, subject to certain exceptions, a trial information for a felony shall be found within three years after its commission. Second-degree theft comes within the ambit of this three-year statute of limitations. Iowa Code § 714.2(2) (second-degree theft is a class "D" felony). Section 802.6(1) provides that:
When a person leaves the state with the intention of avoiding prosecution, the indictment or prosecution may be found or commenced within the time herein limited after the person's coming into the state, and no period during which the party charged was not publicly resident within the state is a part of the limitation.
The burden is on the State to prove that the statute of limitations has been suspended. Howard, 610 N.W.2d at 536. We have previously held that simply being absent from the state or avoiding return does not satisfy section 802.6. Id. at 537. Iowa's tolling statute was revised in 1979 to reflect the version currently found in section 802.6. Id. at 536-37. Under the previous statute, proof of a person's absence from the state was all that was required to toll the statute of limitations. Id. at 537. In the revised statute the legislature requires proof that a person left the state to avoid prosecution in order to toll the statute of limitations. Id.
On appeal, the State acknowledges that Sterson's mere absence from the state during his period of incarceration in Illinois did not toll the statute of limitations. Although we find the district court erred in so finding, we may affirm the trial court's ruling for any reason appearing in the record. State v. O'Malley, 593 N.W.2d 517, 519 (Iowa 1999). Therefore, we turn to the State's contention on appeal that we may affirm the trial court's ruling on other grounds.
The State asks us to find that when a person uses an alias, it is circumstantial evidence of the intent to avoid prosecution and the statute of limitations should be tolled. We decline the State's invitation to hold that Sterson's use of an alias tolls the statute of limitations. Section 802.6(1) does not speak to the use of an alias. Furthermore, even if we assume that Sterson used an alias with the intent of avoiding prosecution generally, the State has still not met its statutory burden of proving Sterson left the state with the intention to avoid prosecution. The record does not reveal when Sterson came to Iowa, when he left the state, or why he left. The record merely establishes the dates of his incarceration in Illinois, when he was definitely absent from this state. We find that, on the facts of this case, the State failed to meet its burden to prove the statute of limitations was tolled.
III. CONCLUSION.
We reverse Sterson's conviction due to the running of the statute of limitations. As such, we need not address his remaining arguments on appeal. We remand for dismissal of this case.
REVERSED AND REMANDED.