Opinion
No. 1-768 / 00-1426.
Filed March 13, 2002.
Appeal from the Iowa District Court for Muscatine County, DAVID E. SCHOENTHALER, Judge.
On appeal from her conviction for first-degree theft, the defendant argues there was insufficient evidence to support her conviction, the trial court erred in allowing certain opinion testimony, the brevity of the jury deliberations resulted in an invalid verdict, the sentencing court abused its discretion, and her trial counsel was ineffective. AFFIRMED.
Dennis A. Bjorklund, Coralville, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, and Richard R. Phillips, County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
An investigation of the Parks and Recreation Department for the City of Muscatine revealed discrepancies in receipts and deposits over seven fiscal years, amounting to $23,402.64 in missing funds. The departmental secretary, Betty Blake, was in charge of accepting payments for various services, preparing receipts and deposit slips, and delivering the funds to the city's Finance Department. Only Blake and Director Larry Wolf had worked for Parks and Recreation during all the years in question. Blake, however, had a greater level of involvement with the funds and deposits, and with one exception had made out all of the deposit slips containing missing receipts. She was charged with and convicted of theft in the first degree and sentenced to an indeterminate prison term not to exceed ten years. Blake appeals.
Sufficiency of the Evidence. Blake first argues there was not substantial evidence in support of her conviction, pointing to the highly circumstantial nature of the State's case. Circumstantial evidence is as probative as direct evidence, however, if it raises a fair inference of guilt. State v. Hoeck, 547 N.W.2d 852, 859 (Iowa Ct.App. 1996). Here, the circumstantial evidence is strong, even though some of the State's evidence was conflicted and other individuals had some form of access to the money. The question before us is not whether the evidence in the record unequivocally mandates a conviction, but whether the entire record, when viewed in the light most favorable to the State, would allow a rational jury to find Blake guilty beyond a reasonable doubt. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). Given that the jury was free to accept or reject any of the evidence, State v. Button, 622 N.W.2d 480, 483 (Iowa 2001), and considering the deference granted to its credibility assessments, State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001), we find the record contains substantial evidence in support of the verdict.
Opinion Testimony. An investigator testified he believed Blake had taken the missing funds, and Blake challenges the admission of this testimony as an impermissible opinion on the ultimate question of guilt. State v. Griffin, 564 N.W.2d 370, 374 (Iowa 1997). However, as Blake failed to object after the opinion was rendered, the issue is not preserved for our review. State v. Rutledge, 600 N.W.2d 324, 326 (Iowa 1999). She cannot rely on a previously overruled objection regarding the general admissibility of the investigator's opinions, as it did not address whether the investigator rendered an impermissible opinion on Blake's guilt. See State v. Howard, 509 N.W.2d 764, 769 (Iowa 1993) (finding trial court must have been alerted to specific grounds urged on appeal).
Length of Jury Deliberations. Even though Iowa places no limitations on the length of jury deliberations, Iowa R. Crim. P. 2.19(5)(h), Blake argues the brevity of the deliberations in this matter deprived her of a fair proceeding. As this issue was not raised in Blake's new trial motion, it is deemed waived. State v. Ware, 338 N.W.2d 707, 717 (Iowa 1983).
Formerly Iowa R. Crim. P. 18(5)(h).
Blake contends deliberations lasted only thirty minutes, and the State argues there is no evidence of their length. According to the transcript and file, the jury retired at 1:40 p.m. and returned their verdict at 2:45 p.m.
Sentencing Discretion. Pointing to mitigating factors, Blake argues the sentencing court abused its discretion when it declined to suspend her sentence and order probation. A sentencing decision is reversed only if the court exercised its discretion for clearly untenable reasons or to a clearly unreasonable extent. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999). Here, while recognizing Blake had no prior criminal record and cared for two grandchildren, the court nevertheless imposed incarceration. It took into account the nature of the offense, focusing on both seriousness and length, as well as the resulting violation of public trust. The sentencing court also found incarceration necessary "to get the Defendant in a proper frame of mind to rehabilitate herself, recognizing what has happened." All these factors were appropriate for the court's consideration, State v. August, 589 N.W.2d 740, 744 (Iowa 1999), and support its decision. We find no abuse of discretion.
Ineffective Assistance of Counsel. To succeed on an ineffective assistance of counsel claim, Blake must prove her attorney's performance fell below an objective standard of reasonableness and was prejudicial to her defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 674, 693 (1984). Blake points to the fact trial counsel failed to object to the use of the word "fraud" by the prosecution and a State witness and contends counsel's cross examination of State witnesses was ineffectual. Blake has not established the lack of objections to the fraud references prejudiced her defense. We are not persuaded by her bare contention that, but for the presence of these statements, she would have been acquitted. Because no prejudice is evident, we need not assess the adequacy of counsel's performance. State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000). As to Blake's assertions regarding ineffectual cross examination, a review of the trial transcript demonstrates Blake's assertions are too general in nature. State v. Astello, 602 N.W.2d 190, 198-99 (Iowa Ct.App. 1999). Because Blake failed to state with any specificity the alleged deficiencies in performance, we neither consider the claims on direct appeal nor preserve them for postconviction proceedings. Id. AFFIRMED.