Opinion
No. 2-998 / 02-0345
Filed January 15, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Defendant appeals from his conviction and sentence for third-degree theft. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Terence Clark appeals from his conviction and sentence for third-degree theft. He contends his counsel provided ineffective assistance by failing to properly articulate the grounds for his motion for judgment of acquittal, and for failing to object to evidence. We affirm.
I. Background Facts and Proceedings. Clark was employed at Bosselman's Travel Center in Altoona in May 2001. Villirillo Gardens and H H Trucking have open accounts with the Center, allowing drivers to refuel and be billed later. Clark admitted to making five cash advances from his cash register in late May, but said a driver from each of the firms had received the cash. The cash advances on these transactions ranged between $80 and $150. He claimed he had forgotten he was not allowed to make cash advances on these open accounts. The five transactions in question also included charges for diesel fuel sales that did not occur. The total amount lost on these transactions was $580. Clark was fired from Bosselman's on May 30, after processing a transaction for a company that was no longer in business. He was convicted by a jury of third-degree theft as a result of the five transactions.
Three of the transactions showed fuel purchases of 123.987. The other two transactions showed fuel purchases of 198.003 and 130.907. These purchases had to be keyed in manually, an event that rarely occurs because the pump and computer normally record the amount of fuel dispensed.
II. Ineffective Assistance of Counsel. We review Clark's claims of ineffective assistance of counsel de novo. See State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). To succeed, Clark must prove counsel failed to perform an essential duty, and he was prejudiced by counsel's error. See State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). Clark has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. See Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). We can affirm on appeal if either element is lacking. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Although we ordinarily preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct, State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997), such claims may be resolved on direct appeal when the record adequately addresses the issues. State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998). The record here is adequate for us to resolve these issues on this direct appeal.
Clark first contends trial counsel was ineffective because in making her motion for judgment of acquittal, she only generally asserted the State failed to make a prima facie case against Clark and thereby preserved nothing for review. However , we find Clark was not prejudiced by this failure. Ample evidence exists to support Clark's conviction. Although his supervisor's initials were on two of the invoices, Clark admitted to making all five transactions. No unauthorized cash advances had been made at Bosselman's in the twelve years preceding Clark's employment and none have occurred since his termination. Clark's argument that a former employee of Villirillo Gardens or H H Trucking made the fuel purchases and received the cash advances is simply not credible given the evidence. Of the four transactions that were charged to Villirillo Gardens, the truck numbers listed on the invoices did not correspond to the vehicles owned by the company, and the signatures on the invoices did not correspond to anyone who had worked for the company.
Clark next argues counsel was ineffective in failing to object to testimony he claims was irrelevant and highly prejudicial. At trial, the store manager testified regarding an incident that occurred on May 30, 2001. Clark was observed on videotape taking a piece of paper from his pocket, entering some numbers into the credit card machine, and then voiding the transaction. Clark now contends trial counsel should have objected to this testimony pursuant to Iowa Rules of Evidence 5.402ok and 5.403.
Evidence of other crimes or bad acts is usually irrelevant. State v. Walsh, 318 N.W.2d 184, 185 (Iowa 1982). Such evidence may be admissible to prove the character of a person in order to show: (1) proof of motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, or (8) absence of mistake. Iowa R. Evid. 5.404(b). The testimony was permissible under Rule 5.404( b) to show opportunity (it showed what he could do when he was alone and unobserved), intent and knowledge (he acted deliberately to engage in a manual credit card transaction), and absence of mistake (he knew how to by-pass the credit card or computer system and enter a phantom fuel purchase).
Clark also urges his attorney should have objected because the evidence was "highly" prejudicial. Only unfairly prejudicial evidence is prohibited. State v. Casady, 491 N.W.2d 782, 785 (Iowa 1992). Clark was videotaped manually entering transactions. This is not the kind of behavior to inflame a jury. It would not have an undue tendency to suggest decisions to the jury based on an improper basis. See State v. Brown, 569 N.W.2d 113 (Iowa 1997). Counsel had no duty to pose a meritless objection. State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999).
Furthermore, even if the evidence had not been admissible, the other evidence presented at trial was sufficient to allow a jury to find Clark guilty of third-degree theft. Clark has failed to show a reasonable probability that but for the alleged errors of his trial attorney, he would not have been convicted. Whitsel v. State, 439 N.W.2d 871, 873 (Iowa Ct.App. 1989).