Opinion
No. 2-887 / 01-1699
Filed January 15, 2003
Appeal from the Iowa District Court for Warren County, Paul R. Huscher, Judge.
Defendant appeals from the judgment and sentence entered upon his convictions for aiding and abetting theft in the second degree and possession of marijuana. CONVICTIONS AFFIRMED; RESTITUTION ORDER VACATED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Kevin Parker, County Attorney, and Ryan Ellis, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Glenn Duncan appeals from the judgment and sentence entered upon his convictions for aiding and abetting theft in the second degree in violation of Iowa Code sections 714.1(1), 714.2(2), 703.1 (2001) (Count I), and possession of marijuana in violation of section 124.401(5) (Count II). He contends his trial counsel provided ineffective assistance by failing to object to certain evidence and also contends the trial court erred in ordering restitution for property which was fully recovered. After reviewing the record and considering the arguments presented, we affirm Duncan's convictions. We vacate the restitution order entered by the district court and remand for a restitution hearing.
I. Background Facts and Proceedings.
On March 8, 2001 at 2:00 a.m., Indianola Police Officer Daniel Defenbaugh observed a vehicle in the parking lot of Wal-Mart which aroused his suspicions. He ran the license number and learned that the vehicle's registered owner, Glen Duncan, had a suspended driver's license. Defenbaugh continued observing the parked vehicle until a female, later identified as Danielle Grandstaff, ran from the door of the Wal-Mart store with store employees in pursuit. As she neared the defendant's car, Duncan leaned over and opened the passenger side door for her. Grandstaff entered Duncan's vehicle and the car sped away. Defenbaugh stopped the vehicle. Duncan was, in fact, driving with a suspended license.
Defenbaugh searched the vehicle prior to impounding it. He discovered stolen DVD's and pre-paid phone cards along with a device used to remove security strips from store merchandise. He also found a bag of marijuana, two marijuana pipes, and a set of scales. Duncan admitted the marijuana was his; however, he denied being an accomplice to the theft indicating that he merely drove Grandstaff to Wal-Mart.
The State filed a trial information on March 26, 2001, charging Duncan with aiding and abetting theft in the second degree and possession of marijuana. Jury trial commenced on July 18, 2001 and the jury ultimately found Duncan guilty as charged. He was sentenced to an indeterminate term of five years on Count I and ordered to pay court costs, attorney fees, and restitution. For Count II, he was fined $250 plus a thirty percent surcharge, ordered to pay court costs and attorney fees, and had his driver's license revoked for 180 days. In a Nunc Pro Tunc Order entered one month after Duncan was sentenced, the court ordered him to pay $1522 in restitution for the items stolen from Wal-Mart. Duncan appeals.
II. Discussion.
Duncan raises two claims on appeal. He argues that his trial counsel was ineffective for failing to object to certain evidence offered by the State. He also contends the trial court erred in ordering restitution for property which was fully recovered.
A. Ineffective Assistance of Counsel.
To succeed on his claim of ineffectiveness of counsel, Duncan must prove his attorney's performance fell below an objective standard of reasonableness and was prejudicial to his defense. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). Prejudice is shown by demonstrating a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
Defendant asserts his counsel was ineffective in failing to object to the admission of a set of scales found in his car and for failing to object to the searching officer's testimony that scales were used by drug dealers to weigh marijuana when bought or sold. Duncan claims this evidence was irrelevant and highly prejudicial. He argues that the scales and testimony of officer Defenbaugh are inadmissible as other crimes evidence.
Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Iowa R. Evid. 5.403.
When arrested on the night of the theft, Duncan admitted to possessing the marijuana but denied involvement with the theft that occurred at Wal-Mart. During trial, the State called Grandstaff as a witness. She testified that she called Duncan to arrange a ride to Wal-Mart so that she could steal items to sell or trade to support her drug habit. She also testified that Duncan drove her to Wal-Mart. According to Grandstaff, Duncan agreed with her that the two would split the stolen items evenly.
Admission of the set of scales found in Duncan's car and the testimony of officer Defenbaugh was relevant to his knowledge that Grandstaff intended to steal merchandise that would be split and sold for drugs. Consequently, the evidence is relevant to Duncan's aiding and abetting of Grandstaff's theft. Iowa R. Evid. 5.401 ("relevant" evidence is evidence which tends to prove any fact of consequence). See also State v. Walters, 426 N.W.2d 136, 140-41 (Iowa 1988) (recognizing that evidence immediately surrounding the offense is admissible in order to show the complete story of a crime). The probative value of this evidence is not substantially outweighed by the danger of unfair prejudice. The evidence has a strong tendency to corroborate Grandstaff's version of events and, thus, Duncan's culpability in regards to aiding and abetting the theft. The probative value outweighs any prejudicial effect. We conclude counsel breached no duty by failing to object to this evidence. State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999).
We also conclude the defendant has failed to prove that, but for counsel's alleged omissions, the result of the trial would have been different. The State's evidence against the defendant was strong. On the night of his arrest, Duncan admitted the marijuana in the car was his. Grandstaff testified that she and the defendant planned the theft of merchandise from Wal-Mart. A security tape revealed Duncan's car was parked in the Wal-Mart parking lot for over an hour while Grandstaff was in the store stealing merchandise. As Grandstaff ran from the store and sprinted across the parking lot followed by store employees, an officer observed the defendant lean over and open the door for her. Duncan then drove off at a high rate of speed. Given this evidence, the defendant cannot show that he would have been acquitted of both charges if his trial counsel had objected to the challenged evidence. Without proof of prejudice, his ineffective assistance of counsel claim must fail.
B. Restitution Issue.
Duncan asserts that the trial court erred in ordering him to pay restitution because the property stolen from Wal-Mart was recovered. We review a sentencing order for error of law. Iowa R.App.P. 6.4. We can vacate a restitution order if an abuse of discretion is shown. State v. Tutor, 538 N.W.2d 894, 896 (Iowa Ct.App. 1995).
A sentencing court must order restitution to a victim who has suffered a pecuniary loss as a result of the offender's criminal activities. Iowa Code §§ 910.2, 910.1(5). If the victim of theft recovers the stolen property, the defendant cannot be ordered to pay restitution because a pecuniary loss has not occurred. See State v. Henderson, 435 N.W.2d 394, 397 (Iowa Ct.App. 1988); State v. Janz, 358 N.W.2d 547, 548 (Iowa 1984).
Police recovered the DVD's and phone cards stolen from Wal-Mart. The items were scanned at Wal-Mart to determine the value of the items stolen. A total of $1552.59 worth of merchandise was found in the defendant's car. The stolen items were then later introduced as exhibits at trial and are being held pending resolution of this appeal.
At the defendant's sentencing on September 10, 2001, the district court ordered the defendant to "pay restitution to the victims of the offense, if any" and noted that the "amount of restitution is not available to the court at this time." On October 10, 2001, the court filed a Nunc Pro Tunc Order which required Duncan to make restitution to Wal-Mart in the amount of $1522. On appeal the State concedes that Wal-Mart did not suffer pecuniary damage in the amount ordered by the district court. The State joins in defendant's request that we vacate the restitution order and remand for a restitution hearing.
The record before us on appeal fails to show that the State filed a statement of pecuniary damage to Wal-Mart before the restitution order was entered.
In summary, we affirm the defendant's convictions for aiding and abetting theft in the second degree and possession of marijuana. We vacate the Nunc Pro Tunc Order and remand for a restitution hearing to determine Wal-Mart's pecuniary loss, if any.