Opinion
No. 0-774 / 99-1519.
Filed January 28, 2002.
Appeal from the Iowa District Court for Scott County, PATRICK J. MADDEN, Judge.
Judith and Alan Flax appeal their convictions and sentences for first-degree theft. AFFIRMED ON THE APPEAL OF JUDITH FLAX; REVERSED ON THE APPEAL OF ALAN FLAX.
Jerald W. Kinnamon and Jon Kinnamon, Cedar Rapids, for appellants.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, William E. Davis, County Attorney, Jerald Feuerbach, Assistant County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and ZIMMER and MILLER, JJ.
Defendants, Judith Flax and Alan Flax, appeal their convictions for first-degree theft entered following a jury trial. They contend: (1) the State improperly told the jury during opening statements that it would hear from the victim when she had not been listed as a witness; (2) there was insufficient evidence to support the convictions; (3) the court erred in allowing expert testimony regarding ethical standards for an enrolled agent and a power of attorney; (4) they were provided ineffective assistance of trial counsel in a number of respects; and (5) the court relied on an improper factor in sentencing. We affirm Judith's conviction and reverse Alan's conviction.
I. Background Facts and Proceedings . Alan and Judith Flax are husband and wife. In 1979 the Flaxes met Mary McGovern while McGovern was serving on the board of directors at Eastern Iowa Community College. At that time, Alan Flax was an employee of the college and served as treasurer of its board of directors. In 1985, Alan quit his job at the community college and he and Judith purchased an accounting firm. They called their business Management Support Services, Limited. McGovern immediately became a client of the business. Between 1985 and 1989, the defendants and McGovern saw each other a few times per year. Their contact with McGovern became much more frequent in 1989 or 1990.
Over the years, Judith and McGovern developed a close personal relationship. In 1993 or early 1994, McGovern, then retired and in her seventies, lost approximately $25,000 when she fell victim to a "bank examiner's" scam. According to the defendants, the chancellor of the Eastern Iowa Community College asked them to assist McGovern shortly after she was defrauded because of concerns that McGovern was susceptible to being tricked out of her money. In July of 1994, Judith obtained power of attorney for McGovern. McGovern also had Judith's name listed on her checking accounts at Firstar and First Midwest Banks. Judith was granted signature rights on those accounts. From early February of 1994 until January of 1998, Judith, Alan, and their son received over $198,000 in checks from McGovern's bank accounts.
In late 1996 or early 1997, McGovern's niece, Deb Jakobsen, became concerned that her aunt's memory was fading and that she was sometimes confused. According to Jakobsen, McGovern did not know why another woman's name was on her bank accounts. On October 20, 1997, McGovern provided Jakobsen with a power of attorney. Jakobsen took McGovern to a doctor that same month. McGovern was referred to a neurologist who placed her on medication designed to slow the progress of Alzheimer's disease.
Deb Jakobsen and her husband, Svend, became concerned about McGovern's financial circumstances after McGovern began telling her niece that she did not have any money. The Jakobsens began investigating McGovern's finances and became suspicious that defendants were taking advantage of her. After a police investigation, the Scott County Attorney charged both Judith and Alan Flax with one count of first-degree theft. The charges were based on seventeen separate check transactions occurring over a four-year period. McGovern signed sixteen of the checks and Judith signed one. The State aggregated all of the checks into a single count of theft. Other facts will be set out as they pertain to the issues presented on appeal.
The Flaxes were tried together. The same attorney represented them. Following trial, the jury found each defendant guilty as charged of one count of first-degree theft. The trial court sentenced each defendant to an indeterminate term of incarceration not to exceed ten years. Both defendants appealed.
II. The Prosecutor's Opening Statement . The defendants first complain the State made inappropriate references to the expected testimony of Mary McGovern in its opening statement, despite the fact that McGovern was not listed as a witness in the minutes of testimony. They argue that because the State informed the jury it would call McGovern to the stand as a trial witness, and implied her testimony would be adverse to the defendants' interests, it became incumbent upon the prosecutors to produce McGovern as a witness. The State argues the Flaxes failed to preserve this issue for appeal. In the event we find error was not preserved, the defendants ask us to find their trial counsel ineffective.
The Iowa Rules of Criminal Procedure require that the State, before trial, or during trial by amendment, furnish the defense the names and a summary of the testimony of any witness to by offered at the time of trial. Iowa R. Cr. P. 5(3), 18(2)(3); Amendment to Minutes, 4(8)(a). For reasons not apparent in the record, the prosecutors failed to list the purported victim in this case, Mary McGovern, as a potential witness. Despite failing to make McGovern eligible to testify, assistant county attorney Jerald Feuerbach informed the jury in his opening statement that McGovern would be called to the stand by the State and clearly implied that she would testify in a manner adverse to the defendants. Defense counsel did not challenge the prosecutor's comments at the time they were made and did not move for a mistrial.
After opening statements were concluded, the State called McGovern to the stand as its first witness. Defense counsel immediately objected to McGovern's testimony at a bench conference on the ground she was not listed in the minutes of testimony. Because the State failed to comply with the notice requirements of the Rules of Criminal Procedure, the trial court sustained the defendants' objection and excluded McGovern as a witness at trial. Defendants now claim the State's promise to call McGovern as a witness, with no delivery, prejudiced them.
We conclude the issue defendants seek to raise on appeal has not been preserved for our review. To preserve error, the defendants were required to object at the trial court level to the State's failure to call McGovern as a witness. State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct.App. 1999) (it is incumbent upon the objecting party to lodge specific objections to the trial court). Defendants did not object to the State's failure to call McGovern as a witness at any time during trial. Because "[e]very ground of exception that is not particularly specified is considered abandoned," we decline to consider this issue due to defendants' failure to preserve it. Id.
III. Sufficiency of the Evidence . Defendants next contend there was not sufficient evidence to support their convictions of first-degree theft. The State agrees the defendants preserved error on this issue by moving for directed verdict at the close of the State's evidence and renewing their motion at the close of all the evidence.
We review challenges to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id. We do not make an independent determination of "whether the evidence established guilt beyond a reasonable doubt" rather, we determine the legal sufficiency of the evidence to support the verdict. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). In determining whether there is substantial evidence, we must consider all the evidence, not just the evidence supporting a defendant's guilt. State v. Torres, 495 N.W.2d 678, 681 (1993). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 14(f)(16).
Judith and Alan Flax were jointly charged in a single count Trial Information with one count of first-degree theft. The defendants were charged under alternative theories of theft by taking, theft by misappropriation, and theft by deception. Iowa Code § 714.1(1)-(3) (1999). The State alleged each defendant either committed the offense of theft directly or aided and abetted the other in its commission. Iowa Code § 703.1. The State was required to prove the aggregate amount of money taken was in excess of ten thousand dollars in order for the defendants to be found guilty of first-degree theft. Iowa Code § 714.2(1).
At the time of trial, Mary McGovern was a seventy-six year old retired schoolteacher. McGovern never married and had no children. In support of its theft charges, the State offered evidence regarding seventeen check transactions involving McGovern and the defendants. We summarize them briefly.
The record shows that Judith, Alan, and their son Eric began receiving checks from McGovern's accounts in early 1994. In February of that year, McGovern wrote $5,000 checks to both Judith and Alan Flax. A note from McGovern, which accompanied the checks, indicated they were intended as gifts.
In December 1994, Judith Flax deposited a $10,000 check from Mary McGovern into her personal account at Norwest Bank. Another $10,000 from McGovern was deposited into the Flaxes' joint checking account on March 27, 1995. Just a month later, Mary McGovern wrote another check to Judith Flax for $20,000. Judith deposited this check into her individual account at Norwest. Then, on August 14, 1996, McGovern wrote a $10,000 check payable to Norwest bank that also ended up in Judith's personal account. Ten days later, a check written to Judee Flax for $65,000 was deposited into the Flaxes' joint checking account. The memo line of the check read "m. loan." At some point in 1996, McGovern wrote an undated check to Judee Flax in the amount of $10,000. The notation on this check indicates it was a loan. This check was deposited into the Flaxes' joint checking account. On September 18, 1996, McGovern wrote a check for $3,700 to Judith Flax which was deposited into the Flaxes' joint checking account.
The Flaxes continued to receive checks from McGovern in 1997. In March of 1997, a $20,000 check from McGovern payable to Norwest bank was deposited into Judith's personal account at the bank. On June 4, 1997, McGovern wrote another $10,000 check to Judith Flax which was deposited into her personal checking account. Then, a $5,000 from McGovern to Norwest Bank was deposited in Judith's individual account on September 16, 1997. On December 4, 1997, a $10,000 check written to the Flaxes' son, Eric, was deposited into the defendants' joint checking account. Less than a month later, on December 22, 1997, a $4,000 check written on McGovern's Citizen's Federal checking account and made payable to Norwest Bank was deposited into Judith's personal account at Norwest.
The final three transactions at issue occurred in 1998. On January 13, 1998, Judith filled in a blank check, signed by McGovern, in the amount of $1,800. The check was payable to Judee Flax with a notation indicating it was for "chks fees." This check was deposited into the defendants' joint account. The next day, Judith filled in a blank check, signed by McGovern, and made payable to Norwest Bank for the sum of $1,647.57. The memo line of this check indicated it was for "reimb. chks fees — will". The check was deposited into the Flaxes' joint checking account. The last check at issue was a $7,000 cashier's check written on January 26, 1998. Judith Flax signed this check and it was deposited into her personal account. When all was said and done, the Flaxes ultimately received over $198,000 from Mary McGovern. The parties view the transactions just described very differently. The State contends the defendants swindled an elderly and infirm retiree out of money she saved over the course of a lifetime. The Flaxes, on the other hand, claim McGovern loaned and gave them money because they were treasured friends.
In deciding whether substantial evidence supports a verdict, we view the evidence in the light most favorable to the State and make all reasonable inferences that may be fairly drawn from the evidence. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Though tried together, each defendant is entitled to an independent review. For the reasons which follow, we conclude there was sufficient evidence to support the jury's verdict regarding Judith Flax. We conclude the judgment against Alan Flax cannot stand. We address each of the alternative methods of theft charged by the State in turn.
A. Theft by Taking . The district court instructed the jury the State had to establish the following elements in order to convict the defendants of theft by taking:
1. On or about the 1st day of February, 1994, through the 26th day of January, 1998, the defendant[s] took possession or control of Mary McGovern's money.
2. The defendant[s] did so with the specific intent to deprive Mary McGovern of the money.
3. The property at the time of the taking, belonged to Mary McGovern.
We find there was sufficient evidence to show Judith Flax committed the offense of theft by taking. Judith claimed she withdrew $7,000 from McGovern's account by cashier's check during January of 1998 to protect McGovern from being taken advantage of by a third party. A rational jury could have reached a different conclusion. Judith did not preserve the $7,000 for McGovern. Instead, she deposited the money into her checking account and used it for her own purposes. She later told the Jakobsens and Detective Cole this money went to pay McGovern's IRS bill. Judith also showed Svend Jakobsen phony tax documents and a copy of a check she claimed she had written to the IRS for $7,000. At trial, Judith admitted she lied about the IRS bill. The false story told by Judith to explain or deny a material fact against her is by itself an indication of guilt and is relevant to show she fabricated evidence to explain her defense. State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993).
The jury also heard evidence that on January 12 and 13, 1998, Judith filled in two blank checks signed by McGovern that were written on McGovern's checking account at Norwest Bank. The check written on January 12 was in the amount of $1,800 and made payable to Judith for "fees." The check on January 13 was in the amount of $1,647 and made payable to Norwest Bank for "reimb. chks fees — will." Judith told a detective that those checks were going to the Iowa Department of Revenue. This was a lie. Both checks were deposited to the Flaxes' joint account. In addition, McGovern's attorney testified he never received payment from the defendants for McGovern's legal work.
The State also offered evidence that several checks written by Mary and made payable to Norwest Bank were deposited into defendants' accounts. Nothing on the face of any of these checks indicates they were intended as gifts. In her testimony, Judith Flax claimed McGovern wrote the checks payable to Norwest Bank of her own volition and mailed them to Judith as gifts. However, the jury is not required to accept the defendants' version of the events. See State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998) (noting a jury is free to credit or reject evidence as it chooses). We find there is sufficient evidence for a jury to conclude these payments were "taken" as required under Iowa Code section 714.1(1).
The defendants also claim that because Judith was given signature rights to McGovern's bank accounts, she enjoyed a joint tenancy in those accounts and therefore had an ownership interest in all proceeds that were placed in the accounts. We disagree. The fact that Judith Flax's name was on Mary McGovern's bank accounts does not necessarily establish a joint tenancy in those accounts. In the case of In re Estate of Lamb, 584 N.W.2d 719, 724 (Iowa Ct.App. 1998), we found that where an attorney-in-fact's name appeared on a joint bank account as a matter of administrative convenience, no joint tenancy existed because none was intended. The evidence presented makes clear that neither McGovern's nor Judith believed that Judith had an ownership interest in the money in McGovern's accounts. It is apparent that Judith was granted signature rights on McGovern's checking accounts and granted a power of attorney in an effort to ensure that a retiree, whose mental acuity was failing, would not be victimized again. Alan Flax even testified that, although Judith's name was on McGovern's accounts, Judith did not keep checks or deposit slips for the accounts in her possession. Moreover, the defendants' assertion that Judith Flax had ownership of the monies in the joint account is contradicted by her testimony. During trial Judith admitted the $7,000 she withdrew from McGovern's account by cashier's check was money she "owed" McGovern. This argument also directly contradicts defendants' claim that McGovern bestowed money from the accounts upon them in the form of gifts and loans. If Judith Flax had an ownership interest in the joint account, there would have been no reason for McGovern to give Judith checks from the account as loans or gifts.
B. Theft by Misappropriation . The jury was instructed that to convict the defendants of theft by misappropriation, the State would have to show:
1. The defendant[s] had possession or control of property which was owned by Mary McGovern.
2. On or about the 1st day of February 1994, through the 26th day of January, 1998, the defendant[s] with specific intent misappropriated the property by using of it or disposing of it in a manner which was inconsistent with the owner's rights.
We find there was sufficient evidence to show Judith Flax misappropriated over $10,000 from McGovern. The circumstances surrounding the $7,000 cashier's check show Judith used or disposed of property in a manner that was inconsistent with McGovern's rights. While Judith Flax claimed she wrote the $7,000 cashier's check to prevent Mary McGovern from being taken advantage of by a third party, the evidence suggests otherwise. Judith deposited the money into her personal account. The proceeds of the check were applied to an overdrawn account and used for personal purchases instead of safekeeping. Judith then lied to the Jakobsens and Detective Cole about where the money went.
The circumstances surrounding the checks written on January 12 and 13, 1998, also provide evidence of misappropriation. Judith testified she filled in two blank checks signed by Mary that were written on the checking account at Norwest Bank. The memo line on the first check indicated it was written for "fees." The memo line on the second check indicated it was written for "reimb. chks fees — will." Neither check was used to pay fees owed the defendants or a third party. Defendants did not charge McGovern for any tax preparation work, and John Gosma, the attorney who drafted McGovern's will, testified he never received payment from defendants for legal work performed for McGovern. In an interview with a police detective, Judith told him that those checks were going to the Iowa Department of Revenue. At trial, Judith admitted she lied to the detective and the proceeds of both checks ended up in her personal account.
Deb Jakobsen testified McGovern would sometimes give her blank, signed checks to be used to pay for sweepstakes entries. In a meeting with Judith Flax, Jakobsen learned that McGovern had also given blank, signed checks to Flax. Judith suggested that the Jakobsens keep the checks, warning them not to write them for too large of an amount because it might raise suspicions. The jury could certainly have concluded Judith used blank checks left with her by McGovern in a manner inconsistent with McGovern's wishes and rights. Other checks made payable to Norwest Bank were also deposited into the defendants' bank accounts.
Based on this evidence, we find a reasonable jury could conclude Judith misappropriated money intended for safekeeping, money meant to pay other bills, and money McGovern intended to enter sweepstakes. Therefore, the jury's verdict is supported by the evidence.
Defendants claim there is insufficient proof to find Mary McGovern manifested intent to create a trust relationship. However, a trust relationship is established when one party is acting as another's agent. See State v. Caslavka, 531 N.W.2d 102, 105 (Iowa 1995) (holding no trust exists where the defendant did not purchase or agree to purchase agricultural products as the customers' agent). As her attorney-in-fact, Judith Flax was an agent for Mary McGovern. State v. Sellers, 258 N.W.2d 292, 296 (Iowa 1977) ("It is an accepted principle of the law of agency that an attorney in fact is an agent of limited authority."). Therefore, a trust relationship between Judith Flax and Mary McGovern was established.
C. Theft by Deception . The jury was instructed that to prove defendants committed theft by deception, the State must show that:
1. During the period on or about February 1, 1994, through January 26, 1998, the defendants received transfers of monies from Mary McGovern.
2. The defendants deceived Mary McGovern by preventing her from acquiring information pertinent to the disposition of the money she transferred to them.
3. The defendants specifically intended to obtain ownership of monies of Mary McGovern.
4. The defendants obtained ownership of the monies transferred to them by Mary McGovern by deception.
The Flaxes argue the State failed to show they deceived Mary McGovern.
We conclude there is substantial evidence that Judith deceived McGovern. A reasonable jury could have concluded that the $1,800 check and the check for $1,647.57 were not used for their intended purposes. The jury could have reasonably concluded that McGovern intended the checks to be used for sweepstakes entries. Based on the notations written in the memo lines of those checks, the jury could also have deduced that Judith told McGovern the checks were payments intended to reimburse the defendants for payments made to third parties on McGovern's behalf. No such payments were made. Instead, the checks were deposited to Judith's account and used for her own purposes. When confronted about the checks, Judith falsely claimed the checks were going to the Iowa Department of Revenue.
A reasonable jury could also have concluded that the defendant informed McGovern that the proceeds of the cashier's check would be used for purposes other than bolstering the Flaxes' dwindling bank account. At trial, Judith Flax offered conflicting reasons for depositing the check. She testified Mary wanted her to hold the proceeds of the check to hire a new attorney. She also testified she was trying to keep money away from McGovern so she would not be able to write a check for a sweepstakes entry. The evidence establishes Judith kept the money. She admits she lied about this check to the Jakobsens as well as a Davenport police detective.
D. Claims Against Alan Flax. On appeal, the State does not contend Alan Flax directly committed the offense of theft. Instead, the State argues Alan is guilty because he aided and abetted Judith Flax in thefts from Mary McGovern. In order to sustain a conviction on the theory of aiding and abetting, there must be substantial evidence that Alan Flax "assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission." State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). The evidence may be direct or circumstantial. Id. When coupled with a defendant's knowledge of the crime, circumstantial evidence such as "presence, companionship, and conduct before and after the offense is committed" may be enough to infer participation in the crime. Id. Applying these principles, we conclude the State's evidence regarding Alan is lacking.
In arguing that Alan is culpable as an aider and abettor, the State contends Alan: 1) knew about his wife's relationship with McGovern; 2) knew McGovern was writing checks to his family and enjoyed the use of the money; 3) knew McGovern was his client; and 4) admitted to personal involvement with Mary in terms of her decision to make gifts or loans.
Alan does not dispute the State's first three contentions. He testified that McGovern was a client of the business he and Judith operated. He testified he prepared some tax returns for McGovern and sometimes assisted her with other matters, like obtaining stock certificates and selling property. Alan was obviously aware of Judith's relationship with Mary McGovern and he knew Judith had obtained power of attorney over McGovern. He also admitted personally benefiting from money the Flaxes received from McGovern.
In his reply brief, Alan denies the State's assertion that he admitted personal involvement with Mary in terms of her decisions to make gifts or loans. He contends the State's brief misstates a portion of the trial record containing his testimony. Upon careful examination of the record, we agree with Alan's contention. In the portion of Alan's testimony referenced by the State, he does not admit to personal involvement with Mary in her decisions to make gifts or loans. In fact, the opposite is true. When asked if he had involvement with Mary's decisions to make gifts or loans, he answered, "No." Further, we find no indication in the record that the State proved Alan had any involvement with Mary's decisions to write checks to the Flax family. Unlike Judith, Alan did not write any of the checks which form the basis for the State's charges, he did not fill in the face of any blank checks signed by McGovern, and the State offered no proof he was involved in any deceitful explanations or cover-ups when the circumstances surrounding the checks were investigated by Mary's family and the police.
The State does not contend there is any direct evidence Alan Flax aided and abetted Judith Flax in the commission of the theft. Because the record does not disclose sufficient circumstantial evidence for the jury to find Alan Flax was guilty of theft as an aider and abettor, we reverse the conviction and sentence entered against him.
IV. Expert Testimony . The defendants' third argument pertains to testimony elicited from the State's experts regarding ethical standards for an enrolled agent and a power of attorney. Defendants contend the trial court abused its discretion by allowing irrelevant testimony by those experts.
We will reverse the trial court's admission of expert witness testimony only upon a showing that the trial court abused its discretion to the prejudice of the complaining party. Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999). An abuse of discretion is shown when a court exercises its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Kirk v. Union Pacific R.R., 514 N.W.2d 734, 738 (Iowa Ct.App. 1994) (citations omitted). "As long as there is some support in the record for the trial court's action, we will not reverse." Hunter v. Board of Trustees, 481 N.W.2d 510, 519 (Iowa 1992) (citation omitted).
Iowa courts are committed to a liberal view of expert testimony. Mercer v. Pittway Corp., 616 N.W.2d 602, 628 (Iowa 2000). The test for whether expert testimony is admissible is: (1) the testimony must be relevant, (2) the testimony must be in the form of "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue," and (3) the expert must be qualified as an expert by skill, experience, training or education. Id. (citations omitted).
Curtis Oppel, a tax attorney, testified regarding the standards that apply to enrolled agents. He also testified about self-dealing and the duties of an attorney-in-fact under a power of attorney. The defendants maintain the district court erred in allowing this testimony because it was irrelevant as Judith was not acting in her capacity as power of attorney throughout the transactions in question.
In ruling on the admissibility of the expert's testimony, the district court found the evidence was relevant to the issue of the defendants' intent, and also relevant to the issue of whether there was a plan. See Iowa R. Evid. 404(b). Specifically, the court found the testimony was relevant to the issue of whether there was an absence of mistake regarding to the $7,000 check deposited by Judith Flax.
We find the testimony regarding enrolled agents and the duties of an attorney in fact is relevant. The record shows that one of Judith Flax's powers of attorney in regard to McGovern was the ability to make withdrawals from McGovern's bank accounts. Judith Flax used this power to issue a cashier's check payable in the amount of $7,000 and deposit it in her personal account. When questioned, Judith informed McGovern's family this was done to make a payment to the Internal Revenue Service on McGovern's behalf. The ability to "prepare, execute and file income and other tax returns" was another power she was given as part of her power of attorney. It was also something Judith Flax did as an enrolled agent. Judith showed McGovern's family a photocopy of a phony check from her personal checking account made payable to the IRS. However, Judith admitted in her testimony that she lied to McGovern's family. These events could lead the jury to believe Judith Flax used her power of attorney to illegally obtain McGovern's money by taking, misappropriation or deception. Explanation of Judith's status as an enrolled agent would be helpful to the jury in determining whether she acted mistakenly, as she claimed, or whether her actions were intentional and part of a greater plan.
The defendants also contend that the prejudicial nature of the evidence outweighed its probative value because a jury might confuse testimony regarding the violation of an ethical standard with the commission of a crime. However, the district court cautioned the jury both during the testimony and in the jury instructions that an ethical violation of a professional standard does not equal the commission of a crime. We therefore find that no prejudice resulted from the admission of the expert testimony.
Finally, the defendants contend the court improperly allowed expert testimony concerning the ultimate issue of whether there was a position of trust in regard to the disputed transactions. However, a review of the record shows this objection was lodged only once when Mr. Oppel was asked if it would be easy for an attorney in fact to engage in self-dealing. We find no evidence in the record that Mr. Oppel testified about whether a position of trust existed in regard to the disputed transactions. Any testimony the defendants construe to be such was not objected to on the grounds that it pertained to an ultimate issue of fact.
We find the district court did not abuse its discretion in allowing the expert testimony.
V. Ineffective Assistance of Counsel . Defendants next claim trial counsel was ineffective, therefore denying their constitutional right to a fair trial. They allege a litany of errors made by their attorney that warrant reversal.
To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. We can affirm on appeal if either element is lacking. In proving the first prong, there is a strong presumption that the performance of counsel falls within a wide range of reasonable professional assistance. See State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995) (citing Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674, 693-94 (1984)). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong of the test is satisfied if a reasonable probability exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994) (citations omitted).
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Ordinarily, we 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). "Only in rare cases will the trial record alone be sufficient to resolve the claim." Id. (citations omitted). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978); State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct.App. 1999).
The defendants contend their trial attorney rendered ineffective assistance for a number of reasons. They include: (1) failing to preserve error by objecting to the State's failure to produce Mary McGovern as a witness at trial; (2) failing to request the court to redact portions of a videotaped interview with Judith Flax; (3) failing to request several theory of defense instructions supporting the legal transfer of money from Mary McGovern to the defendants; (4) failing to object to the use of a general verdict form; (5) failing to request various jury instructions requiring the State to prove each transfer of property was without the consent of Mary McGovern; and (6) failing to object to the jury instruction defining theft by deception.
Under the circumstances of this case, we conclude the defendants' claims of inefficiency on the part of their trial counsel should not be adjudicated on the present record. The Flaxes elected to be represented by the same attorney and did not seek to have their cases severed for purposes of trial. The lengthy record in this case reveals an experienced attorney vigorously defended the defendants. Not surprisingly, the record on direct appeal reveals little about the specifics of the many strategic and tactical decisions made by the parties and their counsel during trial. Because the record as it now stands is inadequate to address the merits of the claims of ineffectiveness set out in the preceding paragraph, we reserve the claims for possible postconviction review. If a postconviction action is brought, the facts may be developed and defendants' trial attorney will have an opportunity to explain his decisions.
VI. Sentencing . Finally, defendants assert the district court relied on an improper factor in their sentencing. They claim the district court abused its discretion in considering Judith Flax's power of attorney over Mary McGovern as they claim Judith never acted in such capacity in regard to the transactions prosecuted by the State.
Our review is for corrections of errors at law. See Iowa R. App. P. 4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). Sentencing decisions of the district court carry a strong presumption in their favor. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). Where, as here, a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion. State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991). An abuse of discretion is found only when the sentencing court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.
When selecting a particular sentence, the court must consider all the relevant factors to determine the appropriate sentence under the circumstances. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979). The minimal essential factors to be considered when exercising discretion include the circumstances of the case, the nature of the offense, the defendant's age, character, propensities, and chances of reform. State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982). The court must actually exercise its discretion and examine these factors. Hildebrand, 280 N.W.2d at 396. No one factor is determinative. State v. Kelley, 357 N.W.2d 638, 640 (Iowa Ct.App. 1984). After considering all relevant sentencing factors the court must exercise the sentencing option that would best accomplish justice for both society and the individual defendant. Id.
In determining the defendants' sentence, the district court reviewed the presentence investigation reports and the defendants' statements, as well as statements from the victim's family. It considered the harm done to the victim and her family, the character of the defendants, the nature of their offense, and the need for specific and general deterrence of those wishing to take advantage of seniors, which the trial court believed to be a particularly vulnerable class. The court also expressed concern that people in a position of trust would commit a crime of this nature. The court then entered a sentence in keeping with the recommendation set forth in the presentence investigation report. Under the circumstances of this case, we find no abuse of discretion in the court's consideration of the factors mentioned before imposing sentence.
VII. Summary . We affirm the judgment and sentence of Judith Flax. Her claims of ineffective assistance of counsel are preserved for postconviction review. We reverse the judgment and sentence of Alan Flax.
AFFIRMED ON THE APPEAL OF JUDITH FLAX; REVERSED ON THE APPEAL OF ALAN FLAX.