Opinion
No. 2-827 / 02-0220.
Filed December 11, 2002.
Appeal from the Iowa District Court for Scott County, BOBBI M. ALPERS and DAVID E. SCHOENTHALER, Judges.
Garnett appeals his theft convictions, contending there was insufficient evidence and raising an ineffective assistance of counsel claim. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
A jury found Dennis Garnett guilty of first and second-degree theft. See Iowa Code §§ 714.2(1), (2) (1999). On appeal, Garnett contends: (1) there was insufficient evidence to support submission of the "theft by taking" alternative to the jury and (2) trial counsel was ineffective in failing to object to certain testimony. We affirm.
I. Background Facts
A jury could have found the following facts. Garnett was hired by Michael Pagano to work as a sales manager in the Davenport office of American Siding and Window Company. Pagano provided Garnett with a Ford Taurus car leased in the company's name from Dewey Ford. Pagano specified it was only to be used for company business.
On June 21, 2001, Garnett told Pagano one of his salesmen received a $5000 cash down payment in connection with the sale of siding. Garnett offered to retrieve the cash from the salesman and deposit it into the company's bank account. Garnett said he would call Pagano to confirm completion of the transaction. Pagano agreed.
The $5000 was not deposited into the bank. Garnett was apprehended in Ohio two months later while driving the leased Taurus.
II. Sufficiency of the Evidence
Parties are entitled to have their legal theories submitted to the jury if they are supported by substantial evidence. State v. Hogrefe, 557 N.W.2d 871, 876 (Iowa 1996). When alternate theories are submitted to a jury, the verdict need not be unanimous on a particular means of committing the crime if there is substantial evidence to support each alternative and those alternatives are not repugnant to each other. Gavin v. State, 425 N.W.2d 673, 678 (Iowa Ct.App. 1988).
The district court proffered instructions on theft by misappropriation and theft by taking. Garnett does not contend these theories are repugnant to each other but maintains only that the "theft by taking" alternative with respect to the leased car was unsupported by substantial evidence. Specifically, he claims his taking of the car was not wrongful because "he was authorized to have possession of the Taurus."
The State responds by questioning whether Garnett preserved error. We believe he did. Although Garnett did not challenge the "theft by taking" jury instruction, his attorney stated in connection with her motion for judgment of acquittal that "the rental was paid for and the car was not due to be returned on the date reported stolen. Dennis Garnett reasonably believed that he had the right, privilege or permission" to use the car. See State v. Maghee, 573 N.W.2d 1, 9 (Iowa 1997) (finding motion for judgment of acquittal sufficiently raised issue of lack of drug possession). Accordingly, we proceed to the merits.
The jury was instructed on the theft by taking alternative as follows:
1. On or about the 21st day of June, 2001, the defendant knowingly took possession or control of an automobile.
2. The defendant did so with the specific intent to deprive Dewey Ford or American Siding Window of the automobile.
3. At the time of the taking, the automobile belonged to Dewey Ford and/or was the responsibility of American Siding Window, and was in the possession of the renter.
There was substantial evidence to support these elements. Garnett was entitled to possess the car for the limited purpose of carrying out company business. The record reflects he did not conduct the business of depositing the $5000 into the company bank account, as he said he would. He also did not call Pagano or answer his cell phone to apprise company representatives of the status of the transaction and he did not return the leased car in the ensuing days and months. Instead, Garnett left the State with the car and without any authorization to conduct out-of-state business. We believe this evidence was sufficient to support the theft by taking alternative.
III. Admission of Testimony
Garnett next contends trial counsel was ineffective in failing to object to testimony of prior bad acts on the ground its probative value was substantially outweighed by its prejudicial effect. See Iowa R.Civ.P. 5.404(b). The testimony came from Pagano who stated that when he closed the company bank account, there were "outstanding checks that Dennis had taken off with." We preserve this ineffective assistance of counsel claim for postconviction relief. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).