Opinion
No. 2-987 / 01-1950
Filed March 26, 2003
Appeal from the Iowa District Court for Black Hawk County, Joseph Moothart, Judge.
Defendant appeals from his convictions, following a trial to the court, for theft in the third degree and interference with official acts. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Thomas Ferguson, County Attorney, and Linda Myers-Fangman, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Tony Louis Grider appeals from his convictions, following a trial to the court, for theft in the third degree and interference with official acts. He contends there was not sufficient evidence to convict him of interference with official acts and that his trial counsel was ineffective for (1) failing to move to suppress statements Grider made to the police without receiving the Miranda warnings and, (2) failing to object to testimony which constituted inadmissible hearsay and violated his right to confrontation. We affirm the theft conviction and reverse the conviction for interference with official acts.
I. BACKGROUND FACTS AND PROCEEDINGS
On February 27, 2001, Wal-Mart loss prevention officer Steven Paulsen noticed an individual with an empty shopping cart in the electronics department. The person was later identified as the defendant, Tony Grider. Paulsen testified he began to watch Grider because electronics is a "high theft department" at Wal-Mart. Paulsen stated he watched Grider take a DVD player off the shelf, place it in his cart, go down the isle a couple feet, open the box containing the DVD player, mess with the items inside, and appear to place a pink sticker on the outside of the box. The pink sticker was a refund sticker from a different Wal-Mart. Paulsen then saw Grider go to the customer service desk and unsuccessfully attempt to get a refund for the DVD player. Paulsen observed all of this through video surveillance.
Paulsen testified that a service desk employee then called him to alert him that someone had tried to return a DVD player with a return sticker from a different store. Grider then pushed the cart with the DVD player out of the store into the mall and the security tag on the player activated the store alarms. Grider then walked back into the store, left the DVD player, and left the store once again. Paulsen followed Grider and stopped him in the mall. He then took Grider to the administrative office and called the Cedar Falls police. The DVD player was worth $299.14.
Officer Holly Fisher arrived at Wal-Mart to investigate the incident. Fisher testified that after she arrived and Paulsen informed her of the details, she asked Grider if he had ever been arrested for theft. He hesitated and then answered, "No." Fisher asked Grider a second time if he had ever been arrested for theft and he again stated he had not. The officer then called dispatch to find out if Grider had any criminal record. However, Fisher testified the computers were down so she could not find out the information. She then asked Grider if he had been arrested for anything at all and he said he had been arrested once a year ago for assault. Officer Fisher then asked Grider again if had ever been arrested for theft or anything else besides the one assault and he answered, "No," again.
Fisher then placed Grider under arrest for fourth-degree theft and transported him to the police station. Once at the station Officer Fisher learned Grider in fact had an extensive criminal history, including numerous arrests and four prior theft convictions. At that point Fisher chose to prepare a new complaint changing the charge to third-degree theft based on Grider's prior theft convictions. This second complaint also charged Grider with interference with official acts in violation of Iowa Code section 719.1 based on his false statements to Officer Fisher.
Grider was not charged with giving false information or a false report to a law enforcement officer under section 718.6.
The State filed a trial information charging Grider with theft in the third degree (two prior theft convictions), in violation of Iowa Code sections 714.1 and 714.2(3) (2001) and interference with official acts, in violation of Iowa Code section 719.1. Grider waived his right to a jury trial and a bench trial was held. In a written order the court found Grider guilty as charged. Grider was sentenced to two years imprisonment on the theft charge and thirty days on the interference charge. The sentences were ordered to run concurrently. Grider appeals from these convictions.
Pursuant to Iowa Code section 814.6(1)(a) (2001), Iowa Rule of Criminal Procedure 2.73(6), and Iowa Rule of Appellate Procedure 6.201(1), Grider sought discretionary review of the simple misdemeanor conviction for interference with official acts. Our supreme court granted discretionary review.
II. SCOPE AND STANDARD OF REVIEW
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002) and need not be repeated here. The following additional standards are applicable as well. "We review a trial court's findings in a jury-waived case as we would a jury verdict:
If the verdict is supported by substantial evidence we will affirm." State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). When there is an alleged denial of constitutional rights, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review.
Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
III. MERITS
On appeal Grider contends there was not sufficient evidence to convict him of interference with official acts and that his counsel was ineffective for failing to file a motion to suppress statements made by Grider to the police prior to receiving the Miranda warnings and for failing to object to certain testimony as inadmissible hearsay. He further argues that counsel's failure to object to such testimony violated his Sixth Amendment right to confront witnesses against him. We address these issues separately.
A. Sufficiency of the Evidence
The interference with official acts count in the trial information charged that Grider did "knowingly obstruct or resist a peace officer in the performance of an act within the scope of said peace officer's lawful duty or authority" in violation of Iowa Code section 719.1. This charge was based on Grider's repeated lies to Officer Fisher that he did not have any prior arrests for theft. Grider argues there was insufficient evidence to find him guilty under section 719.1 because interference with official acts requires the use of actual opposition to the officer through the use of actual or constructive force making it reasonably necessary for the officer to use force to carry out his duty, and a dishonest response to an officer's question does not make the use of such force reasonably necessary.
The State contends Grider was not charged under the "constructive force" theory of committing interference with official acts, but instead was charged with interfering with or delaying an officer in the performance of her lawful duty by lying about his criminal history. The State argues Grider's act of lying to Fisher about his criminal history hindered Officer Fisher's performance of her official duties. Specifically, the State asserts Grider hindered Fisher's ability to determine whether Grider could be released with a citation or should be arrested, her ability to determine whether the appropriate charge was theft in the third or fourth degree.
Theft of property not exceeding five hundred dollars by one who has two prior theft convictions is theft in the third degree, whereas a first or second conviction for theft of property between two hundred and five hundred dollars is theft in the fourth degree. SeeIowa Code §§ 714.2(3) and 714.2(4).
Section 719.1(1) provides in relevant part:
A person who knowingly resists or obstructs anyone known to the person to be a peace officer . . . in the performance of any act which is within the scope of the lawful duty or authority of that officer . . . commits a simple misdemeanor.
Our supreme court has noted the language of section 719.1 was chosen because it conveys the idea of active interference. State v. Smithson, 594 N.W.2d 1, 2 (Iowa 1999) (citing John L. Yeager Ronald L. Carlson, Criminal Law and Procedure § 422 (Supp. 1998)). Passive conduct, such as failure to cooperate, is the subject of section 719.2. Id.
The term "resist" has been interpreted as limited to obstructive conduct but not requiring actual violence or direct force, it being sufficient if the "person charged engaged in actual opposition to the officer through the use of actual or constructive force making it reasonably necessary for the officer to use force to carry out his duty." State v. Donner, 243 N.W.2d 850, 854 (Iowa 1976). The term "obstruct" has been interpreted more broadly than "resist" and "includes putting obstacles in the path of officers completing their duties." State v. Hauan, 361 N.W.2d 336, 339 (Iowa Ct.App. 1984). Section 719.1(3) provides that the terms "resist" and "obstruct" do not include verbal harassment, unless accompanied by the ability and apparent intention to execute the threat physically.
"The purpose of criminalizing conduct that interferes with official police action is to enable officers to execute their peace-keeping duties calmly, efficiently, and without hindrance." State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996) (emphasis added). Our threshold question must be whether the defendant's acts can be seen as having constituted an active interference with the officer's performance of an act within the scope of her lawful duties. Iowa Code § 719.1(1); Smithson, 594 N.W.2d at 2.
We conclude there is insufficient evidence to convict Grider of interference with official acts under section 719.1. Under a plain reading of section 719.1 Grider's statements did not rise to the level necessary for such a conviction. Section 719.1 requires a physical interference or threat of physical interference. Section 719.1(3), referring to the entirety of section 719.1, states that even verbal harassment is not included in the terms "resist" and "obstruct" "unless the verbal harassment is accompanied by a present ability and apparent intention to execute a verbal threat physically." Grider's answers to the officer's questions about prior arrests were not accompanied by any act or any apparent intention to physically interfere with or threaten the officer, which, under the plain language of the statute, is the only way mere statements can rise to the level of "interference with official acts." Grider's conviction for interference with official acts must be reversed.
Although not necessary to our resolution of this issue, we note that prior arrests for theft or other offenses have no bearing on whether the appropriate charge here was theft in the third degree or fourth degree. Rather it is prior convictions for theft that will elevate a charge of fifth degree or fourth degree theft to third degree theft. See Iowa Code § 714.2(3). Further, information concerning prior arrests, rather than prior convictions, would appear to have little or no bearing on the question of whether a defendant should be released with a citation or should be arrested.
B. Ineffective Assistance.
Grider also claims his counsel was ineffective in two ways. First, he asserts counsel was ineffective for failing to file a motion to suppress statements he made to Officer Fisher prior to her informing him of his right to remain silent under the Fifth Amendment pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, he contends counsel was ineffective for failing to object to testimony which both constituted inadmissible hearsay and denied him his Sixth Amendment right to confront witnesses against him.
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142-45 (Iowa 2001). While we often preserve ineffective assistance claims for a possible postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).
1. Failure to object to certain testimony.
Grider claims his counsel was ineffective for failing to object to testimony by Wal-Mart security officer Paulsen, on direct examination, which constituted inadmissible hearsay. He challenges Paulsen's testimony describing the phone call Paulsen received from the store employee at the service desk regarding Grider's attempt to return the DVD player with a pink sticker from a different Wal-Mart. The State concedes this testimony constituted hearsay as defined in Iowa Rule of Evidence 5.801( c). However, the State argues Grider has not proven the requisite prejudice to succeed on an ineffective assistance of counsel claim. We find the record here sufficient to deal with this issue on direct appeal.
A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). In order to prove prejudice a defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. A reasonably probability is a probability sufficient to undermine confidence in the outcome. Id.
During redirect examination Paulsen testified Grider in fact did not exchange the DVD player at the service desk, and confirmed that the call he had received was to the effect somebody was at the service desk trying to return a DVD player without a receipt from the Waterloo store. This testimony was not objected to and Grider does not claim counsel was ineffective in not objecting.
Generally, if hearsay is admitted prejudice to the non-offering party is presumed unless the contrary is affirmatively established. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). However, prejudice will not be found where substantially the same evidence is in the record without objection and thus the testimony in question is merely cumulative. Id. Such is the situation here.
Grider further claims the admission of Paulsen's hearsay testimony denied him his right to confrontation under the Sixth Amendment to the United States Constitution. As with his claim concerning the hearsay, Grider does not challenge the nearly identical testimony which came in during Paulsen's redirect examination. Here again, Grider cannot prove prejudice assubstantially the same testimony appears elsewhere in the record without objection. Id.
Accordingly, we find Grider has failed to prove he was prejudiced by counsel not objecting to the challenged testimony. This claim of ineffective assistance is without merit.
2. Motion to suppress.
Grider also claims his counsel was ineffective for failing to move to suppress statements he made in response to Officer Fisher's questions concerning previous arrests prior to her informing him of his right to remain silent under the Fifth Amendment pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argues that had the statements been suppressed, the outcome would have changed as there would have been no basis for the charge of interference with official acts.
This claim relates only to Grider's conviction for interference with official acts. We have concluded that conviction must be reversed. This claim is therefore moot.
IV. CONCLUSION AND DISPOSITION.
We conclude there was insufficient evidence for the trial court to find Grider guilty of interference with official acts under Iowa Code section 719.1(1). We further find trial counsel was not ineffective for failing to object to Paulsen's testimony. Grider was not prejudiced by counsel not objecting because essentially the same testimony came into the record during Paulsen's redirect examination without objection and Grider does not allege counsel was ineffective for not objecting to this subsequent testimony. Grider's claim counsel was ineffective for failing to move to suppress the statements he made to Officer Fisher prior to receiving the Mirandawarnings is moot.
We affirm Grider's conviction for theft in the third degree and reverse his conviction for interference with official acts. We remand for entry of a judgment of acquittal on the charge of interference with official acts.