Opinion
No. 3-733 / 02-1906.
Filed December 10, 2003.
Appeal from the Iowa District Court for Black Hawk County, Alan L. Pearson, Judge.
Mallett appeals her conviction for identity theft and credit card fraud. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Thomas Ferguson, County Attorney, and Ray Walton, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Dorothy Anthony, the estranged mother of appellant, Janet Mallett, discovered that funds were withdrawn from her credit card account and purchases made without her authorization. A jury found Mallett guilty of credit card fraud and identity theft. See Iowa Code §§ 715A.6(2), 715A.8(2) (2001). On appeal, Mallett contends: (1) the district court erred in instructing the jury on the elements of identity theft, (2) the district court abused its discretion in admitting evidence of other crimes and (3) trial counsel was ineffective in failing to object to certain jury instructions on the credit card fraud charge. We affirm.
In a separate proceeding, the jury also found Mallett to be a habitual offender.
I. Background Facts and Proceedings
A caller, claiming to be Anthony, told bank staff to authorize Mallett to use Anthony's credit card. The caller knew Anthony's social security number, place of employment, date of birth, and her mother's maiden name. The caller had the credit card sent to Mallett's address. A $4,500 cash withdrawal was made with the card and a wire transfer of $5,000 was attempted. Later, Anthony received mail apprising her of purchases charged to her accounts at a jewelry store and two department stores.
An investigator with the Waterloo Police Department spoke to Mallett about these transactions. Mallett admitted that she had a friend obtain authorization to use her mother's credit card. She also admitted having an additional credit card issued to Anthony's account in her name and sent to her. She stated she made a down payment of $4,040 on a vehicle the same day the $4,500 cash advance was recorded on Anthony's credit card. When the investigator asked Mallett about the attempt to wire $5,000, she stated she "might have done something like that."
As for the store purchases, Mallett denied taking her mother's store credit cards, but admitted obtaining credit at the stores using her mother's personal information.
II. Jury Instruction on Identity Theft
The district court instructed the jury that identity theft required proof of the following elements:
1. The defendant obtained identification information of Dorothy Anthony.
2. On or about the 28th day of May, 2002, the defendant intended to obtain a benefit fraudulently.
3. The defendant used or attempted to use the identity information to obtain credit or property.
4. The defendant did not have the authorization of Dorothy Anthony.
The court also instructed the jury that "[t]o obtain a benefit `fraudulently' means to obtain it with a lie or a knowing falsehood."
Mallett contends this instruction is inconsistent with Iowa Code section 715A.8(2), which provides:
A person commits the offense of identity theft if the person with the intent to obtain a benefit fraudulently obtains identification information of another person and uses or attempts to use that information to obtain credit, property, or services without the authorization of that other person."
In her view, the district court erroneously determined that the term "fraudulently" modified the clause before it ("obtain a benefit") rather than the clause after it ("obtains identification information").
The parties essentially agree that Iowa Code section 715A.8(2) is ambiguous. See Iowa Dept. of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002) (stating a statute is "ambiguous" if "reasonable minds could differ or be uncertain as to [its] meaning"). To resolve the ambiguity, we must resort to principles of statutory construction with a view to ascertaining the true intention of the legislature. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 376, 380 (Iowa 2000).
Although Mallett briefly argued that a plain reading of the statute supports her position, she conceded at oral argument that the statute is ambiguous.
Both parties point to the positioning of the word "fraudulently" to support their positions. Mallett suggests that misplaced or "squinting modifiers" such as this should be read to modify the adjacent phrase, which she contends is "obtains identification information." See William Strunk, Jr., E.B. White, The Elements of Style, 28-31 (3d ed. 1979); Lauren Kessler Duncan McDonald, When Words Collide: A Media Writer's Guide to Grammar and Style, 139-141, 176 (3d ed. 1992). On the other hand, the State argues that the doctrine of last preceding antecedent applies. Under this doctrine, "qualifying words and phrases refer only to the immediately preceding antecedent, unless a contrary legislative intent appears." Shell Oil Co., 606 N.W.2d at 380.
Neither word positioning principle is helpful here. Mallett's theory concerning the correction of squinting modifiers assumes there is only one adjacent phrase that could be modified by the word "fraudulently." Here there are two. The State's reliance on the last preceding antecedent doctrine overlooks case law applying the doctrine only where all the phrases subject to modification precede the modifier. See Id.; Iowa Dept. of Transp. v. General Electric Credit Corp. of Delaware, 448 N.W.2d 335, 344-345 (Iowa 1989); State v. Lohr, 266 N.W.2d 1, 2-4 (Iowa 1978). That is not the case here.
More helpful is the original bill's legislative history and, specifically, the explanation attached to the bill. See City of Altoona v. Sandquist, 230 N.W.2d 507, 509 (Iowa 1975). In describing the elements of the new identity theft crime, the explanation states, "[a] person must first obtain identification information of another such as a name, birth date, driver's license number, or social security number, with the intent to obtain a benefit fraudulently." H.F. 170, 78th Gen Assem., Reg. Sess. (Iowa 1999) (bill as introduced) (emphasis added). This explanation supports the State's position that "fraudulently" modifies "obtain a benefit" rather than "obtains identification information."
We recognize that the explanation to a subsequent amendment to Iowa Code section 715A.8(2) supports Mallett's reading of the statute. The amendment states, "[a] person commits the offense of identity theft if the person fraudulently uses or attempts to fraudulently use identification information of another person, with the intent to obtain credit, property, services, or other benefit." H.F.170, 80th Gen. Assem., Reg. Sess. (Iowa 2003). The explanation to the amendment states, "[t]he bill eliminates the element that a person `fraudulently' obtain the identification information prior to using or attempting to use the information. . . ." This explanation suggests that the original intent of the legislature was to have "fraudulently" modify "obtains identification information" rather than "obtain a benefit." However, we believe the contemporaneous explanation attached to the original draft of Iowa Code section 714A.8(2) is entitled to more weight than a post-hoc explanation of legislative intent. See generally Polly v. State, 355 N.W.2d 849, 860 (Iowa 1984) (McCormick, J., dissenting).
In light of our conclusion that "fraudulently" modifies "obtain a benefit," we find no error in the challenged jury instruction.
III. Other Crimes Evidence
Mallett also challenges the district court's admission of evidence relating to burglaries at the home of her mother. Anthony testified that, approximately two weeks before the date of the charged crimes, the front door of her home was forced open. A new weed whacker, an item of recently purchased clothing, and a checkbook to a closed account were taken. Anthony filed a report with the Waterloo Police Department, but no one was charged.
A second break-in took place the next day. This time, Anthony did not notice that anything was taken.
Mallett contends this evidence was not relevant and, if relevant, was unfairly prejudicial. The State preliminarily responds that error was not preserved with respect to evidence of the second burglary. We disagree. When the prosecutor began questioning Anthony about the first burglary, defense counsel objected on relevancy grounds to "this line of questioning." The district court overruled the objection and the prosecutor proceeded to question Anthony about the first and second burglaries. We believe defense counsel's objection was sufficient to preserve error on the admissibility of all the burglary evidence. State v. Padgett, 300 N.W.2d 145, 146 (Iowa 1981). We proceed to the merits.
To be admissible, evidence must be relevant. Iowa R. Evid. 5.402. 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. Unfair prejudice in this context is the "undue tendency to suggest decisions on an improper basis, commonly though not necessarily, an emotional one." State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001).
We conclude the burglary evidence was irrelevant. Nothing tied either of the burglaries to Mallett or to the crimes with which she was charged. Indeed, the State conceded that "the items identified as taken did not play a role in the identity theft or credit card fraud." Under these circumstances, the burglary evidence was not necessary to tell "the complete story of the crime," as the State contends. See State v. Walters, 426 N.W.2d 136, 140-41 (Iowa 1988) (stating evidence of "events and circumstances which immediately surround an offense" is admissible "when it is an inseparable part of the whole deed").
This does not end our inquiry, however, because admission of irrelevant evidence does not mandate reversal unless prejudice results. State v. Rodriquez, 636 N.W.2d 234, 244 (Iowa 2001). The type of prejudice at issue here differs from the Rule 5.403 prejudice described above. To determine whether the erroneously admitted evidence is prejudicial in this context, we ask "[d]oes it sufficiently appear that the rights of the complaining party have been injuriously affected by the error or that he has suffered a miscarriage of justice?" State v. Trudo, 253 N.W.2d 101, 107 (Iowa 1977). Where the evidence overwhelmingly establishes the defendant's guilt, the error will be deemed non-prejudicial. Id. at 108; Rodriquez, 636 N.W.2d at 244 (stating erroneously admitted evidence not prejudicial "where the other evidence overwhelmingly establishes the defendant's guilt. . . .").
We conclude the evidence is not prejudicial. Mallett's admissions to the police investigator establish she obtained personal identification information from her mother through the family relationship, intended to fraudulently obtain money and items with that information, and without authorization, used the information to obtain that property. The investigator's testimony alone, aside from evidence of the burglaries, provides overwhelming evidence of Mallett's guilt with respect to the crime of identity theft.
Similarly, Mallett's admissions that she had someone call the credit card company to obtain authorization on Anthony's card without permission, and that she advanced $4500 on Anthony's account, furnish overwhelming evidence of credit card fraud.
Accordingly, we conclude Mallett's rights were not injuriously affected or she did not suffer a miscarriage of justice by virtue of the admission of the burglary evidence. In other words, the court's admission of the burglary evidence was harmless error. Trudo, 253 N.W.2d at 108.
IV. Ineffective Assistance of Counsel
Mallett finally claims that trial counsel should have objected to the marshaling instruction on credit card fraud and the affirmative defense to that charge. We preserve this issue for postconviction relief to allow counsel an opportunity to address it. State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).
AFFIRMED.