Summary
distinguishing Schminkey because "McCarty took the truck to a different town a significant distance from where it was stolen and it was not recovered for several days"
Summary of this case from State v. PierceOpinion
No. 4-216 / 03-1151
April 28, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Rodney Ray McCarty appeals from his convictions, following jury trial, for burglary in the first degree and theft in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Rodney Ray McCarty appeals his from convictions, following jury trial, for burglary in the first degree and theft in the first degree. He contends there was insufficient evidence to support his conviction for theft in the first degree and that his trial counsel was ineffective. We affirm his convictions and preserve the ineffective assistance of counsel claim for a possible postconviction proceeding.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals evidence from which the jury could find the following facts. In February of 2003 Cheryl Conklin was married to Harold Conklin and lived in Des Moines. On the evening of February 1, 2003 Cheryl received a telephone call from the defendant McCarty. He asked, "How's it going?" Cheryl hung up. McCarty's call scared Cheryl and she asked Harold to change the locks on the house. Cheryl testified she stayed with her sister the week following the phone call because she was scared and did not want to be in the house alone while Harold was working. Harold, however, testified that he did not recall Cheryl staying somewhere else after the phone call.
McCarty is Harold's nephew and had briefly lived with the Conklins a few years earlier. During that time Cheryl began an intimate relationship with McCarty and left Harold to be with him. Harold and Cheryl divorced and she stayed with McCarty for approximately two years. McCarty and Cheryl eventually ended up in Corning, Iowa, where they found jobs and a place to live. McCarty became abusive toward her the last six months of their relationship and once threatened to "knock her out" if she refused to have sex with him. He also punched her in the face and head once while they were driving back to Corning and she had a black eye as a result. After McCarty showed up at Cheryl's work drunk and she refused to leave with him, she went and stayed with a friend and left McCarty. Cheryl also sought a no contact order against McCarty but no order was ever issued because she did not show up for the hearing. Cheryl never reported any of McCarty's abusive behavior to the police. After breaking up with McCarty Cheryl renewed her relationship with Harold in May of 2002 and they remarried in July of 2002.
On February 11, 2003 Cheryl got off work at about 2:00 p.m. She then went to the bank for her boss, went back to where she worked, had a beer and visited with her boss, and returned home sometime after 3:00 p.m. When she got home she went to get a beer from her refrigerator but there was no beer. She found this odd because she thought there had been approximately six beers there earlier. Although she knew her daughter, Ramona, had been there earlier with Ramona's children, Cheryl knew Ramona did not drink. There was also a note on the table that said, "Dad, I took your truck." Cheryl assumed the note meant that Harold's son had borrowed Harold's truck earlier in the day. However, the truck was there when Cheryl got home. Harold's son does not drink, nor did Cheryl think he would drink and then take the truck and bring it back.
Cheryl then went to get a glass of wine because the beer was gone. She only had two wine glasses and was surprised when she went to get one and the other one was gone. Cheryl then called Ramona, who said she had been at the house until about 12:30 p.m. and did not know anything about the other wine glass. Cheryl drank her glass of wine and continued to talk to Ramona. When she hung up the phone and turned around she saw McCarty standing in her kitchen.
McCarty asked, "How's it going?" He grabbed Cheryl by the arms. McCarty told her he was mad at her because she hung up on him, he was in prison because of her, and he could not get in touch with his daughter because of her. He said he was "on the run" and that she was going to turn him in for taking Harold's truck and he was going to rape her. He also told her it was "going to end in the streets." Cheryl could not breathe and thought McCarty was going to kill her at that point.
McCarty then dragged Cheryl from the kitchen to the bedroom. He took off her shirt and told her to take off her pants. He then pulled her onto the bed, started kissing her, grabbed her throat once, and had sex with her against her will. After Cheryl was dressed McCarty told her that she was "going to drive him far away" in Harold's truck. She told him they had to take her car and that she could take him to Altoona but had to get gas first. McCarty told Cheryl that she had to take him farther than Altoona, but she said she could not because Harold would be coming home from work. As they walked out the back door Cheryl told McCarty she saw Ramona coming and that he should go hide inside. As he went back inside Cheryl got into her car and drove to the neighbors. McCarty took Harold's truck and drove away. Cheryl called the police from her neighbor's house. She also called Harold and told him about the incident and that he should have changed the locks on the doors when she asked him to.
After the police arrived the neighbor took Cheryl to the hospital for an examination. Cheryl spoke with Detective Meyers at the hospital on the day of the incident and again the next morning. Detective Meyers testified that at the hospital Cheryl was very upset, emotional and crying when he spoke with her and he believed she was under the influence of alcohol. He stated that she was having difficulty telling him what happened and continued to cry and get hysterical. Meyers further testified that Cheryl told him that during the assault McCarty kept saying that she put him away and that he was locked up because of her. He stated that he spoke with Cheryl again the next day and she started crying again a few times, but that she was better able to provide more details the next day and she had not been drinking then. Meyers did not recall any major changes in the information she provided on the two separate occasions.
Police began searching for Harold's truck and issued an arrest warrant for McCarty. The truck was located three days later, on February 14, 2003, on the town square in Corning. McCarty was arrested in Corning on February 18. Detective Meyers interviewed McCarty on February 19 and testified at trial regarding the interview. Meyers testified that McCarty told him he had taken the bus to Cheryl's house on February 11, arrived there around 12:30 p.m., and Cheryl was home. He said that she invited him in, they drank wine together, and then mutually agreed to have sex.
McCarty also told Meyers that Cheryl wanted to go away with him again but he said no. He said she then gave him the keys to Harold's truck and told him to leave before Ramona came over. McCarty admitted to Meyers he knew he was stealing the truck because Harold did not give him permission to take it. When Meyers asked McCarty why Cheryl would make accusations that he raped her, McCarty said that she was "very vindictive and had made similar accusations in the past" and had made statements to friends that "if I can't have him, no one can." Meyers testified that McCarty said that he left after Cheryl told him Ramona might be coming over, drove the pickup over to Corning, and parked in on the town square. A fingerprint analysis revealed McCarty's fingerprints on one of the wine glasses found at the Conklin residence.
On March 24, 2003, McCarty was charged by trial information with burglary in the first degree, in violation of Iowa Code sections 713.1 and 713.3(1)(d) (2003), and theft in the first degree in violation of Iowa Code sections 714.1 and 714.2(1). On May 7 the State moved to amend the trial information to include an allegation that McCarty was a habitual offender. Trial commenced on May 19, 2003. On the same date defense counsel filed a motion in limine seeking exclusion of McCarty's criminal record and any evidence of the alleged past abuse of Cheryl. No written or oral ruling on this motion appears in the present record.
McCarty moved for a judgment of acquittal on both counts at the close of the State's evidence arguing there was insufficient evidence on both counts. The trial court denied the motion. McCarty rested without presenting any evidence. The jury found McCarty guilty as charged. McCarty then stipulated that he had two prior felony convictions and thus was an habitual offender. The court sentenced McCarty to an indeterminate term of incarceration not to exceed twenty-five years on the burglary conviction and fifteen years on the theft conviction, adjudging him an habitual offender as to the theft charge pursuant to Iowa Code section 902.8. The sentences were ordered to run consecutively.
On June 26, 2003 McCarty was also convicted in an accompanying case of the offense of voluntary absence from custody and sentenced to an indeterminate term not to exceed one year on that conviction. This sentence was ordered to run consecutively to the burglary and theft sentences. McCarty does not challenge the absence from custody conviction or sentence in the present appeal.
McCarty appeals from his first-degree theft conviction, contending there was insufficient evidence to convict him of that crime because the State failed to prove he intended to permanently deprive Harold of his property. He also claims his trial counsel was ineffective for failing to object to the admission of prior bad acts evidence because such evidence was not relevant and the prejudice from such evidence substantially outweighed any probative value.
II. MERITS.
A. Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). In reviewing such challenges we give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). We will uphold a verdict if substantial record evidence supports it. Webb, 648 N.W.2d at 75. Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty of the crime charged beyond a reasonable doubt. Id. at 75-76. The court's denial of McCarty's motion for judgment of acquittal based on insufficient evidence preserved error for our review.
The trial court instructed the jury on both first-degree theft, under Iowa Code section 714.1(1), and its lesser-included offense of operating a motor vehicle without the owner's consent, under section 714.7. A person commits theft under section 714.1(1) when he or she "[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof." As explained in Instruction No. 34 in this case, an "intent to `deprive the other'" of property means an intent to "permanently withhold, or withhold for so long, or under such circumstances, that its benefit or value is lost." See State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999); see also Iowa Crim. Jury Instruction 1400.2 (2000). A person violates section 714.7 when he or she takes possession or control of a vehicle of another without the consent of the owner, but without the intent to permanently deprive the owner of the vehicle. Iowa Code § 714.7.
Proof that McCarty acted with the specific purpose of depriving Harold of his truck requires a determination of what McCarty was thinking when the act was done. Schminkey, 597 N.W.2d at 789. Proof of such intent is seldom capable of being established with direct evidence. Id.; State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989). "Therefore the facts and circumstances surrounding the act, as well as any reasonable inferences to be drawn from those facts and circumstances, may be relied upon to ascertain the defendant's intent." Schminkey, 597 N.W.2d at 789 (citing State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995)). Accordingly, we examine the record for facts and circumstances that would support an inference that McCarty intended to deprive Harold of the truck.
In Schminkey the court noted that the mere fact the defendant took the pickup without the owner's consent does not give rise to an inference that he intended to permanently deprive the owner of the vehicle. Id. at 791. Thus, we determine whether the record contains evidence of additional facts and circumstances from which the jury could reasonably find McCarty had the requisite intent. Based on the following, we conclude that the facts and circumstances surrounding McCarty's taking, removal, and possession of the truck, together with reasonable inferences that could be drawn therefrom, constitute substantial evidence that McCarty took possession of the truck with the specific intent to deprive Harold of it, as the term "deprive" is defined in Instruction No. 34.
McCarty admitted to Detective Meyers that he knew he was stealing the truck because Harold had not given him permission to use it. Cheryl testified that before McCarty actually took Harold's truck he told her she was going to "get him" or "turn him in" for taking it. Detective Meyers had a description of the missing truck, and information that a possible location for it might be in the city of Corning. He contacted the Corning chief of police and advised him of the case and the missing truck. The truck was eventually found on the town square in Corning. However, it was not found there until three days after McCarty had taken it in Des Moines.
Corning is approximately two hours (100 miles) from Des Moines. McCarty apparently told Detective Meyers he drove the truck to Corning. He also told him he parked it on the town square. However, the record contains no substantial evidence that McCarty drove the truck directly to Corning after stealing it, no substantial evidence as to when he parked it on the town square, and no substantial evidence concerning its use and location during the three days before it was found and recovered. The evidence does show that the keys were not in the truck when it was recovered. A rational juror could infer that McCarty had not only taken the truck but had also been using it and had kept the keys intending to further use it.
We believe the facts and circumstances in the case at hand are distinguishable from those found in State v. Morris, ___ N.W.2d ___ (Iowa 2004) and those found in Schminkey. In Morris, ___ N.W.2d at ___, the defendant drove the vehicle only some five to six miles, did not leave the city where he stole the vehicle, and had the vehicle for only about one half hour before he was stopped. In Schminkey, 597 N.W.2d at 791, the defendant had driven the vehicle only some seven to eight miles to a neighboring town when he became involved in an accident only a matter of hours after he had taken possession of the vehicle. Unlike those cases, here McCarty took the truck to a different town a significant distance from where it was stolen and it was not recovered for several days.
Viewing the evidence as a whole and in the light most favorable to the State, we conclude there was sufficient evidence in the record that a rational jury could find, beyond a reasonable doubt, that McCarty took Harold's truck with the specific intent to "deprive" him of the truck, within the meaning of the term "deprive" as defined in Instruction No. 34. See State v. Keeler, 710 P.2d 1279, 1283 (Kan. 1985) (holding evidence was sufficient to prove intent to permanently deprive owner of vehicle where defendant used the stolen car for several days, there was nothing to indicate he intended to return the car when it was taken, defendant made no effort to return the car during the several days he had it, and the vehicle was then abandoned on a city street). Because this is the only element of the theft conviction at issue on appeal we therefore conclude a rational jury could find, beyond a reasonable doubt, that McCarty was guilty of the charged theft.
B. Ineffective Assistance of Counsel.
When there is an alleged denial of constitutional rights, such as an allegation of 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). To prove trial counsel was ineffective the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
McCarty claims his trial counsel was ineffective for failing to object to evidence of McCarty's prior bad acts on the basis that such evidence was irrelevant or that the prejudice from such evidence substantially outweighed any probative value. Specifically, he complains about Cheryl's testimony regarding his alleged past abuse of her during their relationship, including testimony from her that McCarty forced her to have sex with him by threatening her and that he had punched her in the face. As set forth above, defense counsel had filed a motion in limine prior to trial seeking to exclude such evidence. However, nothing in the record before us indicates the trial court ruled on the motion or that defense counsel requested a ruling. McCarty contends his counsel should have either secured a ruling on his motion prior to Cheryl's testimony or objected to the testimony when it was offered.
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). "[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Biddle, 652 N.W.2d at 203.
McCarty can succeed on his ineffectiveness claims only by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). We conclude the record on this matter is not sufficient for us to address this issue on direct appeal. No record has yet been made before the trial court on this issue, trial counsel has not been given an opportunity to explain his actions, and the trial court has not considered and ruled on this claim. Under these circumstances, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
The State also agrees in its appellate brief that the lack of ruling on the motion in limine may be sufficient reason for us to preserve this ineffective assistance claim.
III. CONCLUSION.
Viewing the evidence in its entirety and in the light most favorable to the State, we conclude that the facts and circumstances in the record are sufficient for a reasonable juror to find beyond a reasonable doubt that McCarty took the truck with the specific intent to permanently deprive Harold of it and are thus sufficient to support the guilty verdict for theft in the first degree. We preserve McCarty's ineffective assistance claim for a possible postconviction proceeding.