Opinion
No. 4-297 / 03-0578.
June 9, 2004.
Appeal from the Iowa District Court for Warren County, Darrell Goodhue, Judge.
Anthony Negrete, Jr. appeals his conviction for second-degree arson. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Gary Kendell, County Attorney, and Douglas Eichholz, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
I. Background Facts Proceedings
Anthony Negrete, Stacey Stoecker, and Linda York were jointly charged, tried, and convicted of arson in the second degree in connection with a June 1, 2001, fire at Teaser's Palace in Carlisle. Stoecker and York own all of the shares of Teaser's Palace, Inc. Negrete was their employee and lived with Stoecker. York is Negrete's mother.
Under the State's theory, Negrete, at York and Stoecker's behest, set fire to Teaser's Palace at approximately 2 a.m. on June 1, 2001. The State claimed the fire was intentionally set, citing evidence of five separate fires discovered by firefighters upon their arrival, the fact that the front door to the business was left open, as well as a positive test for the presence of an accelerant. Chris Van Fleet, a Bureau of Alcohol, Tobacco and Firearms agent, also opined the fire was burning at least fifteen minutes before the flames were first seen coming through the roof of the building. Stoecker's claim for fire insurance benefits and Teaser's declining financial condition were also cited as evidence supporting the State's arson theory. The State's evidence implicating Negrete included his personal and financial relationships with Stoecker and York and his admitted presence at the scene of the fire at or near the time it started. Negrete did not dispute the State's claim that the fire was intentional but denied any involvement in the arson.
Negrete's pretrial motion to sever his trial from the other defendants was denied. The trial court also denied Negrete's motion to exclude evidence concerning Teaser's financial condition in which Negrete argued that as a nonowner he had no financial interest in the business and that such evidence was not relevant to the charges against him. Negrete's request for a limiting instruction concerning this evidence was denied "because of the relationship that the evidence indicates." Negrete's motion for a judgment of acquittal made at the close of the evidence was denied. The jury returned a verdict finding Negrete guilty as charged. Negrete's motion for a new trial citing newly discovered evidence implicating a fellow inmate in the county jail who allegedly confessed to the crime was also denied. The district court found that the newly discovered evidence was not credible.
On appeal Negrete raises multiple issues including sufficiency of the evidence, the State's failure to establish his identity as the person charged in the trial information, the court's failure to give his requested cautionary instruction, and ineffective assistance of trial counsel.
II. Sufficiency of the Evidence
We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.4(6)( p).
Negrete does not dispute the State's evidence supporting its claim that the fire was intentionally set. There is evidence, including Negrete's statements, that he was the last person to leave Teaser's before the fire started. We believe that the jury could infer from Negrete's relationship with Stoecker, his employment at Teaser's, and Teaser's financial condition that he stood to benefit financially from Stoecker's fire insurance claim. We therefore affirm on this issue.
Negrete next claims that the State failed to prove his identity as the person charged in the trial information. He argues the State failed to show he was the same Anthony Negrete, Jr. because he was never identified as that person during the trial.
This issue was not preserved for our review. In the motion for judgment of acquittal, the defense argued:
In addition, the State has failed to identify Mr. Negrete as the individual who was involved in this matter. The State has failed to provide any evidence other than bare bones conclusory evidence by fire investigators that this was an incendiary fire, and there has been no evidence presented that my client had any connection to that fire whatsoever, other than he was present at some time prior to the fire.
While Negrete argued that the State failed to identify him as a person involved in the crime, the argument was raised in regard to the issue discussed above — that while the fire at Teaser's Palace was intentionally set, there was insufficient evidence connecting him to the fire. The motion did not raise, and the district court did not address, the issue Negrete raises now on appeal — that there was no in-court identification. We note that Negrete did not seek a further ruling by the court, and did not in any other manner raise a claim regarding the lack of in-court identification.
To preserve error on a claim of insufficient evidence, a defendant must raise that specific issue in a motion for judgment of acquittal. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Where the motion does not specifically raise the issue argued on appeal, error has not been preserved. See State v. Truesdell, ___ N.W.2d ___, ___ (Iowa 2004). We also affirm on this issue.
III. Cautionary Instruction
Negrete requested a cautionary instruction informing the jury that the financial information regarding Teaser's Palace should not be considered in determining his guilt or innocence. Negrete argued the evidence was not relevant as to him because he had no ownership interest in the business. As noted above, the district court denied the request, "because of the relationship that the evidence indicates."
Review of a district court's ruling on jury instructions is for errors at law. Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). When a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court should give the requested instruction. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). A court should not give the jury an instruction, however, which takes a legitimate factual issue from the jury and resolves it as a matter of law. See State v. Gordon, 560 N.W.2d 4, 6-7 (Iowa 1997).
The State presented evidence which would support an inference that Negrete had at least an indirect interest in the financial condition of Stoecker and Teaser's Palace. We have already noted Negrete's personal and business relationships with Stoecker and York. Additionally, there is evidence that Negrete sold Stoecker a house, taking a loss of $8000 on the sale. Thirty-eight days later Stoecker sold the house for a $45,000 profit. Stoecker used part of these profits to invest in Teaser's Palace. We find no error in the district court's refusal to give the requested cautionary instruction. The implications of Negrete's interest in Stoecker's and York's personal and business finances were appropriately left for the jury's consideration.
IV. Ineffective Assistance
Negrete claims he received ineffective assistance of trial counsel because his attorney failed to move for a new trial based on the weight of the evidence. He also claims counsel's argument in support of his motion to sever his trial from the other defendants was incomplete.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong 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).
A motion for new trial is addressed to the discretion of the court. State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct.App. 2001). A new trial should be granted if the court determines the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. at 659.
We determine the trial court could have reasonably found the weight of the evidence supports Negrete's conviction and that a motion for new trial, based on that ground, would have been unsuccessful. The evidence shows the fire at Teaser's Palace was set intentionally. Negrete admitted he was the last one to leave the building, and the evidence tended to show that the fire had been started before he left. Additionally, Stoecker, made a claim for insurance proceeds from which Negrete, for reasons cited earlier, stood to gain. Negrete cannot prove he was prejudiced by counsel's failure to move for a new trial on the ground that the jury's verdict was contrary to the weight of the evidence.
Our review of a district court's decision on a motion to sever is for an abuse of discretion. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998). The trial of a co-defendant should be severed where (1) the trial is so complex and the evidence so voluminous that the jury will be confused and cannot compartmentalize the evidence; or (2) the evidence admitted against one defendant is so prejudicial to the co-defendant, the jury is likely to wrongly use it against the co-defendant. Id. (citing State v. McFadden, 443 N.W.2d 70, 71 (Iowa Ct.App. 1989)).
None of the foregoing circumstances are present here. Furthermore, we have already determined that the evidence supports the inference that Negrete had at least an indirect interest in both Stoecker's personal and business finances. The evidence was relevant, and Negrete's defense counsel had no duty to make that argument in support of his motion to sever. Defense counsel does not have a duty to make a meritless or frivolous motion. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). We conclude Negrete has failed to show he received ineffective assistance of counsel.
We affirm Negrete's conviction.