Opinion
22-2030
03-06-2024
STATE OF IOWA, Plaintiff-Appellee, v. HSER NAY THAW, Defendant-Appellant
Jessica A. Millage of Flanagan Law Group, PLLC, Des Moines, for appellant. Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.
Appeal from the Iowa District Court for Polk County, Kimberly J. Smith, District Associate Judge.
Hser Thaw appeals his conviction for third-degree burglary. AFFIRMED.
Jessica A. Millage of Flanagan Law Group, PLLC, Des Moines, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
CHICCHELLY, Judge.
Hser Nay Thaw appeals his conviction for third-degree burglary, contending insufficient evidence supports the conviction and his trial counsel was ineffective. Because the conviction is supported by substantial evidence and we cannot consider ineffective-assistance claims on direct appeal, we affirm.
I. Background Facts and Proceedings.
In the early hours of August 1, 2022, a married couple were watching television at home. Their security camera system alerted them to someone in their driveway breaking into their truck. They both went outside to investigate, and while the wife called 911, the husband chased the perpetrators. He followed them to a white car parked in front of the couple's home. But once they noticed the husband following them, the perpetrators ran off. The husband continued his chase around the edge of a neighbor's house, at which point one of the perpetrators turned around and looked at him briefly. The husband, remembering his wife was left alone in the driveway, then abandoned the chase.
Meanwhile, the wife, while speaking to the 911 operator, noticed "a white car parked in front of our house" that she was not familiar with. She gave a description of the vehicle and plate number to the operator. Police responded and began investigating. They searched the white car, and during the search, Thaw's mother, father, and sister arrived. The husband testified Thaw's mother "was there because her son said he was in trouble, needed help." Thaw's sister was on the phone with Thaw, but the police were not able to understand the conversation because it was not in English. And when the officer asked to speak to Thaw, he hung up. Police eventually discovered that Thaw's mother was the registered owner of the vehicle and found Thaw's driver's license inside the center console area. Police impounded the vehicle and obtained a warrant for Thaw's arrest.
The State charged Thaw with third-degree burglary. At trial, the husband identified Thaw as the person he had chased on the night in question. Thaw also testified at trial and denied that he had broken into the truck. And while he admitted he sometimes borrowed his mother's vehicle, he could not remember if he was driving her car on August 1. He also claimed the license found in the car was his "old ID." Thaw's sister also testified that on that night, she received a call from someone she only "thought was [her] brother." During the trial, Thaw moved for judgment of acquittal, but the district court denied his motion. He was ultimately convicted as charged. Thaw appeals.
II. Discussion.
Thaw contends there is insufficient evidence supporting his conviction and that his trial counsel was ineffective.
A. Sufficiency of the Evidence.
First, Thaw contends that insufficient evidence supports his conviction because the evidence was circumstantial; specifically, he cites the lack of fingerprint or DNA evidence. We review sufficiency-of-the-evidence claims for correction of errors at law. State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). Viewing "the evidence in the light most favorable to the State," we will uphold the verdict if "supported by substantial evidence." Id. When viewing such evidence, "[c]ircumstantial evidence is not inferior evidence; both direct and circumstantial evidence are equally probative." State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994); accord Iowa R. App. P. 6.904(3)(p).
The district court determined there was sufficient evidence when ruling on Thaw's motion for acquittal, and we agree. Thaw first challenges the testimony that identified him as the burglar. "However, on a sufficiency-of-the-evidence review such as this, our role is not to assess the credibility of witnesses or resolve conflicts in the evidence, as that role is reserved for the jury." State v. Carter, No. 17-1773, 2021 WL 1400758, at *4 (Iowa Ct. App. Apr. 14, 2021). One believable witness is all that is needed to provide sufficient evidence for conviction. Id. Here, the husband testified that he saw the face of the perpetrator briefly during the chase following the burglary, and he identified Thaw as that person under oath. It is not for us to decide if such testimony was reliable but to submit that to the jury. See id.
Thaw contends the only link between the crime and him is the presence of his family at the scene, which he considers "distant at best." But while the bulk of the evidence in this case is circumstantial, "[a] conviction may rest on circumstantial evidence if it is compelling enough to convince the jury of the defendant's guilt." State v. Little, No. 19-1062, 2021 WL 1400068, at *8 (Iowa Ct. App. Apr. 14, 2021). Fingerprint or similar biological material evidence is not required to convince a jury beyond a reasonable doubt. Even absent the victim husband identifying Thaw, his family's arrival is meaningful. The husband testified that while he chased him, Thaw "ran to the car like he was going to get into [it], realized [the husband] was right behind him," and fled. That particular vehicle was later discovered as belonging to Thaw's mother and containing Thaw's identification inside. Thaw also testified, and he admitted to sometimes borrowing his mother's car. Immediately after the burglary, multiple members of his family arrived. When Thaw's sister originally spoke to law enforcement, she stated Thaw had told her to come pick him up. But at trial, she testified she received a phone call from "an unknown person" telling her to come retrieve the vehicle. We have previously found sufficient evidence when the perpetrator is identified by a victim and the defendant "had access" to the perpetrator's car. State v. Key, No. 02-1301, 2003 WL 22805357, at *6 (Iowa Ct. App. Nov. 26, 2003). We do not question the reliability of any witnesses because the jury here was "free to reject certain evidence, and credit other evidence." State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). Instead, we view the evidence in the State's favor and find there was sufficient evidence to support the third-degree burglary conviction and affirm. See Crawford, 972 N.W.2d at 202.
B. Ineffective Assistance of Counsel.
Thaw next advances an ineffective-assistance-of-counsel argument. But ineffective-assistance claims cannot be decided on direct appeal from a criminal proceeding. See Iowa Code § 814.7 (2022). We therefore decline to consider this issue.
III. Disposition.
Because we cannot consider his ineffective-assistance claim and because we find sufficient evidence supports Thaw's conviction of third-degree burglary, we affirm.
AFFIRMED.