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finding error was not preserved on First Amendment challenge to Iowa Code section 720.4 because " failure to make the challenge in a timely manner leaves nothing for the appellate court to review"
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No. 2-320 / 01-1262.
Filed July 19, 2002.
Appeal from the Iowa District Court for Marion County, TERRY WILSON, District Associate Judge.
Dorothy Van Wyk appeals from her conviction, following trial to the court, for tampering with a juror in violation of Iowa Code section 720.4 (1999). AFFIRMED.
Brian L. Earley of Earley Law Office, Montezuma, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Terry E. Rachels, County Attorney, and Laura Roan and Jane Orlanes, Assistant County Attorneys, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Dorothy Van Wyk appeals from her conviction, following trial to the court, for tampering with a juror in violation of Iowa Code section 720.4 (1999). She contends: (1) this statute requires the State to prove the victim was a juror at the time of the incident, (2) the record contains insufficient evidence to convict her under this Code section, and (3) the statute is unconstitutional as applied to her because it impairs her First Amendment right to free speech. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Dorothy Van Wyk was an acquaintance of Danny Jacobs and his mother. Kimberly Roose sat on a jury which found Jacobs guilty of burglary on February 2, 2001. Van Wyk had testified on Jacobs's behalf at the trial. As Roose and some of the other jurors left the courthouse after Jacobs's trial they were confronted by Van Wyk and Jacobs's mother. Van Wyk hollered, "Do you realize you have just convicted an innocent man?" at the jurors, among other things. Roose went to a local attorney she saw nearby and asked her to intervene. The attorney asked Van Wyk and Jacobs's mother to leave the jurors alone and told them their conduct was not appropriate.
The following Thursday Roose received a phone call at home from an initially unidentified female caller who asked if Roose was the custodian at a particular church, whether she cut Dutch lace in her home, and if her husband's name was Steven. Roose answered all of these questions in the affirmative. Van Wyk then identified herself and stated to Roose that the jury had made a mistake and that Jacobs was innocent. Roose told Van Wyk she had been advised by the police not to speak with her. However, Van Wyk continued telling Roose such things as "Danny had been railroaded," and asking such things as "Do you realize he could get twenty-five years in prison?". Roose stated that she was sorry but that the jury had nothing to do with sentencing. Van Wyk told Roose that she did not mean to "upset" her, and told Roose if she ever met her on the street she would not attack her. Roose again told Van Wyk she had been advised not to speak with her, and hung up the phone. Roose was frightened and shaking and immediately phoned the police to report the call.
Van Wyk was charged by trial information with two counts of tampering with a juror in violation of Iowa Code section 720.4. Count I was based on the incidents at the courthouse after the trial and Count II related to the later telephone call. A bench trial was held June 14, 2001 and the court found Van Wyk not guilty on Count I and guilty on Count II. Van Wyk was sentenced to pay $500 plus surcharge and court costs.
Van Wyk alleges on appeal there was insufficient evidence to convict her. Specifically, she alleges the State failed to prove Roose was a juror at the time of the incident; that she intended to intimidate, annoy, or alarm Roose when she called her; and that the call was without a legitimate purpose. Van Wyk further argues section 720.4 is unconstitutional as applied to her because it impairs her First Amendment right to free speech.
II. STANDARDS OF REVIEW
We review issues of statutory interpretation and application for errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000).
We review challenges to sufficiency of the evidence supporting a guilty verdict for errors at law. Iowa R. App. P. 6.4; State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). "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). A trial court's finding of guilt is binding on us if supported by substantial evidence. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). Substantial evidence is evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt. State v. Dible, 538 N.W.2d 267, 270 (Iowa 1997). "The evidence is examined in the light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record. We consider all evidence presented, not just that of an inculpatory nature." Lambert, 612 N.W.2d at 813.
III. MERITS
The Iowa juror tampering statute provides in relevant part, "A person . . . who, in retaliation for anything lawfully done by any witness or juror in any case, harasses such witness or juror, commits an aggravated misdemeanor." Iowa Code § 720.4 (1999). The elements the State must prove to establish this method of tampering are that the defendant, (1) in retaliation for anything lawfully done by a juror in a case (2) harassed such juror. See State v. LaPointe, 418 N.W.2d 49, 52 (Iowa 1998) (applying section 720.4 to a witness).
Van Wyk argues the statue requires the juror still be serving at the time of the retaliation, and since Roose was no longer a juror when Van Wyk called her she cannot be convicted under section 720.4. The trial court ruled,
The plain reading of [section 720.4] would indicate that the juror need not be still serving on the case, since it mentions retaliation for anything lawfully done. The court does not believe it is necessary that the juror still be serving on a case at the time for this section to apply.
We agree with the trial court's reading of the statute. We believe Van Wyk's argument to be at odds with both the plain language of this portion of the statue and our supreme court's opinion in State v. LaPointe, 418 N.W.2d 49 (Iowa 1988).
The language of the statute requires proof of harassment "in retaliation for anything lawfully done" by a juror. Iowa Code § 720.4 (emphasis added). "`Retaliate' means to repay or return like for like. . . . Consequently, the `anything lawfully done' by a witness must take place before the harassment occurs." LaPointe, 418 N.W.2d at 53. The "anything lawfully done" in the case at hand is the return of the guilty verdict by the jury in Jacobs's burglary trial. Therefore, Van Wyk could not have retaliated against Roose for the verdict before the jury returned the verdict. Obviously the return of the verdict ended the trial and Roose's service as a juror.
We conclude, as did the trial court, that the plain language of section 720.4 providing "retaliation for anything lawfully done" indicates that the juror need not be still serving on the case. This reading of the statute is in accord with the court's holding in LaPointe. Therefore, we find no error in the trial court's interpretation and application of the statute and conclude the evidence in the record is sufficient to prove the first required element of this method of tampering with a juror. Accordingly, this portion of Van Wyk's argument must fail.
Van Wyk also argues there was insufficient proof on the second requisite element of this charge, as set forth in LaPointe, that Van Wyk harassed Roose. To prove harassment under section 708.7(1)(a) the State must prove beyond a reasonable doubt that a defendant (1) intended to intimidate, annoy, or alarm another person (2) by a communication in writing or by telephone (3) without legitimate purpose and (4) in a manner likely to cause the other person annoyance or harm. State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989). Van Wyk alleges there was insufficient evidence to prove (1) she had a specific intent to intimidate, annoy, or alarm Roose, and (2) her call was without legitimate purpose. She asserts the legitimate purpose for the phone call was to gather information to help Jacobs with his appeal.
Based on the facts and circumstances surrounding the phone call the trial court found that Van Wyk made the phone call with the specific purpose to annoy or alarm Roose and it was done in a manner likely to cause Roose annoyance. We conclude substantial evidence supports this finding.
Van Wyk's intent in making the call to Roose can be inferred from all of the facts and circumstances leading up to the call and what she said to Roose during the call itself. First, there was the incident outside the courthouse in which Van Wyk made loud and aggressive statements to Roose and other jurors. Roose testified that she felt intimidated during this confrontation and had to seek out a local attorney to intervene. Although the trial court found Van Wyk did not have an "intent to harass" during the courthouse incident, it is still relevant in determining her later intent in making the phone call to Roose.
The second relevant fact to take into account is Van Wyk's gathering of personal information about Roose prior to her conversation with her. Van Wyk acknowledged seeking details about Roose from Van Wyk's co-workers and her hairdresser, who was Roose's neighbor. Van Wyk also disregarded admonitions to leave the jurors alone and statements from Roose that she had been advised by counsel not to speak with her. Additionally, during Van Wyk's phone conversation with Roose she stated that if she were to see Roose on the street she would not attack her. Van Wyk made this statement even though Roose never said she believed such physical violence was a possibility, or made any other statements suggesting that she feared Van Wyk in any way. This statement can, in context, legitimately be seen as implying the possibility of an attack and can thus be seen as an attempt to intimidate, annoy, or alarm Roose.
Based on all of the facts and circumstances surrounding the phone conversation and the content of the conversation itself, there is substantial evidence in the record from which the trial court could infer Van Wyk had the specific intent to intimidate, alarm, or annoy Roose in retaliation for the guilty verdict.
Van Wyk also argues on appeal there was a legitimate purpose to her call, namely that she was trying to gather information to assist Jacobs with his appeal. The trial court found the testimony regarding the conversation did not support Van Wyk's contention regarding her purpose for the call. It also found there was no credible testimony that Van Wyk ever attempted to gather information that would aid Jacobs on appeal. Substantial evidence supports these findings as well. There is no evidence that Van Wyk ever mentioned anything about an appeal or gathering information for an appeal to Roose during the phone conversation, nor did she ask any questions that would in any way aid in an appeal. Furthermore, we defer to the fact finder's determinations concerning witness credibility. State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001). We conclude the evidence was such that a reasonable fact finder could find, beyond a reasonable doubt, that Van Wyk did not have a legitimate purpose for calling Roose.
Van Wyk's final argument on appeal is that Iowa Code section 720.4 is unconstitutional as applied to her because it impairs her first amendment right to free speech. We require error preservation, even on constitutional issues. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). Issues not raised before the trial court, including constitutional issues, cannot be raised for the first time on appeal. State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). A party must challenge a statue on constitutional grounds at the earliest available time in the progress of the case. Id. A failure to make the challenge in a timely manner leaves nothing for the appellate court to review. Id. This court does not recognize a "plain error" rule which allows appellate review of constitutional challenges not preserved at the district court level in a proper and timely manner. Id.
In a hearing on her motion for judgment of acquittal Van Wyk argued that her call to Roose had a legitimate purpose, seeking information to help Jacobs with his appeal, and that her action was within her First Amendment rights. However, she made no recognizable argument that section 720.4 was unconstitutional as applied to her. Nor did the trial court address or pass upon such an issue. Our error preservation rules require that issue be presented to and passed upon by the trial court prior to being raised and decided on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998). Because the constitutional issue Van Wyk attempts to present on appeal was not presented to and passed on by the trial court, it is not preserved for our review.
IV. CONCLUSION
For all of the reasons set forth above, we conclude there was sufficient evidence for a reasonable fact finder to find Van Wyk guilty beyond a reasonable doubt of juror tampering under Iowa Code section 720.4. We conclude the plain language of the statute does not require the juror still be serving as a juror at the time the defendant's offending conduct occurs. Error was not preserved on Van Wyk's constitutional claim. Van Wyk's conviction for tampering with a juror is affirmed.
AFFIRMED.