Opinion
No. 5-359 / 04-1342
Filed May 25, 2005
Appeal from the Iowa District Court for Lee (South) County, Cynthia Danielson, Judge.
Daniel Swanson appeals his judgment and sentence for second-degree arson. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, Michael Short, County Attorney, and David Andrnsky, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
The State arrested and charged Daniel Swanson with two counts of second-degree arson in connection with fires at two unoccupied houses in Keokuk. Iowa Code § 712.3 (2003). A jury found him not-guilty on one count and guilty on the other.
Swanson appeals the guilty verdict, raising a single issue: whether the district court abused its discretion in denying his motion to sever the two charges. See State v. Delaney, 526 N.W.2d 170, 174 (Iowa Ct.App. 1994) (setting forth standard of review). On this issue, Iowa Rule of Criminal Procedure is authoritative. The rule provides in pertinent part:
Two or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information, or indictment, unless for good cause shown, the trial court determines otherwise.
Iowa R. Crim. P. 2.6(1). Swanson claims the offenses (1) did not "arise from the same transaction of occurrence," (2) were not part of "a common scheme or plan," and, even if these tests were satisfied, (3) the prejudice to him outweighed the State's interest in judicial economy.
I. Same Transaction or Occurrence
"Two charges arise out of the same transaction or occurrence when the crimes are so linked in time, place, and circumstances that `the facts of each charge can be explained adequately only by drawing upon the facts of the other charge'" State v. Robinson, 506 N.W.2d 769, 771 (Iowa 1993) (citing State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985) (interpreting pre-1983 version of rule 2.6(1)). Swanson argues this prong of rule 2.6(1) was not satisfied, as each count involved a separate fire at a separate house and the witnesses to each fire were not the same. The State does not appear to contest this aspect of Swanson's argument. Therefore, we will proceed to the "common scheme or plan" prong.
Swanson also suggests police conducted "two separate arson investigations for each fire." However, at a motions hearing, a detective with the Keokuk Police Department testified "it was like one continuous investigation."
II. Common Scheme or Plan
"A common scheme or plan" requires "a common link" between the offenses. State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000). In other words, the offenses "must be the products of a single or continuing motive." Id. Factors such as "intent, modus operandi, and the temporal and geographic proximity of the crimes" are helpful in deciding this question. Id.
The State presented the following evidence: Patricia Hoang observed a black pickup truck pull up opposite her house. The truck had front-end repair and an Illinois license plate. A man with a dark jacket, dark hat, and jeans got out and walked up to a house which Hoang knew had been empty for some time. The man peered through the window of the house. Hoang left and returned to find a fire at that house.
Four hours later, on the same day, Lori Bloom saw a truck parked in front of a different house across the street from her office. The house was known to be abandoned, and it was unusual that someone would be parked in front of it. Bloom saw a man make several trips to the house, carrying five-gallon buckets. Within a few minutes, she heard a co-worker say the house was on fire. Bloom left the office to see if she could find the man and the truck. She found Swanson parked at a gas station near the fire. She recorded his Illinois license plate number.
The next day, Keokuk police pulled Swanson over. He was driving a black pickup truck with Illinois plates.
An agent from the State Fire Marshal's Office found gasoline on samples from both houses and on Swanson's tennis shoes. He determined the fires were intentionally set.
We have no trouble concluding from this evidence that the two offenses were part of "a common scheme or plan." Both fires were non-accidental, both fires were started with gasoline, evincing an identical modus operandi, and both fires occurred on the same day, in the same town, and involved houses that were unoccupied for extended periods of time. See Oetken, 613 N.W.2d at 688 (setting forth factors to consider in determining existence of "a single or continuing motive.").
III. Prejudice
Swanson alternately argues that, even if the charges satisfied either prong of the consolidation test set forth in Rule 2.6(1), severance was still warranted because "the unfair prejudice" to him "outweighed the government's interest in judicial economy." See State v. Trudo, 253 N.W.2d 101, 105 (Iowa 1977) (stating that, if the defendant had moved to sever charges, "[i]t would have been his burden to show his interest in receiving a fair trial uninfluenced by the prejudicial effects which could result from a joint trial outweighed the State's interest in judicial economy."). Specifically, he contends, "[e]ven though the jury found the evidence did not rise to the level of proof beyond a reasonable doubt for count I, the jury considered excess evidence that may have affected its decision to convict Defendant on count II."
Weare not persuaded by Swanson's argument. The evidence on the first count was similar to the evidence proffered on the second count. The eyewitness testimony on the first count was less compelling, as the witness who saw Swanson left the scene before the fire was set. There is also no indication from our vantage point that the evidence on count I was inflammatory or emotionally charged. See State v. Geier, 484 N.W.2d 167, 173 (Iowa 1992) (rejecting assertion that evidence of assault prejudiced defense to theft charge because of indication of bad character). Finally, the jury was instructed to determine guilt or innocence "separately on each count," an instruction we know the jury followed, as it acquitted Swanson on one charge. See Oetken, 613 N.W.2d at 689 (considering such a jury instruction in rejecting defendant's assertion of prejudice). For these reasons, we conclude Swanson did not establish that he was prejudiced by consolidation of the two charges.
We affirm Swanson's judgment and sentence for second-degree arson.