Opinion
No. 2-274 / 01-1232.
Filed July 31, 2002.
Appeal from the Iowa District Court for Muscatine County, JAMES E. KELLEY, Judge.
James Dean Wagner, Sr. appeals his conviction, following jury trial, for using a juvenile to commit an indictable offense. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Richard R. Phillips, County Attorney, and Kerrie L. Snyder, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
James Dean Wagner, Sr. appeals his conviction, following jury trial, for using a juvenile to commit an indictable offense. Wagner contends the evidence was insufficient to convict him of using a juvenile to commit an offense and the trial court erred in denying his motion for new trial. Wagner also asserts he was denied effective assistance of counsel because his counsel failed to specify or clarify the correct grounds in his motion for new trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
At approximately 12:40 a.m. on the morning of March 28, 2001 Muscatine police officer David Perley observed a juvenile in the parking lot of On-Time Delivery. Officer Perley caught up with the juvenile and recognized him as D.B. Perley escorted D.B. back to the parking lot area of On-Time Delivery where he noticed a man, later identified as the defendant, James Wagner, Sr., standing between two trucks. When Perley confronted Wagner as to why he and D.B. were in the parking lot after midnight, Wagner told Perley they were looking for D.B.'s lost dog. When Perley asked D.B. the same question he also said they were looking for his lost dog. However, upon further separate questioning D.B. stated to Perley that they were "trying to break into the trucks," and they had checked out all of the trucks.
D.B. admitted gaining access to the cargo area of one of the trucks and pointed out that truck to Officer Perley. Perley looked at the dirt near the truck and noticed a large shoe print near the side door of the cargo truck. He determined the shoe print was too large to be from D.B.'s shoe but that it appeared to be of the same size and type as Wagner's shoe. Officer Perley then placed Wagner under arrest. A search of Wagner's person revealed two Swiss Army knives in his front pocket. Upon further investigation, Perley noticed the side door of the cargo truck was open and there were boxes inside the truck.
Sergeant Arthur Anderson testified at Wagner's trial that his attempts to make a cast or impression of the shoe prints at the side and back of the open truck were unsuccessful because of the shallow, sandy material. Photographs taken of the shoe prints were either lost or not properly developed. However, Sergeant Anderson agreed that the pattern and size of Wagner's shoe was consistent with the shoe print he observed at the scene.
Perley then contacted one of the owners of On-Time Delivery, Joseph Barnard, and requested he come to the scene to see if there was any damage to the trucks. Barnard looked around the lot and noticed the side door of the truck in question had been opened and the back door was still padlocked. When Barnard entered the truck, he saw that several of the boxes in the truck had been "crunched," as though someone had stepped on them, but did not notice any footprints or other damage. Barnard did not see any signs of tampering with the doors or locks on other trucks.
Wagner was charged by trial information on April 6, 2001 with using a juvenile to commit an offense (habitual offender) in violation of Iowa Code sections 709A.6 and 902.8 (1999) (Count I), burglary in the third degree (habitual offender) in violation of Iowa Code sections 713.1, 713.6A and 902.8 (Count II), and possession of burglary tools, in violation of Iowa Code section 713.7 (Count III). Wagner pled not guilty to all of the charges. The State filed an amended trial information on July 8, 2001 deleting the habitual offender language for purposes of trial and adding an aiding and abetting theory under the charge for third degree burglary.
Trial commenced on July 2, 2001. At trial D.B. testified he was fourteen years of age and had known Wagner for three months. He testified that Wagner came up with the idea of going to On-Time Delivery to see what was in the trucks and he and Wagner decided to do so. He indicated they probably would have taken whatever they found. D.B. stated he and Wagner went around to one truck, finding the cargo area empty, before they found a yellow delivery truck that was unlocked. D.B. stated he went inside the back door of the truck and used a pocketknife Wagner gave him to cut open a box and discovered the box contained an office chair. D.B. testified that he and Wagner then looked to see if there were any more business trucks, to see if they could get inside them. It was at that time that Officer Perley arrived at the scene and D.B. began to run.
D.B. testified he told Perley he was looking for his lost dog because he was afraid of getting arrested for breaking curfew and for entering the truck. He did eventually tell Perley they were trying to steal items from the trucks. In D.B.'s written statement to Detective Vaughan a few days after his arrest D.B. stated Wagner had told him he would give him half of whatever they found in the delivery trucks. However, at trial D.B. admitted Wagner had not made such a specific promise. He testified that he said so in his written statement because he assumed that was what Wagner was going to give him, and he would not have gone along with Wagner if he was not going to get anything from whatever they found in the trucks. D.B. testified that Wagner "said something about, Whatever I get you'll probably get too. Like, half or something."
Wagner testified at trial that he had known D.B. for close to a year. Wagner stated he and D.B. had planned to walk to a friend's house to see if she could give the Wagner a ride the next morning. Wagner and D.B. both agreed they took a route off the main street so that D.B. would not be seen breaking curfew. Wagner testified that when they got to the On-Time parking lot he decided to take a bathroom break in the lot. He further testified that while he was urinating D.B. walked ahead of him and he lost track of him. Wagner stated that when Officer Perley arrived he had his back to him because he was still urinating and Perley beckoned Wagner over to him. He said he lied to the officer regarding D.B.'s dog because he did not want to get in trouble for indecent exposure or trespassing. During his testimony Wagner denied planning to break into the trucks, looking inside any trucks, or entering any trucks in the lot. He also denied using his pocketknife or giving a pocketknife to D.B. to use.
At the close of the State's evidence Wagner moved for a directed verdict on all charges challenging the sufficiency of the evidence and the lack of corroboration of D.B.'s testimony. The court denied the motion. On July 5, 2001 the jury found Wagner guilty of using a juvenile to commit an offense (Count I), guilty of criminal trespass (Count II), and not guilty as to Count III. Wagner filed a motion for new trial on July 20, 2001 alleging jury misconduct, the verdicts were contrary to the law and evidence, and the court misdirected the jury in a material matter of law as to Count I. The court denied the motion prior to sentencing on July 27, 2001. \
The court sentenced Wagner on April 12, 2001 to an indeterminate term of fifteen years for using a juvenile to commit an offense, with the habitual offender enhancement, and thirty days for criminal trespass.
Wagner had stipulated to his status as an habitual offender if the jury were to find him guilty on Count I or II.
II. MERITS
Wagner appeals his conviction for using a juvenile to commit an offense, contending there was insufficient evidence to convict him of that charge and that the trial court erred in denying his motion for new trial under Iowa Rule of Criminal Procedure 2.24(2)(b)(6). Wagner also assert he was denied effective assistance of counsel.
A. Sufficiency of the Evidence
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Kirchner, 600 N.W.2d 330, 333-34 (Iowa Ct.App. 1999) and need not be repeated here. The following additional standards are applicable as well. We give consideration to all of the evidence, not just that supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The credibility of witnesses, in particular, is for the jury. A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673.
Wagner specifically asserts on appeal that "the State failed to provide sufficient evidence showing that the defendant made any implied or stated promises to D.B. indicating that they would share stolen property," and that D.B.'s testimony lacked sufficient corroboration under Iowa Rule of Criminal Procedure 2.21(3).
1. Use of implied or stated promises.
Iowa Code section 709A.6(2) provides in relevant part:
It is unlawful for a person to act with, enter into a common scheme or design with, conspire with, recruit or use a person under the age of eighteen, through threats, monetary payment, or other means, to commit an indictable offense for the profit of the person acting with, entering into the common scheme or design with, conspiring with, recruiting or using the juvenile.
Iowa Code § 709A.6(2) (1999). The court instructed the jury that in order to find Wagner guilty of using a juvenile to commit an offense the State must prove beyond a reasonable doubt (1) Wagner acted with or recruited or used D.B. to commit the offense of burglary in the third degree or attempt to commit burglary in the third degree; (2) D.B. was under the age of eighteen; (3) Wagner recruited or used D.B. "by means of implied or stated promises of sharing in stolen property"; and (4) Wagner acted for his own profit.
Wagner argues the State failed to prove beyond a reasonable doubt that he made any implied or stated promises to D.B. that they would share the stolen property to induce D.B.'s cooperation. In support of his argument, Wagner points to D.B.'s recantation of part of his written statement to the police and that D.B. specifically testified he simply assumed Wagner would give him part of the stolen property but that Wagner never expressly so stated.
D.B. gave a written statement to Detective Vaughan a couple of days after his arrest in which he indicated Wagner had told him, "I will give you half of whatever I find in the truck." Even though D.B. recanted the part of his written statement that referred to "half" of whatever was found in the trucks there remains substantial evidence that Wagner promised D.B. a share of any loot to induce D.B.'s participation. D.B. consistently stated it was Wagner's idea to look in the delivery trucks for something to take and that they were checking out the trucks together. He also testified he would not have gone along with Wagner if he did not think he was going to get part of whatever they found in the trucks. Most importantly, D.B. testified that Wagner did "[say] something about, Whatever I get you'll probably get too," which D.B. understood to mean, "Like, half or something," testimony that Wagner ignores or overlooks in arguing this issue. Although Wagner testified he did not make any statements to D.B concerning breaking into any trucks at On-Time Delivery, and he did not suggest taking any property from the trucks and splitting it between them, it is clear from the verdict that the jury found D.B.'s testimony to be more credible than Wagner's. The jury is free to reject certain evidence, and credit other evidence. Anderson, 517 N.W.2d at 211. The jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as in its judgment such evidence should receive. Thornton, 498 N.W.2d at 673.
Viewing all the evidence in the light most favorable to the State, we conclude the record evidence could convince a rational fact finder, beyond a reasonable doubt, that Wagner used a stated or implied promise of sharing in stolen property from the trucks to induce D.B. to walk more than two miles with him in the middle of night and assist him in burglarizing or attempting to burglarize the trucks. Therefore, there is substantial evidence in the record to support the jury's verdict on this element of the crime.
2. Corroboration of D.B.'s testimony.
Wagner next argues D.B.'s testimony was not sufficiently corroborated under Iowa Rule of Criminal Procedure 2.21(3). Rule 2.21(3) provides:
Corroboration of accomplice or person solicited. A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Iowa R. Crim. P. 2.21(3). Wagner argues that D.B.'s testimony was contradicted and there is no evidence apart from his testimony which shows commission of the crime.
"The existence of corroborating evidence is a legal question for the court." State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997). Once the legal adequacy of the corroborating evidence is established, the question of the sufficiency of the evidence is for the jury to determine. Id. Because Wagner challenges the trial court's determination that corroborating evidence existed to warrant submission of this case to the jury, our review of this issue is for correction of errors at law. Id.; Iowa R. App. P. 6.4. Evidence asserted as corroborative of an accomplice's testimony will be sufficient to create a jury question if that evidence corroborates some material aspect of the accomplice's testimony tending to connect defendant to the commission of the crime and thereby supports the credibility of the accomplice. State v. Brown, 397 N.W.2d 689, 694-95 (Iowa 1986). Corroborative evidence may be direct or circumstantial. Bugely, 562 N.W.2d at 176. Corroborative evidence need not be strong and need not be entirely inconsistent with innocence. Id. A small amount of corroborative evidence is all that is required. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). A combination of circumstances, singularly unpersuasive, may be sufficient to entitle a jury to conclude the accomplice's testimony has been corroborated. State v. Willman, 244 N.W.2d 314, 315 (Iowa 1976). The State need not establish corroborative evidence beyond a reasonable doubt. State v. King, 256 N.W.2d 1, 10 (Iowa 1977).
Several aspects of D.B.'s testimony are corroborated in the record. There is clear, undisputed evidence in the record that D.B. was present and entered a truck in the On-Time Delivery parking lot in the early morning hours of March 28, 2001. Wagner's early morning presence in the On-Time Delivery lot at or about the time the truck was entered by D.B., coupled with his acknowledged association with D.B., is evidence which tends to connect Wagner to the commission of the crime. Wagner's attempt to hide when the police arrived supports D.B.'s testimony that they were there to see what they could find in the trucks. The fact that Wagner had two pocketknives on his person on the night in question corroborates D.B.'s testimony that he borrowed a knife from Wagner while inside the truck and used to cut into a box in the truck. Finally, Wagner's false statement to Officer Perley, that he and D.B. were in the parking lot because they were looking for D.B.'s lost dog, is corroborative of D.B.'s testimony because it is itself an indication of guilt. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (noting that a false story by a defendant to explain or deny a material fact against the defendant is by itself an indication of guilt).
Based on the evidence set forth above, we conclude there was evidence in addition to D.B.'s testimony tending to connect Wagner with the commission of the offenses charged. The district court did not violate rule 2.21(3) or err in finding sufficient corroborative evidence to submit the case to the jury.
B. Motion for New Trial
Wagner next argues the trial court erred in denying his motion for new trial pursuant to Iowa Rule of Criminal Procedure 2.24(2)(b)(6). Wagner contends the court applied the wrong standard in denying his motion, the weight of the evidence preponderates against a guilty verdict on the charge of using a juvenile to commit an offense, and his trial counsel was ineffective for failing to specify or clarify in his motion for new trial the argument that the verdict was contrary to the weight of the evidence under rule 2.24(2)(b)(6) and the standard set forth in State v. Ellis, 578 N.W.2d 655 (Iowa 1998).
Wagner's counsel filed a motion for new trial on July 20, 2001. One of the grounds for new trial asserted in the motion was that the "verdict was contrary to the law and to the evidence." However, the motion cited no rule or other authority and went on to argue that the State presented insufficient evidence on the Count I charge of using a juvenile to commit an offense. Therefore, the motion itself is unclear as to whether it was based on a challenge to the sufficiency of the evidence, or a claim that the verdict was contrary to the weight of the evidence under rule 2.24(2)(b)(6).
At the hearing on the motion for new trial defense counsel did not clarify the ground or grounds upon which new trial was sought, relying on the motion and the record. However, the prosecution argued against the motion as though it were a sufficiency of the evidence challenge and the trial court ruled on it as such without objection by Wagner. Accordingly, Wagner implicitly agreed that the motion for new trial challenged the sufficiency of the evidence rather than challenging the verdict as contrary to the weight of the evidence.
Fairness and considerations of judicial economy dictate that we not consider a contention for the first time on appeal. State v. Sanborn, 564 N.W.2d 813, 815 (Iowa 1997). Issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. State v. Eames, 565 N.W.2d 323, 326 (Iowa 1997). We require error preservation even on constitutional issues. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999). When a party fails to alert the district court to its contention, that party cannot thereafter rely on those contentions to seek reversal on appeal. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995). Arguably, Wagner raised this issue in his motion for new trial, but the district court did not rule on it and Wagner made no request for such a ruling. Therefore, Wagner did not preserve any alleged error on this issue and there is nothing for us to review. State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995).
However, Wagner argues in the alternative that his attorney was ineffective for failing to raise a clear and specific challenge based on the weight of the evidence standard under rule 2.24(2)(b)(6) and Ellis. We note that ineffective assistance of counsel claims operate as an exception to our error preservation requirements. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). We therefore address Wagner's challenge to the denial of his motion for new trial in the context of an ineffective assistance claim.
The standards by which we measure ineffective assistance of counsel claims are well established. To establish an ineffective assistance of counsel claim, the defendant must show "(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom." Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 699 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). The defendant has the burden of proving by a preponderance of the evidence both of the two elements of a claim of ineffective assistance. Ledezma, 626 N.W.2d at 145; State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). We can affirm on appeal if either element is lacking. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996).
While we often preserve ineffective assistance claims for possible postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Both parties agree the record is sufficient to address Wagner's ineffective assistance claim. We agree, and address the claim.
We need not decide whether counsel's performance was deficient before examining the prejudice component. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). If sufficient prejudice is not shown, we need not address whether counsel breached an essential duty. Id. In order to prove prejudice the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Wagner argues his counsel was ineffective for failing to specify or clarify that the verdict was contrary to the weight of the evidence under rule 2.24(2)(b)(6) and the Ellis standard. Specifically, Wagner asserts that because D.B.'s testimony lacked corroboration and was inconsistent or self-contradictory it should be deemed a nullity. Wagner relies heavily on State v. Smith, 508 N.W.2d 101 (Iowa Ct.App. 1993) in support of his argument.
In Smith the court discussed and applied a narrow exception to the general rule that the credibility of a witness is a question for the jury. State v. Smith, 508 N.W.2d 101, 102-03 (Iowa Ct.App. 1993). The court noted that the testimony of a witness "may be so impossible and absurd and self-contradictory that is should be deemed a nullity by the court." Id. at 103. In Smith the court concluded there was insufficient evidence to support the defendant's conviction because the alleged victims' testimony was "inconsistent, self-contradictory, lacking in experiential detail, and, at times, bordered on the absurd." Id.
Wagner points to several arguable inconsistencies in D.B.'s testimony in support of his argument. First, he points to the fact that D.B. testified that Wagner held open the back door of the truck while D.B. entered the delivery truck. However, the co-owner, Barnard, who came to inspect the truck after the incident testified the back door was still padlocked. Second, D.B. testified that Wagner gave him a pocketknife to cut open the boxes inside the truck and D.B. cut open a square in a box to see what was inside. However, Barnard only testified that the boxes appeared to have been stepped on but did not mention any other damage to the boxes. Finally, Wagner notes an arguable inconsistency in D.B.'s trial testimony and his partial recantation of his previous statement to the police that Wagner had promised D.B. he could have half of whatever they found in the truck.
Although these matters raise an issue concerning D.B.'s credibility, we do not believe the testimony was so impossible, self-contradictory, or absurd that is should be deemed a nullity. It is true that D.B. partially recanted at trial his earlier statement to the police about what Wagner had promised he would receive. However, while frankly acknowledging that his statement to the police had been an overstatement, or based on an assumption on his part, he remained consistent in his assertion that Wagner had made statements indicating D.B. would get part of whatever Wagner got. When viewed as a whole D.B.'s testimony was not so contradictory "as to render finding of facts thereon a mere guess." Smith, 508 N.W.2d at 103 (quoting State ex rel. Mochnick v. Andrioli, 216 Iowa 451, 453, 249 N.W. 379, 380 (1933)). Furthermore, as discussed above, we believe D.B.'s testimony was sufficiently corroborated by other circumstantial and direct evidence in the record. See, e.g., State v. Mitchell, 568 N.W.2d 493, 503-04 (Iowa 1997) (distinguishing Smith based in part on other evidence corroborating the victim's testimony).
We conclude Wagner has failed to prove that had counsel made a more clear and specific motion for new trial challenging the verdict as contrary to the weight of the evidence there is a reasonable probability the result of the proceeding would have been different. Accordingly, we find Wagner was not prejudiced by counsel's alleged error and thus was not denied his Sixth Amendment right to effective assistance of counsel.
III. CONCLUSION
There is evidence in the record such that a rational fact finder could find Wagner used implied or stated promises of sharing in stolen property to induce D.B.'s cooperation in searching through the delivery trucks. Substantial evidence supports the jury verdict on this element of the charged offense. The evidence in the record sufficiently corroborates D.B.'s testimony so as to tend to connect Wagner to the commission of the offense. Finally, Wagner has failed to prove that had defense counsel made a more clear and specific motion for new trial challenging the verdict as contrary to the weight of the evidence, pursuant to rule 2.24(2)(b)(6), there is a reasonable probability of a different outcome. Accordingly, we find Wagner was not prejudiced by this alleged error and thus was not denied his right to effective assistance of counsel.
AFFIRMED.