STATE OF IOWA, Plaintiff-Appellee, vs. MICHAEL DAVID DAWSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-812 / 05-1346
Filed November 30, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL DAVID DAWSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon Fister,
Judge.
Michael D. Dawson appeals his convictions for burglary in the third degree
and theft in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Michael David Dawson (Dawson) appeals his convictions for burglary in
the third degree and theft in the second degree. He contends the district court
erred in overruling his objections to several jury instructions and in denying his
motions for judgment of acquittal and new trial. He also claims his trial counsel
was ineffective. We affirm his convictions and preserve his ineffective assistance
of counsel claim for a possible postconviction proceeding.
I.
BACKGROUND FACTS AND PROCEEDINGS.
On March 16, 2005, Theodore Wood, manager of Wilber Auto Salvage
(Wilber Salvage), closed the business for the night at 5:00 p.m. He chained and
locked the gate in the fence which surrounded the property. Based on a phone
call Woods received the next day from a man he knew as Junior, Wood went to
check on aluminum wheels (at times referred to as “rims”) which had been stored
near the Wilber Salvage office.
He noticed “a bunch” of the wheels were
missing, but he could not say how many exactly.
Woods notified his boss,
Anthony Wilber, and the police about the missing wheels. Apparently based on
his conversation with Junior, Wood informed the police he suspected the
“Dawson brothers” were the ones who had taken the wheels.
Waterloo Police Officer Willy Washington went to Wilber Salvage to
investigate the stolen wheels. While there he spoke with Junior on the phone.
Based on that conversation Washington investigated a license plate number
which turned out to belong to a grey 1983 Buick LeSabre registered to Dawson
and Louise Dawson. Wood later called Alter’s Scrap Yard (Alter’s) in an attempt
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to locate the missing wheels and learned Alter’s had recently purchased twentythree aluminum rims from Dawson.
Larry Wrage, an employee of Alter’s, testified at trial that on March 17,
2005, Dawson and an older man came to the scrap yard in a grey car loaded
down with “rims.”
Another Alter’s employee, Patrick Williams, described the
vehicle as an Oldsmobile and wrote down the license plate number. He also
issued a check to Dawson for the rims in the amount of $193.50. The Alter’s
employees provided this information to Officer Washington.
Wrage identified
Dawson from a photo line-up and Washington determined the license plate
number recorded by Williams belonged to Dawson’s grey Buick.
Wilber Salvage owner Anthony Wilber and his employee, Dennis Geiger,
went with police to Alter’s to attempt to identify the missing rims. Wilber and
Geiger both identified all but four or five of the rims in the storage bin at Alter’s as
belonging to Wilber Salvage. The rims they identified included two that had the
Wilber Salvage identification numbers on them.
Officer Washington testified he had interviewed Dawson, who stated that
he had gone to Alter’s with his brother and about twenty-five rims were provided
to him by his brother Randy. He told Washington that Randy had obtained the
rims from Litzkow Junk Yard, where Randy worked. Washington called Litzkow
but was unable to reach him to confirm whether he had any lost or stolen rims.
Dawson was charged, by trial information, with burglary in the third
degree, in violation of Iowa Code sections 713.1 and 713.6A(1) (2005), and theft
in the second degree, in violation of sections 714.1(1), 714.1(4), and 714.2(2).
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The matter proceeded to jury trial.
Dawson filed a motion for judgment of
acquittal at the close of the State’s case and the trial court denied the motion. He
also objected to the proposed jury instructions on aiding and abetting and on an
inference of burglary. The court overruled the objections and submitted the
challenged instructions to the jury. The jury found Dawson guilty as charged.
Following the verdict Dawson filed a motion for new trial, arguing the verdict was
contrary to the weight of the evidence. The district court heard arguments on the
motion prior to sentencing.
During the arguments Dawson renewed his
challenge to the same jury instructions. The court denied the motion for new
trial. Dawson was sentenced to five years on each count, the sentences were
suspended, and he was placed on supervised probation for two to five years.
Dawson appeals his convictions, contending the trial court erred in
overruling his objections to the instructions on aiding and abetting and on an
inference of burglary, and in denying his motions for judgment of acquittal and
new trial. He also claims his trial counsel was ineffective for failing to object to
State’s Exhibit 5.
II.
MERITS.
A.
Jury Instructions.
Our review of challenges jury instructions is for correction of errors at law.
Iowa R. App. P. 6.4; State v. Simpson, 528 N.W.2d 627, 630 (Iowa 1995). The
district court has a duty to instruct fully and fairly on the law regarding all issues
raised by the evidence. Iowa R. Crim. P. 2.19(5)(f); State v. Liggins, 557 N.W.2d
263, 267 (Iowa 1996). The court may phrase the instructions in its own words as
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long as the instructions given fully and fairly advise the jury of the issues it is to
decide and the law which is applicable. Liggins, 557 N.W.2d at 267. The court
must give an instruction if it “correctly states the law, has application to the case,
and is not stated elsewhere in the instructions.” State v. Kellogg, 542 N.W.2d
514, 516 (Iowa 1996).
The court instructed the jury on aiding and abetting as an alternative
method of committing the theft and burglary. Dawson contends the court erred in
overruling his objections to these instructions because there was no evidence
someone else participated in the crime.
It is true the aiding and abetting
“instruction necessarily assumed that two or more individuals were involved in
the crime. . . .” State v. Mays, 204 N.W.2d 862, 864 (Iowa 1973). Furthermore,
“[a] person cannot aid and abet the commission of a crime unless another
commits the offense; one cannot aid and abet himself in the commission of an
offense.” Id. (citations omitted). Here, however, there was evidence Dawson
had acted in concert with another.
Wood testified, without objection, that based on his phone call with Junior
he identified the “Dawson brothers” as suspects in the burglary. Wrage testified
Dawson and another man arrived at Alter’s in a grey car to sell the rims. Officer
Washington testified that Dawson told him he received the rims from his brother,
Randy, and then he and a brother went to Alter’s to sell them. Thus, there was
sufficient evidence in the record that Dawson did not act alone in committing the
burglary.
The court did not err in giving the aiding and abetting instructions
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because they correctly stated the law and there was substantial evidence in the
record to support their application to this case.
Dawson next challenges the court’s instruction to the jurors regarding an
inference of a burglary. The instruction given was based on State v. Lewis, 242
N.W.2d 711 (Iowa 1976). The instruction stated that if the jury were to find
beyond a reasonable doubt the property in question was in fact stolen, Dawson
thereafter had possession of said property, and that possession was recent, then
the jurors “may, but are not required to, infer the defendant did in fact enter the
fenced-in property.” The instruction further provided:
What is recent possession cannot be precisely defined. The
nature of the property, its ease of transferability, and all of the
circumstances shown are to be considered as bearing upon
whether the interval between the time of alleged theft and
Defendant’s alleged possession was so short as to render it
reasonably certain that there could have been no immediate
change of possession.
It is important that you keep in mind that it is your exclusive
province as jurors to determine whether the facts and
circumstances shown by the evidence in this case warrant any
inference which the law permits you to draw from possession of
recently stolen property, and you are not required to make this
inference. If any possession the defendant may have had of
recently stolen property is consistent with innocence, or if you
entertain reasonable doubt, then you must find the defendant not
guilty.
(Emphasis added). “An inference of burglary may arise from the possession of
recently stolen property when the surrounding circumstances are also
considered.”
State v. Martin, 587 N.W.2d 606, 608 (Iowa Ct. App. 1998).
Dawson contends the instruction was not warranted because there were no
surrounding circumstances to support it and it unduly emphasizes the twenty-one
unmarked rims.
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We conclude the instruction was a correct statement of the law and
equally allowed the jury to believe Dawson’s innocent possession explanation or
to infer he committed burglary. The surrounding circumstances supporting an
inference of burglary instruction include, but are not limited to: the identification of
the rims by Wilber and Geiger as belonging to Wilber Salvage; Dawson selling
the wheels the day after they were stolen; and Dawson being in charge of the
sale of the rims, including driving the car, approving the price received, and
taking a check made out to him personally.
We conclude the inference of burglary instruction is supported by
substantial evidence in the record, is a correct statement of the law, and does not
unduly emphasize any particular evidence.
The district court did not err in
submitting this instruction to the jury.
B.
Motions for Judgment of Acquittal and New Trial.
Dawson asserts the district court erred in denying his motion for judgment
of acquittal, because there was insufficient evidence of burglary, theft, and the
value of the items taken.
Our scope of review of sufficiency-of-evidence
challenges is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39
(Iowa 1997).
In reviewing such challenges we give consideration to all the
evidence, not just that supporting the verdict, and view such evidence in the light
most favorable to the State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998).
We will uphold a trial court's denial of a motion for judgment of acquittal if there is
substantial evidence to support the defendant's conviction. State v. Kirchner,
600 N.W.2d 330, 333 (Iowa Ct. App. 1999).
Substantial evidence is such
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evidence as could convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt. Id. at 334.
Inherent in our standard of review of a jury verdict in a criminal case 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). 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. Liggins, 557
N.W.2d at 269; 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.
Here the jury clearly determined, as was in its discretion to do, the
testimony from Geiger and Wilber identifying the rims that Dawson sold at Alter’s
as belonging to Wilber Salvage was more credible than Dawson’s story that the
rims came from Litzkow’s where his brother worked. In addition, the jury could
view the acceptance of payment in Dawson’s name without any reference to
Litzkow or his brother as evidence supporting a finding Dawson stole the rims
rather than having legitimately acquired them from Litzkow through his brother to
sell them. The short amount of time between when the rims were stolen from
Wilber Salvage and when they were sold at Alter’s also tends to support the
jury’s verdict. Thus, we find there is sufficient evidence from which a rational jury
could find beyond a reasonable doubt that Dawson was guilty of the burglary and
the theft of the rims.
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Dawson also alleges the jury lacked sufficient evidence to determine the
actual value of the stolen items was more than $1,000. 1 The value of property is
defined in Iowa Code section 714.3 as: “The value of property is its highest value
by any reasonable standard at the time that it is stolen. Reasonable standard
includes but is not limited to market value within the community, actual value, or
replacement value.” “Value testimony is liberally received, with its weight to be
determined by the jury, and rules as to the competency of witnesses on
questions of value are ‘always liberally construed.’” State v. Savage, 288 N.W.2d
502, 504 (Iowa 1980) (citations omitted).
Anthony Wilber, owner of Wilber Salvage, testified that the stolen rims
were worth $1,150.
“As in a civil suit, an owner is competent to testify
concerning the value of his property.” State v. Boyken, 217 N.W2d 218, 220
(Iowa 1974). Wilber’s testimony alone is sufficient for the jury to find that the
value of the stolen rims exceeded $1,000.
Dawson also challenges the court’s denial of his motion for new trial. Our
scope of review for rulings on motions for new trial is for errors at law. Iowa R.
App. P. 6.4. When a defendant argues the trial court erred in denying a motion
for new trial based on the claim that the verdict is contrary to the weight of the
evidence our standard of review is for abuse of discretion. State v. Reeves, 670
N.W.2d 199, 202 (Iowa 2003).
“The ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact
that a greater amount of credible evidence supports one side of an issue or
1
Dawson was found guilty of second-degree theft, which requires that the value of the
property stolen exceed $1,000. Iowa Code § 714.2(2).
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cause than the other.’” State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998) (quoting
Tibbs v. Florida, 457 U.S. 31, 37-38, 1025 S. Ct. 2211, 2216, 72 L. Ed. 2d 652,
658 (1982)). The power of the trial court to grant a new trial on the ground the
verdict was contrary to the weight of the evidence should be invoked only in
exceptional cases in which the evidence preponderates heavily against the
verdict. Id. at 659.
Based on the evidence in the record set forth above, we conclude this is
not a case in which the testimony of a witness or witnesses which otherwise
supports conviction is so lacking in credibility that the testimony cannot support a
guilty verdict.
Neither is it a case in which the evidence supporting a guilty
verdict is so scanty, or the evidence opposed to a guilty verdict so compelling,
that the verdict must be seen as contrary to the evidence. The evidence in this
case simply does not preponderate heavily against the verdict. The trial court did
not abuse its broad discretion by denying Dawson’s motion for new trial.
C.
Ineffective Assistance of Counsel.
Finally, Dawson claims his trial counsel was ineffective for not objecting to
State’s Exhibit 5. Exhibit 5 contained a list of missing rims generated by Anthony
Wilber. Below the listing of wheels and the total dollar amount claimed as the
value of those wheels was a list of other items missing as a result of thefts from
Wilber Salvage in the prior year (2004) and the values of those items. The
exhibit was offered and received without objection.
Dawson claims the
information in Exhibit 5 regarding the other items missing from other thefts was
irrelevant, highly prejudicial and misleading to the jury because the jury may have
11
attributed those thefts to Dawson and improperly used the additional amounts “to
aggregate the amount at greater than $1000.”
When there is an alleged denial of constitutional rights, such as an
allegation of ineffective assistance of counsel, we evaluate the totality of the
circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa
1998).
To prove trial counsel was ineffective the defendant must show that
counsel failed to perform an essential duty and that prejudice resulted from
counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814
(Iowa 1999). Generally, we do not resolve claims of ineffective assistance of
counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002)
(citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave
ineffective-assistance-of-counsel claims for postconviction relief proceedings.
State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). “[W]e preserve such claims
for postconviction relief proceedings, where an adequate record of the claim can
be developed and the attorney charged with providing ineffective assistance may
have an opportunity to respond to defendant's claims.” Biddle, 652 N.W.2d at
203.
As set forth above, Dawson can succeed on his ineffectiveness claim only
by establishing both that his counsel failed to perform an essential duty and that
prejudice resulted. Wemark, 602 N.W.2d at 814. No record has yet been made
before the trial court on this issue, counsel has not been given an opportunity to
explain her actions, and the trial court has not ruled on this claim. Accordingly,
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we conclude the record on direct appeal is insufficient to review Dawson’s claim.
Under these circumstances, we pass this claim in this direct appeal and preserve
Dawson’s specified claim of ineffective assistance for a possible postconviction
proceeding. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
III.
CONCLUSION.
For the reasons set forth above, we affirm Dawson’s convictions and
preserve
his
specified
postconviction proceeding.
AFFIRMED.
claim
of
ineffective
assistance
for
a
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