STATE OF IOWA, Plaintiff-Appellee, vs. DENISE MARIE BACK, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-843 / 06-2022
Filed November 29, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENISE MARIE BACK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hancock County, Jon Stuart
Scoles, Judge.
Defendant-appellant appeals from her conviction of possession of
methamphetamine and possession of marijuana. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Jason Shaw, Assistant
State Appellant Defender, for appellant.
Thomas J. Miller, Attorney General, Christen Douglass, Assistant Attorney
General, and Karen R. Kaufman Salic, County Attorney.
Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.
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SACKETT, C.J.
Defendant-appellant, Denise Black, appeals from her conviction of
possession of methamphetamine and possession of marijuana. She contends
the scope of the evidence reviewed in a challenge to the sufficiency of the
evidence in a motion for judgment of acquittal does not comply with the language
of Iowa Rule of Criminal Procedure 2.19(8). She also contends the court erred in
its ruling on her motion for judgment of acquittal made at the close of the State’s
evidence. We affirm.
Both offenses charged require proof “the defendant” did the prohibited act.
During the State’s presentation of evidence, no witness identified the person in
the courtroom as the defendant, Denise Black.
The witnesses provided
testimony of the address of the residence searched and that it was Denise
Black’s residence. At the close of the State’s evidence, defense counsel moved
for judgment of acquittal in part because “the State has failed to prove that the
individual sitting by me is the defendant.
There is no testimony of any ID
whatsoever.” The court ruled:
[W]ith respect to identification of the defendant, the court believes
that goes to a jury issue. Certainly you can argue to the jury that
there is a reasonable doubt as to whether this person in the
courtroom is the person who was living at that residence, and
identified the person and so forth and so on. The jury—you know,
one can argue it would have made a better record by the State if
they had one or more people say, yeah, that’s the woman that was
there that day, but I don’t think it’s a requirement. And certainly
you’re free to argue to the jury it’s not the same person. However,
the court does not believe that that’s grounds for a directed verdict.
Defendant then presented evidence by her own testimony. The first thing
she did was identify herself as Denise Black. She also identified her residence
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and admitted it was the home searched pursuant to the warrant as testified to in
the State’s case.
The motion for judgment of acquittal was renewed at the close of evidence
and denied. The jury found the defendant guilty.
We review rulings on motions for judgment of acquittal for correction of
errors at law. State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004). “In evaluating
the evidence, we consider all the evidence in the record, and we view it in the
light most favorable to the jury’s verdict.” State v. Hutchison, 721 N.W.2d 776,
780 (Iowa 2006).
Defendant first contends our scope of reviewing “all the evidence in the
record” conflicts with the language of rule 2.19(8), which provides in pertinent
part, “If a defendant’s motion for judgment of acquittal at the close of the
evidence offered by the prosecuting attorney is not granted, the defendant may
offer evidence without having waived the right to rely on such motion.”
Defendant contends the rule means a defendant can “rely on such motion” in
considering the sufficiency of the evidence at the time the motion was made.
Our supreme court has considered the same challenge and rejected it. State v.
Holderness, 293 N.W.2d 226, 229-30 (Iowa 1980).
Defendant made a motion for directed verdict at the end of
the State’s evidence and again at the end of all the evidence.
Under prior law this was the required practice; if a defendant made
his motion at the end of the State’s case, the court overruled it, and
the defendant introduced evidence, the motion was waived. To
preserve error the defendant had to make another motion at the
end of all the evidence, and the court then considered all the
evidence.
Present rule [2.19(8)] of the Rules of Criminal Procedure
states, however:
The court on motion of a defendant or on its
own motion shall order the entry of judgment of
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acquittal of one or more offenses charged in the
indictment after the evidence on either side is closed
if the evidence is insufficient to sustain a conviction of
such offense or offenses. If a defendant’s motion for
judgment of acquittal at the close of the evidence
offered by the prosecuting attorney is not granted, the
defendant may offer evidence without having waived
his or her right to rely on such motion.
Under this rule, when the defendant moves for a directed
verdict at the end of the State’s evidence, the court must grant the
motion if the evidence is insufficient to sustain a conviction. But if
the court overrules the motion and the defendant introduces
evidence, two questions arise: (1) must the defendant renew the
motion at the end of the evidence as under prior law? and if not, (2)
what evidence does the appellate court (and trial court) consider in
determining whether the evidence is sufficient to convict the
defendant the evidence in the record when the State originally
rested or when both parties rested?
As to the first question, rule [2.19(8)] clearly states that the
defendant does not waive the motion by introducing evidence.
Hence we will no longer have cases in which a defendant fails on
appeal because he overlooked renewing his motion at the end of all
the evidence. Thus he may rely on his unrenewed motion in
posttrial motions and on appeal. As to the second question,
however, we would have an artificial situation if a court had to close
its eyes to part of the evidence which was in fact introduced.
Although we recognize that some courts hold the other way, we
adhere to the rule that a court considers all the evidence which is in
the record. We thus consider both the State’s and defendant’s
evidence here.
Id. (citations omitted). The court quoted a South Dakota case with approval.
Defendant did not rest upon his motion, but presented evidence
after denial thereof and rebuttal evidence was introduced by the
state. The denial of a motion for directed verdict for failure of proof
is not reversible error if proof is afterwards supplied by either party.
The introduction of evidence by defendant is not deemed a waiver
of the motion. This court, however, considers all the evidence in
determining whether denial of the motion was reversible error.
State v. Olson, 161 N.W.2d 858, 859-60 (S.D. 1968).
Following Holderness, we find no merit in defendant’s first argument.
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Defendant also contends the trial court erred in ruling on her motion made
at the close of the State’s evidence. We find no reversible error. See id. (“The
denial of a motion for directed verdict for failure of proof is not reversible error if
proof is afterwards supplied by either party.”).
AFFIRMED.
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