STATE OF IOWA, Plaintiff-Appellee, vs. JEFFREY RICHARD TEKIPPE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-210 / 07-1840
Filed May 29, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY RICHARD TEKIPPE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gregory A.
Hulse, Judge.
A former prosecutor appeals his criminal convictions and sentences.
AFFIRMED.
Judith O‟Donohoe of Elwood, O‟Donohoe, Braun & White, Charles City,
for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Patricia Houlihan, Assistant Attorney General, and Mathew D. Wilber,
County Attorney, for appellee.
Heard by Eisenhauer , P.J., and Doyle and Mansfield , JJ.
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EISENHAUER, J.
On January 17, 2007, detective Wade went to the police department‟s
property room to retrieve cocaine evidence for the testing necessary in the
Schubert criminal case. The property room did not have the drugs because they
had been checked out to assistant county attorney Jeffrey TeKippe on December
7, 2006. After TeKippe was notified the evidence was needed for testing, he
eventually found it and returned it to the property room the next day. However,
the evidence was not returned in the “Ziplock” brand bag in which it was seized.
In the search for the Schubert evidence, cocaine evidence from other
cases was discovered in TeKippe‟s office and this evidence was returned to the
property room later in January. Evidence that had been checked out in a green
baggie was returned in a clear baggie. The State decided to retest the evidence
returned by TeKippe. Upon retesting, the lab discovered the evidence had been
altered.
Further investigation revealed TeKippe, starting in February 2005, had
checked out cocaine evidence from the property room in seven cases and never
returned the evidence. Two of the seven cases with missing evidence were
never assigned to TeKippe to prosecute. TeKippe did not send the property
room a memo stating he destroyed the cocaine.
After a jury trial, TeKippe was convicted on twelve counts: two counts of
felonious misconduct in office, one count of possession of a controlled
substance, and nine counts of varying degrees of theft. TeKippe appeals his
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convictions and sentencing. We review for correction of errors at law. Iowa R.
App. P. 6.4.
I.
Misconduct in Office.
The State hired chemist Jerry Smith of Eastern Nebraska Forensic Lab to
test alleged cocaine evidence in two criminal cases, Flores and Parra-Acosta.
Smith explained the process he uses after testing: he puts a piece of tape or
heat seals the evidence and writes his name, the date of testing, and identifying
numbers on the tape or heat seal. In both cases, Smith confirmed the evidence
was cocaine. In the Flores case, the cocaine evidence was in a clear baggie and
a green baggie. After Smith‟s initial testing, TeKippe checked out the Flores and
Parra-Acosta cocaine evidence from the property room and kept the evidence for
several months. When the Flores evidence was returned to the property room,
the powder was contained in two clear baggies.
The State resubmitted the evidence from both cases to Smith for retesting.
Regarding the Flores evidence, Smith reported: “The first thing I noticed was the
seal on the heat-sealed bag was broken. My name and the original testing date
. . . [were] forged on a different part of the bag where it was heat-sealed.” The
other baggie had a knot tied in it and Smith‟s “name was not on this baggie.”
After retesting, Smith concluded, “a substance of flour or some kind of starch has
been added to both items.” Smith explained there was not starch in either bag at
the time of the original testing.
Likewise, Smith concluded the Para-Acosta evidence had been altered.
The heat seal Smith applied had been opened and “J. Smith” appeared on a
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different heat seal. Smith testified he signs evidence “Smith,” not “J. Smith.”
Further, the original cocaine tested had “no detected cut” in purity. Upon testing,
Smith found the cocaine had been removed and replaced with “some type of
starch substance.”
TeKippe was convicted of two counts of misconduct in office, which has
two elements: (1) TeKippe was a public officer or employee; and (2) TeKippe
knowingly falsified a public record. On appeal, TeKippe makes two challenges to
the second element, but finds no fault with the jury instruction defining public
record:
A “public record” is defined as a writing that is intended to serve as
a memorial and evidence of something written, said or done by an
officer or public agency. “Public Records include all records,
documents, tape, or other information, stored or preserved in any
medium, of or belonging to this state or any county or city.
TeKippe first argues the signed heat seal on a drug evidence bag and the
drug evidence bag itself is not a public record of the law enforcement agency that
maintains custodial responsibility for the evidence. See Iowa Code § 22.1(3)
(2007). TeKippe claims the statutory definition does not encompass the “action
of private citizen Jerry Smith sealing a bag of powdery substance with heat and
applying evidence tape with his name on it” at the request of law enforcement.
TeKippe asserts the State‟s position is illogical because, unless a statutory
exception applies, criminal physical evidence would be open to public
examination under Iowa Code section 22.2, which provides: “Every person shall
have the right to examine and copy a public record and to publish or otherwise
disseminate a public record or the information contained in a public record.”
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TeKippe asserts the confidential records exception for police officer‟s
investigative reports does not apply. See Iowa Code § 22.7(5).
The State argues the combination of the alteration of containers (green
baggie/clear baggie and Ziploc/non-Ziploc), the forging of the chemist‟s name,
and the alteration of the heat seals constitutes the falsified public record. The
State notes the signed heat seal was necessary to establish a chain of custody.
Therefore, Smith‟s signature on the evidence constitutes a public record held for
law enforcement purposes.
See State v. Piper, 663 N.W.2d 894, 907 (Iowa
2003) (holding proof of a chain of custody is a foundational requirement for
physical evidence).
The State further claims the evidence falls under the
exception creating confidentiality for “peace officers‟ investigative reports . . . if
that information is part of an ongoing investigation.” See Iowa Code § 22.7(5).
Because the heat-sealed evidence is the subject/basis of an investigative report,
the State asserts the confidentiality exception applies.
We believe the key language is information “of or belonging to” the State.
This portion of section 22.1(3) was explained in State v. Barnholtz, 613 N.W.2d
218, 223 (Iowa 2000). The court stated “of” refers to a record “produced or
originated from the government” while “belonging to” refers to records “that
originate from other sources but are held by public officers in their official
capacity.” Barnholtz, 613 N.W.2d at 223 (quoting City of Dubuque v. Dubuque
Racing Ass’n, 420 N.W.2d 450, 453 (Iowa 1988)). While the signed heat seal
was not produced by the government, we conclude it qualifies as a record
“belonging to” the government and is held by the State in its official capacity to
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establish the necessary chain of custody.
Further, this signed, heat-sealed
evidence is confidential as part of a peace officer‟s investigative report in an
ongoing investigation. See Iowa Code § 22.7(5). We find no error.
TeKippe‟s second challenge is there is not substantial evidence to support
the conclusion he falsified the Flores and Para-Acosta evidence bags. TeKippe
suggests others had access to the drugs while they were in his office and notes
the handwriting analysis was inconclusive.
“We will uphold a verdict if substantial record evidence supports it.” State
v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). We consider all the evidence and view
the evidence in the light most favorable to the State. Id. at 76. We consider
direct and circumstantial evidence to be equally probative.
Iowa R. App. P.
6.14(6)(p). After reviewing the record with these principles in mind, we conclude
there is substantial evidence to support the jury‟s verdict.
II.
Knowing Possession of Cocaine.
During a consent search of TeKippe‟s home, seven baggies were
recovered from a trash bag in his outdoor utility shed. Some baggies contained
residue that “field-tested positive for cocaine.” The State weighed the cocaine
residue in two bags and found one bag contained .01 gram and the other bag
contained .05 gram.
The State‟s criminologist testified .06 grams would
approximate the size of a small pea. TeKippe was convicted of possession of a
controlled substance.
On appeal, TeKippe claims the evidence is insufficient to support his
conviction because any possession was not done “knowingly” due to the small
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amount of residue which lacked visibility and due to the absence of suspicious
behavior on his part. We review this challenge to evidentiary sufficiency under
the same standards detailed above.
First, the criminologist testified the residue was visible. Therefore, the jury
could reasonably conclude the cocaine residue was visible. Second, the record
contains numerous references to suspicious behavior by TeKippe. For example,
the search of TeKippe‟s residence also yielded two scales, one in the kitchen
trash and one in the dining room hutch. Both scales contained cocaine residue.
Testimony established cocaine is sold by weight and digital scales are common.
The jury learned TeKippe checked out cocaine evidence in seven cases and
never returned the evidence. As discussed above, after TeKippe returned the
evidence from the Flores and Para-Acosta cases, the State discovered opened
heat seals, forged heat seals, and altered cocaine.
We find no error. The jury could reasonably find TeKippe, an experienced
drug prosecutor, knew the baggies he admitted throwing in his trash contained
cocaine. See State v. Salkil, 441 N.W.2d 386, 387-88 (Iowa Ct. App. 1989)
(holding intent is frequently proved by circumstantial evidence using reasonable
inference and deduction).
III.
Theft.
A. Jury Instructions.
TeKippe alleges error in the court‟s theft jury instruction.
Iowa Code
section 714.1(2) defines theft by misappropriation and requires the property to be
“property of another.” The jury was instructed:
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The defendant had possession or control of cocaine evidence,
which was the property of another (State of Iowa) . . . [and]
intentionally misappropriated the property by using or disposing of it
in a manner . . . inconsistent with the owner‟s rights.
TeKippe argues that while the State has possession or control after the
seizure of the cocaine evidence, this is not the same as ownership. TeKippe
claims theft is not chargeable because there is no “owner” of the seized
evidence. Further, “the evidence did not address whether the State was the
owner because it was stored in the property room compared to [TeKippe‟s] claim
that he has possession as [a] prosecutor.”
Iowa statutes do not provide a definition of “owner.” See Iowa Code §§
702.1-.23 (criminal law definitions), 714.1-.2 (theft). Absent a statutory definition
or an established meaning in the law, we give words used by the legislature their
ordinary and common meaning. State v. Dohlman, 725 N.W.2d 428, 431 (Iowa
2006).
“Owner” means “one that has the legal or rightful title whether the
possessor or not.” Webster‟s Third New International Dictionary 1612 (unabr. ed.
2002).
Here the State had “rightful” title because it seized the cocaine for
criminal prosecution evidence under Iowa Code section 809.1 (seized property).
The State held the seized cocaine evidence in the property room of the police
department and TeKippe, as prosecutor, was required to check it out of the
property room to possess it.
While TeKippe could lawfully posses it as a
prosecutor, he had no “rightful title.” Rather, the “rightful title” of this evidence is
the State. We find no error in the instruction.
TeKippe also alleges error in the jury instruction on value. Iowa values
property for theft purposes by using “its highest value by any reasonable
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standard at the time it is stolen.” Iowa Code § 714.3. “Reasonable standard
includes but is not limited to market value within the community, actual value, or
replacement value.” Id.
The jury was instructed: “Where a stolen item has no market value in
lawful channels, reasonable standard may include the „illegitimate‟ market value
of the item, such as „street value.‟” TeKippe claims this instruction “directs the
jury to find an extraordinarily high value” without accuracy, because “there is no
widely accepted marketplace due to its illegal nature.” Therefore, the phrase
“market value within a community” applies only to property “legally capable of
sale.”
We disagree and find no error in the jury instruction. The plain language
of the statute does not limit market value to only those items which can be legally
sold.
Cocaine has a market value within a community as evidenced by the
narcotics enforcement agent‟s testimony, “on the street, the more you can buy,
the cheaper you‟re going to get it.” Additionally, cocaine‟s price varies with the
relationship with the dealer and whether the dealer thinks “he‟s got a better
quality of cocaine.” Due to these variables, an ounce, or twenty-eight grams,
could sell from a “low end of $800 and a high end of $1400,” with the average
being “somewhere around $1000 to $1200.” The testimony established values
for varying weights of cocaine by a reasonable standard, the illegal market value
of cocaine within a community.
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B.
Sufficiency of the Evidence.
TeKippe makes numerous challenges to the sufficiency of the evidence,
including:
ownership of the seized samples, proof the stolen property was
cocaine, chain of custody issues, and valuation of the stolen property.
We
assume error was preserved on all issues. We have considered all of TeKippe‟s
arguments using the substantial evidence standards set forth above. Our review
of the record reveals sufficient evidence to support the verdict.
IV.
Ineffective Assistance of Counsel.
TeKippe argues his counsel was ineffective in not moving to sever the
twelve counts of the trial information and also in failing to move for a new trial.
In order to prevail on his claims of ineffective assistance of counsel,
TeKippe must show (1) counsel failed to perform an essential duty, and (2)
prejudice resulted.
See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007).
TeKippe‟s inability to prove either element is fatal. See State v. Greene, 592
N.W.2d 24, 29 (Iowa 1999).
We evaluate the totality of the relevant
circumstances in a de novo review. Lane, 726 N.W.2d at 392. We can resolve
the issue on direct appeal when the record is adequate to determine TeKippe will
be unable to establish one or both elements. See State v. Reynolds, 670 N.W.2d
405, 411 (Iowa 2003). Here the record is adequate to resolve TeKippe‟s appeal.
TeKippe argues counsel should have moved to sever due to the long time
period involved for all the charges (February 11, 2005 to February 1, 2007) and
due to the distinctly different nature of the claims: possession of a controlled
substance, theft, and misconduct in office.
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Motions to sever are discretionary with the district court and are governed
by Iowa Rule of Criminal Procedure 2.6(1):
Multiple offenses. Two or more indictable public offenses which
arise 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 . . . information . . . unless, for good cause
shown, the trial court in its discretion determines otherwise.
A “common scheme or plan” is found when the transactions/occurrences are the
“products of a single or continuing motive.” State v. Elston, 735 N.W.2d 196, 198
(Iowa 2007). In Elston, the offenses occurred over a two-year time frame and the
court did not err in failing to sever the nineteen counts. Id. at 199 n.1, 200.
Intent and modus operandi are factors in determining whether a common
scheme or plan exists. Id. at 199.
As in Elston, TeKippe‟s twelve offenses occurred over a two-year time
frame, which is not unduly long under the specific facts of this case. TeKippe‟s
intent to obtain cocaine is a continuing motive. TeKippe either falsified the heatsealed cocaine evidence to cover up his thefts, possessed cocaine at his home,
or stole cocaine evidence. TeKippe‟s access to the cocaine was due to his
position as a drug prosecutor and he exploited his access by the modus operandi
of checking out drug evidence from the property room. We conclude the charged
offenses constitute “a common scheme or plan.” Any motion to sever would not
have been successful; therefore, counsel did not render ineffective assistance in
failing to make such a motion. See State v. Westeen, 591 N.W.2d 203, 207
(Iowa 1999) (noting trial counsel is not ineffective for failing to raise a meritless
issue).
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Second, TeKippe claims counsel was ineffective in failing to move for a
new trial to challenge the weight of the evidence under State v. Ellis, 578 N.W.2d
655, 659 (Iowa 1998). TeKippe‟s alleges his successful grounds for a new trial
include problems with the jury instructions and the State‟s failure to prove its
case.
While trial courts have discretion in ruling on motions for new trial, the
Iowa Supreme Court has cautioned courts “to exercise this discretion carefully
and sparingly” because a failure to do so “would lessen the role of the jury as the
principal trier of the facts and would enable the trial court to disregard at will the
jury‟s verdict.” Ellis, 578 N.W.2d at 659. Consequently, Iowa courts grant new
trial motions only in exceptional cases and only where the evidence
preponderates heavily against the verdict so that the court concludes a
miscarriage of justice has resulted. Id. 658-59.
This is not the exceptional case where the evidence preponderates
heavily against the verdict.
Rather, the evidence against TeKippe, though
circumstantial, was substantial. Any motion for new trial would not have been
successful; therefore, counsel did not render ineffective assistance in failing to
make such a motion. See Westeen, 591 N.W.2d at 207.
V.
Sentencing.
TeKippe appeals his sentences of incarceration claiming resentencing is
required because (1) the court did not make a “meaningful” sentencing record;
and (2) he should have been granted a suspended sentence and probation as
recommended in the presentence investigation report.
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“Sentencing decisions of the district court are cloaked with a strong
presumption in their favor.” State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
We review the court‟s sentencing decision for an abuse of discretion which “is
found only when the sentencing court exercises its discretion on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.” Id. Additionally,
“a sentencing court need only explain its reasons for selecting the sentence
imposed and need not explain its reasons for rejecting a particular sentencing
option.” State v. Ayers, 590 N.W.2d 25, 28 (Iowa 1999). Courts consider, but are
not bound by the recommendations made in the presentence investigation report.
See State v. Taylor, 490 N.W.2d 536, 539 (Iowa 1992).
In sentencing TeKippe, the court stated:
In particular, I note that you have no prior record, and I note
the impact that your behavior has had on your whole life and on . . .
your family. . . . All these things weigh heavily. However, it is wellsettled that the court owes a duty to the public as much as to the
defendant in determining the proper sentence.
Mr. TeKippe, you used your position of trust as an assistant
county attorney as a vehicle to commit the crimes for which you
have been found guilty. You have at least implied during the trial
that there is no victim of your crimes. This court must disagree with
that. Clearly the State is a victim. The criminal behavior you have
exhibited threatens the integrity of the office that you held, the office
whose name and primary purpose is to enforce the law.
As the evidence has shown throughout these proceedings
and particularly in the trial, your criminal actions have negatively
impacted various law enforcement agencies in this state who
worked directly with the Pottawattamie County Attorney‟s office.
The nature of your offenses is serious. The consequences go way
beyond you as an individual.
Your denial of any responsibility for your criminal acts makes
rehabilitation through community-based programs less likely at this
time. Thus, the court has determined that this is not a case in
which to defer judgment or sentence or to grant probation. To do
so would unduly deprecate the seriousness of the offenses, would
be unwarranted because of the need to protect the public from
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further criminal activity by you, and this court is convinced that you
are in need of correctional assistance which can be most effectively
provided by confinement at this time.
We conclude the district court made an appropriate sentencing record.
Further, the court did not exercise its discretion on grounds or for reasons clearly
untenable or to an extent clearly unreasonable when it decided to impose a term
of incarceration rather than a period of probation.
therefore, affirmed.
AFFIRMED.
TeKippe‟s sentence is,
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