STATE OF IOWA, Plaintiff-Appellee, vs. KHOI NGO, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-473 / 08-0522
Filed July 22, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KHOI NGO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,
Judge.
Khoi Ngo appeals his convictions for theft in the first degree, conspiracy to
commit burglary, possession of burglar‟s tools, and carrying weapons.
AFFIRMED.
John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John P. Sarcone, County Attorney, and James Ward, Assistant County
Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
2
MANSFIELD, J.
Khoi Ngo appeals his convictions for theft in the first degree, conspiracy to
commit burglary, possession of burglar‟s tools, and carrying weapons.
He
contends: (1) his trial counsel was ineffective for failing during the suppression
hearing to challenge the evidence that he was speeding, and absent that
evidence, the trial court should have granted his motion to suppress; (2) there
was insufficient evidence to sustain his convictions; and (3) the district court
erred in accepting his statements regarding his prior felony convictions and
overruling his motion for a trial on his status as an habitual offender. We affirm.
I. Background Facts and Proceedings.
Based on the evidence in the record, a reasonable juror could have found
the following facts: In late September 2007, West Des Moines Detective Daniel
Paulson was investigating several residential burglaries in the Des Moines
metropolitan area. The targeted victims were all of Asian descent, most were
small business owners, and similar items were taken from each home during
daytime hours, including jewelry, designer purses, and assorted small
electronics. On the afternoon of October 1, 2007, Detective Paulson sent an
email message to area officers about several of these burglaries and described
the suspect vehicle as a white, newer sport utility vehicle (SUV).
Around 11:30 p.m. on October 1, 2007, Vincent Dinh left his Vietnamese
restaurant that had closed at 9:30 p.m. From the restaurant, which was located
on Martin Luther King Parkway in Des Moines, Dinh headed by car toward his
home in West Des Moines. He noticed a white SUV pull out from the restaurant
parking lot at the same time and follow him west on Interstate 235. The SUV
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continued to follow Dinh as he proceeded west on the interstate for several miles,
and the SUV changed lanes to stay behind Dinh. When Dinh exited and turned
north at the Jordan Creek exit, the white SUV continued to follow him. At this
point Dinh became so concerned he called his wife and told her to call the police.
Dinh then made a u-turn and was able to get the SUV‟s license plate number,
which his wife gave to the 911 dispatcher. Dinh made a few more turns and
eventually lost the SUV.
West Des Moines police officers Kraig Kincaid and Daniel Jansen each
separately responded to the dispatch about the suspicious SUV. They located
the vehicle by its license plate and followed it onto eastbound Interstate 235.
Officer Kincaid performed a traffic stop of the vehicle because he believed it was
speeding. According to Kincaid, the vehicle was going sixty miles per hour in a
fifty-five-mile-per-hour zone at the 5500 block of Interstate 235. After stopping
the vehicle, Kincaid spoke to the Asian male driver. The driver gave the false
name of Phuoc Nguyen and was not able to provide the officer with a driver‟s
license, registration, or proof of insurance, stating that he left them at home. The
driver was later identified as the defendant, Ngo. Officer Kincaid arrested Ngo
for speeding and impounded the vehicle.
Officer Jansen testified that he spoke to the Asian female sitting in the
back passenger seat of the SUV.
She correctly identified herself as Alyssa
Sikham. She initially told the officer she did not know where they were going
because she had been sleeping. She later stated they were coming from Prairie
Meadows Casino, and were going to pick up a friend off 63rd Street in West Des
4
Moines, but did not know the friend‟s last name, address, or phone number. The
SUV was registered to Sikham‟s mother.
Des Moines Police Officer Brent Kock arrived on the scene and contacted
Detective Paulson. Paulson recognized the names Phuoc Nguyen and Alyssa
Sikham and drove to the scene. Paulson commented to Sikham that she was
usually with Ngo; however, she claimed she did not know where Ngo was that
night. Officer Kock began the impound inventory process on the SUV following
the arrest of Ngo. During the inventory he discovered gold jewelry tucked in the
gap of the backseat where the seatbelt connectors are located. He also found an
iPod and two sets of earphones. When he ran the serial number on the iPod, it
was reported stolen.
Detective Paulson planned to drive Sikham home but stopped first at a
nearby store to allow her to use the restroom.
However, Kock radioed the
information regarding the stolen iPod to Paulson, who then arrested Sikham for
possession of stolen properly.
At the time of her arrest Sikham had on her
person a silver necklace and earrings with diamonds, a Bulova watch, a Sony
digital camera, a black Gucci purse, and a Louis Vuitton wallet, all items later
identified as stolen from four different victims. Sikham denied any knowledge of
any burglaries or stolen property. Officers thereafter obtained a search warrant
for the SUV.
During the search of the SUV pursuant to the search warrant, officers
ultimately found two gold bracelets, a gold heart pendant, a loose diamond, a
plastic bag containing ten pieces of jewelry, three watches, a wireless notebook
adapter, a DVD player, a cellphone, a camcorder, and an iPod. All items were
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identified recently stolen from four different victims and different locations. They
also found three additional pieces of jewelry, a crowbar, and a pair of socks
inside a duffel bag on the floor of the vehicle behind the driver‟s seat. Finally,
they found a Samurai sword in a sheath on the floor partially under the duffel bag
between the front and middle seats.
Sikham‟s stepfather testified that Sikham had lived with him and her
mother up until one month before her arrest, and that she still came and went
from their house as she pleased. He verified that Sikham had a relationship with
Ngo. A search of Sikham‟s bedroom in her parents‟ home revealed two Louis
Vuitton purses, three Louis Vuitton wallets, a Seiko watch, and a Samsung
camera. The police also found a Motorola “Razr” cellphone in the basement of
the home. All of these items were identified as stolen by various burglary victims
of Asian descent.
On November 14, 2007, the State charged Ngo and Sikham, by joint trial
information, with theft in the first degree, in violation of Iowa Code sections 714.1
and 714.2(1) (2007); conspiracy to commit a felony (third-degree burglary), in
violation of sections 706.1 and 706.3; possession of burglar‟s tools, in violation of
section 713.7; and carrying weapons, in violation of section 724.4(3)(a). Ngo
filed a motion to suppress on December 13, 2007, alleging there was no
probable cause for the stop of the SUV, in violation of the Fourth Amendment of
the United States Constitution, and thus all evidence seized as a result of the
stop and all statements made by him should be suppressed.
Following a
hearing, the district court denied the motion. In denying the motion, the court
concluded that the criminal police intelligence, together with the call to the police
6
by Dinh, and the observation by Officer Kincaid of the SUV speeding, provided
reasonable suspicion sufficient to support an investigatory stop.
Ngo and Sikham were tried together in a jury trial commencing on
February 4, 2008.
At trial a couple of Vietnamese ancestry testified their
Urbandale home was burglarized late on the afternoon of September 21, 2007,
while they were working. When the husband arrived home at 6:00 p.m. that day,
he saw an Asian man slowly running from the backyard carrying a suitcase,
backpack, and two purses to a larger white vehicle on the street. The husband
stated the man jumped in the vehicle and a driver took off. The couple later
identified a digital camera and Gucci purse found on Sikham‟s person, and a
cellphone and Louis Vuitton purse and wallet found in Sikham‟s parents‟ home,
as their stolen property.
A niece and uncle of Laotian ancestry testified that their West Des Moines
home was burglarized between 2:30 and 4:00 p.m. on September 27, 2007. The
niece discovered the basement window broken and described the house as a
“mess.” She later identified a wireless adapter, iPod, cellphone, Louis Vuitton
purse, and three Louis Vuitton wallets as property stolen from their house. Three
of those items were found in the white SUV, three in Sikham‟s bedroom, and one
in her purse.
The uncle‟s Seiko watch was also recovered from Sikham‟s
bedroom.
The son of a next-door neighbor of this family also testified. He testified
that while he was pulling into his parents‟ driveway on September 27, 2007, he
observed a white SUV parked in a location in front of his parents‟ house where
there usually is never a vehicle. An Asian woman was sitting in the back. He
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also saw a pair of male legs walking through his parents‟ backyard toward the
SUV.
A man of Laotian descent testified as to the burglary of his Des Moines
home on September 28, 2007. He discovered the burglary when he arrived
home at 4:00 p.m. He later identified a Longines watch and Samsung camera as
property stolen from his house. His watch was found in the SUV and the camera
in Sikham‟s bedroom.
A woman of Chinese ancestry testified her Des Moines home was
burglarized on September 29, 2007.
She testified that when she and her
husband returned home from work around 11:00 p.m. they discovered the glass
on the back door broken. She later identified a DVD player and silver necklace
and earrings with diamonds as stolen property. The DVD player was found in the
SUV. Sikham was wearing the necklace and earrings at the time of her arrest.
Finally, a woman of Vietnamese descent testified her West Des Moines
home was burglarized during the day on October 1, 2007.
She identified a
Longines watch, a Relic watch, a Bulova watch, a loose diamond, a gold heart
pendant, a gold necklace, two gold bracelets, a plastic bag with ten pieces of
jewelry, and a camcorder as items stolen from her home. Sikham was wearing
the Bulova watch at the time of her arrest, and Ngo was wearing one of the gold
necklaces upon his arrest.
The other items were found in the SUV, including
two pieces that were found in the yellow duffel bag with the crowbar and socks.
Ngo testified in his own defense. He stated that he and Sikham have had
a relationship for more than two years. Both of them had jobs at Kevin‟s Nails.
On direct examination, Ngo explained that after they finished their work shift from
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1:00 to 8:00 p.m. on October 1, 2007, they went to Prairie Meadows Casino, then
out to eat, and then to look for a friend. On cross-examination, Ngo added that
on the evening of the 1st, he had also driven with Sikham to an individual‟s
house to buy gold. Ngo denied following Dinh from the restaurant. Ngo could
not recall whether the restaurant at which he and Sikham ate on the 1st was
Dinh‟s. Ngo reiterated that when the SUV was stopped, he and Sikham had
been merely looking for an unidentified friend of Sikham‟s in West Des Moines.
Ngo claimed he had purchased all the property that the burglary victims
identified as stolen. He denied knowing it was stolen. Ngo admitted putting
some of the property in Sikham‟s mother‟s SUV because he often drove it, and
putting other property in Sikham‟s bedroom noting he had a key to the house.
He further testified that he was buying many of these items as gifts for his poor
relatives in Vietnam. Ngo testified that he gave some of the jewelry to Sikham
without telling her where it came from, and hid other pieces from her because he
did not want her to know he was planning to send it to Vietnam. He claimed he
had borrowed the crowbar from a friend to remove a nail, and that a friend
bought him the Samurai sword to use as a decoration in his house.
Ngo admitted to lying to police about his name during the stop. He also
admitted on cross-examination to having been convicted of third-degree burglary
in 2001 and first-degree theft in 2007. Sikham did not testify.
The jury found Ngo guilty as charged.1 Ngo filed a motion for new trial,
contending the verdicts were contrary to the weight of the evidence. He also filed
1
Sikham was also found guilty on all counts except the carrying weapons charge. She
appealed challenging, in relevant part, the sufficiency of the evidence supporting her
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a “Motion for Trial on Defendant‟s Status as an Habitual Offender.” Hearing was
held on the motions on March 18, 2008, and the district court denied both, finding
there was “ample evidence” to sustain all of the convictions, and that Ngo had
been adequately advised of his rights with regard to the habitual offender issue.
On the same date the court sentenced Ngo to a term of imprisonment for a
period not to exceed ten years on the theft in the first degree charge, enhanced
to fifteen years as an habitual offender; five years on the conspiracy to commit a
felony (third-degree burglary), enhanced to fifteen years as an habitual offender;
one year on the possession of burglar‟s tools; and two years on the carrying
weapons charge. The sentences were ordered to be served consecutively to
each other and to a sentence in an unrelated charge.
Ngo appeals his convictions contending:
(1) his trial counsel was
ineffective for failing during the suppression hearing to challenge the evidence
that he was speeding and, absent that evidence, the trial court should have
granted his motion to suppress; (2) there was insufficient evidence to support
each of his convictions; and (3) the district court erred in accepting his
statements regarding his prior felony convictions and overruling his motion for a
trial on his status as a habitual offender.
II. Merits.
A. Motion to Suppress.
Ngo‟s trial counsel unsuccessfully moved to suppress evidence, alleging
there was an insufficient basis for the traffic stop. Counsel did not challenge
convictions for conspiracy to commit burglary and possession of burglar‟s tools. This
court affirmed her convictions on all grounds. State v. Sikham, No. 08-0688 (Iowa Ct.
App. April 8, 2009).
10
Officer Kinkaid‟s statement that one of the reasons he pulled over Ngo was
because he was speeding. Ngo contends he was not speeding, that his trial
counsel failed in an essential duty for not raising this issue during the
suppression hearing, and that he was prejudiced by this failure because the other
evidence did not rise to the level of articulable suspicion needed to stop the
vehicle.
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); State v. Doggett, 687 N.W.2d 97, 100 (Iowa
2004). To prove the second prong, resulting prejudice, the defendant must show
counsel‟s failure worked to the defendant‟s actual and substantial disadvantage
so there exists a reasonable probability that but for counsel‟s error, the result of
the proceeding would have been different. Doggett, 687 N.W.2d at 100. Failure
to prove either element is fatal to the claim.
Id.
Therefore, we need not
determine whether counsel‟s performance is deficient before undertaking the
prejudice determination. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).
Ngo‟s challenge to the district court‟s ruling on a motion to suppress
implicates the Fourth Amendment to the United States Constitution.2 State v.
2
The rights guaranteed by the Fourth Amendment apply to the states through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1694, 6 L.
11
Otto, 566 N.W.2d 509, 510 (Iowa 1997). We review constitutional issues de
novo. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). In doing so, we make an
independent evaluation of the totality of the circumstances as shown by the
entire record. Id. We give deference to the trial court‟s findings of fact because
of its opportunity to assess the credibility of witnesses, but we are not bound by
those findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). Error was
preserved here by the district court‟s adverse ruling on Ngo‟s motion to suppress.
Breuer, 577 N.W.2d at 44.
The Fourth Amendment to the United States Constitution “protects
persons from unreasonable intrusions by the government upon a person‟s
legitimate expectation of privacy.” State v. Lewis, 675 N.W.2d 516, 522 (Iowa
2004).
Evidence obtained in violation of this provision is inadmissible in a
prosecution, no matter how relevant or probative the evidence may be. State v.
Manna, 534 N.W.2d 642, 643-44 (Iowa 1995). The Fourth Amendment requires
a police officer have reasonable cause to stop an individual for investigatory
purposes. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889,
906 (1968). “An investigatory stop is considered a seizure within the meaning of
the Fourth Amendment and must be „supported by reasonable suspicion to
believe that criminal activity may be afoot.‟” United States v. Ameling, 328 F.3d
443, 447 (8th Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122
S. Ct. 744, 750, 151 L. Ed. 2d 740, 749 (2002)).
Ed. 2d 1081, 1090 (1961). Ngo‟s motion to suppress did not raise any claims under the
Iowa Constitution, Art. I, section 8.
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A reviewing court must look at the totality of the circumstances of
each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing. In forming a
basis for suspicion, officers may draw on their own experience and
specialized training to make inferences from and deductions about
the cumulative information available to them that might well elude
an untrained person. While an officer's reliance on a mere hunch is
insufficient to justify a stop, the likelihood of criminal activity need
not rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the evidence
standard.
Id. (internal citations and quotations omitted).
Ngo argues that his trial counsel was ineffective for failing to challenge
Officer Kincaid‟s statements concerning the applicable speed limit in the area of
the traffic stop. Officer Kincaid testified at the suppression hearing that he pulled
over Ngo in part because the white SUV was traveling sixty miles per hour in a
fifty-five-mile-per-hour zone. Ngo contends his attorney could and should have
verified that the speed limit in that portion of I-235 was actually sixty miles per
hour and that Ngo was not speeding.
Assuming without deciding that Officer Kincaid was mistaken about the
correct speed limit on that segment of I-235, trial counsel‟s failure to challenge
these statements did not prejudice Ngo. This was only one ground the officer
provided for stopping Ngo.3 There was a sufficient basis for Officer Kincaid to
pull over Ngo‟s vehicle even without the speeding violation. On the afternoon of
October 1, 2007, Officer Kincaid received an email bulletin from Detective
Paulson regarding a recent residential burglary of an Asian household committed
by an Asian couple driving a white SUV. The bulletin also included information
See State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002) (“The test for the stop is an
objective one and for that reason the State is not limited to the reasons stated by the
investigating officer in justifying the stop.”).
3
13
regarding a series of past burglaries involving Ngo and Sikham where the modus
operandi involved following Asian victims from their businesses to their homes
and later burglarizing them. This information, combined with Dinh‟s report of a
suspicious white SUV following him from his business after closing near
downtown Des Moines all the way to his home in West Des Moines, gave Officer
Kinkaid reasonable suspicion that criminal activity may have occurred. Officer
Kincaid had a legitimate basis for stopping the white SUV whose license plate
matched Dinh‟s report.
State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004)
(holding whether reasonable suspicion exists for an investigatory stop must be
determined in light of the totality of the circumstances confronting the officer,
including all information available to the officer at the time of he or she makes the
decision to stop the vehicle). “The principal function of an investigatory stop is to
resolve the ambiguity as to whether criminal activity is afoot.”
State v.
Richardson, 501 N.W.2d 495, 497 (Iowa 1993). Seemingly innocent activities
may combine with other factors to give an experienced police officer reasonable
grounds to suspect wrongdoing. State v. Bradford, 620 N.W.2d 503, 508 (Iowa
2000) (citing State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997)).
Ngo argues that, by itself, the act of following Dinh home would not have
constituted criminal activity.
That is not correct.
The conduct could have
constituted an overt act in furtherance of a conspiracy to burglarize Dinh‟s house.
The fact that Dinh may have temporarily thwarted the plan would not eliminate
the basis for stopping Ngo.
Various cases have held that when a vehicle
appears to be “casing” a potential crime target, this provides reasonable
suspicion for a traffic stop. See, e.g., State v. Donnell, 239 N.W.2d 575, 578
14
(Iowa 1976) (upholding stop of a van driving slowly through a residential area at
2:00 a.m. when the area had a history of several past break-ins).
In analyzing these kinds of issues, it may be helpful to consider this matter
from Dinh‟s perspective. He operates a Vietnamese restaurant near downtown
Des Moines. At 9:30 p.m., the restaurant closed. Two hours later, his chores
finally done, Dinh went outside to an otherwise deserted parking lot. He saw a
white SUV there, in addition to his own car. Dinh got in his car and began
heading home. As Dinh turned on the engine in his car, he looked in his rearview
mirror and saw the white SUV also start up. The white SUV tailed him to his
home in West Des Moines near Jordan Creek, a distance of approximately ten
miles. When Dinh changed lanes, the SUV changed lanes. If Ngo‟s position
were correct, the police would have no basis for stopping the white SUV and
making inquiry of its driver—even with the additional information that the West
Des Moines police had about recent burglaries, a white SUV, and a modus
operandi of tailing Asian businesspeople to their homes. We believe it is clear
that a reasonable basis for the stop existed.
Accordingly, because the stop of the white SUV was justified even without
the speeding violation, we hold that Ngo was not prejudiced by trial counsel‟s
failure to raise any issue with regard to the actual speed limit in that part of I-235.
Ngo has failed to meet his burden to demonstrate a reasonable probability that
15
but for counsel‟s alleged error, the outcome of the proceeding would have been
different.4
B. Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence for the correction
of errors at law.
State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).
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.
Id.
A jury‟s findings of guilt are binding on appeal if supported by
substantial evidence. State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006). If
a rational trier of fact could conceivably find the defendant guilty beyond a
reasonable doubt, the evidence is substantial.
Lambert, 612 N.W.2d at 813.
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. Arne, 579 N.W.2d 326, 328 (Iowa 1998). 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.
On appeal Ngo contends there was insufficient evidence to support his
four convictions.
4
As we discuss below, a common characteristic of Ngo‟s
We note that Ngo‟s Fourth Amendment arguments on appeal are limited to the initial
stop. He does not make any challenge either to his arrest or to the searches of the
vehicle, independent of his arguments about the initial stop.
16
sufficiency arguments is that he asks us to credit his testimony, even though the
jury was not required to do so.
1. Theft in the First Degree.
In order for the jury to find Ngo guilty of theft in the first degree the State
was required to prove, in part, that at the time he exercised control over the
relevant property he knew the property had been stolen.
See Iowa Code §
714.1(4); Iowa Crim. Jury Instructions 1400.13. Ngo contends the State failed to
prove this element. In support of this argument he points to the fact it was not his
vehicle that contained the stolen property, and to his own testimony that he
bought the items at issue as gifts for relatives without knowing they were stolen.
As set forth in detail above, at the time of his arrest Ngo was wearing a
stolen gold necklace. Numerous other items recently stolen from four different
victims were found in the SUV. One of the four homes had been burglarized
earlier that day (October 1). Ngo‟s version of events was that he had bought all
the items from a legitimate source. Thus, to accept Ngo‟s story, one would have
to believe that some of the stolen jewelry had made its way from the victim to a
legitimate dealer to Ngo within the course of a single day. Ngo produced no
receipts or other evidence of these alleged purchases. Making Ngo‟s story even
more implausible was the fact that he initially claimed to have spent October 1 at
work, then at Prairie Meadows, then at an unnamed restaurant, and finally on a
fruitless search for an unnamed friend. Ngo failed to mention that he had made a
purported trip to buy jewelry until he was cross-examined. Ngo‟s testimony in
general was quite vague, and to some extent seemed to be designed to protect
his codefendant.
17
Knowledge may be inferred when a defendant is found in possession of
property stolen from two or more persons at different times. State v. Selestan,
515 N.W.2d 356, 358 (Iowa Ct. App. 1994). We have much more than that factor
present here.
Based on the record before us, there is more than sufficient
evidence from which a rational jury could reject Ngo‟s story and find beyond a
reasonable doubt that he knew the property he possessed was stolen.
Ngo also alleges the State failed to submit sufficient evidence for the jury
to determine that the actual value of the stolen items was more than $10,000.5
Iowa Code section 714.3 defines the value of stolen property as follows: “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).
The record reflects that, excluding references to cash and several items
that were received as gifts, the victims placed values on their stolen property that
collectively exceeded $10,000. “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). The victims‟ testimony alone was sufficient for the jury to find that
the value of the stolen items exceeded $10,000.
5
Ngo was found guilty of first-degree theft, which requires that the value of the stolen
property exceed $10,000. Iowa Code § 714 .2(1).
18
2. Conspiracy to Commit Burglary.
With respect to the conspiracy charge, the jury was instructed that the
State would have to prove the following:
1. On or about the first day of October, 2007, the
defendants agreed with one another:
a. That one or more of them would commit Burglary
in the Third Degree or
b. That one or more of them would attempt to commit
the crime of Burglary in the Third Degree.
2. Each defendant entered into the agreement with the
intent to promote or facilitate the commission of Burglary in the
Third Degree.
3. Each defendant committed an overt act toward the
commission of Burglary in the Third Degree.
Ngo contends the State did not prove the second and third elements, an
“agreement” to promote or facilitate the commission of third-degree burglary and
an overt act toward that end.
Such an agreement “„need not be formal or
express, but may be a tacit understanding; the agreement may be inherent in
and inferred from the circumstances, especially declarations, acts, and conduct
of the alleged conspirators.‟” State v. Casady, 597 N.W.2d 801, 805 (Iowa 1999)
(quoting State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998)).
Because a
conspiracy is by nature clandestine, it will often rest upon circumstantial evidence
and inferences drawn from that evidence. State v. Corsi, 686 N.W.2d 215, 219
(Iowa 2004). We may indulge in “[a]ll legitimate inferences arising reasonably
and fairly from the evidence” to support a verdict of conspiracy. Casady, 597
N.W.2d at 805 (citation omitted).
Reviewing this same trial record in State v. Sikham, No. 08-0688 (Iowa Ct.
App. April 8, 2009), we held there was substantial evidence of “a tacit
understanding between Sikham and [Ngo] to burglarize Dinh‟s home.”
We
19
reaffirm that conclusion here.
Based on all the evidence set forth above
including, but not limited to, the presence of both Ngo and Sikham in a vehicle in
the middle of the night with a crowbar, socks, and considerable stolen
merchandise, the evidence linking them to similar past burglaries, and the fact
that they followed Dinh home and then falsely denied that was what they were
doing, a reasonable jury could find that a tacit understanding existed between
Ngo and Sikham to burglarize Dinh‟s home. Similarly, a reasonable jury could
find that following Dinh home was an overt act in furtherance of that goal.
3. Possession of Burglar’s Tools.
The charge of possession of burglar‟s tools was based on the discovery of
a duffel bag containing a crowbar and socks on the floor of the white SUV
between the front and middle row seats. In order to find Ngo guilty of possession
of burglar‟s tools the State had to prove Ngo had possession of the crowbar
and/or socks and that he intended to use one or both to commit a burglary. Iowa
Code § 713.7. Ngo contends the State failed to prove that the crowbar and
socks were intended for use in a burglary. “Burglar‟s tools are implements which,
when assembled in combinations have such character as those commonly used
to commit the crime of burglary.” State v. Caya, 519 N.W.2d 419, 422 (Iowa Ct.
App. 1994). There were no gym clothes or related equipment in the bag or the
vehicle. Instead, the bag also contained a Motorola cellphone, gold pendant, and
Relic watch all of which had been stolen from various victims. Detective Paulson
testified that, based on his experience and expertise, the crowbar and socks are
items commonly used as burglar‟s tools. More specifically, he stated the crowbar
was consistent with some of the burglaries at issue here in that the
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September 21, 27, and 29 burglaries were achieved by breaking a screen, a
window, and a glass door respectively. He also noted that a burglar may use
socks on his or her hands to avoid leaving prints.
Ngo gave a less-than-
believable explanation for the presence of this large crowbar. He testified that
when an unnamed friend had returned the duffel bag to him, he asked the friend
if he could borrow a crowbar to remove a nail. This questionable story lends
further support to the jury‟s finding.
Accordingly, we conclude there is sufficient evidence in the record from
which a rational jury could find, beyond a reasonable doubt, that Ngo possessed
the crowbar and socks with the intent to use them in a burglary.
4. Carrying Weapons.
The jury was instructed that in order to find Ngo guilty of carrying weapons
the State had to prove the Samurai sword found in the white SUV was concealed
on or about Ngo‟s person, the blade was in excess of eight inches, the sword
was readily accessible to Ngo, and Ngo did not carry the weapon “inside a closed
and fastened container or securely wrapped package which is too large to be
concealed on the person.”
See Iowa Code § 724.4(3); Iowa Crim. Jury
Instruction 2400.3. Ngo challenges only the elements that the sword was readily
accessible, and that it was not inside a “closed and fastened container.” Ngo
testified the sword was given to him as a gift and he planned to use it as a
decoration in his house.
The sword was found in a sheath on the floor between the front and
middle seats partially under the duffel bag.
Detective Paulson testified that
someone sitting in the driver‟s seat of the vehicle could have reached the sword
21
by putting his or her arm between the front driver‟s seat and the front passenger
seat. Ngo also admitted that he might have been able to reach the sword. Thus,
we conclude there was substantial evidence from which a rational jury could find
that the sword was readily accessible to Ngo.
We further conclude that a rational jury could find the sheath covering the
blade of the sword was not a “closed and fastened container.” See Iowa Code §
724.4(3)(e). Perhaps surprisingly, a fair amount of Iowa jurisprudence exists on
what is a “closed and fastened container.” The cane portion of a sword cane is
not a “container.” State v. McCoy, 618 N.W.2d 324, 325-26 (Iowa 2000). An
automobile glove box is not a “container,” either. State v. Johnson, 604 N.W.2d
669, 672-73 (Iowa Ct. App. 1990). However, a zippered gun case is considered
to be a “closed and fastened container.” State v. Jones, 524 N.W.2d 172, 174-75
(Iowa 1994).
Applying the analysis set forth in Jones, we conclude that a sheath is not
analogous to a zippered gun case.
Unlike in Jones, nothing had to be
“unfastened” before someone could wield the weapon. Id. at 175. The sword
simply had to be pulled out of its sheath.
Ngo argues that the trial testimony was too “speculative or full of
conjecture” to determine the nature of the sheath that held the sword. However,
Ngo ignores the fact that both the Samurai sword itself and a photograph of it as
found in the vehicle were admitted into evidence at trial. Thus, the jury could rely
on more than just testimony. So can we. Although the sword itself has not been
transmitted to us as part of the record on appeal, we have reviewed the actual
photograph that was admitted at trial. It shows that the sword could have been
22
pulled from the sheath by its handle. Thus, the situation here is not analogous to
a handgun in a zippered case.
There was sufficient evidence from which a
rational jury could conclude that Ngo was guilty beyond a reasonable doubt of
carrying weapons.
C. Prior Felonies/Habitual Offender.
Following the jury‟s verdicts on February 7, 2008, outside the presence of
the jury, the district court asked defense counsel how Ngo wanted to proceed on
the habitual offender enhancement.
The court gave Ngo‟s counsel an
opportunity to speak with his client, telling him he could have as much time as he
wanted. After a recess, during which counsel conferenced with Ngo, counsel
stated that his client did not desire a trial on the prior offenses. The court then
asked Ngo directly if he understood that the basis for the habitual offender
enhancement would be the two prior offenses to which he had admitted on crossexamination. Ngo stated he did. The court also identified the convictions at
issue by criminal number and date, and asked Ngo if those were his cases and if
he had been represented by counsel on them. Ngo answered yes to the court‟s
inquiries. At that point defense counsel agreed no further record needed to be
made on the prior felonies.
On March 17, 2008, Ngo filed a “Motion for Trial on Defendant‟s Status as
an Habitual Offender,” stating he did not fully understand his rights to a separate
trial at the time he advised the court he did not want a trial on the habitual
offender issue and was now asking for a trial on that issue. At the hearing on the
motion, the court attempted to determine precisely what Ngo wanted to contest.
Defense counsel simply stated that Ngo wanted to exercise a right he had
23
waived “without really thinking it over very carefully” and put the State to its proof.
However, defense counsel also reiterated to the court that he had explained
Ngo‟s right to a separate trial on his habitual offender status to him at the time he
waived that right.
The court denied the motion, concluding Ngo had been
adequately advised of his rights and that he had admitted those convictions
during cross-examination and stipulated to them after trial.
Iowa Rule of Criminal Procedure 2.19(9) requires the trial court to provide
a defendant charged with an habitual offender enhancement an opportunity to
admit or deny prior convictions and indicate whether he or she was represented
by counsel on those convictions. If the defendant denies the alleged criminal
history, the court shall conduct a trial on the issue of identity. Iowa R. Crim. P.
2.19(9). A trial court‟s abuse of discretion in not complying with rule 2.19(9) does
not warrant relief unless it was prejudicial. State v. Kukowski, 704 N.W.2d 687,
693-94 (Iowa 2005).
We conclude the district court here fully complied with rule 2.19(9) by
giving Ngo an opportunity in open court to affirm or deny that he was the person
previously convicted of third-degree burglary in 2001 and first-degree theft in
2007, and to indicate whether he was in fact represented by counsel in those
previous convictions.
Ngo responded to both inquiries in the affirmative.
Furthermore, the record clearly shows Ngo had ample opportunity to speak with
his attorney about his rights regarding the habitual offender enhancement. The
court had no duty to make any further inquiries beyond those required by the
rule, or to allow a full trial on the issue under the circumstances.
State v.
Johnson, ___ N.W.2d ___, ___ (Iowa 2009) (dismissing rule 2.19(9) and
24
concluding “in the absence of an agreement of the parties to proceed otherwise,
the bifurcation procedures explained in [rule] 2.19(9) and in Kukowski apply in
bench trials and jury trials”). Accordingly, the court did not err in accepting Ngo‟s
stipulation to his prior felonies and denying his motion for a trial on his status as a
habitual offender.
III. Conclusion.
For all the reasons set forth above, we conclude Ngo has failed to meet
his burden to show a reasonable probability that but for trial counsel‟s alleged
error, the result of the motion to suppress would have been different. Ngo was
not prejudiced by the alleged error and the district court did not err in denying his
motion to suppress.
We further conclude there is sufficient evidence in the
record from which a rational jury could find Ngo guilty beyond a reasonable doubt
on all four of the charged offenses. Finally, we conclude the district court fully
complied with rule 2.19(9) and thus did not err in accepting Ngo‟s stipulations to
his prior felonies and denying his motion for a trial on his status as a habitual
offender.
AFFIRMED.
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