State v. Bakker

• Decision Date: 18 January 1978
• Docket Number: No. 59146,59146
• Citation: 262 N.W.2d 538
• Parties: STATE of Iowa, Appellee, v. Raymond P. BAKKER, Appellant.
• Court: Iowa Supreme Court

Page 538

262 N.W.2d 538

STATE of Iowa, Appellee, v. Raymond P. BAKKER, Appellant.

No. 59146.

Supreme Court of Iowa.

Jan. 18, 1978.

Roger W. Evans, Sioux Center, for appellant.

Richard C. Turner, Atty. Gen., Faison T. Sessoms, Jr., Asst. Atty. Gen., and John D. TePaske, County Atty., Orange City, for appellee.

Considered by MOORE, C. J., and MASON, RAWLINGS, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

Defendant was convicted of receiving stolen property, a violation of § 712.1, The Code. The State alleged he aided in concealing stolen beekeeping equipment. From judgment sentencing him to pay a $100 fine and to serve six months in the county jail, he appeals. We affirm.

At trial the evidence supporting the guilty verdict disclosed that in May, 1975, John Kuiper of Lyon County suspected his beehives had "foulbrood" disease. He notified the state apiarist and accompanied him in inspecting the Kuiper hives as well as hives of other beekeepers in the area. While examining hives kept by defendant on Hubert Landegent's farm in Sioux County, Kuiper discovered hives recently stolen from him.

The Sioux County sheriff's office was notified and a search warrant issued. When the deputy sheriff executed the warrant he was accompanied by Kuiper and by William Verdoorn and Robert Vande Hoef, who also had sustained recent thefts of bee equipment. Among the hives on the Landegent farm each of these beekeepers identified items stolen from him. These were seized under the warrant.

The search party then proceeded to the Vollink farm and later to the Loverink farm where defendant maintained hives. Upon receiving permission from the landowners, the theft victims inspected the equipment and found more stolen property.

Defendant filed a motion to suppress the seized evidence. This was overruled, as were his trial motions for directed verdict. On this appeal he asserts reversible error in four respects, separately considered in the following divisions.

I. Motions for directed verdict.

When the State rested its case, defendant moved for a directed verdict, "in that the State has failed to prove its case against Mr. Bakker. It has failed to prove the element of the case, as charged." At close of all evidence defendant's motion was grounded on State's failure to prove he "knowingly received * * * property * * * obtained by larceny."

Defendant's brief asserts the information filed against him alleged he violated § 712.1, The Code, by "willfully and unlawfully aid(ing) in concealing stolen property." Arguing the State neglected to specifically prove concealment, he contends his motions should have been sustained. Assuming these motions sufficiently raised the ground now urged, we are not so convinced.

Section 712.1 defines one crime, receiving stolen goods, which may be committed by any one of three means buying, receiving or aiding in concealing stolen property. State v. Sheffey, 234 N.W.2d 92, 95 (Iowa 1975). An information need not allege the means by which the offense of receiving stolen goods was committed. §§ 773.4 and 773.11, The Code; State v. Hochmuth, 256 Iowa 442, 445, 127 N.W.2d 658, 659 (1964). However, in this case, the information specified the manner in which the crime was committed. The State therefore was required to prove commission of the offense by aiding in concealment. State v. Hochmuth, supra, 256 Iowa at 445, 127 N.W.2d at 659-660; State v. Haesemeyer, 248 Iowa 154, 159-160, 79 N.W.2d 755, 758 (1956).

To establish concealment, the State was not bound to show actual hiding or secreting of the property. Proof showing defendant's acts rendering more difficult the owner's discovery or identification of his or her property is sufficient. State v. Dykers, 239 N.W.2d 855, 859 (Iowa 1976), and citations; State v. Sheffey, supra, 234 N.W.2d at 96; see State v. Houston, 211 N.W.2d 598, 600 (Iowa 1973).

Here there was evidence to support a jury finding defendant placed stolen bee equipment on various dispersed farms, commingled it with other equipment, and kept it under his management and control. Viewed in a light most favorable to the verdict, this evidence was adequate to prove defendant aided in concealing stolen property in violation of § 712.1, The Code.

The evidence was also sufficient to support a finding the State proved every element of receiving stolen property. See generally State v. Chanen,209 Iowa 784, 785, 229 N.W. 143, 144 (1930). There was strong proof each owner could and did identify his own property because of its unique or unusual markings or construction. Guilty knowledge can be inferred from unexplained possession of recently stolen property. State v. Dykers, supra, 239 N.W.2d at 859.

We hold trial court rightly overruled defendant's motions for directed verdict.

II. Chain of custody of exhibits.

Defendant objected to admission of the various items of bee equipment alleged to have been concealed, on the ground State failed to establish a continuous chain of control over them from the time they were seized. Defendant's objections were sufficient to preserve error. See State v. Lunsford, 204 N.W.2d 613, 616 (Iowa 1973).

Failure to account for continuous custody or to negative any reasonable probability of tampering or substitution of evidence ordinarily is fatal to the State's case. State v. Weltha, 228 Iowa 519, 524, 292 N.W. 148, 150 (1940). However, in establishing a chain of custody adequate to justify admission of physical evidence, the State only need show circumstances making it reasonably probable that tampering, substitution or alteration of evidence did not occur. Absolute certainty is not required. State v. Jeffs, 246 N.W.2d 913, 915 (Iowa 1976).

Trial judge determines the sufficiency of physical evidence identification in light of the article's nature, circumstances surrounding its custody and the likelihood of intermeddlers tampering with it. A more elaborate foundation is required to identify evidence that is easily substituted, such as marijuana, than is necessary to identify physical evidence with unusual characteristics, such as money, a gun, clothing and a body, or matches and glasses. State v. Ash, 244 N.W.2d 812, 816 (Iowa 1976); State v. Lunsford, supra, 204 N.W.2d at 616-617. Unless trial judge's decision to admit evidence over a chain-of-custody objection constitutes a clear abuse of discretion, it will not be overturned. Lunsford, supra, 204 N.W.2d at 617.

In this case the Sioux County deputy demonstrated an understandable reluctance to tangle with the protective bees. He sent the seized equipment to the jail garage in Vande Hoef's pickup. The sheriff testified this evidence remained in the garage under his custody. However, he could not swear others did not have access to it.

Although the State presented no direct evidence to absolutely negative the possibility someone tampered with the evidence while Vande Hoef was driving or the sheriff was not standing guard over the garage, testimony of the State's witnesses was minimally sufficient to establish the chain of custody. There was no evidence the individuals who seized the equipment or the sheriff were improperly motivated or unreliable, and no basis for believing they planned and carried out a substitution of distinctive and unusual beekeeping equipment. See State v. Mattingly, 220 N.W.2d 865, 870 (Iowa 1974). Each owner testified his equipment produced at trial was in the same condition as it was when seized.

The speculation of tampering which defendant attempted to create might have affected the weight of the evidence, but not its admissibility. See Lunsford, supra, 204 N.W.2d at 617. Trial court did not err in overruling defendant's chain-of-custody objections.

III. Rebuttal evidence.

Verdoorn's identification of his stolen equipment was based partially on the initials "GHF" (Gobelman Honey Farm) branded on the boards. He had purchased this equipment from Homer Gobelman of Oakdale, Nebraska.

Defendant testified the most recent date he could have acquired equipment so branded was in 1961 after some of his equipment being cleaned by a Sioux City concern was exchanged for other similar equipment.

On rebuttal the State called Homer Gobelman, who testified he did not acquire the "GHF" branding iron until 1962, and thereafter had disposed of branded equipment only to Verdoorn.

Defendant objected to Gobelman's testimony on the ground he was given no notice the State would call this witness, and the testimony was "beyond the realm of rebuttal." See §§ 769.4, 780.5(6), and 780.10, The Code.

Rebuttal testimony is "that which explains, repels, controverts, or disproves evidence produced by the other side." State v. Miller, 229 N.W.2d 762, 770 (Iowa 1975); State v. McCullough, 226 N.W.2d 216, 217 (Iowa 1975). Such testimony may be admitted in rebuttal even though it might have been used as part of the State's main case. The names of witnesses properly testifying in rebuttal need not be endorsed on the information. State v. Nelson, 261 Iowa 204, 208-209, 153 N.W.2d 711, 714 (1967), and citations.

Trial court has considerable discretion in admitting such evidence. State v. Hansen, 225 N.W.2d 343, 351 (Iowa 1975). Its ruling will be disturbed only upon a clear abuse of discretion. State v. McCullough, supra, 226 N.W.2d at 217.

In this case Gobelman's testimony refuted defendant's claim he innocently acquired the GHF-branded bee equipment. We hold this was proper rebuttal. No § 780.10 notice was required. Trial court did not abuse its discretion in overruling defendant's objections.

IV. Motion to suppress.

After the jury was impaneled, but before testimony commenced, defendant filed a motion to suppress the evidence "derived from the search of defendant's property." Defendant alleged a violation of his constitutional rights to privacy, the search warrant carried a date subsequent to the search, the state beekeeper entered upon defendant's property pursuant to his official capacity and "therefrom...