State v. Bugely, 95-1839

• Decision Date: 23 April 1997
• Docket Number: No. 95-1839,95-1839
• Citation: 562 N.W.2d 173
• Parties: STATE of Iowa, Appellee, v. Mark Kane BUGELY, Appellant.
• Court: Iowa Supreme Court

Page 173

562 N.W.2d 173

STATE of Iowa, Appellee, v. Mark Kane BUGELY, Appellant.

No. 95-1839.

Supreme Court of Iowa.

April 23, 1997.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Mary E. Richards, County Attorney, and Stephen H. Holmes, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, LAVORATO, and TERNUS, JJ.

TERNUS, Justice.

Defendant, Mark Kane Bugely, appeals his convictions and sentences for three counts of third-degree burglary. See Iowa Code §§ 713.1, .6A (1995). He raises two issues: (1) the testimony of an accomplice was not independently corroborated; and (2) his trial counsel was ineffective for failing to make the correct objection to the testimony of a rebuttal witness. We affirm.

I. Background Facts and Proceedings.

This appeal arises from the trial of three consolidated cases, charging Bugely with five counts of third-degree burglary as a habitual offender:

Case Burglary Location Date of Offense

1 Clyde Black & Sons 10"16"94

Feed Co., Kelly

Holland's Garage, 1"2"95

McCallsburg

2 Ripp residence, Ames 12"2"94

3 Twin Anchors Golf and 12"26"94

Country Club, Colo

Twin Anchors RV 12"26"94

Center, Colo

Although the jury returned guilty verdicts on all five charges, the trial court granted Bugely a new trial in the first case because he had not been provided a complete transcript of a prior mistrial of that case. Consequently, our discussion of the facts focuses primarily on the remaining two cases before us on appeal. We will not recite all the evidence, only that pertinent to the issues before us.

On December 2, 1995, thieves burglarized the home of William and Jane Ripp. Among the items taken were two ruby rings. Officers investigating the break-in found two sets of footprints, large boot prints and small tennis shoe prints.

Approximately three weeks later, thieves broke into the Twin Anchors Golf and Country Club and the Twin Anchors RV Center. They took only some Susan B. Anthony coins from the RV Center. The investigating officers discovered two sets of footprints at these locations also, one set made by a large-size tennis shoe and the other by a much smaller-size tennis shoe.

The police took plaster casts of the footprints. The larger prints at both locations were the same size. The smaller prints at the Ripp and Twin Anchors burglaries also matched; they both came from the same pair of Nike tennis shoes, approximately size 8 1/2.

The detective investigating the Twin Anchors burglaries suspected a terminated employee, Kevin Johnson, of these break-ins. Johnson was eventually questioned. He admitted committing all five burglaries and implicated his friend, Mark Bugely.

After pleading guilty pursuant to a plea bargain, Johnson testified at Bugely's trial that he and Bugely broke into the five locations that had been burglarized. He said they divided up the money and rings found at the Ripp residence. After that burglary, they went to the apartment of their girlfriends, who were living together. Johnson testified Bugely gave the ruby ring Bugely had taken from the Ripp residence to Bugely's then-girlfriend, Stacey Parks, that evening.

Parks also testified at trial. She said Bugely gave her a ruby ring on December 2, 1995, telling her he had just purchased the ring that night at the mall. Johnson's girlfriend confirmed these events. Mrs. Ripp identified the ring given to Parks as one stolen from her residence on December 2, 1995.

The authorities were able to match a pair of boots and a pair of tennis shoes owned by Johnson to the large prints discovered at the Ripp residence and the Twin Anchors locations. They did not find any tennis shoes owned by Bugely that matched the small footprints made during the burglaries. Johnson testified, however, that Bugely told him the day after the Twin Anchors burglaries that he, Bugely, had thrown away the shoes he had worn during the burglaries.

The investigating officer testified the small footprints were probably made by a size 8 1/2 shoe, possibly a size 9 at the largest. He also stated it was not always possible to identify the exact size of a shoe from a print because manufacturers use the same outsole for several shoe sizes. A former girlfriend of Bugely, Shawn Young, testified she used to wear Bugely's shoes because she and Bugely wore the same size--size 8 1/2. Johnson examined the shoes Bugely was wearing during the trial and testified they were size 7 1/2.

Bugely took the stand in his own defense. He testified he did not commit the burglaries, he did not throw away any of his tennis shoes, Johnson had given him the ruby ring Bugely then gave to Stacey Parks, and he wore a size 7 1/2 shoe. Rebuttal witnesses were called by the State; their testimony will be discussed in detail in connection with Bugely's ineffective-assistance-of-counsel claim.

Bugely requested a judgment of acquittal, which the trial court refused. As noted above, the jury returned guilty verdicts on all five counts. The trial court granted a new trial on two counts and sentenced Bugely to fifteen years on each Twin Anchors burglary and five years on the Ripp burglary, all sentences to run consecutively. Bugely appeals, claiming the court erred in failing to grant a judgment of acquittal because Johnson's testimony that Bugely participated in the burglaries was not corroborated. We infer from this argument that Bugely contends without the testimony of the accomplice, the evidence is insufficient to support a verdict of guilty. Bugely also complains his trial counsel was ineffective for failing to make the proper objection to rebuttal testimony offered by the State.

II. Corroboration of Accomplice Testimony.

A. General principles. Iowa Rule of Criminal Procedure 20(3) requires that testimony of an accomplice be corroborated:

A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

The existence of corroborating evidence is a legal question for the court. State v. Dickerson, 313 N.W.2d 526, 529 (Iowa 1981). Once the legal adequacy of the corroborating evidence is established, the sufficiency of the evidence is for the jury. State v. Brown, 397 N.W.2d 689, 695 (Iowa 1986). Because Bugely challenges the trial court's determination that corroborating evidence existed to warrant submission of these cases to the jury, our review is for correction of errors of law. See Iowa R.App. P. 4. We view all the evidence in the light most favorable to the State, even if contradicted, and indulge in every legitimate inference that may be fairly and reasonably deduced from this evidence. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980); State v. Cuevas, 281 N.W.2d 627, 629 (Iowa 1979).

Corroborative evidence may be direct or circumstantial. State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976). It "need not be strong and need not be entirely inconsistent with innocence." Dickerson, 313 N.W.2d at 529. It must, however, support some material part of the accomplice's testimony and tend to connect the accused to the commission of the crime. Brown, 397 N.W.2d at 695; Vesey, 241 N.W.2d at 890. We now consider whether corroborating evidence existed with respect to the Ripp burglary and the Twin Anchors burglaries.

B. Ripp burglary. "A defendant's possession of property stolen in the alleged offense is corroborative evidence." Dickerson, 313 N.W.2d at 529. Here, two witnesses in addition to the accomplice, Johnson's and Bugely's then-girlfriends, testified Bugely possessed a ruby ring taken from the Ripp residence within one-half hour after the burglary. This evidence is corroborative. Although Bugely argues he had an innocent explanation for his possession of this property (Johnson gave him the ring), that testimony went to the sufficiency of the corroborating evidence--a question for the jury. It does not detract from the existence of the corroborating evidence. See Cuevas, 281 N.W.2d at 631 (holding court does not assess the strength of the corroborative evidence; that is for the jury). Therefore the trial court did not err in overruling Bugely's motion for judgment of acquittal on the Ripp burglary. See Dickerson, 313 N.W.2d at 530 (holding trial court properly overruled defendant's motion for judgment of acquittal where corroborating evidence existed).

C. Twin Anchors burglaries. The issue of corroboration is more complex in the Twin Anchors case, but we conclude corroboration exists. Johnson testified Bugely participated in the Twin Anchors burglaries. The existence of a second, small set of footprints at these burglaries confirm that a second person was involved. These prints, which match those present at the Ripp residence, show the same person who committed the Ripp burglary was present at the Twin Anchors burglaries. Bugely's possession of the ruby ring independently links him to the Ripp burglary. Because the physical evidence showed only two thieves were present at the Ripp residence and independent evidence supports a finding Bugely was one of them, then the small, matching footprints at the Twin Anchors burglaries is independent evidence that Bugely was present at Twin Anchors also. Thus, the small footprints at the Twin Anchors sites, identified by independent evidence as belonging to Bugely, constitute corroborating evidence of Bugely's involvement in the Twin Anchors burglaries. The trial court correctly determined evidence corroborating the accomplice's testimony existed.

The cases upon which Bugely relies to challenge the trial court's decision are distinguishable. Bugely cites the Dickerson case,...