State v. Cornelius, 63710
| Decision Date | 18 June 1980 |
| Docket Number | No. 63710,63710 |
| Citation | 293 N.W.2d 267 |
| Parties | STATE of Iowa, Appellee, v. Marvin Glen CORNELIUS, Appellant. |
| Court | Iowa Supreme Court |
Donald R. Ferree, Panora, for appellant.
Thomas J. Miller, Atty. Gen., and Shirley Ann Steffe, Asst. Atty. Gen., and Larry Brotherson, County Atty., for appellee.
Considered by REES, P. J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.
Defendant Marvin Glen Cornelius appeals from his conviction of first-degree theft by deception in violation of sections 714.1(3) and .2(1), The Code 1979. He asserts the following: (1) that his motion for change of venue based on alleged prejudicial pretrial publicity should have been sustained; (2) error when the prosecutor inquired at trial into a matter that had been prohibited by a ruling sustaining defendant's motion in limine; and (3) that the evidence did not support essential elements of the charge. We affirm.
Defendant was charged with theft by deception in the first degree (in excess of $5,000) in violation of sections 714.1(3) and 714.2(1), The Code 1979, in connection with tree repair and pest spraying he had done for Winifred McKeon, age 85, in the summer of 1978. Jury trial on March 20 and 21, 1979, resulted in a guilty verdict. After sentence, defendant appealed.
Testimony at trial showed defendant made four visits to the Bayard, Iowa, home of McKeon in May, June, and July of 1978. He repaired a tree in her yard, then told her she had termites or borers in her tree and in her home. He then returned three more times, spraying the basement area and rechecking for termites. For his services he received from McKeon checks of $2,900, $3,100, $7,000 and $8,600, for a total of $21,600. McKeon testified defendant never presented her with a bill but just told her the amount to make the checks for or else he filled out the check himself. A professional exterminator who subsequently examined McKeon's house testified that there was no evidence of any prior termite or borer infestation in the house and that his company would have charged around $412 to spray and treat McKeon's house if she actually had termites.
Other facts will be stated later as they apply to the issues presented.
I. The motion for change of venue. Prior to trial, defendant filed a motion for change of venue alleging that such prejudice existed in Guthrie County that there was a substantial likelihood that defendant could not receive a fair and impartial trial there. Attached to the motion was defendant's personal affidavit claiming prejudice, which incorporated by reference three newspaper stories dealing with the charges filed against defendant, two from county newspapers (the Guthrie Center Times on January 17, 1979, and the Bayard News on January 18, 1979) and one from the Des Moines Register on January 24, 1979. The court overruled the motion. Defendant claims error.
Iowa R.Crim.P. 10(9)(b) applies to motions for change of venue and provides:
If the court is satisfied from a motion for change of venue and evidence adduced in support thereof that such prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be had there, the court shall transfer the proceeding to another county in which no such situation exists.
The determinative question is whether a "substantial likelihood" existed that a fair and impartial trial could not be had in Guthrie County due to dissemination of prejudicial material. Our review of the evidence bearing on that question is de novo to determine whether the trial court abused its discretion in ruling, in substance, that defendant failed to demonstrate a substantial likelihood he would not receive a fair and impartial trial. State v. Paulsen, 265 N.W.2d 581, 588 (Iowa 1976).
The entire record bearing on defendant's motion consisted of the motion, defendant's personal affidavit, the three newspaper articles and the court's ruling. The two county newspaper articles basically contained a factual account of the charge without detail. The Des Moines Register article contained another factual account although somewhat longer. These three articles are typical of those which appear when such an event occurs. They did not contain any deducible editorial comment.
Mere exposure to news accounts does not prove there is a substantial likelihood of prejudice in the minds of the prospective jurors in the county in which the trial is to be held. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Also, there is no showing in the record that any of the jurors read or knew of the articles.
Finally, the three articles appeared some two months before trial. There were not so inflammatory and pervasive as to make it likely defendant could not have a fair trial two months later. Cf. State v. Pelelo, 247 N.W.2d 221, 223 (Iowa 1976) (); State v. LaMatty, 263 N.W.2d 559, 562 (Iowa Ct.App.1977) ().
We hold the trial court did not abuse its discretion in overruling defendant's motion for change of venue.
II. The motions for mistrial and new trial. Prior to trial, the court sustained defendant's motion in limine to prohibit mention of a transaction between McKeon and defendant in September 1978 involving a separate crime. However, at trial while the prosecutor was examining McKeon, she said she had also seen defendant in August or October of 1978. The prosecutor asked, "Did he get a check then that date?" Defendant objected that this question went beyond the issues of the controversy and the court sustained the objection. No answer came in.
Thereafter, defendant cross-examined McKeon, another State's witness testified, and the State rested. Defendant then moved for a mistrial based on the ground that the question asked by the prosecutor was prejudicial when it inquired into matters relating to other transactions between McKeon and defendant. The court overruled the motion. The same point was raised in defendant's motion for new trial, which was also overruled.
Defendant claims that the matter had been excluded by the sustained motion in limine, damage was done by the question even though objection thereto was sustained, and a mistrial or new trial should have been granted. The State responds that defendant's motion for mistrial was not timely and preserved no error. We agree.
A mistrial motion must be made when the grounds therefor first became apparent. State v. Ware, 205 N.W.2d 700, 702 (Iowa 1973). Here defendant should have asked for a mistrial when the allegedly prejudicial question was asked. He did not do so.
No error was preserved as to defendant's assignment relative to his overruled motion for mistrial or his motion for new trial based thereon, which therefore suffers the same infirmity.
III. The motion for judgment of acquittal. At the close of all evidence, defendant moved for a judgment of acquittal under Iowa R.Crim.P. 18(10)(a) on the ground the evidence was insufficient to support a jury verdict of guilty of the offense charged. The motion was overruled.
Section 714.1(3) provides in part:
A person commits theft when the person does any of the following:
3. Obtains . . . a transfer of possession, control or ownership of the property of another . . . by deception.
Relative to the essential elements of the offense charged, the court gave the jury instructions 6 and 7 as follows:
You must find the defendant not guilty of the offense charged in the Information unless the State proves by evidence beyond a reasonable doubt each and all of the following elements:
1. That during the period May 12, 1978, through July 11, 1978, the defendant did represent to Winifred McKeon that there were termites or borers in the residence of the said Winifred McKeon.
2. That such was deception as defined in Instruction No. 7.
That by reason of the deception the defendant obtained from Winifred McKeon the possession or control of property.
If you find the State has proved beyond a reasonable doubt each and all of the elements, then you will find the defendant guilty and proceed to determine the degree of theft as explained to you in Instruction No. 8; but, if you find the State has failed to prove beyond a reasonable doubt one or more of the elements, then you shall find the defendant not guilty.
With regard to element number 2 of instruction No. 6, you are instructed that "knowingly creating or confirming another's belief or impression as to the existence of a fact or condition which is false and which the actor does not believe to be true", is "deception."
In order for the State to prove "deception," it must establish beyond a reasonable doubt each of the following:
A. That the defendant knowingly made a representation that there were termites or borers in the residence of Winifred McKeon, which condition did not exist.
B...
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