State v. Crone

Decision Date20 March 1996
Docket NumberNo. 94-1805,94-1805
Citation545 N.W.2d 267
PartiesSTATE of Iowa, Appellee, v. Patrick John CRONE, Appellant.
CourtIowa Supreme Court

Linda Del Gallo, State Appellate Defender, and Ahmet S. Gonlubol, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.

Considered en banc.

TERNUS, Justice.

The relationship between appellant, Patrick Crone, and his girlfriend, Andrea Forman, was a stormy one. A sequel to this relationship was Crone's conviction of extortion after he threatened to circulate compromising photos of Forman if she did not meet with him. Crone claims his conduct does not fall within our criminal extortion statute, Iowa Code section 711.4 (1989). We think it does and so affirm his conviction.

I. Background Facts and Proceedings.

In 1987 and 1988, Crone and Forman had a tumultuous relationship that resulted in Crone's conviction of domestic assault and criminal mischief. Although their relationship had been over for some time, they found themselves drinking at Maxie's, a restaurant and tavern in Iowa City, on the evening of September 26, 1989. Forman worked at Maxie's and had stopped to check her work schedule. She stayed to socialize, however, because she was depressed over her current boyfriend's recent incarceration. Crone was there celebrating his receipt of funds from a lawsuit settlement.

Forman became quite intoxicated but remembers a stranger telling her that Crone wanted to apologize to her for his past actions. She eventually joined Crone in a booth. Forman recalls very little of what happened after that until she woke up in an unfamiliar mobile home the next morning: She was unclothed from the waist down and was lying beside Crone who was also naked. Forman hurriedly left the trailer and returned home.

Crone testified Forman, at her request, had accompanied him to the trailer where he was staying with a friend. Once there, they began to cuddle and kiss. Crone left to go to the bathroom; when he returned, Forman was naked from the waist down. It was then Crone devised a plan to slander Forman. As Forman lay sleeping, Crone took pictures of her. One photograph showed Forman lying in a fetal position; her face was recognizable and she had no clothes on below her waist. The second picture was of Forman's naked buttocks, with Crone's erect penis nearby.

The next day, Crone constructed more than fifty 8 1/2 by 11-inch fliers which displayed Crone's photographs of Forman and a message giving Forman's name, place of employment and phone number and inviting one and all to call her. He then proceeded to Maxie's with the pictures and fliers where he showed them to his friends and the head waitress. When Forman arrived at Maxie's to work that afternoon, Crone approached her and asked her to meet with him privately. She felt harassed and so agreed to meet him later, even though she did not plan to do so.

When Forman returned home that evening after work, she began to receive phone calls from Crone. Crone wanted Forman to meet him; this time Forman refused. She asked Crone to leave her and her family alone. Crone responded that he had some illicit pictures and that if Forman did not meet with him, he would talk to her boyfriend, her family and her friends, and would circulate the pictures. Eventually, Forman stopped answering the phone and some of Crone's calls were taped on Forman's answering machine.

In early October 1989, the fliers made by Crone appeared in a variety of public places: tacked on telephone poles, distributed throughout the University of Iowa student union and placed on the windshields of parked cars. Copies were also mailed to Forman's friends and family, as well as her mother's co-workers.

Crone fled the state and was later found in Idaho. In March 1994, he waived extradition and returned to Iowa. The State charged Crone with extortion in violation of Iowa Code section 711.4(3) (1989) and sexual abuse in the third degree, in violation of Iowa Code sections 709.1(1) and 709.4(1) (1989). Following a jury trial, Crone was convicted of extortion and assault with intent to commit sexual abuse. He was sentenced to consecutive terms of five years and two years respectively. Crone appeals only his extortion conviction and sentence.

On appeal, Crone claims the evidence is insufficient to prove two elements of extortion: (1) that Crone threatened Forman, and (2) that Crone acted for the purpose of obtaining something of value for himself or another. In response to the State's argument that error was not preserved on these issues, Crone claims his trial counsel was ineffective for failing to make these arguments in support of a motion for judgment of acquittal. In addition to the sufficiency-of-the-evidence claim, Crone also asserts his trial counsel was ineffective for not objecting to evidence of Crone's steroid use.

II. Sufficiency of the Evidence.

A. Standard of review. We review Crone's claim that the evidence was insufficient to support his conviction by examining the record in the light most favorable to the State. See State v. Terry, 544 N.W.2d 449, 450 (Iowa 1996). We look for substantial evidence, including any inferences arising from the evidence, to support the jury's verdict. Id. at 451. If the verdict is supported by substantial evidence, it is binding on this court. Iowa R.App.P. 14(f)(1). Evidence that could convince a trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt is substantial evidence. Terry, 544 N.W.2d at 451.

B. Preservation of error. Crone's trial counsel made a motion for judgment of acquittal; it was overruled. The record reveals Crone's attorney did not mention the "threat" or "anything of value" elements of the extortion charge in his motion. Accordingly, Crone's motion for judgment of acquittal did not preserve the specific arguments he is now making for the first time on appeal. See State v. Geier, 484 N.W.2d 167, 170-71 (Iowa 1992) (motion for judgment of acquittal does not preserve error where there was no reference to grounds in district court).

III. Ineffective Assistance of Counsel.

Crone claims his trial counsel was ineffective because he did not raise the precise sufficiency-of-the-evidence claims now asserted on appeal. Crone also complains his trial attorney did not object to the admission of evidence of Crone's past use of steroids. To successfully prove his ineffective-assistance-of-counsel claim, Crone must prove his counsel failed to perform an essential duty and this failure resulted in prejudice. See Terry, 544 N.W.2d at 453. We will affirm if either element is absent. State v. Spurgeon, 533 N.W.2d 218, 219 (Iowa 1995).

With respect to the first element, Crone must prove his attorney's performance was not within the normal range of competence. See id. As to the second element, Crone has the burden to establish his lawyer's error resulted in an actual and substantial disadvantage, creating a reasonable probability that but for the error the outcome of the trial would have been different. See id. at 220.

IV. Extortion.

We first consider Crone's claim of ineffective assistance of counsel as it relates to the sufficiency of the evidence to prove extortion. Our review of the elements of this crime and the record made at trial convinces us a motion for judgment of acquittal based on the grounds urged on appeal would not have been successful. Therefore, trial counsel was not ineffective for failing to include these grounds in his motion for judgment of acquittal. Our analysis follows.

A. Elements of crime. Iowa Code section 711.4 defines the crime of extortion:

A person commits extortion if the person does any of the following with the purpose of obtaining for oneself or another anything of value, tangible or intangible, including labor or services:

....

3. Threatens to expose any person to hatred, contempt, or ridicule.

....

Iowa Code § 711.4 (1989). The State had the burden to prove that (1) Crone threatened to expose Forman to hatred, contempt or ridicule (2) for the purpose of obtaining for himself or another (3) anything of value, tangible or intangible. Crone contends the State failed to prove him guilty beyond a reasonable doubt because there was insufficient evidence of a threat or of an attempt to gain anything of value.

B. Existence of a threat. The State argued at trial that Crone threatened to circulate the illicit photographs of Forman if she did not meet with him. Crone claims on appeal that there is no evidence he actually threatened Forman. 1 Forman testified, however, that when Crone called her the day after their encounter, "[h]e told me if I didn't meet him, he was going to talk to my boyfriend, my family, my friends, and start circulating these pictures." Forman said she interpreted Crone's phone calls to her as a threat.

Section 711.4 does not define the term "threaten," so we give this word its ordinary meaning. See State v. Ahitow, 544 N.W.2d 270, 271 (Iowa 1996); Iowa Code § 4.1(38) (1995). We look to the dictionary for guidance in determining the ordinary meaning of a word. State v. Romeo, 542 N.W.2d 543, 548 (Iowa 1996). "Threaten" is defined as "promise punishment, reprisal, or other distress to." Webster's Third New Int'l Dictionary 2382 (1993). The word "reprisal" includes "an action of retaliation." Id. at 1927.

Threats need not be explicit; they may be made by innuendo or suggestion. State v. McGinnis, 243 N.W.2d 583, 589 (Iowa 1976). It is only necessary that the threat be definite and understandable by a reasonable person of ordinary intelligence. Id. We think there is substantial evidence to support a jury finding that Crone threatened Forman. A reasonable person of ordinary intelligence would have understood Crone's statements on the telephone to be a promise of a retaliatory act...

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