State v. Delaney

• Decision Date: 25 October 1994
• Docket Number: No. 93-0262,93-0262
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Mark Aaron DELANEY, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 170

526 N.W.2d 170

STATE of Iowa, Plaintiff-Appellee, v. Mark Aaron DELANEY, Defendant-Appellant.

No. 93-0262.

Court of Appeals of Iowa.

Oct. 25, 1994.

Linda Del Gallo, State Appellate Defender, and Rachele Braverman Hjelmaas, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Robert P. Ewald, Asst. Atty. Gen., Steve St. Clair, Sp. Asst. Atty. Gen., and John P. Sarcone, County Atty., for appellee.

Heard by SACKETT, P.J., and HABHAB and CADY, JJ.

CADY, Judge.

This is an appeal by Mark Delaney following judgment and sentencing on four counts of first-degree theft by deception, and four counts of second-degree theft by deception. He claims the charges should have been severed for trial, the court improperly admitted testimony at trial concerning prior uncharged crimes, and insufficient evidence supported the charges. He further argues defects in sentencing, and alleges ineffective assistance of counsel. We affirm the conviction, vacate the sentence, and remand for resentencing. We preserve the claim of ineffective assistance of counsel.

Delaney was a salesman for a Des Moines business called Wizard Security Company. The company was owned by a friend and business associate Robert Wood. From 1988 to 1990, Delaney befriended three women, with the cooperation of Wood. The women were first approached to purchase home security systems and other home products. Two of the women, Maude Nelson and Eleanor Hornback, were widows and lived alone. Nelson was 89 years old. Hornback was 72 years old. The third woman, Doris Borts, lived with her husband who was in poor health. She was 68 years old. After spending a considerable amount of time with the women, Delaney began asking them for a series of loans for business and personal purposes. The women ultimately gave Delaney over $100,000. Although Delaney usually executed promissory notes in connection with the transactions and even pledged collateral at times, the money was never repaid. The collateral had little or no value, and Delaney eventually discontinued the frequent social visits.

The state charged Delaney with eight counts of theft by deception. Each count involved a separate transaction, summarized as follows:

                Count 1:  $35,000 from Nelson on 6-28-89
                Count 2:  $20,000 from Nelson on 9-5-89
                Count 3:  $5,000 from Nelson on 10-20-89
                Count 4:  $8,500 from Hornback on 4-11-90
                Count 5:  $2,500 from Hornback on 4-24-90
                

                Count 6:  $2,500 from Hornback on 4-27-90
                Count 7:  $3,750 from Hornback on 4-30-90
                Count 8:  $25,000 from Hornback on 5-25-90
                

Charges involving Borts were not filed but she was named as a prosecution witness. Prior to trial, the district court denied Delaney's motion to sever the first three counts from the last five counts. Delaney also filed a motion in limine to prohibit the state from introducing the testimony of Borts' concerning her dealings with Delaney and Wood in 1988. The court denied the motion with the exception of testimony from Borts' relating to a check written by Delaney on a closed account.

The case was tried to a jury. Nelson and Hornback testified about their friendship with Delaney, their loans to Delaney and that they had not been repaid. Nelson and Hornback indicated they liked Delaney and did not initiate the criminal proceedings. Testimony was introduced that Wood received some of the money from Nelson and Hornback. Borts was allowed to testify that she gave Delaney $7500 and received no money from Delaney in return. Delaney testified he had no intent to defraud the women. He testified the money he borrowed was for Wizard Security Systems or for Wood, and part of the money he received was in compensation for working for Wood. He believed Wood had paid the women back. Delaney was convicted as charged.

The sentencing hearing was continued in order for the State to investigate whether Delaney was involved in deceptive conduct directed at other elderly persons. The State informed Delaney of witnesses it intended to present at the sentencing hearing. Several witnesses testified at the sentencing hearing without objection about their dealings with Delaney, although most knew him by a different name. The district court sentenced Delaney to ten-year terms of incarceration on counts one, two, four and eight and to five-year terms of incarceration on counts three, five, six and seven. The sentences were ordered to run consecutively.

Delaney appeals. He contends the district court erred in refusing to sever the charges and in allowing Borts to testify. He also contends there was insufficient evidence he intended to defraud Nelson and Hornback to support the convictions. Delaney further claims the district court failed to state adequate reasons for imposing consecutive sentences. Delaney points out, and the State concedes, he was improperly sentenced on count four. Finally, Delaney argues that trial counsel was ineffective in failing to object to the witnesses presented at sentencing and to actions of persons in the courtroom during sentencing. He asks that these claims be preserved for postconviction relief.

I. Severance of Charges

We review the trial court's refusal to sever charges on an abuse of discretion standard. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992). We respect the superior vantage point of the trial court and recognize that judicial decisions are infrequently resolved within sharp confines.

Our law permits multiple charges arising from multiple transactions or occurrences constituting parts of a "common scheme or plan" to be prosecuted in a single trial unless the trial court determines otherwise for good cause shown. Iowa R.Crim.P. 6(1). Delaney argues his alleged crimes did not constitute a common scheme or plan, and the trial court abused its discretion in failing to grant a severance.

A "common scheme or plan" requires more than the commission of two similar crimes by a single person. State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971). The crimes must have a common link. Id. Many factors have been developed to help determine the existence of a "common scheme or plan," including modus operandi, continuing motive, and temporal and geographic proximity. State v. Lam, 391 N.W.2d 245, 249-50 (Iowa 1986).

In applying the relevant factors to this case, we are driven to conclude the charges constituted parts of a "common scheme or plan." Although the eight loan transactions covered an eleven month period, the money was obtained by similar bewitching methods accompanied by a continuing self-indulgent motive. The victims also resided in the same community.

We also conclude the trial court did not abuse its discretion in refusing to sever the charges. In reviewing the trial court's decision, we balance any unfair prejudice which could result from a joint trial against the state's interest in judicial economy. State v. Trudo, 253 N.W.2d 101, 104 (Iowa 1977), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977). The burden of proof rests with the defendant. Id.

Here, the circumstances surrounding the eight charges were linked by a common motive and scheme. This link would have supported the admission of evidence of all the charges under Iowa Rule of Evid. 404(b) even if the charges would have been severed. See State v. Johnson, 237 N.W.2d 819, 822 (Iowa 1976). Furthermore, the court instructed the jury to determine Delaney's guilt or innocence "separately on each count." See State v. Simpson, 438 N.W.2d 20, 21 (Iowa App.1989) (explaining that the jury is presumed to follow it's instructions). We conclude the trial court did not abuse its discretion in refusing to separate the charges for trial.

II. Evidence of Other Crimes

It is a recognized rule that evidence of one crime cannot be used to prove another crime. State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979). The principle serves to exclude evidence from trial which is only relevant to show the accused is a bad person and worthy of conviction of the crime charged. Id. This rule, however, does not exclude all evidence of other crimes. Evidence of other crimes or bad acts is admissible when relevant to issues other than the criminal disposition of the accused. Id.

Iowa Rule of Evidence 404(b) codifies the general rule of exclusion, as well as the exception. It specifically allows evidence of other crimes or wrongs to be admitted at trial if offered for such purposes as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Iowa R.Evid. 404(b).

Like other rules of evidence, Rule 404(b) is constrained by Rule 403. Even if evidence of a prior crime is admissible under the spectrum of relevance of Rule 404(b), it must nevertheless be excluded if its probative value is substantially out weighed by the dangers of unfair prejudice. Iowa R.Evid. 403; State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988).

Evidence is relevant if it has a tendency to make the existence of any material fact more probable or less probable than it would be without the evidence. Iowa R.Evid. 401; See United States v. Schipani, 289 F.Supp. 43, 56 (E.D.N.Y.1968) (holding that evidence is irrelevant if no reasonable person would have his or her assessment of the probabilities of a material proposition changed by the particular evidence). The "probative value" of evidence gauges the strength and force of that tendency. Plaster, 424 N.W.2d at 231.

In considering the presence of prejudice, our focus is on unfair prejudice. State v. Coen, 382 N.W.2d 703, 707 (Iowa App.1985). Relevant evidence is inherently prejudicial in the sense of being detrimental to the opposing party's case. Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir.1980). We look beyond this type of inherent prejudice to whether the evidence has an undue tendency to suggest a decision on an improper basis, appeals to the sympathies of the jury, or otherwise might cause the jury to base their decision on something other than the relevant...