State v. McGrean
| Decision Date | 10 April 2013 |
| Docket Number | No. 12–0537.,12–0537. |
| Citation | 832 N.W.2d 384 |
| Parties | STATE of Iowa, Plaintiff–Appellee, v. Timothy Daniel MCGREAN, Defendant–Appellant. |
| Court | Iowa Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
A defendant appeals from his conviction for criminal mischief in the third degree challenging the sufficiency of the evidence and his attorney's effectiveness. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, John Sarcone, County Attorney, and Justin Allen, Assistant Count Attorney, for appellee.
Considered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.
Timothy McGrean appeals from his conviction for criminal mischief in the third degree alleging there was insufficient evidence to prove (1) he aided and abetted another in the commission of the offense, (2) he had the requisite specific intent, and (3) he damaged property with a value exceeding $500 but no more than $1000. He also asserts his counsel was ineffective in (1) failing to request a jury instruction on the specific intent necessary for aiding and abetting, (2) failing to object to a jury instruction that did not conform to the evidence, and (3) failing to object to prosecutorial misconduct. As we find insufficient evidence to support the jury verdict, we reverse McGrean's conviction and remand for a new trial.
McGrean and his wife, Pam, were formerly neighbors of Merle Powell. On September 1, 2011, Pam asked Powell for a ride to her ex-husband's house. Pam was intoxicated, but Powell obliged. Powell left after a fight erupted between Pam and her ex-husband.
Meanwhile, McGrean had learned Pam was intoxicated at Powell's home. McGrean contacted Pam's son, Jacob, to pick him up and take him to Powell's home to retrieve Pam. When Jacob and McGrean arrived, they discovered Pam had already left with Powell.
Charlotte Howard, Powell's long-term girlfriend, heard her dogs barking and looked out her window to see McGrean striking Powell's truck with what she believed was a baseball bat. She also observed Jacob standing nearby. Howard watched as McGrean broke the windows, side mirrors, and headlights out of the truck. She contacted the police, who arrived after McGrean and Jacob left. Powell was also alerted to the incident and arrived back home after the police were on scene.
The State filed a trial information charging McGrean with criminal mischief in the second degree. The case proceeded to a jury trial, where Jacob testified he was the one that struck Powell's truck breaking all the windows, mirrors, and lights. Jacob claimed McGrean did not know he was going to do it until right before he struck the truck with a crowbar. Powell, an automobile mechanic, testified the non-operable truck was worth $2500, and it had not been repaired because the repair shop said the damage was more than the truck was worth.
The jury found McGrean guilty of the lesser-included offense of third-degree criminal mischief. He received a two-year suspended sentence and was placed on probation for two years. He now appeals.
Our review of challenges to the sufficiency of the evidence is for correction of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We consider all the evidence in the light most favorable to the State including all reasonable inferences. Id. The jury's verdict will be upheld if it supported by substantial evidence, which is evidence that can convince a rational jury that the defendant is guilty beyond a reasonable doubt. Id.
McGrean's claims that his counsel rendered ineffective assistance are reviewed de novo as they involve a defendant's right to counsel under the Sixth Amendment. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). These claims are normally preserved for possible postconviction relief proceedings, unless the record is adequate to address the issue on direct appeal. Id.
To prevail on a claim of ineffective assistance of counsel, a claimant must satisfy the Strickland test by showing “(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.”
Id. at 495 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
The marshaling instruction on the charge of criminal mischief in this case stated:
1. On or about the 1st day of September, 2011, the Defendant damaged, altered, or destroyed a motor vehicle belonging to Charlotte Howard or Merle Powell, or aided and abetted another person in doing so.
2. The Defendant or the person he aided and abetted intended to do the acts which damaged, altered, defaced, or destroyed the motor vehicle.
3. When the Defendant or the person he aided and abetted damaged, altered, defaced, or destroyed the motor vehicle, he did not have the right to do so.
In a later instruction, the jury was asked to determine the degree of criminal mischief based on the cost of repairing or replacing the damaged property. On appeal, McGrean challenges the sufficiency of the evidence to prove he was the perpetrator or aided and abetted the crime or that he had the specific intent to commit the offense. He also claims the evidence is insufficient as to the value of the property.
The State concedes McGrean preserved error with respect to his challenge to the sufficiency of the evidence on the value of the property, but it asserts he failed to make an adequate motion for judgment of acquittal with respect to his challenge to his identity as an aider and abettor and his challenge to the specific intent. We agree.
To preserve error on a challenge to the sufficiency of the evidence, a defendant “must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal.” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). At trial, defense counsel only specifically challenged the sufficiency of the evidence on the value element. Therefore, McGrean failed to preserve error on his challenge to the specific intent or the identity elements.
Anticipating the error preservation issue, McGrean raises the claim in the vein of ineffective assistance of counsel. See State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (). While normally ineffective-assistance-of-counsel claims are preserved for postconviction relief proceedings, “[a] claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal.” Truesdell, 679 N.W.2d at 616.
Clearly, if the record in this case fails to reveal substantial evidence to support the convictions, counsel was ineffective for failing to properly raise the issue and prejudice resulted. On the other hand, if the record reveals substantial evidence, counsel's failure to raise the claim of error could not be prejudicial.
A. Value of the Property. The jury returned a verdict finding “[t]he cost of repair or replacement is more than $500 but not more than $1000.” McGrean claims there is not sufficient evidence to support this verdict. Powell testified he was an automobile mechanic, and while the truck was not running before the incident, it was worth $2500 as a four-wheel drive vehicle. He also testified that he took the truck to a body shop but was unable to have it fixed because the damage exceeded the value of the truck. Defense counsel challenged the value of the truck at trial pointing out that the police officer who investigated the crime put in his report that there was not a substantial loss of property. However, in his closing argument, defense counsel suggested the $500 figure to the jury on several occasions:
Jurors are entitled to use their own common knowledge and experience with respect to the value of the property damaged. See State v. Theodore, 150 N.W.2d 612, 616 (Iowa 1967) (). We find sufficient evidence to support the jury's verdict as to the value of the property damaged.
B. Identity. This case was submitted to the jury with alternate theories. The jury could either find McGrean was guilty as the principal or as an aider and abettor. McGrean does not attack the sufficiency of the evidence with respect to his identity as the principal. Howard's testimony provided ample support for the charge that McGrean himself caused the damage as she specifically identified him as the perpetrator. However, McGrean asserts on appeal that the evidence is not sufficient to prove he aided and abetted another in the commission of the offense.
The jury was instructed in the alternative, but there is no indication as to what theory they accepted.
The rule in Iowa is that while the jury must be unanimous on whether a defendant committed a crime, when alternative modes or theories of commission of a particular crime are presented, the jury need not be unanimous on a particular means of commission of the crime if substantial evidence to support each alternative [exists], and those alternative modes are not repugnant or inconsistent with [each] other.
Gavin...
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