State v. Romeo, 94-1371

• Decision Date: 17 January 1996
• Docket Number: No. 94-1371,94-1371
• Citation: 542 N.W.2d 543
• Parties: STATE of Iowa, Appellee, v. John ROMEO, Sr., Appellant.
• Court: Iowa Supreme Court

Page 543

542 N.W.2d 543

49 A.L.R.5th 847

STATE of Iowa, Appellee, v. John ROMEO, Sr., Appellant.

No. 94-1371.

Supreme Court of Iowa.

Jan. 17, 1996.

D. William Thomas of Parrish, Kruidenier, Moss, Dunn, Montgomery & Thomas, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Susan M. Crawford and Douglas Marek, Assistant Attorneys General, and John P. Sarcone, County Attorney, for appellee.

Considered by LARSON, P.J., and CARTER, NEUMAN, ANDREASEN, and TERNUS, JJ.

TERNUS, Justice.

Attorney John Romeo, Sr., defendant, appeals from judgment of conviction and sentence on two counts of tampering with records. See Iowa Code § 715A.5 (1993). His conviction arises from the preparation of two receipts to document his client's "purchase" of two stolen skid loaders. The State claimed that Romeo falsified these receipts to protect his client from criminal charges. The jury agreed.

On appeal Romeo raises three issues: (1) the evidence is insufficient to support the jury's verdict and therefore, the trial court erred in overruling his motion for judgment of acquittal; (2) the trial court also erred in denying his motion for new trial because the State failed to produce tape recordings of conversations between the State's witnesses and authorities; and (3) Romeo was denied his right to a fair trial by the prosecutor's improper remarks during closing argument. We find substantial evidence supports Romeo's conviction. We also conclude that Romeo is not entitled to a new trial because the undiscovered tapes would not have changed the result of his trial and do not undermine our confidence in the jury's verdict. Finally, we hold Romeo failed to preserve error with respect to the prosecutor's closing argument. Therefore, we affirm.

I. Sufficiency of the Evidence.

A. Scope of review. In reviewing the sufficiency of the evidence, we are bound by the jury's finding of guilt unless we conclude the record lacks substantial evidence to support such a finding. State v. Bush, 518 N.W.2d 778, 779 (Iowa 1994). In deciding whether substantial evidence supports a conviction, we view the evidence in the light most favorable to the State, making any legitimate inferences that may fairly and reasonably be deduced from the evidence. State v. Moore, 529 N.W.2d 264, 265 (Iowa 1995). Evidence is substantial if it is sufficient to convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. Direct and circumstantial evidence are equally probative. State v. Parrish, 502 N.W.2d 1, 3 (Iowa 1993).

B. Record evidence. Viewing the evidence in the light most favorable to the jury's finding of guilt, we believe the record shows the following facts. Kevin Schneider, a detective with the Polk County sheriff's office, and Steven Ponsetto, an agent with the Iowa Division of Criminal Investigation, were assigned to investigate a theft ring operating in Iowa. Their investigation included the theft of a 1991 model skid loader in Des Moines on April 23, 1993, and a 1992 model skid loader in Victor on April 24, 1993. These skid loaders had been stolen by Kevin Sonderleiter, Robert Hirsch and Daniel Brown.

A week after the skid loaders were stolen, these three men were caught in an attempted theft in Osceola. Brown was apprehended; he implicated Sonderleiter and Hirsch. The police also discovered that Hirsch had rented the truck involved in the Osceola theft. The authorities tracked Sonderleiter and Hirsch across three states and finally arrested them on June 12, 1993.

On May 17, 1993, during the course of their investigation, the police recovered the 1991 skid loader from Joseph Paulson in Council Bluffs. Paulson agreed to call the person from whom he bought the skid loader--Frank Bode. Paulson spoke with Bode two days later and their conversation was recorded by the police. Paulson told Bode that the police had recovered the 1991 skid loader; Bode said that his attorney, John Romeo, had a sales receipt for the skid loader.

The testimony at trial showed that the sales receipt to which Bode referred had been prepared the day before, on May 18, 1993. On that date at approximately nine in the evening, Romeo met his client, Frank Bode, Sonderleiter and Hirsch at Romeo's office. A female friend of Bode was also present outside Romeo's office. Sonderleiter and Hirsch testified that the meeting was motivated by the police's recovery of the 1991 skid loader. Hirsch testified that Romeo told them Bode was on probation and Romeo wanted a "solution to get the heat off of his client." All four men discussed how to cover up Bode's role in selling the stolen equipment and they arrived at a plan to make false receipts.

Romeo then drafted a receipt on his word processor. The form contained an assurance: "This property that is the subject of this Sales Receipt is sold with the express understanding and seller's assurance that said property is not stolen, borrowed, or of otherwise questionable ownership." Bode filled in two forms, describing the property sold; Sonderleiter and Hirsch signed their names and social security numbers. Sonderleiter and Hirsch said they signed the receipts because they were already wanted by the police for other thefts so they had nothing to lose.

The receipts indicated a purchase price of $5400 for the 1991 model and a purchase price of $6000 for the 1992 model even though Bode paid only $5000 for both. Each machine was worth substantially more than the listed purchase price. The forms also contained blank lines for a witness's signature and for the date. These lines were not completed the night the thieves signed the receipts.

On July 5, 1993, detective Schneider attempted to speak to Bode and was referred to his attorney, Romeo. Schneider contacted Romeo the next day; Romeo told Schneider that he had a receipt for the skid loaders and would give it to Schneider on July 7th. On July 6, 1993, Jodi O'Neal stopped by Romeo's office to inquire about some work Romeo was doing for her. Romeo asked her to sign the receipt for the 1991 skid loader as a witness, telling her she would be doing the police a favor by helping them catch the thieves. She signed the receipt; it was undated at that time.

On the morning of July 7, 1993, Romeo gave the receipt for the 1991 skid loader, now signed by a witness, to Schneider. Romeo assured Schneider that he had only one receipt and that his client had not purchased anything else from Hirsch and Sonderleiter. Schneider noticed that the receipt was dated April 22, 1993, the day before the skid loader was stolen. Romeo confirmed for Schneider that he had prepared the receipt for Bode on April 22 and that O'Neal had witnessed it that night. ¹

Schneider called O'Neal at work that same day. O'Neal told Schneider that she signed the receipt on April 22; she agreed to talk with Schneider in person after lunch. O'Neal was upset after this conversation and called Romeo. Romeo was not in so she left a message on his answering machine telling him that the police were questioning her about the receipt. When O'Neal talked to Schneider that afternoon, she told him what had really happened.

Later on July 7th the police obtained a search warrant for Romeo's office and executed it the next day. The police seized Romeo's file on Bode which included the receipt for the 1992 skid loader and an undated handwritten note showing that at some point in time Romeo knew the skid loaders were stolen. ² Romeo's appointment book was also seized. Romeo submitted into evidence the entry from July 7, 1993:

Gave Kevin Schneider copy of Sales Receipt that Kevin Sonderleiter and Robert Hirsch signed.... Ms. O'Neal signed as witness at my request last evening.... This was necessary in case they talk to these a* * * * * * * (Thiefs) they will assume someone else saw them do so and won't deny their signatures of that evening. Told Kevin she was a client (Dissolution) of mine and I asked her to sign it! I trust he understood that she did not actually witness them signing. They would not have known that the female here was not Ms. O'Neal so it should keep them on guard about denying their signatures. We will see how this action influenced their truthfulness! Now I know these b* * * * * * * are thiefs!!

The note does not state that it was written on July 7th. Even if it was written on that date, it may have been prepared after Romeo received O'Neal's message.

Romeo's appointment book showed that he attended a legal education seminar on April 22, 1993, the date he claimed he prepared the receipts. Although entries on other dates are detailed and show calls received at night, there is no entry on April 22 showing that Romeo met or talked with Bode. There is an entry on May 18, 1993, showing that Romeo met with Bode on a matter unrelated to the receipts.

C. Support for guilty verdict. Iowa Code section 715A.5 (1993) defines the offense of tampering with a record:

A person commits an aggravated misdemeanor if, knowing that the person has no privilege to do so, the person falsifies, destroys, removes, or conceals a writing or record, with the intent to deceive or injure anyone or to conceal any wrongdoing.

Romeo claims the evidence is insufficient to prove the elements of this crime beyond a reasonable doubt. Specifically, he asserts that he is protected by the attorney/client privilege, that he did not falsify a document because he merely printed the blank form, and that he had no intent to deceive anyone or to conceal any wrongdoing. We address each contention separately.

1. Privilege to falsify. Romeo contends there is no evidence that he did anything other than advise Bode not to purchase the skid loaders from Sonderleiter and Hirsch unless they were willing to sign a receipt stating the items were not stolen, and that he gave Bode blank receipts for this purpose. Romeo claims these actions fall within the attorney/client privilege. However, we conclude sufficient evidence was introduced at...