Opinion
No. 3-386 / 02-1083
Filed August 27, 2003
Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge.
Golie appeals his conviction for second-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Travis Beau Golie and his friend Dennis Evanson were traveling down a Dunkerton road when Benjamin Buol backed into their path with his pickup truck. Golie and Evanson intercepted Buol's vehicle and forced it to a standstill along the road. Golie got into the passenger side of Buol's vehicle and asked Buol for various items, including his wallet.
Eventually, a passerby alerted Dunkerton police to the escalating situation. The police chief came to the scene, followed by a deputy sheriff. The deputy activated a video camera and taped his subsequent interaction with Buol and Evanson.
As a result of the incident, the State charged Golie with second-degree robbery and other crimes not at issue here. Iowa Code § 711.3 (2001). A jury found Golie guilty of the robbery charge and the district court denied his post-trial motions and sentenced him to prison.
On appeal, Golie contends the district court erred in concluding the evidence was sufficient to support his conviction. He also challenges the court's decision to exclude the audio portion of the videotape and he raises several ineffective-assistance-of-counsel claims. We affirm.
I. Sufficiency of the Evidence
The jury was instructed that the State would have to prove the following elements of second-degree robbery:
(1) On or about the 8th day of January, 2002, the defendant had the specific intent to commit a theft.
(2) In carrying out his intention or to assist him in escaping from the scene, with or without the stolen property, the defendant:
a. Committed an assault on Benjamin Buol, or
b. Threatened Benjamin Buol with or purposely put Benjamin Buol in fear of immediate serious injury, or
c. The Defendant aided and abetted, as defined in these instructions, Dennis Evanson.
Golie contends there was insufficient evidence to support the specific intent element and the district court erred in concluding otherwise. See State v. Hawkins, 620 N.W.2d 256, 258-59 (Iowa 2000) (setting forth scope of review). In particular, he claims:
asking of the existence of certain items does not demonstrate specific intent to steal them, and the actual non-existence of said items makes it quite impossible for him to intend to steal them, or do anything with, or to them with specific purpose in mind.
We disagree with this characterization of the specific intent requirement. As the district court instructed,
[a] person has the specific intent to commit a theft if he or she intends to take possession or control of property in the possession of another person with the specific purpose in mind of depriving the other person of the property.
A reasonable juror could have found that Golie intended to take possession or control of items in Buol's possession with the specific purpose of depriving him of the property, even though he did not actually do so. See State v. Coffin, 504 N.W.2d 893, 895 (Iowa 1993) (examining elements of second-degree robbery). Viewed in the light most favorable to the State, the record reveals Golie got into Buol's vehicle and asked if Buol had any liquor, drugs, or guns. Golie also told Evanson, who was intermittently standing next to the driver's side window of the pickup, that if Buol took off, he should ram the pickup with their vehicle. Buol testified he "didn't know whether they were gonna try and kill me there or not." After a few minutes, Golie again asked Buol if he had any money, alcohol, or guns in his truck. When Buol said no, Golie asked him where his wallet was. Buol responded that he did not have one and did not know what he could do to get out of the situation. Golie responded, he "better think of something" or persuade them to let him go. This exchange went on for about twenty minutes. Then, Evanson and Golie told Buol to drink a vodka/orange juice mixture they had prepared, because he was going to "need it." At this point, a friend of Buol's drove by and slowed down, but Evanson told the friend to get "out of" there. Evanson and Golie told Buol to move his vehicle to the side of the road and, if police came by, to tell them the three were old friends who were just talking.
These facts amount to substantial evidence in support of the first, specific intent element. To the extent Golie also disputes the second element, a jury reasonably could have found from the recounted evidence that Golie either assaulted Buol or threatened or purposefully placed him in fear of immediate serious injury.
II. Hearsay
Defense counsel sought to introduce a copy of the videotape taken by the deputy sheriff. The State responded, "[n]o objection, subject to record I'd like to make." The court received the videotape and, at a break in the proceedings, considered and sustained the State's objection to the audio portion of the tape on the ground it contained hearsay statements from Evanson.
Preliminarily, Golie contends "the State failed to preserve error when it acceded to the admission of" the videotape. We believe the State made an adequate record of its objection to the audio portion of the tape.
Golie next takes issue with the merits of the court's ruling, contending the audio portion should have been admitted under the "excited utterance" exception to the hearsay rule. See Iowa R. Evid. 5.803(2) (2001). Our review of this issue is for error. See State v. Long, 628 N.W.2d 440, 447 (Iowa 2001). See also State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001) (reviewing district court's fact findings for substantial evidentiary support in ruling excluding hearsay evidence).
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801 (c). Subject to certain exceptions, hearsay is not admissible. Iowa R. Evid. 5.802. One exception is an "excited utterance," which is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Iowa R. Evid. 5.803(2). The utterance "must be made under the influence of the excitement of the incident rather than upon reflection or deliberation." State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). In deciding whether to apply the exception, district courts
should consider (1) the time lapse between the event and the statement, (2) the extent to which questioning elicited the statements that otherwise would not have been volunteered, (3) the age and condition of the declarant, (4) the characteristics of the event being described, and (5) the subject matter of the statement.Id.
The district court refused to construe Evanson's taped statements as excited utterances, stating, "I don't think anybody's testified that it would be an excited utterance. They said he was agitated. I don't know if that qualifies." This finding is supported by substantial evidence, as the deputy sheriff who questioned Evanson stated only that Evanson was engaging in "[r]eal loud agitated speech, saying the same things over and over."
More importantly, assuming it was error not to construe Evanson's statements as excited utterances based on the other Atwood factors, the error was harmless. See State v. Ritchison, 223 N.W.2d 207, 212 (Iowa 1974) (stating "the evidence defendant desired to introduce before was otherwise established and any error in denying defendant's initial attempt was made nonreversible."). Cf. State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003) (stating "where substantially the same evidence is in the record, erroneously admitted evidence will not be considered prejudicial.") (emphasis added). Evanson's taped statements were offered to corroborate Golie's assertion that the two had no specific intent to rob Buol, but were merely upset that Buol backed into their path. However, evidence of Evanson's displeasure with Buol's driving had already been introduced through Buol and the deputy sheriff. As the taped statements were cumulative, the error, if any, in excluding them does not mandate reversal.
III. Ineffective Assistance of Counsel
Golie claims his attorney was ineffective in various respects. Our review of this constitutional issue is de novo. State v. Myers, 653 N.W.2d 574, 576 (Iowa 2002). To prevail, the defendant ordinarily must show (1) counsel failed to perform an essential duty and (2) the defendant was prejudiced as a result. Id. at 576-77.
A. Admissibility of Audiotape-Present Sense Impression Exception
Golie contends his attorney failed to also seek admission of the audio portion of the videotape under the "present sense impression" exception to the hearsay rule. "Present sense impression" is "[a] statement describing or explaining an event or condition, made while the declarant was perceiving the event or condition or immediately thereafter." Iowa R. Evid. 5.803(1).
In seeking the admission of Evanson's taped statements, defense counsel did not cite to a specific exception to the hearsay rule, but his assertions were sufficient to avoid an ineffective assistance claim. Defense counsel noted that the statements were "not hearsay so much as this happened or that happened." He went on to note, "[i]t's the actual events that take place." Later, he stated, "as far as Mr. Evanson goes, fighting with the police officers and stuff, that's the events of the evening. That's what the charge is about." We believe these statements were sufficient to preserve error. See Henkel v. R and S Bottling Co., 323 N.W.2d 185, 190-91 (Iowa 1982) (stating objection, while not a model of clarity or specificity, was sufficient to alert the court to claims).
Turning to the merits, we conclude the district court's refusal to admit Evanson's videotaped statements pursuant to this hearsay exception, if error, was harmless error because, as noted, the statements were cumulative.
B. Admissibility of Audiotape — Then Existing State of Mind Exception
Golie next contends counsel failed to seek admission of the audio portion of the videotape under the "then existing mental, emotional, or physical condition" exception to the hearsay rule, defined as:
"[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
Iowa R. Evid. 5.803(3). Again, we disagree with Golie that his attorney did not raise this exception. Counsel referred to "the attitudes" of the various participants and "how they looked on their faces." Counsel further explained that Evanson's taped statements described his intent "to get an apology from this person." In our view, these assertions were sufficient to alert the court that he was also relying on this exception to the hearsay rule. Therefore, we need not review this issue as an ineffective-assistance-of-counsel claim.
Turning to the merits, we conclude the court's failure to admit the evidence pursuant to this exception, if error, was harmless error, as similar evidence was already in the record.
C. Failure to Request Instruction on Extortion as Lesser Included Offense
Golie finally contends his trial attorney should have asked for an instruction on extortion as a lesser included offense. However, our highest court rejected this argument in State v. Coffin, 504 N.W.2d 893, 895-96 (Iowa 1993). Accordingly, we conclude trial counsel did not breach an essential duty by failing to request this instruction.
IV. Disposition
We affirm Golie's judgment and sentence for second-degree robbery.