Opinion
No. 5-309 / 04-0067
Filed May 11, 2005
Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.
Defendant appeals from his convictions for stalking with a dangerous weapon and two counts of second-degree criminal mischief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Rosalise Olson, County Attorney, and Kristin Rienfeld, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Hecht, JJ.
Michael Daniel Greene appeals from his convictions for stalking with a dangerous weapon, in violation of Iowa Code section 708.11(3)(b) (2003), and two counts of second-degree criminal mischief, in violation of section 716.4. He contends the district court erred in overruling his motions for judgment of acquittal and in denying his motion to suppress. He also contends his trial counsel was ineffective. We affirm.
I. Background Facts and Proceedings.
A reasonable person viewing the record in the light most favorable to the State could find the following facts. In March 2001, Katy Miller broke up with Greene, her live-in boyfriend. Over the next eighteen months, Greene engaged in conduct that eventually led to the stalking and criminal mischief charges at issue in this case. Greene threatened to "do something" if Miller did not get back together with him, or if she called the police. He physically restrained Miller on one occasion, withheld her keys from her, and punched her car window. Personal items Miller left at the farmhouse she shared with Greene began to show up at her home and her work, often times vandalized. On one occasion, damaged clothing appeared with a letter from Miller's doctor; the letter had been sent to Miller's new address and was one of several pieces of mail she had not received. Greene called Miller frequently despite Miller asking him to leave her alone. He was spotted by Miller and her new boyfriend near her cabin on several occasions. A hammock at the cabin was cut down, apparently with a chainsaw, and items were discovered missing. Miller's tire was punctured and her license plate crumpled. Four of her parent's tires were punctured. Signs appeared at Miller's place of work and around Dickinson County intending to harass her. Letters intended to embarrass Miller were sent to her family and friends. These letters included a high school picture of Miller. Miller also received a threatening letter.
In February 2002, Miller obtained a temporary restraining order against Greene. During the six months it was in effect, Miller did not have any difficulties. However, the day after the restraining order expired the word "stalker" was painted on the side of her car and on her window at work. The following month, the word "stalker" was spray painted on the side of her cabin and a large rock was thrown through a window. In December 2002, the word "stalker" was again spray painted on the side of the cabin and a frozen skunk was thrown through a window.
Police obtained a search warrant for Greene's house and vehicle in February 2002. At his house, officers discovered Miller's high school yearbook, several pieces of unopened mail addressed to Miller, paint, and a chain saw. In Greene's truck, officers found a bag containing articles of Miller's clothing. The type of metal used to puncture the tires of Miller and her parents was used at Mauer Manufacturing, Greene's place of employment. A bolt used to erect one of the signs intended to harass Miller was also traced to Mauer Manufacturing. The ribbon from a typewriter used at a distributing company where Greene worked was also connected to several notes and envelopes involved in the case.
Greene was tried to a jury in December 2003 and found guilty of stalking with a dangerous weapon and two counts of second-degree criminal mischief.
II. Judgment of Acquittal.
Greene first contends the district court erred in denying his motions for judgment of acquittal. Denial of a motion for judgment of acquittal is reviewed for errors at law. Iowa R. App. P. 6.4. A guilty verdict will be binding on appeal so long as it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is found when, viewing all the evidence in the light most favorable to the State, a rational trier of fact could be convinced of the defendant's guilt beyond a reasonable doubt. Id.
A. Stalking with a dangerous weapon.
The jurors were instructed that Greene could not be found guilty of the stalking charge unless the State proved the following elements beyond a reasonable doubt:
1. Between March 2001 and September 2002 in Dickinson County, Iowa, the Defendant purposefully engaged in a course of conduct directed at Katy Miller that would cause a reasonable person to fear bodily injury to, or death of Katy Miller.
2. The Defendant knew or should have known that Katy Miller would be placed in reasonable fear of bodily injury or death.
3. The Defendant's course of conduct caused Katy Miller to fear bodily injury or death.
4. While engaging in this course of conduct, the Defendant was in possession of a dangerous weapon.
"Course of conduct" is defined as "repeatedly maintaining a visual or physical proximity to a person without legitimate purpose or repeatedly conveying oral or written threats, threats implied by conduct, or a combination thereof, directed at or toward a person." Iowa Code § 708.11(1)(b).
We conclude substantial evidence supports the jury's verdict on the charge of stalking with a dangerous weapon. The crime of stalking merely requires proof of purposeful conduct directed at a specific person that would cause a reasonable person to fear injury to that specific person. State v. Neuzil, 589 N.W.2d 708, 711 (Iowa 1999). Here, the jury could have found beyond a reasonable doubt that Greene told Miller if she did not reunite with him or if she called the police he "would do something." At the time of that verbal exchange, Miller physically restrained Miller for an hour, withheld her keys from her, and punched her driver side window. Miller's property was thereafter repeatedly vandalized and Greene was observed near her home. Greene called Miller and asked if she was too lazy to mow her own lawn, suggesting he has been watching her home. A threatening letter was sent, warning Miller to "stay out of Clay County, Spirit Lake, Milford bars, eating places, etc." Miller's car tire was punctured, and she noticed this after driving a block. Her parent's tires were similarly punctured several months later. The word "stalker" was painted on her home and at her place of employment.
We conclude the record contains ample evidence supporting a finding that Greene's conduct would cause a reasonable person to fear bodily injury; and that Greene should have known Miller would be placed in reasonable fear of bodily injury due to his conduct. Miller repeatedly told Greene to leave her alone. Miller testified that she feared bodily harm, stating that she no longer did anything alone for fear of Greene.
Greene further contends the State failed to prove the final element of the stalking charge, that while engaged in this course of conduct he possessed a dangerous weapon. Iowa Code section 702.7 states:
A "dangerous weapon" is any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed. Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon.
(Emphasis added).
When viewing the evidence in the light most favorable to the State, we conclude a rationale trier of fact could determine Greene used a metal shard to puncture Miller's tire in such a manner as to indicate he intended to inflict serious injury on her. Greene was connected circumstantially to that shard and other shards used to damage the tires on Miller's parents automobile when such metal pieces were found on the premises of Greene's employer. The shard placed in contact with Miller's car tire created a risk of a flat tire or a blowout and serious injury to Miller.
When viewed in the light most favorable to the State, this evidence constitutes substantial evidence sufficient to convict Greene beyond a reasonable doubt of stalking with a dangerous weapon. We therefore affirm the district court's denial of his motion for judgment of acquittal on this charge.
B. Criminal mischief.
The district court also instructed the jury in regard to two counts of second-degree criminal mischief connected to Greene's alleged vandalism. These counts refer to separate incidents in which the word "stalker" was found spray-painted on Miller's cabin. Greene only challenges the sufficiency of the evidence to prove he was the vandal.
We conclude there is substantial evidence connecting Greene to both incidents of vandalism. As we have already determined, the record contains sufficient evidence to prove beyond a reasonable doubt that Greene engaged in a course of conduct designed to intimidate, frighten, and harass Miller. When Miller obtained a restraining order against Greene, this conduct temporarily ceased. The day after the restraining order expired, Miller found the word "stalker" had been spray-painted on her car and the window at her workplace. The word "stalker" was also spray painted on her cabin on August 29, 2002 and on December 21, 2002. When police executed a search warrant on Greene's home, they discovered both paint and a paint sprayer. A reasonable trier of fact could find from this and other evidence in the record that Greene committed both acts of vandalism. Accordingly, we affirm the district court's denial of Greene's motion for judgment of acquittal on both counts of criminal mischief.
III. Motion to Suppress.
Greene next contends the district court erred in denying his motion to suppress evidence seized pursuant to a search warrant. He contends the evidence was unlawfully seized because there was not probable cause to issue the warrant. Because it implicates constitutional issues, we review this claim de novo. State v. Vincik, 398 N.W.2d 788, 789 (Iowa 1987).
A search warrant must be supported by probable cause. U.S. Const. amends. IV, XIV, § 1. Probable cause to search requires a probability determination that (1) the items sought are connected to criminal activity, and (2) the items sought will be found in the place to be searched. State v. Seager, 571 N.W.2d 204, 210 (Iowa 1997). Where a warrant is not supported by probable cause, any evidence seized pursuant to that warrant must be suppressed. Id.
Reviewing courts are obliged to give great deference to a magistrate's finding of probable cause to search. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). Our task is not to make an independent determination of probable cause, but only to determine whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Id. This determination is based upon the totality of the circumstances. Id. Close cases must be resolved in favor of upholding warrants, as public policy is promoted by encouraging officers to seek them. Id. Courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner. Id.
We find no error in the district court's denial of Greene's motion to suppress. The items to be seized were sufficiently detailed to distinguish them from what Greene characterizes as "garden-variety objects." Each item listed in the warrant was connected to Greene's stalking of Miller and the vandalism of her property. The facts presented in the affidavit were sufficient to support a finding of probable cause to issue the warrant.
Additional items were seized when the search warrant was carried out. These items were in plain view of the officer who had knowledge connecting them to the crimes. Accordingly, they were validly seized. See State v. Swaim, 412 N.W.2d 568, 575 (Iowa 1987) (holding an officer executing a valid search warrant may seize additional incriminating evidence found during the execution of the warrant).
IV. Ineffective Assistance of Counsel.
Greene also contends his counsel rendered ineffective assistance in failing to object to three jury instructions.
We review claims of ineffective assistance of counsel de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct.App. 2001). To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance of counsel focuses on whether counsel's performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A strong presumption exists that counsel's performance fell within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
Greene contends his counsel was ineffective in failing to challenge three jury instructions that refer to his guilt or innocence. He claims the use of the word "innocence" shifted the burden to him to prove his innocence. However, similar claims have been previously rejected by our supreme court. The use of the term "innocent" in jury instructions is not error where other jury instructions correctly allocate to the State the burden of proof and to the defendant the presumption of innocence until proven guilty beyond a reasonable doubt. State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004). The court so instructed here. Accordingly, Greene's counsel did not have a duty to object to the jury instructions.