Opinion
No. 3-286 / 02-1033
Filed September 24, 2003
Appeal from the Iowa District Court forBlack HawkCounty, K.D. Briner and Jon C. Fister, Judges.
Willis Morris appeals from the judgment and sentence entered upon his conviction for second-degree theft, as a habitual offender. CONVICTIONS VACATED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Thomas Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Willis Morris appeals from the judgment and sentence entered upon his conviction for second-degree theft, as a habitual offender. We vacate Morris's conviction.
Background Facts and Proceedings.
At around 4:30 a.m. on October 6, 2001, Brian Gonzalez left his Waterloo house to warm up his truck before leaving for work. Upon returning to his house to retrieve his coat and wallet, he heard his truck's engine and ran outside to see an individual driving it away. He reported the incident to the police.
Officer Aaron McClelland responded to the report and obtained information about the truck. Approximately a half hour later, Officer McClelland saw the truck as it drove northbound on Clay Street. The officer followed the truck until it stopped and the driver, an older white-bearded male wearing a camouflage jacket, ran away. A canine unit responded to McClelland's request for assistance and later located Willis Morris hiding on the front porch of a nearby house. Officer McClelland identified Morris as the individual who had abandoned the truck.
Based on this incident the State charged Morris with second-degree theft, in violation of Iowa Code sections 714.1 and 714.2(2) (1999), and it later amended the trial information to add a habitual offender allegation under sections 902.8 and 902.9(3) (Supp. 1999). Following a trial, the jury found Morris guilty as charged, and the court sentenced him to a fifteen-year indeterminate term of imprisonment. The sentence also included a fine of $750, which was suspended. Morris appeals, contending his theft conviction is not supported by substantial evidence and the fine is illegal. We vacate the convictions.
Standards of Review.
When challenges are made to the sufficiency of the evidence supporting a jury verdict, the verdict will be upheld if there is substantial evidence to support it. State v. Barrett, 445 N.W.2d 749, 753 (Iowa 1989). Evidence is "substantial" if it could convince a rational fact finder that the defendant is guilty of the crime charged beyond a reasonable doubt. State v. Constable, 505 N.W.2d 473, 478 (Iowa 1993). When considering insufficiency of evidence challenges, we examine the evidence in a light most favorable to the State. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980).
We review challenges to the trial court's interpretation and application of sentencing statutes for correction of errors at law. State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000).
Second-Degree Theft.
The district court instructed the jury on both second-degree theft and its lesser-included offense of operating a motor vehicle without owner's consent, in violation of Iowa Code section 714.7. Morris maintains the district court erred in failing to grant his motion for judgment of acquittal based on the insufficiency of the evidence to support his conviction for second-degree theft. In particular, he claims the evidence is insufficient to establish he took the truck with the specific intent to permanently deprive Brian Gonzalez of it. Morris contends, at best, the State proved he was guilty of operating a motor vehicle without the owner's consent, and not second-degree theft.
A person violates this section when he or she takes possession of a vehicle without the consent of the owner but without intent to permanently deprive the owner thereof.
The offense of theft is defined in section 714.1(1), which states that a person commits theft when he "[t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof." "Intent" in this context refers to an intent to permanently deprive the owner of his or her property. State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999).
Proof that Morris acted with the specific purpose of permanently depriving Gonzalez of his truck requires a determination of what Morris was thinking when the act was done. Proof of such intent is seldom accomplished with direct evidence. See State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989). Therefore, the facts and circumstances surrounding the act, as well as any reasonable inferences to be drawn from those facts and circumstances, may be relied upon to ascertain Morris's intent. See State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). Accordingly, we examine the record for facts and circumstances that would support an inference Morris intended to more than temporarily take possession of the truck.
In State v. Schminkey our supreme court was faced with an identical legal question set in a similar factual situation. There, William Schminkey spent the evening drinking at a party and later at a bar. Schminkey, 597 N.W.2d at 790. After leaving the bar, he took a pickup owned by a man Schminkey did not know and drove it from Blairstown to Van Horne. Id. Upon reaching Van Horne, he drove through a controlled intersection striking a vehicle, whose only occupant would later die, and sped away, continuing for another block before crashing into a fence. Id. at 787. Schminkey later pleaded guilty to homicide by vehicle and theft of a motor vehicle. Id. On appeal from the theft conviction, the supreme court reversed, finding the guilty plea had no factual basis in the record in that no facts would allow an inference Schminkey intended to permanently deprive the owner of the vehicle. Id. at 790.
The court noted the mere fact Schminkey took the pickup without the owner's consent does not give rise to an inference that he intended to permanently deprive the owner of the vehicle. Id.at 791. The same analysis should apply here, and thus we must look for other facts or circumstances indicating Morris's intent in taking the truck.
We conclude the circumstances surrounding the taking of the truck do not constitute sufficient evidence that Morris intended to take permanent possession of the truck with the specific intent to deprive Brian Gonzalez of its use. We first note there are no admissions from Morris in the record shedding light on his intent. We may look to the distance of dispossession as a potential factor shedding light on Morris's intent. As noted, police discovered Morris approximately five to six miles from where he took the car, and still within the city limits of Waterloo. Comparatively, in Schminkey,the appellant drove the car to an entirely different town after taking possession of it. Schminkey, 597 N.W.2d at 790. Consistent with our supreme court's disposition of Schminkey, we conclude the distance driven by Morris is not substantial evidence of an intent to permanently deprive the owner of the vehicle.
Moreover, we consider the temporal duration of dispossession not to be probative of Morris's intent to either temporarily or permanently deprive the owner of possession. It appears Morris possessed the car for about one half hour. Unlike Schminkey, Morris didn not leave town during that time. Moreover, by continuing to drive on city streets, Morris made no effort to conceal the vehicle in a manner raising an inference of an intent to permanently deprive the owner.
We next consider whether Morris's conduct after law enforcement officers observed him driving the vehicle constitutes sufficient evidence of intent. He abandoned the vehicle and hid on a porch, in an apparent attempt to avoid detection by police. He was located when a canine unit later detected him. We conclude this circumstantial evidence is not probative of Morris's intent to permanently deprive the owner of possession. Presumably, all unauthorized drivers, including both those that have committed a theft offense and those merely driving without authorization, prefer to avoid detection and avoid apprehension. Thus, we do not believe a reasonable fact-finder may infer from
this post-detection conduct an intent to permanently deprive.
Our conclusion on this point is based in part upon our supreme court's apparent determination that no inference of intent to permanently deprive arose from Schminkey's hit-and-run behavior while driving a vehicle without its owner's consent. There the court found "[Schminkey] appeared to be fleeing the scene, accelerating the engine and proceeding down the road for another block or so before crashing into a fence." Schminkey, 597 N.W.2d at 787. Even given this recitation of the facts, the court still concluded "We find [no facts] indicating that he intended to do anything more than temporarily use the vehicle . . . ." Id. at 791. Thus we infer from this our supreme court concludes this type of "fleeing" conduct does not support an inference of intent to permanently deprive
Accordingly, we conclude the district court erred in denying Morris's motion for judgment of acquittal on sufficiency of the evidence grounds. We therefore vacate the second-degree theft conviction and habitual offender violation. We remand for proceedings consistent with this opinion.
CONVICTIONS VACATED AND REMANDED.
Eisenhauer, J., concurs; Zimmer, P.J., concurs specially.
I specially concur. I agree with the majority's conclusion that our supreme court's rationale in State v. Schminkey, 597 N.W.2d 785 (Iowa 1999) requires us to reverse this case. Having said that, I believe that more than a few judges, prosecutors and defense attorneys will be surprised to learn the facts proved by the State in this case are not sufficient to support a guilty verdict for the offense of theft in the second degree. I write specially to stress that some fact patterns, which have previously been sufficient to generate a jury question and support a conviction in vehicle theft situations, may no longer be adequate to the task.