Opinion
No. 3-655 / 03-0346
Filed November 17, 2003
Appeal from the Iowa District Court for Black Hawk County, Joseph M. Moothart, District Associate Judge.
Defendant appeals from conviction and sentence for criminal mischief. REVERSED AND REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Thomas Ferguson, County Attorney, and Michael Bandy, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, JJ.
Jacob Smith appeals from his conviction and sentence for criminal mischief in the second degree, in violation of Iowa Code sections 716.1 and 716.4 (2001). Because we conclude Smith's conviction was not supported by substantial evidence, we reverse his conviction, vacate his sentence, and remand this matter to the district court for dismissal.
The State charged Smith with criminal mischief after a group of young men damaged a car in Waterloo, Iowa during the early morning hours of August 13, 2002. At Smith's trial the State introduced, over Smith's objections, an audio tape of a 911 phone call. The person on the tape identifies herself as Cheryl Wellner, and states that a group of "boys" has just vandalized a car behind her home. She initially declines to identify any of the perpetrators over the phone. The caller states that one of the young men threatened to kill her if she identified him to police, and that she will divulge the names of the perpetrators when police arrive. Mid-way through the call the 911 operator asks the caller if the man who threatened her is named Jake Smith. The caller responds "Yup. . . . How'd you know? . . . Yeah, Jake Smith and Jadin Neymery and I don't know the other two."
The State also introduced, without objection, testimony from Greg Erie, one of the police officers who responded to the 911 call. Officer Erie stated he spoke with the person who made the 911 call. He testified he knew the caller, and that person was Cheryl Wellner. The following exchange then took place:
Q. Did [Wellner] identify any of the individuals that caused that damage? A. She told me there was two people that she knew for sure. One of them was Jadin Neymery and Jake Smith. . . .
Q. Are you familiar with what Jake Smith looks like? A. Yes. He's sitting right there (indicating).
The 911 tape and Officer Erie's testimony were the only evidence tying Smith to the vandalism of the vehicle behind Wellner's home.
Although Smith challenges the admission of the 911 tape and Officer Erie's testimony on multiple grounds, we find it unnecessary to reach the merits of these claims. Smith also challenges the sufficiency of the evidence to support his conviction. Upon our review of this claim for the correction of errors at law, see State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001), we conclude that, even if the tape and testimony were properly before the jury, the record did not contain sufficient evidence to support Smith's conviction.
To be upheld a jury verdict must be supported by substantial evidence, or evidence that could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. The totality of the evidence is viewed in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998). However, the evidence must raise a fair inference of guilt as to each essential element of the crime. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). It is not enough for the evidence to raise only speculation, suspicions, or conjecture. Id.
Clearly, one element the State must prove for any crime is that the accused is the same person who committed the illegal acts. Smith argues nothing in the record demonstrates that the individual identified as Jake Smith by Cheryl Wellner is the same individual that was charged with the crime, present in the courtroom, and identified by Officer Erie as Jake Smith. The State counters that the jury could infer from Officer Erie's testimony that the two Jake Smiths were one in the same. We cannot agree.
Although the State claims error has not been preserved on this issue, Smith did move for a judgment of acquittal at the close of evidence, contending that "[n]o one was able to place [Smith] at the scene as no one saw him at the scene of this incident, and the fact that Cheryl Wellner was not present today." We conclude this objection was sufficient to alert the district court to an assertion that the State had failed to demonstrate Smith was the individual identified by Wellner as one of the perpetrators of the vandalism. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding error not preserved where motion for judgment of acquittal does not point out the specific deficiencies in the evidence). It also appears the district court was alerted to the substance of Smith's claim, as it ruled that "there would be enough evidence in the record to sustain a finding it was Mr. Smith who was at the scene. . . ." (Emphasis added).
Based on the evidence, a rational fact finder could conclude that a young man named Jake Smith, known to Cheryl Wellner, vandalized the car behind Wellner's home. The fact finder could further conclude Officer Erie is also familiar with an individual named Jake Smith, and that individual was the defendant. However, under Iowa law, identity of name alone does not establish identity of person. See State v. Sanborn, 564 N.W.2d 813, 815 (Iowa 1997).
There must be some further evidence, beyond the name, from which the jury could infer that the defendant Jake Smith, and the Jake Smith identified by Wellner, were the same man. Cf. id. at 816 (determining the jury could infer a match was made between the defendant and a Florida judgment based on more than identify of name, where Iowa provided Florida not only a full name but other identifying information, such as a social security number and date of birth). This is particularly true where, as here, the defendant bears a common name. See id. (citing State v. Post, 251 Iowa 345, 349, 99 N.W.2d 314, 317 (1959) which observed "[i]t is apparent John Smith is a much more common name than Omer E. Post."). While the quantum of necessary additional evidence can be slight, it must nevertheless be present. See, e.g., State v. Jordan, 663 N.W.2d 877, 882 (Iowa 2003); Sanborn, 564 N.W.2d at 815-16.
Beyond the identity of a fairly common name, the only correlative evidence was Wellner's description of the perpetrators as "boys," and the fact that Smith, twenty-two years old at the time of the incident and twenty-three years old at the time of trial, presumably appeared to be a young man. Wellner did not testify at trial and no one testified the defendant was the Jake Smith that Wellner had seen. We conclude the evidence is simply insufficient to raise a reasonable and legitimate inference that the defendant Jake Smith was the same Jake Smith identified by Wellner. We therefore reverse Smith's conviction, vacate his sentence, and remand this matter to the district court for dismissal.
No one testified that Wellner had identified the defendant. There was no photographic line-up or other identification procedure. The defendant made no statements admitting his involvement in this incident and there was no forensic evidence connecting the defendant to this offense. The record reveals no evidence indicating the defendant and the individual seen by Wellner were the same man.