Opinion
No. 3-413 / 02-1684
Filed July 10, 2003
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
Traywick appeals his convictions for second-degree burglary and two counts of credit card forgery, contending there was insufficient evidence to submit the burglary charge to the jury and he was denied effective assistance of counsel. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, William Davis, County Attorney, and Donald Frank, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
A woman reported to police that someone entered her house without her permission and removed credit cards and other items from her purse. Police apprehended Harold Lee Traywick, who was charged with and later found guilty of one count of second-degree burglary and two counts of credit card forgery. See Iowa Code §§ 713.1; 715A.6 (2001).
On appeal, Traywick reiterates the contention he made in a motion for judgment of acquittal that there was insufficient evidence to submit the burglary charge to the jury. In his view, the State relied solely on his conceded possession of one of the woman's credit cards, a fact he contends cannot, standing alone, furnish the basis for a finding of guilt. See State v. Lewis, 242 N.W.2d 711, 723 (Iowa 1976); State v. Hall, 371 N.W.2d 187, 189-90 (Iowa Ct.App. 1985).
On this issue, the jury was instructed as follows:
If you find that the Defendant was in possession of recently stolen property, you may, but are not required to, infer that the Defendant committed the burglary that led to such possession. However, such an inference is not alone sufficient to convict the Defendant of burglary. There must be other evidence relating to the surrounding circumstances that show the Defendant's participation in the burglary in order for you to find the Defendant guilty of burglary.
Reviewing for error, we find sufficient "other evidence relating to the surrounding circumstances" to create a submissible issue on the burglary charge. See Hall, 371 N.W.2d at 190. A surveillance tape recorded Traywick trying to use the stolen credit card the same morning at a convenience store just two to three miles from the burglarized home. Traywick also gave inconsistent stories to two law enforcement officers, claiming to one that his car may have been seen in the vicinity of the crime scene because he lent it to people, but telling another that he never let anyone borrow his car. See Lewis, 242 N.W.2d at 722-23 (citing similar facts contained in People v. Hutton, 213 N.W.2d 320, 323 (Mich.Ct.App. 1972)). Given this evidence, we uphold the district court's denial of Traywick's motion for judgment of acquittal.
We preserve for postconviction relief Traywick's contentions that trial counsel was ineffective in failing to: 1) object to a question posed to an officer on the ground it misstated the record, assumed a fact not in evidence, and was leading; 2) object to the officer's answer on the ground it contained hearsay evidence; 3) seek a limiting instruction with respect to this testimony; and 4) argue that the challenged testimony violated his constitutional right to confront witnesses. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).
Counsel did object to a lead-in question as calling for hearsay testimony but did not obtain an on-the-record ruling on this objection and did not follow up with an objection to the specific question challenged here.