Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.
The opinion of the court was delivered by: Vaitheswaran, P.J.
A defendant appeals his judgments and sentences for second- and third-degree theft, (1) challenging the sufficiency of the evidence supporting the jury's findings of guilt, (2) contending his trial attorney was ineffective in failing to require the jury to determine whether the acts involved a common scheme and should be aggregated, and (3) raising several other issues on appeal. AFFIRMED.
Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
A jury found John Wilson guilty of second- and third-degree theft in connection with a series of transactions involving the purchase of Apple iPods from Target department stores in the Des Moines area. On appeal, Wilson (1) challenges the sufficiency of the evidence supporting the jury's findings of guilt, (2) contends his trial attorney was ineffective in failing to require the jury to determine whether the acts involved a common scheme and should be aggregated, and (3) raises several other issues that, in his view, support reversal.
I. Sufficiency of the Evidence
The jury was instructed that, to prove theft, the State would have to establish the following: (1) during a designated time period, "the defendant and/or someone he aided and abetted took possession and/or control of property belonging to Target Stores;" (2) "[t]he Defendant and/or someone he aided and abetted did so with the intent to deprive the owner, Target Stores, of the property;" (3) "[t]he property, at the time of the taking, belonged to Target Stores."
Wilson contends the instructions "of necessity require[d] the victims to have actually been deceived," a finding that is "not circumstantially clear" on this record. To the contrary, the instructions did not require a finding of actual, subjective deception. They simply required the taking of property with the intent to deprive Target of that property. See Iowa Code § 714.1(1) (2007) (stating a person commits theft when he or she "[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"). The record contains more than substantial evidence to support those findings.*fn1 State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984) (setting forth the standard of review).
An investigation specialist employed by Target recounted the store's comprehensive inventory-tracking procedures, which included the linking of purchase and return receipts and associated digital video recordings. He identified cash purchases of five Apple iPods and returns of essentially empty iPod packages for cash refunds.
A police officer who reviewed the video recordings identified one of the people involved in the transactions as John Wilson. The officer executed a search warrant on Wilson's car and found purchase and return receipts for an iPod. He also found an envelope used in an undercover purchase of a stolen iPod. A reasonable juror could have found from this evidence that the State satisfied the elements of theft contained in the jury instructions.
II. Absence of Jury Instruction on Aggregation
Iowa Code section 714.3 explains the concept of aggregation as follows:
If money or property is stolen from the same person or location by two or more acts, or from different persons by two or more acts which occur in approximately the same location or time period, or from different locations by two or more acts within a thirty-day period, so that the thefts are attributable to a single scheme, plan, or conspiracy, these acts may be considered a single theft and the value may be the total value of all the property stolen.*fn2
In State v. Amsden, 300 N.W.2d 882, 886 (Iowa 1981), the Iowa Supreme Court discussed the fact-finder's role in implementing this language. The court stated, "If the State generates a fact issue on aggregating, that issue is ultimately to be decided by the fact finder." Amsden, 300 N.W.2d at 886. The court continued,
Although the five incidents were joined, both the State and Amsden had the right to have the jury pass on each incident separately. The jury not only had to decide the aggregation issue; it could find that some incidents were not established at all. As to each incident, the court should have submitted guilty-not guilty verdicts with an interrogatory as to the amount of the theft if the jury found that theft was proved. A final interrogatory should have been submitted to be answered if the jury found that ...