Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
The opinion of the court was delivered by: Mullins, J.
A defendant appeals from his conviction for criminal mischief in the third degree challenging the sufficiency of the evidence and his attorney's effectiveness. REVERSED AND REMANDED.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Timothy McGrean appeals from his conviction for criminal mischief in the third degree alleging there was insufficient evidence to prove (1) he aided and abetted another in the commission of the offense, (2) he had the requisite specific intent, and (3) he damaged property with a value exceeding $500 but no more than $1000. He also asserts his counsel was ineffective in (1) failing to request a jury instruction on the specific intent necessary for aiding and abetting,
(2) failing to object to a jury instruction that did not conform to the evidence, and
(3) failing to object to prosecutorial misconduct. As we find insufficient evidence to support the jury verdict, we reverse McGrean's conviction and remand for a new trial.
I. BACKGROUND FACTS AND PROCEEDINGS.
McGrean and his wife, Pam, were formerly neighbors of Merle Powell. On
September 1, 2011, Pam asked Powell for a ride to her ex-husband's house. Pam was intoxicated, but Powell obliged. Powell left after a fight erupted between Pam and her ex-husband.
Meanwhile, McGrean had learned Pam was intoxicated at Powell's home. McGrean contacted Pam's son, Jacob, to pick him up and take him to Powell's home to retrieve Pam. When Jacob and McGrean arrived, they discovered Pam had already left with Powell.
Charlotte Howard, Powell's long-term girlfriend, heard her dogs barking and looked out her window to see McGrean striking Powell's truck with what she believed was a baseball bat. She also observed Jacob standing nearby.
Howard watched as McGrean broke the windows, side mirrors, and headlights out of the truck. She contacted the police, who arrived after McGrean and Jacob left. Powell was also alerted to the incident and arrived back home after the police were on scene.
The State filed a trial information charging McGrean with criminal mischief in the second degree. The case proceeded to a jury trial, where Jacob testified he was the one that struck Powell's truck breaking all the windows, mirrors, and lights. Jacob claimed McGrean did not know he was going to do it until right before he struck the truck with a crowbar. Powell, an automobile mechanic, testified the non-operable truck was worth $2500, and it had not been repaired because the repair shop said the damage was more than the truck was worth.
The jury found McGrean guilty of the lesser-included offense of third-degree criminal mischief. He received a two-year suspended sentence and was placed on probation for two years. He now appeals.
II. SCOPE AND STANDARD OF REVIEW.
Our review of challenges to the sufficiency of the evidence ...