Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
A defendant contends (1) the record contains insufficient evidence to support the jury's finding of guilt on a theft charge and (2) his trial attorney was ineffective in failing to object to a marshalling instruction that included an uncharged alternative.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Michael J. Walton, County Attorney, and Joe Grubisich, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Tabor, J., takes no part
After large amounts of copper pipe turned up missing from a plumbing store, the State charged Wayne Powell with second-degree burglary and second-degree theft. A jury subsequently found Powell not guilty of second-degree burglary, but guilty of second-degree theft. On appeal, Powell contends (1) the record contains insufficient evidence to support the jury's finding of guilt on the theft charge and (2) his trial attorney was ineffective in failing to object to a marshalling instruction that included an uncharged alternative.
I. Sufficiency of the Evidence—Second-Degree Theft
The jury was instructed that the State would have to prove the following elements of theft:
1. On or about the seventh day of June 2012, the defendant did one of the following:
(a)took possession or control of copper sticks and rolls; or
(b) exercised control over the copper knowing or having reason to know it was stolen
2. The defendant did so with the intent to deprive Triton Plumbing of the ...