This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Clay County, Charles K. Borth, District Associate Judge. A defendant appeals her conviction for theft in the third degree.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney General, Michael J. Houchins, County Attorney, and Kristi Busee, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
Cari Jo Bergstrom appeals her conviction for theft in the third degree. She contends there was insufficient evidence to support the conviction, her trial counsel rendered ineffective assistance by failing to object to an incomplete jury instruction on aiding and abetting, and the district court applied the incorrect standard when considering Bergstrom's motion for new trial. She also contends the sentence imposed was not authorized by statute. We conditionally affirm Bergstrom's conviction, vacate the sentence, and remand for resentencing.
The State charged Bergstrom by trial information filed April 20, 2012, with theft in the third degree, in violation of Iowa Code sections 714.1(1) and 714.2(3) (2011). The State alleged that Bergstrom stole Xbox 360 and Wii video games valued between $500 and $1000 from Wal-Mart in Spencer. The proceeding came on for jury trial on December 18, 2012. Although there appeared to be ample evidence that Bergstrom was a principal in the theft, the State prosecuted Bergstrom under an aiding-and-abetting theory.
At trial, the State called a single witness, Christian Carlson. At the time of trial, Carlson was employed by the Clay County Sheriff's Office. Before commencing employment with the Clay County Sheriff, Carlson worked as an asset protection associate for Wal-Mart. As an asset protection associate, Carlson's responsibilities included the investigation of shoplifting.
At the end of December 2011, Carlson started working at the Spencer Wal-Mart. Carlson's supervisor asked him to investigate several customers who frequently returned merchandise with a high dollar value in exchange for cash or a gift card. As a part of his investigation, Carlson reviewed surveillance footage from the Spencer store's cameras and " started investigating who was coming with who, what vehicles they were using, [and] the items that they were returning." Carlson became suspicious of customer Tohnya Carney. When Carlson reviewed surveillance footage from December 23, 2011, it showed Bergstrom in the store with Carney. Carlson identified Bergstrom in the courtroom. He testified as to what the surveillance footage showed:
From what I can see on the video I can 100 percent visually notify it was Cari Bergstrom and Tohnya Carney selecting games and concealing them and exiting the store without going through a register and purchasing them.
The State entered the video into evidence and played it for the jury.
The jury found Bergstrom guilty of third-degree theft. The court sentenced her to a term of incarceration not to exceed two years in the custody of the Iowa Department of Corrections. The court suspended all but twenty days of the sentence, which were to be served in the local jail, and ordered two years' probation. Bergstrom now appeals.
Bergstrom contends there is insufficient evidence to support the verdict. Specifically, she contends the evidence does not show that she and Carney actually left the store with the items, that she aided and abetted any such theft, or that the value of the games was in excess of $500. We review challenges to the sufficiency of the evidence for the correction of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).
We first discuss the instructions provided to the jury. The court instructed the jury the State must prove the following elements of theft:
1. On or about the 23rd day of December, 2011, [Bergstrom] took possession or control of property of Wal-Mart, to wit: ...