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State v. Johnson

Court of Appeals of Iowa

December 21, 2016

STATE OF IOWA, Plaintiff-Appellee,
v.
KEVIN EUGENE JOHNSON, Defendant-Appellant.

         Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.

         Defendant appeals his convictions for three counts of burglary in the third degree; one count of theft in the first degree; and one count of theft in the second degree. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., Tabor, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         The State charged defendant Kevin Johnson with Count 1: burglary in the third degree of a Family Dollar store on March 17, 2014; Count 2: burglary in the third degree of a Jehovah's Witness Church on March 17, 2014; Count 3: burglary in the third degree of the L & K Laundry on January 24, 2014; Count 4: theft in the first degree for property taken at the L & K Laundry; and Count 5: theft in the second degree for property taken at the Family Dollar. The State also alleged Johnson was subject to the habitual offender enhancement on each count. On December 30, 2014, Johnson stipulated he had been previously convicted of at least two felonies and was subject to the habitual offender enhancement.

         Johnson waived a jury, and a trial to the court commenced on January 6, 2015. On May 24, 2015, the trial court filed its findings of fact, conclusions of law and verdict-guilty on all counts as charged with the habitual offender enhancement. Johnson was sentenced on September 18, 2015, to imprisonment for a period not to exceed fifteen years on each count. Count 1 was ordered to be served consecutively to Count 3. Johnson filed a timely notice of appeal on September 21, 2015. On appeal, he claims (1) the convictions cannot stand as the testimony of the accomplice was not corroborated, and (2) the trial court abused its discretion in sentencing him to consecutive terms of imprisonment.

         I. Corroboration Issue.

         When the defendant challenges the trial court's determination that corroborating evidence existed to warrant submission of the case to the trier of fact, our review is for correction of errors of law. See Iowa R. App. P. 6.907.

         A. Legal standard for corroboration of accomplice testimony.

         Iowa Rule of Criminal Procedure 2.21(3) provides that a person may not be convicted "upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Corroborative evidence need not be strong nor confirm every material fact. State v. Berney, 378 N.W.2d 915, 918 (Iowa 1985). And it need not confirm all the elements of the crime charged. State v. Cuevas, 282 N.W.2d 74, 78 (Iowa 1979). Such evidence may be direct or circumstantial. State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997). Any corroborative evidence tending to connect the defendant to the commission of the crime supports the credibility of the accomplice and is sufficient. State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976). The only requirement is that the accomplice's testimony be supported in some material fact tending to connect the defendant to the crime charged. State v. Aldape, 307 N.W.2d 32, 41 (Iowa 1981). It must be inculpatory but need not be entirely inconsistent with innocence. State v. Larson, 512 N.W.2d 803, 806 (Iowa Ct. App. 1993).

         The corroboration requirement serves two purposes: "First, it independently tends to connect defendant to the crime. Second, it supports the credibility of an accomplice whose motives are clearly suspect because of the accomplice's self-interest in focusing blame on the defendant." State v. Brown, 397 N.W.2d 689, 694 (Iowa 1986). The existence of corroborative evidence is a question of law for the court, but its sufficiency is a question of fact for the fact finder. Bugely, 562 N.W.2d at 176. Each case must be governed by its own circumstances, and evidence that merely raises a suspicion the accused is the guilty party is not sufficiently corroborative of the testimony of an accomplice to warrant a conviction. State v. Gillespie, 503 N.W.2d 612, 617 (Iowa Ct. App. 1993).

         When evaluating sufficiency challenges, we do not resolve conflicts in the evidence, assess the credibility of witnesses, or weigh evidence. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). Rather, we view all the evidence in the light most favorable to the State, even if contradicted, and indulge in every legitimate inference that may be fairly and reasonably deduced from this evidence. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). The fact-finder decides which evidence to accept or reject. State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005).

         B. Discussion.

         At trial Johnson did not dispute that the crimes had occurred but denied his involvement. Evidence produced by the State at trial that Johnson was involved in the burglaries and thefts was substantially based on the testimony of an accomplice, Jimmy. Johnson claims that Jimmy's testimony was not corroborated as required by rule 2.21(3) and, therefore, the evidence was insufficient to convict him, his convictions must be reversed, and the case must be remanded for dismissal.

         In its written findings, the trial court set out the evidence establishing the burglaries and thefts occurred, as well as the evidence the court found corroborated the accomplice's testimony that Johnson participated in these crimes. Jimmy testified that he and Johnson committed all three burglaries, and Johnson does not challenge the trial court's findings of fact as not being supported by evidence.

         Since Johnson does not challenge the crimes occurred, we find it only necessary to look at the district court's findings as to evidence of corroboration connecting him to these crimes and determine if it meets the legal requirement to establish defendant's guilt.

         C. Burglaries and investigation.

         1. L & K Laundry.

         During the night of January 24, 2014, L & K Laundry in Sioux City was burglarized. When the laundry opened for business in the morning, the owner discovered the break-in and reported it to the Sioux City police. In investigating, police observed damage to the back door and a bar/brace inside the door indicating the door had been pried open. Additionally, officers found that the phone line on the outside of the building and wires connected to two alarms inside the building were cut. A safe inside the laundry office area had been moved, pried open, and the contents stolen. An identification technician processed the laundromat. No fingerprints were discovered; however, a partial shoe print consistent with Nike Shox shoes was obtained from on top of the safe. As of March 17, 2014, no arrests had been made in regard to this burglary.

         2. Jehovah's ...


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