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State v. Vinsick

Court of Appeals of Iowa

July 18, 2018

STATE OF IOWA, Plaintiff-Appellee,
CARLTON G. VINSICK JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.

         Carlton Vinsick Jr. appeals his conviction, sentence, and judgment of forgery following a jury trial.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          DOYLE, JUDGE.

         Following a jury trial, Carlton Vinsick Jr. was found guilty of forgery. He now appeals, challenging the sufficiency of the evidence to support his conviction and the effectiveness of his trial counsel's representation, among other things. Upon our review, we vacate Vinsick's conviction, judgment, and sentence, and we remand the case to the district court for a new trial.

         I. Background Facts and Proceedings.

         On the morning of March 16, 2017, Indianola Police Officer Mesha Wagner was dispatched to Peoples Bank to respond to a call from the bank that a person in its drive-through was attempting to deposit a possible forged check. Upon arriving, Officer Wagner observed two men in a white van in the bank's drive-through lane. The driver and owner of the van was Joshua Carney. His passenger was Carlton Vinsick. Carney had presented a check from the Sports Page Grill, a local business, in the amount of $3150 for deposit in his savings account at the bank. Carney had endorsed the check on the back.

         The owners of the Sports Page Grill told the officer an incomplete check had been left pinned to the bulletin board for business staff to tender to Doll Distributors, a vendor with a morning delivery scheduled, with "Doll" written in the "pay to the order of" line, as well as the date and the business owner's signature. The amount of the check was to be written in by staff after the delivery with the amount due to the vendor. The owners told the bank personnel and the officer the check was not supposed to be written to Carney or for that amount, and they did not know how Carney came to have the check. The business owned a 2002 red Chevy 1500 work truck that was generally used for "caterings and such."

         Ultimately, Carney and Vinsick along with Tony Schmitt were each charged with forgery in connection with the check, in violation of Iowa Code sections 715A.2(1) and (2) (2017). The State's theory of the crime was that Schmitt, an employee of the cleaning company used by the Sports Page Grill, stole the check from the business while he was cleaning during the overnight hours of March 15 into March 16. After work the morning of March 16, Schmitt met with Carney and Vinsick at Vinsick's home, and the three conspired to forge the check for $3150 and divide the money between them. To that end, Carney drove to the bank with Vinsick to cash the check.

         Carney and Vinsick were tried jointly. Officer Wagner testified that Carney gave a statement at the police station stating he had been given the check the morning of March 16 for working on a red truck while he was at Vinsick's home working on Vinsick's vehicle. In his statement, Carney explained that a friend of Vinsick's, whose name was either "Jeff or Tony" and who worked at the Sports Page Grill, had stopped by Vinsick's house while Carney was there. In addition to "Jeff or Tony," there was another guy named "Charlie or Craig" that "had a Red Chevy 1/2 Ton Pickup [and] said he worked at the Sports Page with this Jeff . . . . [H]e had his upper intake [and] EGR valve clogged with Carbon." "Charlie or Craig" asked how much Carney would

charge to work on his truck. At first [Carney] told him that [he] really didn't have the time but he offered to pay [Carney] well . . . . [Carney] thought all of those guy[s knew] each other so [he] agreed to help this Craig or Charlie . . . . [H]e said he [would pay Carney] double if [he] could save him the trouble of paying a shop their rates. [H]e couldn't pass it up so [he] did it [and] this Craig or Charlie wrote [him] the check[, ] shook [his] hand saying [Carney] saved him approximately $1800 [and] time compared to a shop . . . . When this Jeff came back [to Vinsick's after] working [Carney] told him about the guy with the Chevy 1/2 Ton because he was giving [Carney] crap about [Vinsick's] truck [and] how it looked the same. [Carney] shoved him . . . [and Vinsick] came [outside and Carney] showed [Vinsick] the amount on the check [and Vinsick] said I don't blame you. I wouldn't have passed that up either. So as soon as the bank opened [Carney] went to cash the check and had this [officer] questioning where [Carney] got it [and] who gave it to [him].

         Carney described "Charlie or Craig" as being five foot six to five foot eight inches tall, with dark hair and a goatee. Carney indicated that "Charlie or Craig" was at Vinsick's home the same time as "Jeff or Tony."

         Officer Wagner talked to one of the business's owners and connected "Tony" to the cleaner, Tony Schmitt. The officer obtained a copy of Schmitt's license photo and showed it to Carney, and Carney "made a positive ID." Officer Wagner confirmed that Carney was "sure this [was] the gentleman that gave [him] the check," and Carney said, "Yes, that's it. That's the gentleman." The officer then told Carney the picture was of Schmitt, and Carney "backtracked and said, 'Well, I don't think that's him. The gentleman that was here this morning with the truck had a hat on, so [Carney] really [did not] know if that [was] him.'"

         Officer Wagner asked Vinsick about the mystery man in a red pickup truck, and Vinsick reiterated a dark haired man with a goatee and a red truck had been at Vinsick's residence that morning, but Vinsick did not know the person. The officer also talked to Schmitt, who told her he had been at Vinsick's home that morning "after he had cleaned the Sports Page and was there for approximately a half hour and left." Schmitt told the officer he had not seen anyone in a red pickup truck that morning or the check that was allegedly given to Carney. The officer talked to Carney again, and Carney "changed his story . . . and said that, well, he didn't know if [red-truck man and Schmitt] were [at Vinsick's] at the ...

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