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State v. Wulf

Court of Appeals of Iowa

February 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ANDREW RUDOLPH WULF, Defendant-Appellant.

          Appeal from the Iowa District Court for Davis County, Lucy J. Gamon, Judge.

         Defendant appeals his convictions for ongoing criminal conduct and two counts of second-degree theft.

          Mark C. Smith, State Appellate Defender, and Ashley Stewart, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          BOWER, JUDGE.

         Andrew Wulf appeals his convictions for ongoing criminal conduct and two counts of second-degree theft. We find there is sufficient evidence in the record to support Wulf's convictions. Wulf did not preserve error on his hearsay claims. We determine Wulf has not shown he received ineffective assistance on his claims defense counsel should have further challenged the sufficiency of the evidence or objected to alleged hearsay evidence. We preserve for possible postconviction relief two other claims of ineffective assistance. We affirm Wulf's convictions.

         I. Background Facts & Proceedings

         Wulf owned and operated Whitetail Ridge Outfitters, LLC (WRO), which provided guided hunts for hunters. Out-of-state hunters may obtain a hunting license in Iowa. See Iowa Code § 483A.8(3) (2017). However, many out-of-state hunters do not have access to land in Iowa where they can hunt. A hunter may hire an outfitter or guide, who has obtained permission for hunting in certain locations. A fully guided hunt usually includes lodging, meals, and guide services, such as transporting the hunter to the location, setting up blinds or tree stands, and maintaining trail cameras. In a do-it-yourself or self-guided hunt, the outfitter might only provide access to the property for hunting.

         In May 2016, Paul Rademaker entered into an agreement with WRO for a ten-day fully guided hunt in Iowa and Missouri beginning December 27, 2016, for $5000. Wulf paid for Rademaker's lodging at a motel in Bloomfield but only provided three or four meals, rather than the thirty meals Rademaker expected to receive. Also, Wulf never took Rademaker to any hunting locations. Wulf provided Rademaker with an electronic map with a pin on it and told Rademaker to go to the location himself. Rademaker's Iowa hunting license was only valid in Zone 6, but one of the locations Wulf sent to Rademaker was in Zone 5, where it was illegal for Rademaker to hunt. No locations were in Missouri. Wulf did not provide Rademaker with any other guide services. After a few days, Rademaker contacted another outfitter who took him to hunting locations, provided blinds and tree stands, and information from trail cameras. Rademaker did not receive a refund from Wulf.

         John Granberg entered into an agreement with WRO for a five-day fully guided hunt in Iowa, beginning December 27, 2016, for which he paid $2750. Wulf told Granberg to check in at the Bloomfield motel, where Wulf had paid for Granberg's lodging. Granberg wanted to go hunting that day. He exchanged calls and texts with Wulf, but Wulf never appeared to take him hunting. Granberg decided to leave Bloomfield. He went to another town and lined up another outfitter. Granberg asked Wulf for a refund but never got any money back.

         In May 2016, Randall McMillan entered into a contract with WRO for a five-day fully guided hunt in Iowa in December 2016 and paid a deposit of $1250. Under the terms of the contract, McMillan would be refunded his deposit if he did not receive a nonresident antlered deer-hunting license.[1] McMillan did not receive a nonresident antlered deer-hunting license in the drawing. Wulf did not give McMillan a refund for his deposit.

         Wulf was charged with ongoing criminal conduct, in violation of Iowa Code section 706A.2(4), a class "B" felony; and two counts of theft in the second degree, in violation of section 714.2(2), a class "D" felony. A jury found Wulf guilty of these charges; he was sentenced to terms of imprisonment not to exceed twenty-five years, five years, and five years, all to be served concurrently. Wulf was ordered to pay restitution of $4725 to Rademaker, $2750 to Granberg, and $1250 to McMillan. Wulf appeals his convictions.

         II. Sufficiency of the Evidence

         Wulf was charged with ongoing criminal conduct by engaging in an act of specified unlawful activity under section 706A.2(4), which provides, "It is unlawful for a person to commit specified unlawful activity as defined in section 706A.1." Section 706A.1(5) defines "Specified unlawful activity," as "any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state." The underlying offense for the charge of ongoing criminal conduct was theft by deception under section 714.1(3). The two charges of second-degree theft were also based on a theory of theft by deception.

         A person commits theft by deception when the person

Obtains the labor or services of another, or a transfer of possession, control, or ownership of the property of another, or the beneficial use of property of another, by deception. Where compensation for goods and services is ordinarily paid immediately upon the obtaining of such goods or the rendering of such services, the refusal to pay or leaving the premises without payment or offer to pay or without having obtained from the owner or operator the right to pay ...

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