from the Iowa District Court for Floyd County, Christopher C.
defendant appeals his convictions for theft and ongoing
G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for
J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
five-dollar bill used to buy a cheeseburger at the Colwell
Tap prompted the Floyd County Sherriff to investigate a
string of cash thefts from gaming machines stationed in local
businesses. The investigation's focus on Daniel Connerley
led to his convictions for three counts of theft, as well as
one count of ongoing criminal conduct. On appeal, he
challenges the district court's supplemental instruction
to the jury on one theft count and his related conviction for
ongoing criminal conduct. Because the district court properly
corrected a faulty verdict form before accepting the
jury's verdicts, we affirm his convictions.
Facts and Prior Proceedings
Kirsch owns Colwell Tap. In July 2016, Connerley came into
her bar around noon, ordered a cheeseburger, and played the
Golden Shamrock, one of the four gaming
machines she kept in her establishment. Before
leaving about an hour later, Connerley paid Kirsch for lunch,
handing her two five-dollar bills. One of the bills looked
familiar-the corner was missing just like a five-dollar bill
Kirsch slid into one of the machines earlier that
morning. Suspicious, Kirsch unlocked the machines
to check the money inside. She discovered they were empty
when, according to her tally, they should have contained
alerted the Floyd County sheriff and the following day
officers executed a search warrant for Connerley's home
and car. In late July, the State charged Connerley with
fourth-degree theft in violation of Iowa Code sections
714.1(1) and 714.2(4) (2016).
following month, Rick Lensing, owner of 218 Fuel Express,
discovered damage to one of the gaming machines in his
convenience store. He notified Floyd County authorities and
called Redline Vending, which maintained the machines. An
inspection revealed $683 was missing. Redline Vending then
checked its machines at the nearby Liquor Beer & Tobacco
(LBT) Outlet Store "because it's common if machines
get broken into in one place, it often happens in a string of
locations." The LBT gaming machines also showed signs of
tampering and were short $1688. Officers conducted a
warranted search of Connerley's vehicle on August 14,
finding $633 cash in his wallet and a stack of fifty
State charged Connerley for his alleged involvement in the
Fuel Express and LBT thefts. The trial information alleged
four counts: (1) ongoing criminal conduct in violation of
Iowa Code section 706A.2(4); (2) second-degree theft in
violation of section 714.2(2), for taking property valued at
more than $1000 but not more than $10, 000 from the LBT
machines; (3) third-degree theft in violation of section
714.2(3), for taking property valued at more than $500 but
not more than $1000; and (4) (unrelated to the gaming-machine
thefts) possession of methamphetamine. The district court
granted the State's motion to consolidate the two
two-day jury trial began on September 12, 2017. The business
owners and investigators described how the machines were
broken into and cash was taken. The State also presented
surveillance video of Connerley at the machines.
close of the trial, the court instructed the jury on the
correlation between the amount of cash taken and the degree
If you find the defendant guilty of theft on the Colwell Tap
charge, the LBT Outlet charge, or the Fuel Express charge,
then you must determine the degree of theft for that crime,
which is based on the amount of cash taken in its commission.
The State must prove the amount of cash taken. The following
are the different degrees of theft:
1.The theft of no more than $200 in cash is theft in the
2.The theft of more than $200 but no more than $500 in cash
is theft in the fourth degree.
3.The theft of more than $500 but no more than $1, 000 in
cash is theft in the third degree.
4. The theft of more than $1, 000 but no more than $10, 000
in cash is [t]heft in ...