State of Iowa v. Anthony Frank Ernst ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 18–1623
Submitted November 17, 2020—Filed January 29, 2021
STATE OF IOWA,
Appellee,
vs.
ANTHONY ERNST,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
State seeks further review from court of appeals’ reversal of the
defendant’s conviction for attempted burglary. DECISION OF COURT OF
APPEALS VACATED; JUDGMENT OF CONVICTION AFFIRMED.
Oxley, J., delivered the opinion of the court, in which all justices
joined. Appel, J., filed a special concurrence.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender
(argued), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven (argued),
Assistant Attorney General, C.J. May III, Count Attorney, and Brigit M.
Barnes and Ry Allen Meyer, Assistant County Attorneys, for appellee.
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OXLEY, Justice.
We have long recognized that specific intent crimes are seldom
proved by direct evidence of the defendant’s intent, leaving the State to
rely on inferences to be drawn from the surrounding circumstances to
convince a jury beyond a reasonable doubt that the defendant had a
sufficiently culpable mental state to support a conviction. In this case, the
defendant convinced the court of appeals that his conviction could not be
supported on the theory that the jury improperly stacked inferences on
top of other inferences to find he attempted to burglarize a garage with the
intent to commit a theft. We disagree and conclude the State’s evidence—
and all reasonable inferences from that evidence—was sufficient to
support the defendant’s conviction.
I. Factual Background and Proceedings.
Anthony Ernst’s parole officer lives on a dead-end gravel road in
rural Cascade with her husband. The parole officer’s husband discovered
the service door to their garage had been pried open while they were at
work on August 21, 2017. The door was closed and locked when they left,
but the door was ajar with the knob still locked when he returned home.
The weather stripping around the door was damaged with what looked like
pry marks near the handle and near the bottom of the door. Nothing was
missing from the garage, and there was no indication anyone had entered
the house through the locked interior door. The parole officer contacted
police about the break-in, and an investigation followed.
Video footage from a business at the top of the dead end road showed
only one vehicle drove down the road toward the parole officer’s house that
day that was unaccounted for by local traffic, which passed the business
at 10:31 a.m. and returned approximately thirteen minutes later. Further
investigation led to Ernst based on his ownership of a white police model
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Crown Victoria, the same type of car observed in the footage. The parole
officer identified the vehicle from the video footage as belonging to Ernst
based on the distinct pattern of chipped paint on the car.
Ernst was subsequently arrested and charged with burglary in the
third degree with intent to commit assault and intent to commit theft. At
the close of the State’s evidence at trial, Ernst moved for a judgment of
acquittal. The district court granted the motion in part, concluding the
State failed to present sufficient evidence for a jury to find he intended to
commit an assault, but it did present sufficient evidence for the jury to
find he intended to commit a theft. Ernst proceeded to trial on the theft
version of burglary.
The jury returned a guilty verdict on the lesser included attempted
burglary charge. The district court entered judgment against Ernst and
sentenced him to the maximum two-year sentence. Ernst appealed,
challenging the sufficiency of the evidence. The court of appeals reversed
Ernst’s conviction, concluding the State’s only direct evidence showed
Ernst in the area but the remaining circumstantial evidence was too
speculative to support his conviction because it “require[d] a stacking of
inferences: first the inference [Ernst] forced entry to the garage, then the
inference he did so with intent to commit theft.” The State applied for, and
we granted, further review to address the court of appeals’ conclusion that
stacked inferences could not support Ernst’s conviction.
II. Analysis.
To prove Ernst was guilty of attempted burglary, the jury
instructions required the State to prove he (1) attempted to enter the
garage, (2) which was an occupied structure, (3) without permission or
authority (4) with the specific intent to commit theft. On appeal, Ernst
contends the State failed to present sufficient evidence to establish the
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first and fourth elements. Alternatively, he argues he is entitled to a new
trial because the weight of the evidence preponderates against his
conviction. Finally, Ernst claims his trial counsel was ineffective for not
challenging the admission of cell phone records and related testimony at
trial. We address each contention in turn.
A. Sufficiency of the Evidence. “We review the sufficiency of the
evidence for correction of errors at law.” State v. Kelso-Christy, 911 N.W.2d
663, 666 (Iowa 2018). We consider all evidence, not just the evidence
supporting the conviction, and view the evidence in the light most
favorable to the State, “including legitimate inferences and presumptions
that may fairly and reasonably be deduced from the record evidence.”
State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017) (quoting State v.
Williams, 695 N.W.2d 23, 27 (Iowa 2005)).
In evaluating the sufficiency of the evidence, we consider whether
“the finding of guilt is supported by substantial evidence in the record.”
Kelso-Christy, 911 N.W.2d at 666 (quoting State v. Meyers, 799 N.W.2d
132, 138 (Iowa 2011)). Substantial evidence “means a person may not be
convicted based upon mere suspicion or conjecture.” Tipton, 897 N.W.2d
at 692. “Substantial evidence exists when the evidence ‘would convince a
rational fact finder the defendant is guilty beyond a reasonable doubt.’ ”
Kelso-Christy, 911 N.W.2d at 666 (quoting Meyers, 799 N.W.2d at 138).
Ernst contends the State failed to prove: (1) anyone attempted to
enter the garage, (2) if someone attempted to enter the garage, that person
was Ernst, and (3) if Ernst did enter the garage, he did so with the specific
intent to commit theft. We conclude the State presented sufficient
evidence to support Ernst’s conviction.
With respect to establishing Ernst as the perpetrator of the
attempted burglary, the State presented evidence that Ernst was off work
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on August 21 to attend a child support hearing in the afternoon. Footage
from a traffic camera located one block from Ernst’s Dubuque home
showed Ernst left home around 8:45 a.m. and returned around 12:28 p.m.
Other city traffic cameras showed Ernst coming into Dubuque at 12:20
p.m. on Highway 151. A vehicle matching Ernst’s vehicle, including its
distinctive chipped paint pattern, was seen on video surveillance of a
business near the crime scene driving down the dead-end road toward the
parole officer’s house at 10:31 a.m. and driving back thirteen minutes
later. It was the only unaccounted vehicle on the dead-end road that day.
Ernst’s probation officer identified the car from the video surveillance as
belonging to Ernst. The video also revealed a driver wearing a brightly
colored sleeveless shirt, similar to the shirt Ernst was seen wearing later
that day at his child support hearing.
“While opportunity to commit a crime or mere presence at the scene
ordinarily is not a sufficient corroborative circumstance from which to
infer guilt,” substantial evidence of guilt can exist when presence is
considered with other evidence. State v. Schrier, 300 N.W.2d 305, 309
(Iowa 1981). Significant evidence in addition to Ernst’s presence in the
area supports his conviction. The State presented evidence that someone
had pried open the service door, contrary to Ernst’s argument that the
wind or an animal caused the door to be opened. That evidence included
testimony from both homeowners that the door was closed and locked
when they left that morning, evidence of pry marks they testified were not
previously on the weather stripping and doorframe, and evidence that the
door handle was still locked although the door was ajar when the husband
arrived home. Investigator Grant testified at trial, unchallenged, there had
been a forced entry.
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From the direct evidence that Ernst was driving the only
unaccounted-for vehicle on the road that day, coupled with the
circumstantial evidence that someone had pried open the service door, the
jury could have reasonably inferred that Ernst was the one who pried open
the door. This evidence provides substantial evidence to support the first
three elements of the burglary charge—that Ernst entered the garage1
without authorization.
The State was also required to prove Ernst entered the garage with
the specific intent to commit theft. “Specific intent is seldom capable of
direct proof.” State v. Walker, 574 N.W.2d 280, 289 (Iowa 1998).
Therefore, specific intent will often “be shown by circumstantial evidence
and the reasonable inferences drawn from that evidence.” Id.We first note that intent to commit theft can “reasonably be inferred
from the evidence of surreptitious entry and other circumstances.” State
v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); see also State v. Oetken,
613 N.W.2d 679, 686 (Iowa 2000) (en banc) (“An intent to commit theft
may be inferred from an actual breaking and entering of a building which
contains things of value.”); State v. Erving, 346 N.W.2d 833, 836 (Iowa
1984) (“[E]xperience teaches that, in the great majority of cases of unlawful
breaking and entering, the act [done is] with intent to steal.” (quoting State
v. Allnutt, 261 Iowa 897, 906, 156 N.W.2d 266, 271 (1968), overruled on
other grounds by State v. Gorham, 206 N.W.2d 908 (Iowa 1973) (en banc)));
State v. Woodruff, 208 Iowa 236, 240, 225 N.W. 254, 255 (1929) (“People
are not accustomed, in the nighttime, to enter the homes of others, when
asleep, with innocent purposes. The usual object is theft, and this is the
inference ordinarily to be drawn, in the absence of explanation, from
1Ernst conceded the garage was an “occupied structure,” the second element
under the jury instructions.
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breaking and entering at night, accompanied by flight upon discovery,
even though nothing has been taken.”). In State v. Erving, we found the
intent element satisfied from evidence the defendant removed a glass panel
from a locked and closed pharmacy area and testimony by the pharmacist
that “removal of the glass panel would greatly facilitate entry into the
pharmacy and access to the various controlled substances stored there.”
346 N.W.2d at 835.
The jury’s finding Ernst intended to commit a theft is supported by
substantial evidence. The State presented evidence that Ernst was in the
area of the garage between 10:31 a.m. and 10:44 a.m., a time he had
reason to know both homeowners would not be home. Ernst was aware
of his parole officer’s work schedule, and Ernst’s boss testified the parole
officer’s husband worked for a construction company that was often on
the same worksite as Ernst. Ernst’s sister testified she and Ernst had
previously located the parole officer’s address from incident reports
obtained from the City of Dubuque’s website. This additional evidence—
that Ernst knew his parole officer’s address and knew she and her
husband would likely be away from home in the midmorning hours—
provides sufficient additional circumstances to support the inference that
Ernst broke into the garage with the intent to take something. See
Commonwealth v. Madison, 397 A.2d 818, 824 (Pa. Super. 1979) (“Another
factor [indicating intent to commit theft] may be whether the evidence
indicates that the defendant thought the building was unoccupied at the
time of the entry.”).
Additionally, “[a] false story told by a defendant to explain or deny a
material fact against him is by itself an indication of guilt and . . . is
relevant to show that the defendant fabricated evidence to aid his defense.”
State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). Ernst denied he was
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anywhere near Cascade despite the video footage of a car identified as
Ernst’s being driven down the dead-end road toward his parole officer’s
house. Instead, he presented his sister and his mother as alibi witnesses,
both of whom testified Ernst had visited first his sister in Bernard, Iowa,
and then his mother in Epworth, Iowa, on the morning of August 21.
However, his sister admitted she failed to tell Investigator Grant this
information when he interviewed her. Similarly, Ernst’s mother was
confused about the timing of Ernst’s visit, and her testimony that Ernst
drove her into Dubuque to run errands and then dropped her off was
inconsistent with traffic camera footage showing Ernst entered Dubuque
on Highway 151 at 12:20 p.m. and returned alone to his home in Dubuque
at 12:28 p.m. The jury was free to disbelieve both witnesses’ testimony,
leaving them to conclude Ernst offered a false story of his whereabouts the
morning of August 21.
Although Ernst was convicted of only attempted burglary because
nothing was taken from the garage, the lack of a completed burglary does
not negate the intent element of Ernst’s conviction. See State v. Morelock,
164 N.W.2d 819, 822 (Iowa 1969) (holding failure to complete a breaking
and entry does not prevent jury from finding an unlawful intent); Allnutt,
261 Iowa at 905–06, 156 N.W.2d at 271 (noting intent to steal was not
negated merely because nothing was stolen). As it turned out, the garage
was immaculate, with no tools or small items for Ernst to take.
Additionally, the parole officer’s husband’s personal truck was in the
garage, which could have caused Ernst to believe someone was home and
to flee when he saw it. Further, the State was not required to refute every
possible inference from the evidence. See State v. Bentley, 757 N.W.2d
257, 262–63 (Iowa 2008) (holding the State does not have the “onerous
burden” of disproving hypotheses favorable to the defendant).
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Ernst contends his conviction is not supported by substantial
evidence because the State’s case relied on circumstantial evidence and
that circumstantial evidence must be “wholly inconsistent with any
rational hypothesis of his innocence,” citing State v. Schurman, 205
N.W.2d 732, 734 (Iowa 1973), overruled by State v. O’Connell, 275 N.W.2d
197 (Iowa 1979) (en banc), and State v. Truesdell, 679 N.W.2d 611, 618–
19 (Iowa 2004). He also argues the jury’s verdict relied on an improper
stacking of inferences from circumstantial evidence, first that Ernst was
the one who pried open the garage service door and then that Ernst did so
with the specific intent to commit theft. See State v. Reed, 875 N.W.2d
693, 711 (Iowa 2016) (Hecht, J., concurring specially) (“[O]ur cautious
approach to the doctrine of constructive possession should not recognize
a stack of speculative inferences piled one on top of another as substantial
evidence that Reed constructively possessed the drugs beyond a
reasonable doubt.”). Ernst misconstrues our jurisprudence concerning
circumstantial evidence.
We readily reject Ernst’s reliance on Schurman. We eliminated the
distinction between direct and circumstantial evidence over forty years ago
in State v. O’Connell, 275 N.W.2d at 204–05, decided after Schurman.
Previously, a conviction supported solely by circumstantial evidence could
stand only if the facts proved were not only “consistent with the guilt of
the accused, but they must [have] also be[en] inconsistent with any
rational theory of his innocence.” O’Connell, 275 N.W.2d at 204 (quoting
Iowa State Bar Ass’n, Uniform Instruction 501.13). Recognizing this
requirement was based on an “outmoded generality,” we joined the growing
number of federal and state courts that treat direct and circumstantial
evidence as equally probative. Id. at 204–05 (collecting cases, including
Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 138 (1954) (“If
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the jury is convinced beyond a reasonable doubt, we can require no
more.”)). Indeed, that “[d]irect and circumstantial evidence are equally
probative” is now one of the propositions our appellate rules “deem[] so
well established that authorities need not be cited” to support it. Iowa R.
App. P. 6.904(3)(p). Thus, contrary to Ernst’s arguments, the State need
not discredit every other potential theory to be drawn from circumstantial
evidence. See Bentley, 757 N.W.2d at 263 (“While the absence of direct
evidence that Bentley abducted J.G. from her house means the
prosecution cannot affirmatively disprove the hypothesis that someone
other than Bentley removed J.G. to the trailer, the State is not tasked with
such an onerous burden.”).
The same is true when a jury makes inferences from the evidence
presented at trial. Proof of specific intent is “seldom susceptible to proof
by direct evidence.” State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994)
(quoting State v. Olson, 373 N.W.2d 135, 136 (Iowa 1985)). Rather, proof
of intent usually depends on “circumstantial evidence and inferences
drawn from such evidence.” Id. “The requirement of proof beyond a
reasonable doubt is satisfied if it is more likely than not that the inference
of intent is true.” Id.While other conflicting scenarios can be postulated, a court
“faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.”
Bentley, 757 N.W.2d at 263 (quoting Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 2793 (1979)).
We also reject Ernst’s reliance on Truesdell to argue that evidence
susceptible to more than one inference is merely speculative and cannot
support a conviction. Truesdell was convicted of possession of a precursor
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with intent to manufacture a controlled substance, methamphetamine,
after he purchased seventy boxes of cold relief medication containing
pseudoephedrine. See Truesdell, 679 N.W.2d at 614. We held the evidence
was insufficient to support an inference that the defendant possessed the
cold medication with the requisite intent to manufacture
methamphetamine—as opposed to merely providing pseudoephedrine to
allow someone else to manufacture methamphetamine. Id. at 618–19. In
reversing Truesdell’s conviction for lack of sufficient evidence to support
the intent-to-manufacture element, we stated that “when two reasonable
inferences can be drawn from a piece of evidence, we believe such evidence
only gives rise to a suspicion, and, without additional evidence, is
insufficient to support guilt.” Id. Ernst argues this means the State must
disprove all other reasonable inferences before inferences from
circumstantial evidence may be used to prove an element of an offense.
Ernst reads too much into this isolated sentence. In Truesdell, the
State offered a single piece of evidence—possession of a large amount of
pseudoephedrine—from which a jury could reasonably infer either that the
defendant intended to manufacture methamphetamine or that he intended
only to supply the precursor for another to use in manufacturing
methamphetamine. In State v. Keeton, we distinguished Truesdell as “a
case where proof of intent depends upon a single piece of evidence from
which two reasonable inferences could be drawn.” 710 N.W.2d 531, 535
(Iowa 2006) (explaining Keeton was “not [such] a case”). In Keeton, the
defendant’s conviction for robbery with intent to commit assault was
supported by the collective evidence, including surveillance video showing
the defendant’s actions when a store clerk attempted to block the door and
the clerk’s testimony that she felt there was “no way” she could stop him
from leaving. Id. at 534–35. While the evidence was also consistent with
12
defendant’s testimony he never intended to assault the clerk and was
merely trying to flee the store following the robbery,
[t]he success of [the defendant]’s claim at trial hinged on the
facts as viewed by the fact-finder, and it is not for us to
interfere with the finding made when supported by
substantial evidence, even though the evidence may have also
supported a finding favorable to the defendant.
Id. at 535.
Likewise, this is not a case where inferences to establish each of the
contested elements of Ernst’s conviction are dependent “upon a single
piece of evidence from which two reasonable inferences could be drawn.”
Id. Truesdell does not change our analysis.
Finally, we reject Ernst’s argument that his conviction was premised
on an improper stacking of inferences. The rule “that a conviction cannot
be sustained if obtained by ‘piling inference on inference[,]’ . . . is oft cited,
[but] it begs ready definition.” United States v. Summers, 414 F.3d 1287,
1294 (10th Cir. 2005) (footnote omitted) (citation omitted) (quoting United
States v. Dunmire, 403 F.3d 722, 724 (10th Cir. 2005)). An example of
inference stacking was recently addressed by the Colorado Supreme Court
in People v. Donald, where the defendant was charged with violating bail
bond conditions that precluded him from leaving the state without
permission. 461 P.3d 4, 5–6 (Colo. 2020) (en banc). To prove the
defendant had actual knowledge of the bond conditions, the state
presented evidence about the “jail’s regular practice of having prisoners
sign bond paperwork before they are released,” which supported the
inference that the defendant in that case had in fact signed the bond
paperwork. Id. at 6. However, the state offered no additional evidence
that the defendant read the bail conditions, even if he did sign the
paperwork. Id. Rather,
13
to find that Donald had actual knowledge of the conditions,
the jury would have had to make inferences (e.g., that Donald
was afforded the opportunity to read the bond paperwork and
did so either when he signed it or thereafter) that rested on
another inference (i.e., that Donald had signed the bond
paperwork consistent with the jail’s routine practice).
Id. at 7.
The Colorado Supreme Court concluded a strict prohibition against
inference stacking was inconsistent with its previous adoption of the
substantial evidence test, which treated circumstantial evidence as equally
probative as direct evidence. Id. at 8–9. The court explained “the
inference-upon-inference prohibition was premised on now-outdated law
requiring the prosecution to exclude every reasonable hypothesis other
than guilt in cases premised solely on circumstantial evidence.” Id. at 9.
Instead, the court adopted the reasoning of those courts that
have concluded that although inference stacking is not
absolutely prohibited, the reliance on stacked inferences is
pertinent to the analysis of a sufficiency of the evidence claim
because a chain of inferences can become so attenuated that
reliance on it to sustain a conviction would be unreasonable
and would amount to speculation.
Id. (collecting cases).
Juries must necessarily make inferences when finding facts based
on circumstantial evidence. Cf. Southworth v. Commonwealth, 435 S.W.3d
32, 46 (Ky. 2014) (“[T]he modern trend is to abandon rules limiting the use
of circumstantial evidence, including an inference upon an inference.”)
(emphasis omitted) (quoting Eyal Zamir et al., Seeing is Believing: The Anti-
Inference Bias, 89 Ind. L.J. 195, 199 (2014)). We agree with the Colorado
Supreme Court that a strict prohibition against stacking inferences to be
drawn from circumstantial evidence is inconsistent with our current
formulation of substantial evidence. See Donald, 461 P.3d at 9; see also
United States v. Shahane, 517 F.2d 1173, 1178 (8th Cir. 1975) (“It is too
14
much to say, however, that an inference is necessarily invalid or
impermissible because it is based on a fact established in whole or in part
by a preceding inference.”). The relevant inquiry is not whether a fact
finding is based on an inference drawn from another inference. Rather,
the relevant inquiry is whether a fact finding is a legitimate inference “that
may fairly and reasonably be deduced from the record evidence.” Tipton,
897 N.W.2d at 692 (quoting Williams, 695 N.W.2d at 27). Allowing a jury
to rely on stacked inferences becomes problematic only when a jury’s
ultimate fact finding is based on speculation rather than on evidence in
the record. See Summers, 414 F.3d at 1295 (“[T]he chance of error or
speculation increases in proportion to the width of the gap between
underlying fact and ultimate conclusion where the gap is bridged by a
succession of inferences, each based upon the preceding one.” (quoting
Shahane, 517 F.2d at 1178)); see also Walls v. Jacob N. Printing Co., 618
N.W.2d 282, 286 (Iowa 2000) (en banc) (“[I]nferences can assist in
establishing a basic fact, but they cannot in and of themselves create
evidence.” (quoting In re Est. of Kerndt, 251 Iowa 963, 968, 103 N.W.2d
733, 736 (1960))).
Thus, like the Colorado Supreme Court, we do not categorically
prohibit stacking of inferences but consider whether the inferences are
supported by such evidence as to “convince a rational fact finder the
defendant is guilty beyond a reasonable doubt.” Kelso-Christy, 911
N.W.2d at 666 (quoting Meyers, 799 N.W.2d at 138).
Considering all of the evidence in the light most favorable to the
jury’s verdict, including reasonable inferences to be drawn from it, we
conclude Ernst’s conviction for attempted burglary with intent to commit
theft is support by substantial evidence.
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B. Weight of the Evidence. Alternatively, Ernst argues the district
court should have granted a new trial because the jury verdict is against
the weight of the evidence. “We generally review rulings on motions for
new trial asserting a verdict is contrary to the weight of the evidence for
an abuse of discretion.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).
The State claims this argument is inconsistent with Ernst’s
sufficiency of the evidence claim. “In contrast to a motion for new trial
brought under the sufficiency-of-the-evidence standard, a motion for new
trial brought under the weight-of-the-evidence standard essentially
concedes the evidence adequately supports the jury verdict.” Id. A new
trial is appropriate under a weight-of-the-evidence challenge “only in the
extraordinary case in which the evidence preponderates heavily against
the verdict rendered.” Id.While the weight-of-the-evidence standard allows the district court
to make its own credibility determinations, a district court may grant a
motion for new trial based on the weight of the evidence “only if more
evidence supports the alternative verdict as opposed to the verdict
rendered.” Id. “The question for the court is . . . whether ‘a greater amount
of credible evidence’ suggests the verdict rendered was a miscarriage of
justice.” Id. (quoting State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998)).
We agree with the State that Ernst merely repackaged his
sufficiency-of-the-evidence challenge into a weight-of-the-evidence
challenge. Similar to his argument to the district court, Ernst fails to
identify any specific evidence that preponderates so heavily in favor of
acquittal that we can say the district court abused its discretion in denying
his motion for a new trial. Ernst offered the testimony of his sister and his
mother as alibi witnesses to refute the State’s evidence showing he was in
the area of the attempted burglary. But that uncorroborated testimony
16
was not so credible to require the district court to overturn the jury’s
verdict. Ernst’s sister’s trial testimony that Ernst visited her the morning
of the attempted burglary was contradicted by her failure to tell the
investigator Ernst was at her house that day when she was previously
interviewed. Ernst’s mother’s testimony was contrary to the timing of
traffic photos showing Ernst returning to Dubuque alone around
12:20 p.m. Both witnesses’ testimony was contrary to the surveillance
video showing Ernst’s vehicle—and a person wearing clothing similar to
what Ernst wore later in the day—drive toward the location of the
attempted burglary at the time the alibi witnesses claimed Ernst was with
them.
On this record, we cannot say the district court abused its discretion
in denying Ernst’s motion for a new trial on the basis his conviction is
against the weight of the evidence.
C. Ineffective Assistance of Counsel. Finally, Ernst objects to the
State’s introduction of evidence related to his cell phone records. The State
elicited testimony from Investigator Grant about his use of cell tower
records to create a map indicating the cell towers Ernst’s phone pinged
when he received calls from his mother and whether the records and map
indicated Ernst was near the attempted burglary site outside Cascade, his
sister’s residence in Bernard, or his mother’s residence in Epworth. The
State also introduced phone records identifying the two calls Ernst’s
mother made to him at 11:44 a.m. and 11:48 a.m., during the time she
testified he was with her.
Since Ernst did not object to Investigator Grant’s testimony about
cell tower data, the map he created from that data, or the cell phone
records admitted at trial, he raises his claims through the ineffective
assistance of counsel framework. He argues his trial counsel was
17
ineffective for: (1) failing to object to the admission of testimony and the
accompanying map relying on historical cell site data from a witness not
qualified as an expert and (2) failing to object to the admission of cell phone
records as hearsay not fitting an exception.
We recently considered a similar challenge to an officer’s testimony
about the defendant’s general location based on a map created from cell
tower records, concluding that “the line between lay and expert testimony
involving historical cell site data [depends] on the underlying information
supporting the testimony.” State v. Boothby, 951 N.W.2d 859, 876, (Iowa
2020) (adopting the approach of the growing majority of jurisdictions).
Here, the State does not argue the testimony did not require an expert
witness, instead arguing only that Investigator Grant could likely meet the
expert requirements on a more fully developed record. Given the state of
the current record and the fact that the parties did not have the benefit of
our Boothby opinion, we conclude that Ernst’s ineffective assistance
claims are better left for postconviction-relief proceedings. See State v.
Harrison, 914 N.W.2d 178, 208–09 (Iowa 2018) (preserving claims for
postconviction-relief proceedings “so an adequate record of the claim can
be developed and the attorney charged with providing ineffective
assistance may have an opportunity to respond to defendant’s claims”
(quoting State v. Soboroff, 798 N.W.2d 1, 8 (Iowa 2011))).
III. Conclusion.
Ernst’s conviction for attempted burglary is affirmed.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
CONVICTION AFFIRMED.
All justices concur except Appel, J., who concurs specially.
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#18–1623, State v. Ernst
APPEL, Justice (concurring specially).
The court diligently examines the evidence in a light most favorable
to the jury’s verdict. I write separately to emphasize that the approach of
the court applies with equal force in civil contexts such as tort or
employment cases. For example, the notion that specific intent is rarely
shown by direct evidence is equally true in both criminal and civil settings.
The same may be said about the court’s approach to “stacking of
inferences.” At some point, of course, inferences become so remote or
attenuated that they simply cannot be sustained. But it is not mere
stacking but the overall remoteness or attenuation that matters. In other
words, what might be characterized as the stacking of reasonable
inferences does not necessarily prevent a jury from reaching a verdict
based upon them.
Although I regard this case as a close one, I agree that, as explained
by the majority, the inferences cumulatively provide sufficient evidence to
permit the jury to return the verdict it did in this case.