State of Iowa v. Michael David Schenk ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0472
Filed November 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL DAVID SCHENK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, John D.
Ackerman, Judge.
Michael Schenk appeals from his convictions for two counts of first-degree
murder as an aider and abettor. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee.
Heard by Danilson, C.J., and Doyle and McDonald, JJ.
2
DANILSON, Chief Judge.
Michael Schenk appeals from his convictions for two counts of first-degree
murder as an aider and abettor, in violation of Iowa Code sections 707.1 and
707.2(1) (2013), in the deaths of Marvin Huelsing and Alice Huisenga.1 Schenk
asserts the district court erred in admitting duplicate evidence, there is insufficient
evidence to support the convictions for first-degree murder as an aider and
abettor, and the convictions were contrary to the weight of the evidence.
Because we find the district court did not abuse its discretion in admitting
duplicate evidence, the district did not error in overruling the motion for judgment
of acquittal as there was sufficient evidence supporting the convictions, and the
district court did not abuse its discretion in denying the motion for new trial as the
convictions were not contrary to the weight of the evidence, we affirm.
I. Background Facts & Proceedings.
The facts as presented at trial reflect that in the early morning hours of
March 10, 2014, Michael Schenk, Jayden Chapman, and Erika Dains met, used
methamphetamine, and rode in Schenk’s blue extended-cab truck to a farm
belonging to Marvin Huelsing, with the intent to steal scrap metal. Dains testified
while they were driving around the farm property collecting various items,
including steel posts, the truck got stuck in the mud. Efforts to pull the truck out
of the mud were unsuccessful, and it was beginning to become light outside.
Schenk and Chapman walked up towards the area of the property where a
mobile home was located to try to find something to help extract the truck from
1
Schenk was also convicted of second-degree arson, in violation of sections 712.1 and
712.3, but does not appeal that conviction.
3
the mud. Dains, who had remained with Schenk’s truck, heard a man yell, “I’m
going to call the sheriff” followed by the sound of a gunshot. Dains testified she
saw Chapman drive a “little truck”—later identified as belonging to Huelsing—
around the side of the mobile home, stop, and get out. Dains then saw Schenk
approach the truck and put a “long” gun in the cab. Schenk then ran down to
where Dains was located. Dains testified Schenk was crying and stated, “I had
to shoot him, I had to shoot him. I had no choice.”
Chapman then drove the small truck down, and Schenk placed the long
gun in his truck. At that time, Dains noticed a purse in the small truck. The purse
belonged to Alice Huisenga, who was a long-time friend and farming partner of
Huelsing. Huisenga would accompany Huelsing to the farm several times a
week to help Huelsing on the farm or have coffee in the mobile home.
Schenk, Chapman, and Dains then rode in the small truck back towards
the area of the property near the mobile home to again try to find something to
help get Schenk’s truck out of the mud. Dains saw a man lying on the ground
near the mobile home “with blood bubbles coming out of his mouth.” Schenk
approached the man and took his wallet, ID, and cellphone. Dains testified while
Schenk was leaning over the man, she heard Schenk say he was not dead and
then Schenk and Chapman leaned over the body whispering. Dains, Schenk,
and Chapman then drove the small truck back down near Schenk’s truck and
were finally able to extract Schenk’s truck from the mud using chains.
After discussing the need to “get rid of it,” Schenk and Chapman lit the
small truck on fire. Schenk’s truck was then driven back to the top of the
property near the mobile home. While Dains waited in Schenk’s truck, Schenk
4
went into the mobile home, came out carrying gas cans, and placed them in the
truck near Dains, along with the gun and “some clothing-looking things.” After
Schenk came out of the mobile home, Dains saw flames coming from the
structure. She testified that prior to setting fire to the mobile home, Schenk made
a comment about his “sweat and the shells, the gun shells” being inside.
Schenk, Chapman, and Dains then left the property. They retrieved Dains’ car
and she followed Schenk and Chapman to Derek Olbertz’s house.
Olbertz testified he saw Schenk, Chapman, and Dains on the morning of
March 10, 2014, trying to unload items into his backyard and he told them they
could not leave the scrap metal there. He testified Schenk smelled of gasoline
and “like being around a campfire, . . . like burnt rubber.” Dains testified that
while at Olbertz’s house, Schenk and Chapman moved the gun, clothing items,
and gas cans to her car. Dains then took Chapman to the hotel where he was
staying, and Chapman unloaded the gun, clothing items, and gas cans.
A fire was reported and officers arrived at Huelsing’s farm on the
afternoon of March 10, 2014. Officers found Huelsing’s badly-burned body near
the mobile home. After the fire subsided, a body—later identified as
Huisenga’s—was found inside the mobile home. The medical examiner testified
Huelsing sustained two gunshot wounds to his chest, one to his back, and one to
the back of his head. The medical examiner stated Huisenga likely had
sustained one to four gunshot wounds, based on evidence of internal lacerations
and skull fractures.
A witness who drove by Huelsing’s farm on the way to school every day
came forward after news of the incident spread. She testified that on the
5
morning of March 10, 2014, she saw two “skinny” men standing near a blue truck
on Huelsing’s property.
While searching the farm property in the days following the incident,
officers located a Walmart receipt on the ground. The information on the receipt
was tracked to Schenk’s debit card. Walmart video surveillance showed the
person who made the purchase drive away in a blue truck.
On March 12, 2014, Schenk and Chapman went to Dains’ house. She
testified they were worried, said they were going to Mexico, and told her not to
tell police officers anything she knew. While Schenk and Chapman were at her
house, officers arrived and arrested them.
In an interview with officers, Schenk provided information leading the
officers to find the items left near the motel where Chapman was residing,
including a rifle and ammunition, clothing, and items belonging to Huelsing and
Huisenga. Huelsing’s blood was found on the rifle. Schenk’s right thumb print
was found on the bag containing the ammunition. Additionally, a pair of jeans
found with the other items was determined to have Schenk’s DNA on the
waistband. Huelsing’s DNA was extracted from a spot of blood found on the
back of one of the legs of those jeans.
On March 21, 2014, Schenk was charged by trial information with two
counts of first-degree murder and one count of first-degree arson. On January
28, 2015, a jury returned guilty verdicts on two counts of first-degree murder, as
an aider and abettor, and one count of second-degree arson. Although the jury
could have found Schenk was the principal actor, the jury answered an
6
interrogatory wherein they stated their verdict was premised upon the unanimous
finding that Schenk aided and abetted the murders. Schenk now appeals.
II. Standard of Review.
“We review the district court’s evidentiary rulings for an abuse of
discretion.” State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013). Sufficiency-
of-evidence claims are reviewed for correction of errors at law. State v. Tyler,
873 N.W.2d 741, 746 (Iowa 2016). And “[w]e review a district court’s ruling as to
whether a verdict was contrary to the weight of the evidence for an abuse of
discretion.” Thompson, 836 N.W.2d at 476.
III. Analysis.
A. Admission of Receipt. Schenk first contends the district court erred in
denying his motion in limine and allowing admission of the Walmart receipt at
trial. After photos were taken documenting the contents and condition of the
receipt, it was destroyed by fingerprint testing. Schenk contends admission of
the photographs of the receipt was unfair and constituted improper admission of
duplicate evidence.2
Iowa Rule of Evidence 5.1003 provides, “A duplicate is admissible to the
same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original or (2) under the circumstances, admission of the
duplicate would be unfair.” As the district court noted, Schenk has not raised a
“claim that somehow the picture is not a true and accurate depiction of what the
receipt was before the testing.” Rather, Schenk argues admission of the
2
“A ‘duplicate’ is a counterpart produced by the same impression as the original, or from
the same matrix, or by means of photography, . . .” Iowa R. Evid. 5.1001(3).
7
photographs of the receipt was unfair because the defense never had the
opportunity to compare the photos to the original receipt before it was destroyed.
An “original is not required and other evidence of the contents of a writing,
recording, or photograph is admissible if . . . [a]ll originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith.” Iowa R.
Evid. 5.1004(1). Because Schenk does not claim and has not shown the
destruction of the receipt by testing was in bad faith, nor does he dispute the
photographs are accurate depictions of the receipt prior to testing, we find the
district court did not abuse its discretion in admitting the photographs of the
receipt at trial. The admission of the photographs of the receipt did not prejudice
Schenk, and thus was not unfair, because they were cumulative evidence. The
receipt only connected Schenk to the scene and ultimately to his truck by the
Walmart video. The purchase reflected on the receipt was insignificant. Other
evidence presented at trial, including the eye witness testimony of two men near
a truck matching the description of Schenk’s truck on the property, the testimony
of Erika Dains, and the DNA evidence placed Schenk at the scene on the
morning of the incident. Schenk also does not argue the original was required for
these proceedings, nor do we know of any such requirement.3 Moreover,
3
Iowa Rule of Evidence 5.1004 provides:
The original is not required and other evidence of the contents of a
writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any
available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original
was under the control of the party against whom offered, that party was
put on notices, by the pleadings or otherwise, that the contents would be
8
Schenk did not suggest he was unable to obtain a copy of the receipt from
Walmart.
B. Sufficiency of the Evidence. Schenk also asserts the district court erred
in denying his motion for judgment of acquittal because there was insufficient
evidence to support Schenk’s convictions for first-degree murder as an aider and
abettor.
In reviewing the sufficiency of the evidence for correction of errors at law,
“we view the evidence in the light most favorable to the State” and uphold the
verdict “if substantial evidence supports it.” Tyler, 873 N.W.2d at 746-47 (citation
omitted). “Evidence is considered substantial if . . . it can convince a rational jury
that the defendant is guilty beyond a reasonable doubt.” Id. at 747 (citation
omitted). In evaluating a sufficiency-of-the-evidence claim:
Direct and circumstantial evidence are equally probative. A jury is
free to believe or disbelieve any testimony it chooses and to give as
much weight to the evidence as, in its judgment, such evidence
should receive. . . . A jury’s assessment of credibility may only be
ignored on appeal when the testimony is so impossible, absurd,
and self-contradictory that it may be deemed a nullity.
State v. Speaks, 576 N.W.2d 629, 632 (Iowa Ct. App. 1998) (internal citations
omitted).
“To sustain a conviction on the theory of aiding and abetting, the record
must contain substantial evidence the accused assented to or lent countenance
and approval to the criminal act either by active participation or by some manner
a subject of proof at the trial or hearing, and that party does not produce
the original at the trial or hearing; or
(4) Collateral matters. The writing, recording, or photograph is not
closely related to a controlling issue.
9
encouraging it prior to or at the time of its commission.” Tyler, 873 N.W.2d at
750 (citations omitted).
Schenk contends the State has not shown “anything more than mere
presence at the scene of the crime and association with Chapman.” Schenk
argues there is insufficient evidence to show he aided and abetted Chapman in
committing the murders.
While the mere presence of [the defendant] at the scene of the
crime does not prove that he aided and abetted its commission,
aiding and abetting need not be shown by direct proof. It may be
inferred from circumstantial evidence including presence,
companionship and conduct before and after the offense is
committed.
Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982) (citations omitted). The jury
was instructed as to this standard in Jury Instruction 16:
“Aid and abet” means to knowingly approve and agree to the
commission of a crime, either by active participation in it or by
knowingly advising or encouraging the act in some way before or
when it is committed. Conduct following the crime may be
considered only as it may tend to prove the defendant’s earlier
participation. Mere nearness to, or presence at, the scene of the
crime, without more evidence, is not “aiding and abetting.”
Likewise, mere knowledge of the crime is not enough to prove
“aiding and abetting.”
Schenk cites to Tyler, and raises the distinction between a theory of aiding
and abetting and joint criminal conduct. 873 N.W.2d at 752 (noting that under a
theory of joint criminal conduct, there is “a joint crime in which the defendant
participates, followed by a second crime that may have been unplanned but
involved reasonably foreseeable conduct in furtherance of the first crime”).
Schenk argues that he may have been involved in scrap metal theft and arson
but the circumstantial evidence along with any statements about fleeing the
10
country do not necessarily implicate him in aiding and abetting the two murders.
We disagree. We find substantial evidence, albeit circumstantial evidence, in the
record supports Schenk’s knowledge of and active participation in the murders.
Eyewitness testimony placed two men and a truck matching the
description of Schenk’s truck on the property at the time the crimes were
committed. The receipt found on the property also placed Schenk at the scene.
Dains’ testimony also placed Schenk at the scene, and she observed both
Schenk and Chapman approach the area of the mobile home. About one and
half hours later she heard a man yell, “I’m going to call the sheriff.” Immediately
after hearing the man yell, she heard a gunshot. She then saw Schenk place a
gun in the small truck. Dains testified Schenk’s demeanor was shaken; he was
crying and he admitted to shooting a man.
After returning to the area of the mobile home in the small truck, Dains
saw Schenk take a wallet, identification information, and a cell phone from
Huelsing’s person while he lay on the ground. Dains stated Schenk and
Chapman broke two cell phones, including the phone Schenk took from
Huelsing’s person. She also heard Chapman tell Schenk “we” have to start the
small truck “on fire or something,” to which Schenk responded, “yeah I know.”
She then observed the small truck on fire. Dains also observed Schenk enter the
mobile home and heard Chapman say, “hurry up.” Before Schenk entered the
mobile home he commented that his sweat and the shells could be found inside.
After five or ten minutes, she saw Schenk exit the mobile home with gas cans
and later saw the mobile home in flames. At some point, Dains was told by
Chapman, “I had to take control because [Schenk] couldn’t go through with it.”
11
The same morning, Olbertz testified Schenk attempted to leave scrap
metal at Olbertz’s property. Olbertz noted that Schenk smelled of gasoline and
burnt rubber. Dains testified that on March 12 when Schenk and Chapman were
at her house prior to being arrested there by officers, Schenk stated “they
couldn’t live here anymore and that they were going to Mexico.” Dains also
testified Schenk “told me that cops would come and question me and [told] me
just to say I don’t know nothing.”
Schenk later led officers to the location of incriminating evidence including
the rifle with Huelsing’s blood on it, the bag of ammunition with Schenk’s
fingerprints on it, items belonging to Huelsing and Huisenga, broken pieces of
two cell phones, and the jeans containing both Schenk’s DNA and Huelsing’s
blood.
The evidence reflects Schenk assented to or lent countenance and
approval to the murders at the time they were committed and engaged in conduct
following the murders to conceal the crimes. Although Dains did not observe
who fired the rifle, there is ample circumstantial evidence of Schenk’s
participation as an aider and abettor in the murders. Schenk and Chapman were
working together to steal scrap metal, walked to the mobile home together,
communicated with each other over the body of Huelsing, discussed setting fire
to the small truck, and worked to extract Schenk’s vehicle. Schenk drove to and
from the scene of the crimes. Schenk was observed in possession of a rifle at
the scene. Both Huelsing and Huisenga were shot and killed. Although there is
direct evidence of Schenk’s involvement in the theft and arson, we nonetheless
determine the circumstantial evidence convincingly supports his involvement as
12
an aider and abettor to the murders of Huelsing and Huisenga. Unlike joint
criminal conduct where the second crime involves reasonably foreseeable
conduct, here, Schenk was present at the scene, a companion with Chapman,
and knowingly participated in acts before, during, and after the murders to aid in
their commission. We therefore find there is sufficient evidence to support
Schenk’s convictions for first-degree murder as an aider and abettor, and we
hold the district court did not err in denying the motion for judgment of acquittal.
C. Weight of the Evidence. Schenk alternatively contends the district
court abused its discretion in denying his motion for new trial because the verdict
was contrary to the weight of the evidence.
“On a motion for new trial, . . . the power of the court is much broader
[than on a motion for judgment of acquittal]. It may weigh the evidence and
consider the credibility of witnesses.” State v. Maxwell, 743 N.W.2d 185, 192
(Iowa 2008) (citation omitted). “The district court has broad discretion in ruling on
a motion for new trial.” State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).
“[T]he power to grant a new trial on this ground should be invoked only in
exceptional cases in which the evidence preponderates heavily against the
verdict.” Maxwell, 743 N.W.2d at 192 (citation omitted).
Upon the understanding that a motion for new trial “is addressed to the
discretion of the court which should be exercised with caution and should be
invoked only in the exceptional case in which evidence preponderates heavily
against the verdict,” the district court denied the motion for new trial. The court
found that the verdict was not contrary to the weight of the credible evidence.
We acknowledge there are reasons to withhold weight from the testimony of
13
Dains, such as the plea offer tendered to her,4 but she also acknowledged facts
contrary to her interests, and based on the facts as set forth above, we find the
district court did not abuse its discretion in denying the motion for new trial.
IV. Conclusion.
We find the district court did not abuse its discretion in admitting duplicate
evidence, the district court did not err in finding sufficient evidence to support
Schenk’s convictions for first-degree murder as an aider and abettor, and the
district court did not abuse its discretion in denying the motion for new trial based
on its finding the verdict is not contrary to the weight of the evidence. We
therefore affirm.
AFFIRMED.
4
At the time of Schenk’s trial, Dains had entered pleas pursuant to a plea agreement to
burglary in the second degree and accessory after the fact and was in custody but was
awaiting sentencing.